Extradition and prosecution of Israelis by foreign courts | Barnea Jaffa Lande & Co.

The arrests of Israeli citizens as a result of foreign investigations abroad have been reported in numerous news articles in recent weeks. In one case, more than 20 employees of a Tel Aviv-based forex investment marketing company were arrested after an FBI investigation.

Later reports suggest that European countries arrested many other suspects as part of the same investigation, which appears to have been led by the United States. This incident, along with many others, shows that the US is stepping up its enforcement efforts against criminals who defraud American investors, No matter where in the world they commit their crimes.

One cannot help wondering if the United States would have invested the same volume of resources against Israelis suspected of involvement in binary options fraud or forex marketing had Israeli law enforcement stepped up their own efforts and Israeli suspects for it prosecuted these crimes in Israel.

Israel’s lax law enforcement policies regarding international white-collar crime could have a number of implications, some of which are not trivial. Above all, attention should be paid to the consequences of criminal prosecution abroad, which may also occur without prior extradition proceedings.

Lee Elbaz and Yukom Communications v Elizabeth Holmes and Theranos

In this context, it is interesting to recall the indictment against Lee Elbaz, an Israeli woman and former CEO of Yukom Communications. Elbaz has been charged in the US with orchestrating a conspiracy to defraud US investors by offering them binary options.

Elbaz was charged before an American jury for not being an American citizen, not speaking English as her mother tongue, and never living in the United States.

Since there are seldom cases of women being charged with economic fraud, one cannot help but compare the trial of Lee Elbaz to the trial of Elizabeth Holmes, the former CEO of Theranos. Holmes is also currently being prosecuted for defrauding investors related to the falsehood of the allegedly revolutionary Theranos blood test.

While reporting on the Holmes Trial, there were frequent reports of numerous jury replacements due to various difficulties faced by the jurors regarding their ability to contribute to Holmes’ conviction. To put it simply: “Her conscience bothered her”. The court even tried to persuade some jurors to stay on the jury, stressing that the judicial system needs greater diversity of opinion as it helps to bring about justice.

One cannot avoid wondering whether an American judge and an American jury are capable of the same identification and compassion when the accused is a foreign national. Unlike Elizabeth Holmes, Lee Elbaz was neither born in the United States nor grew up in Washington DC; her father was not a vice president of Enron, her mother was not a US Congressman, and Elbaz was not a Stanford graduate. She doesn’t even speak fluent English.

This question requires a considerable reconsideration of the origin and purpose of the right to be tried before an impartial jury, as contained in the Sixth Amendment to the US Constitution. This constitutional right stems from the right previously enshrined in the Magna Carta to be tried by a jury of peers.

Therefore, several important questions arise: Can a jury from a country other than the defendant who does not have a common cultural background or language with that defendant really be considered an “impartial jury” or “a jury of peers”? Here are two other important questions: Do Israeli law enforcement agencies have a certain moral duty to their citizens not only to ensure that criminals are brought to justice, but also to ensure that they are brought to justice in an Israeli court if a connection occurs? between the crime and the public interest of Israel? Does Israeli law enforcement have some moral obligation to do so, even if the evidence was gathered during an investigation by another country, in order to avoid prosecuting Israeli citizens in a foreign court? Finally, are Israeli courts required to consider the consequences of prosecuting Israeli citizens in foreign courts before granting extradition, even in cases where the requesting country has a judicial system recognized as “procedural” under Israeli law?

There is no need to resort to literature or research to confirm what we instinctively already know: We feel less empathetic towards anyone who does not belong to our own “social or cultural camp”. On the one hand, it can be argued that the jury can be more objective when a defendant from another country is on trial. On the other hand, it is difficult not to infer that the prosecution of a foreign citizen in a US court contradicts the aim of the US Constitution to enshrine the right to be tried by a “jury of peers”, a term that has been interpreted by American jurisprudence as “a jury of fellow citizens.”

Arrests in Israel during the FBI’s investigation into foreign exchange fraud

Another interesting difference between Elbaz and those arrested in Israel during the FBI investigation concerns extradition laws. Elbaz entered the United States on a private visit at his own request. As a result, the United States gained jurisdiction without filing an extradition request. However, unlike Elbaz, when the United States prosecutes the suspects the FBI recently arrested in Israel and brings them to justice, it must first file an extradition request.

Thus, there are significant differences between the situation of those arrested in Israel and that of Elbaz, although the suspicions on which their arrests were based may lead to similar charges (according to press articles).

Among other things, Elbaz is serving a long sentence in a federal prison in the United States for not benefiting from the rule that a country that wants to extradite a person from Israel must undertake to return that person for its own sake or her conviction in Israel if found guilty and sentenced to imprisonment. If Elbaz wants to be transferred to Israel, she must file a corresponding application and withdraw the appeal against her conviction.

These circumstances have a dramatic outcome – the difference between serving a long prison sentence in a non-home country, where you have no family to visit and do not speak your mother tongue – all due to a meaningless and arbitrary factor, such as entering the United States as voluntary as opposed to extraditing Israel to the United States for trial.

Given these various problems, it seems appropriate to reconsider the relative ease with which foreign countries gain jurisdiction over foreign nationals, the impact of prosecution in a foreign country on the rights of suspects and accused, and finally the effects of lax law enforcement efforts in Israel Relation to offenses with an international link to the rights of Israeli suspects and defendants.

These questions also illustrate the importance of legal representation during the phase of arrest abroad or during extradition proceedings, especially the ability to bring forward arguments in court that compel them to consider the consequences of transferring a person to a foreign country .

https://www.jdsupra.com/legalnews/extradition-and-prosecution-of-israelis-7986281/