("Justice", No. 1, Winter 1994)
The Right to Leave the Country
Criminal Applications 6654/93, Binkin v. State of Israel Supreme Court, 14.12.1993, (unreported). Before Deputy President E. Barak
The right to leave the country is a basic right which must be given substantial weight when the Court exercises its discretion whether or not to grant an accused permission to leave the country. This is the case even where the criminal proceedings brought against the accused are still in their preliminary stages.
The appellant was charged with a number of offences of fraud and breach of fiduciary duty. Within the framework of criminal proceedings he applied to the District Court of Haifa for an order allowing him to leave the country. The Court refused to grant the appellant general permission to leave but was willing to grant him limited leave upon deposit of a bank guarantee, as a security for his return.
The appellant appealed against this decision to the Supreme Court.
The underlying premise in this type of case is that every person has the right to leave Israel. In the past, this right was protected by judicial precedent, today it is entrenched in the Basic Law – Human Dignity and Freedom (Section 6 (a)).
The basic right to leave is impaired by Section 44 of the Criminal Procedure (Consolidated Version) Law – 1982, which empowers a court to make a release on ball conditional on refusal of permission to leave the country.
Section 44 is preserved by the preexisting law validity provisions of the Basic Law. However, the Basic Law is also to be used to interpret Section 44.
Thus, where a Court exercises its discretion in respect of an application to leave the country, it must give substantial weight to the basic right of the accused to freedom of movement. The right is not absolute but relative, and may be limited in the interests of the public. The primary issue of public interest at stake in criminal proceedings is the suspicion that the accused will fail to return to stand trial. The suspicion must be reasonable or almost certain. Even where the suspicion meets this standard, the Court must consider whether there are other means of ensuring that the accused will return to stand trial which are less grave than restricting his freedom of movement. Restriction of the right to leave should be the final sanction in every case and not the first.
In the instant case, the level of suspicion that the accused would not return to the country was not of a sufficiently reasonable or almost certain standard as to warrant restricting his right to leave the country on the grounds of public interest. Indeed, in view of the legal nature of the basic right to leave, the accused was entitled to a general travel permit, as opposed to a special permit in respect of each trip. Restricting an accused to a special permit was only justified in special cases and depended on the standard of suspicion in the particular case.
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