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Israel: Sex-Offense Suspect Declared Extraditable to Australia after Long Process

(Oct. 12, 2020) On September 21, 2020, Jerusalem District Court Judge Hannah Miriam Lump declared Malka Leifer extraditable to stand trial in Australia for sex offenses she allegedly committed between 2000 and 2008 in that country. (Extradition File 23733-08-14 Israel v. Leifer, Dist. Ct. (Jerusalem), decision by Judge Hannah Miriam Lump, Sept. 21, 2020 (Decision).)

Background

Leifer fled to Israel on March 6, 2008, two days after having been suspended from her job as a principle at an ultra-orthodox (Haredi) Jewish school in Melbourne, Australia. (Decision para. 10.) In a highly unusual proceeding, Leifer’s extradition trial extended to over 70 hearings, centering, among others, on whether extradition should be barred because of her alleged mental illness. On March 18, 2018, the Supreme Court rejected that claim and ordered Leifer’s incarceration pending decision on her extradition to Australia. The Court found that she had misrepresented herself as a mentally ill person and recognized the need to prevent her from fleeing. (Request 2003/18 Attorney General v. Malka Leifer, State of Israel: The Judicial Authority.)

District Court Decision

  1. Procedural Requirements

Judge Lump rejected the claim that extradition should be barred because of alleged procedural defects under Australian law. Such allegations should be discussed before the Australian court, not before the Israeli court, she held. Similarly, the need for an additional procedure under Australian law for Leifer to stand trial in Australia, Lump held, did not justify a rejection of the extradition request. (Decision paras. 41-48.)

  1. Public Policy

Lump further rejected the defense’s claim that Leifer’s extradition would violate public policy under Israel’s Extradition Law 5714-1954 because press coverage of the case would allegedly make it impossible to find impartial jurors in Australia for her trial. According to Lump, there was no proof that neutral jurors could not be found, neither was there any doubt that a modern country with an independent legal system like Australia would find an appropriate solution should a problem arise. (Extradition Law 5714-1954, § 2B(a)(8), Sefer HaHukim [Book of Laws] 5714 no. 163 p. 174, as amended; Decision para. 90.)

Lump similarly rejected the claim that if extradited Leifer would not be able to observe her Haredi lifestyle, thereby violating Israel’s public policy. In Lump’s opinion such harm, if it existed, did not amount to a violation of the basic principles of the State of Israel. Moreover, if such a claim were accepted it would not be possible to extradite any Haredi person without an explicit commitment from the requesting state to comply with the list of demands presented by Leifer’s counsel, Judge Lump said, and

… the entire populations would be immune from extradition due to their lifestyle. It should be emphasized that the starting point is that the State of Israel concludes extradition agreements with liberal countries that respect religious customs and lifestyles of different religions. This [conclusion] is reinforced by the Australian government’s explicit undertaking to provide the respondent with kosher food … noting that kosher meals are already provided to prisoners who ask for it. In addition, there is a rabbi in the prison who takes care of the needs of the Jewish prisoners …. There appears to be no genuine concern about incarceration conditions that would harm the respondent to a degree that amounts to a determination of harm to Israel’s public policy. (Decision paras. 92-93.)

  1. Residence

In accordance with the Extradition Law, the extradition of an Israeli citizen and resident of Israel who has committed an extraditable offense does not necessarily extend to serving a prison sentence in the requesting state following adjudication. Rather, the requesting state must commit “in advance to transfer [the Israeli citizen/resident] back to the State of Israel for the purpose of serving his/her sentence therein, if convicted and sentenced to imprisonment.” (Extradition Law § 1A(a), as amended; see also Ruth Levush, The Sheinbein Saga and the Evolution of Israel’s Extradition Law, In Custodia Legis (Mar. 20, 2014).)

Although Leifer was undeniably an Israeli citizen at the time of the alleged offenses, Judge Lump concluded that Leifer was not a resident within the meaning of section 1A(a) of the Extradition Law. According to established precedents, proof of such residence would require evidence that Israel was the center of the life of the person whose extradition is requested. According to Lump,

[Leifer] lived in Australia, her livelihood was in Australia, her husband and children lived with her in Australia, and she was also very involved in the local community. It must be added that the respondent had a permanent residence visa without restrictions in Australia, including the possibility of applying for Australian citizenship. (Decision para. 103.)

  1. Appealability

Leifer has a right to appeal the decision to the Supreme Court within 30 days from September 21, 2020.