Legal Advisor to Torah Mitzion
The ability of a former criminal to begin his life afresh is an important social principle, which the courts have recognized throughout the generations. The possibility that a person’s past sins may revisit and haunt him many years after their commission, even after the person has changed his lifestyle, sends the wrong message to would-be penitents.
However, beyond the wish to enable a person to turn over a new leaf in his life, the danger may exist that others in society may receive the wrong message: they may misconstrue society’s recognition of a person’s ability to change, and regard it as an act which undermines the severity of their misdeed. Society’s willingness to forgive and forget may be interpreted as a weakness and a willingness to compromise on its principles. The desire to protect the individual is thus in danger of injuring the community as a whole.
How would the Halacha balance between these two competing principles?
Both the legislature and the courts have had to deal with the dual need of protecting society from the criminal, while, equally importantly, affording criminals the opportunity to mend their ways and encouraging them to repent.
The general criminal law gives weight to the issue of regret on the part of an offender, and may even exempt from criminal liability an offender who, “of his own free will and out of remorse,” attempts to commit an offense but then stops its commission. By contrast, “civil” law does not require Teshuva, and does not examine whether a criminal has repented his sin.
At the same time, certain laws and legal concepts within the Israeli legal system generally give expression to society’s desire to enable a person to wipe the slate clean, to repent his misdeed and to continue living in the company of others who have not done wrong, without his past transgressions affecting his life in the future.
The Criminal Register and Rehabilitation of Offenders Law, 5741-1981, for example, determines that after the passage of a certain period of time from the date of serving a criminal sentence the entry in the Criminal Register will be erased and the offender will be deemed “as if he had never been convicted.” The underlying principle of the law (as the preamble to the draft law makes clear) is the social message that the Ba’al Teshuva is to be assisted in his rehabilitation.
This important constitutional principle of the “rehabilitation of offenders” (takanat hashavim) has assumed added significance in the light of the passage of the “Basic Law: Human Dignity and Liberty” which protects, inter alia, the basic right of every person to his dignity, privacy and intimacy. This in turn requires that a person who has transgressed, and thus violated his dignity, must be given the opportunity for genuine repentance of his misdeeds and to turn over a new leaf, thus enabling him to regain his right to privacy and intimacy.
Israeli Supreme Court President, Justice Barak, expressed the following sentiments in the Ginosar case, which we shall discuss below:
“Neither the conviction nor the sentence is death, and at the end of the criminal proceeding the offender should be allowed to find his place in the community and society. The principle of ‘repentance’ is one of the principles of our legal system, which we have received from the tradition of our past… Indeed, ‘a person should not be reminded of his sin all his life, and we should allow him to turn over a new leaf in his life and encourage his rehabilitation and full reintegration into society’ (draft Criminal Register and Rehabilitation Law, 5741-1981, at p. 218). He should be allowed to integrate into society as one among equals.‘We should not lock the door against sincere and genuine penitents; on the contrary, in the absence of a serious reason, they should be allowed to return to their normal lives, professions and even to their jobs’ (Justice Kister in 1/68 A v. Attorney-General). ‘Yesterday this person was hated by the All-Present, detested, distant and an abomination, and today he is beloved, pleasant, nearby and a friend’ ( Maimonides, Mishneh Torah, Laws of Repentance 7:6). Indeed, a civilized society does not pursue its criminals to destruction but extends to them a hand, for their benefit and its own benefit.”
The Ginosar Case
Yosef Ginosar was a member of the General Security Service (GSS). He was involved in the ‘300 Bus’ affair in April 1984, in which a bus was seized by terrorists, stormed by the I.D.F. and two of the terrorists were shot dead by GSS agents, acting on the order of the Head of the Service. It was later announced that all the terrorists had died in the rescue, and a commission of inquiry appointed, one of whose members was Ginosar, who was instrumental in covering up the involvement of the GSS personnel in the affair.
In June 1986, Ginosar received a pardon from the President of the State and was not indicted. In wording the pardon, the President wrote: “My decision was made as a result of a profound recognition that the public interest and the State’s interest require protecting our security and saving the General Security Service from the damage that will ensue if this affair continues…”
Ginosar was also involved in the ‘Nafso’ affair, in which a suspected terrorist was interrogated by a team headed by Ginosar. The interrogators acted improperly in the interrogation and perjured themselves in the trial in which Nafso was convicted. Here, too, the Commission appointed to investigate this affair recommended not indicting Ginosar.
In 1993, the Israeli Supreme Court sitting as the High Court of Justice was asked to rule on Ginosar’s appointment to the position of director general of the Ministry of Construction and Housing.
Ginosar argued that once he had been pardoned, and had no criminal conviction to his name, he was a suitable candidate for a senior position in the Civil Service. What he did in the past was the result of an erroneous outlook that prevailed at that time among persons who held office in the GSS (viz. the importance of covering up in order to protect the way the Service actually worked) and should not therefore be held against him in the long term. In his favor was his work as a civil servant and his lengthy and devoted service to the Security establishment. Nor had Ginosar acted for his own advantage, or out of a desire for money or prestige.
How did the Court rule on Ginosar’s appointment? Would it have ruled in the same manner if it had applied the principles of the Halacha?
Continued next column!