Supreme Court Refuses Adalah's Request to Appeal Bereaved Father's Sentence

On 29 January 2003, the Supreme Court of Israel dismissed a motion filed two days earlier by Adalah on behalf of Mr. Abdel-Menem Abu Saleh. The motion sought permission to appeal against a more severe sentence imposed on Mr. Abu Saleh by the Jerusalem District Court, at the request of the State. Mr. Abu Saleh was convicted last year of assaulting Police Sergeant Guy Raif at a March 2001 session of the official Commission of Inquiry into the October 2000 protest demonstrations. He struck Sergeant Raif after hearing evidence that the latter had been involved in the killing of his son, Walid Abdel-Menem Abu Saleh.

In July 2002, the Jerusalem Magistrate Court sentenced Mr. Abu Saleh to two months community service for the assault. The State submitted an appeal, and on 10 December 2002 the Jerusalem District Court ruled that the sentence imposed by the Magistrate Court was too lenient given the severity of the offense, and increased Mr. Abu Saleh's community service term to six months.

In the motion filed to the Supreme Court on 27 January 2003, Adalah Staff Attorney Abeer Baker argued that the District Court erred when it ruled to increase Mr. Abu Saleh's sentence. Adalah argued that the District Court's ruling conflicts with past precedent, and fails to satisfy the criteria necessary to justify increasing the sentence issued by the Magistrate Court. According to case precedent, the District Court should only intervene in changing a sentence that is found to be extremely severe or extremely lenient. The two-month community service sentence imposed by the Magistrate Court, Adalah argued, is not extremely lenient, given the facts and circumstances of Mr. Abu Saleh's case.

Acknowledging that the Supreme Court does not usually intervene in cases where an appeal has already been heard, Adalah argued that in this instance, the Supreme Court should hear Mr. Abu Saleh's appeal. The Supreme Court, Adalah argued, should not view an appeal by the state as an appeal, which has already been heard. Mr. Abu Saleh, the defendant, has not yet exercised his right of appeal. This fundamental due process right of appeal, Adalah argued, is also a constitutional right, and follows from the Basic Law: Human Dignity and Liberty (1992), as well as Supreme Court precedent.

Adalah once again noted the unique circumstances of Mr. Abu Saleh's actions; that his son had been killed; that he had been surprised by unexpected testimony which suggested that Sergeant Raif had been involved in the killing of his son; that his actions were not premeditated, and that he had expressed remorse. Adalah also observed that while an indictment was filed against Mr. Abu Saleh only two days after he assaulted Sergeant Raif, no criminal investigation has been launched into the killing of Mr. Abu Saleh's son, more than two years after the event, and despite considerable evidence provided before the official Commission of Inquiry that such a criminal investigation is warranted.

In her three-page decision, Supreme Court Justice Dalia Dorner did not address the issue of Mr. Abu Saleh's constitutional right of appeal, contending that he had been given an adequate opportunity to present his arguments at hearings before the District and Magistrate Courts. Ignoring the special circumstances of the case, Justice Dorner agreed with the District Court's imposition of a more severe sentence for Mr. Abu Saleh, reiterating that he had committed a very serious offense.