Court of First Resort

By Yair Ettinger (Ha'aretz)
February 24, 2010

It starts with a distant, dull roar along Rabbi Akiva Street in the largely Orthodox city of Bnei Brak, near Tel Aviv. Gradually the noise grows louder and infiltrates the half-open window of courtroom A. The proceedings lapse into silence, as the dayanim - judges in a religious court - the litigants and everyone else present listen attentively. It's almost 9:30 P.M., and the speaker system on the roof of a rented vehicle is broadcasting a recorded message. When the people in the courtroom are able to make out the words being blasted through the speakers, they discover that the announcement is not about the funeral of an important rabbi or a pious woman.

At least 100 decibels burst through the half-open window, shaking the courtroom. The voices represent one side in a war being waged by dayanim in a bid to maintain the exclusive power of the religious courts among the Haredi public. At this late hour, they are urging everyone to attend a demonstration being held that night against Zvi Bialostosky, "who is raising a hand against the Torah of Moses."

"Let no one absent himself" from the gathering of "prayer and outcry," the speakers blare, for this man is taking a stand against "Israel's sages and judges." The three dayanim squirm in their chairs: no one had notified them about a demonstration. But within two hours, before midnight, they themselves will sign a cease-fire declaration that will help dissipate the tension that in recent months has produced threats, demonstrations, wall posters, and an almost hysterical obsession in the Haredi media.

Gradually the news will spread across the city: the war is over - or, at least, is taking a short break. At a time when Israel's judges are under attack with verbal tirades, shoes and even explosive devices, another, unofficial, judicial system is caught up in a complex confrontation of its own.

Representatives of the Haredi establishment are baring their claws in an effort to restore to their internal court system its once-unchallenged status. Even now, during the armistice, it is difficult to erase the image of dayanim, some of them senior figures in the Haredi world, having to enter a civil court, an institution they regard as heretical.

But the Bialostosky episode is only one end of the affair. Another end lies in the Badatz (an acronym for Court of Justice) in Bnei Brak, under the presidency of Rabbi Nissim Karelitz. Most Israelis have probably never heard of this private institution, which lacks official status but is considered the highest and most prestigious Haredi court in Israel and throughout the world. In the past few weeks, without official approval from the Badatz directorate, Haaretz has closely followed developments behind the closed doors of the Haredi community. This is a first glimpse into a parallel world of law, almost totally autonomous, that wants only to fight domestic change and go on turning the wheels of justice within Haredi society, according to the strict "ruling of the law."

Erosion of Status

The Badatz should not be confused with the regular rabbinic courts that are part of the state judicial system. The rabbinic courts, with the support of the Haredi parties in the Knesset, would like to expand their authority, but at present deal mainly with divorces and last wills of the general public. But there are dozens of private courts that address almost every aspect of Haredi life. Badatz Bnei Brak alone hears about 1,000 cases a year related to individuals and groups, business disputes that sometimes involve tens of millions of dollars, inheritance struggles, divorce cases and labor disputes. All are dealt with in terms of the "ruling of the law," as the Haredim understand that term.

In recent years, these private, sector-based courts have expanded their purview. New courts dealing with financial and property law have been established by both the national-Haredi and national-religious (Orthodox) streams. The result is the existence of dozens of courts operating on the basis of halakha (Jewish religious law) and Hoshen Mishpat (literally, "Breastplate of Judgment," a section of the "Shulhan Arukh," the authoritative codification of Jewish law). Each court, though, has its own nuances. The rabbinic courts, like the private courts in Arab society, generally offer quicker handling of cases, particularly in financial disputes, and serve to alleviate the overload in the civil judicial system. So it is not surprising that civil courts encourage litigants to turn to Badatz for arbitration and recognize their judgments as formal arbiters' rulings.

On the other hand, these dozens of judicial institutions are not committed to Israeli law, although they do not necessarily ignore it. Often they pass judgments in the gray area of criminal law, offer no reasoning for their rulings and leave the litigants without recourse to appeal. This, too, is related indirectly to the Bialostosky affair.

"Zvi opened a new channel of refusal. If it is not categorized as beyond the pale, it will burn up the system," fumed Rabbi Yaakov Farbstein. He and other dayanim rarely give interviews, certainly not to Haaretz, but a month ago, as he left Tel Aviv Magistrate's Court after an hours-long closed-door hearing, this youngest of the eight dayanim being sued spoke freely about the proceedings instituted against him and his court. Other defendants in the civil court included several "high dayanim," such as Rabbi Mendel Shafran and Rabbi Yehuda Silman. The publication of the photographs of these men in the Haredi press and on Haredi Internet sites jolted the ultra-Orthodox public. It is a highly complex case. Boiled down to its essentials, it revolves around the fact that Rabbi Zvi Bialostosky, a building contractor, his son Chaim and the son's partner, Eliezer Friedman, were involved in a lengthy dispute with people who bought an apartment from them in Bnei Brak. The case was heard by Badatz Bnei Brak, until at a certain point Bialostosky and the other plaintiffs sued the dayanim in Tel Aviv Magistrate's Court, claiming that they must return to them an apartment being held in escrow while the case was being heard. Late last year, the contractors filed no fewer than 11 requests for various legal proceedings against the religious judges, in the process crossing a Haredi red line by taking their case to the state secular court system and, worse, suing dayanim. The result was an offensive of unprecedented ferocity by the Haredi leadership against two private individuals.

A letter signed by the venerable Rabbi Yosef Shalom Elyashiv (who will turn 100 in April), Rabbi Aharon Leib Shteinman and other spiritual leaders of the Haredi world asserts that Bialostosky and Friedman "lifted a hand against God and His Torah" and are liable to cause "the destruction of the religion."

The contractors requested and were granted a restraining order against threats and harassment, after complaining to the civil court that the Badatz rulings constituted "harassment" and "libel." The dayanim retorted that such allegations were groundless and added that Bialostosky is "a quarrelsome individual who is involved in numberless disputes and litigations." Through their legal counsel, David Shoob and Yishay Sarid, they quoted what the judge in a Netanya court said about Bialostosky: "I find a reasonable basis for suspecting that the person before me does not balk at using means of prevarication, fraud and falsification."

The high point of the story occurred last month, when the dayanim appeared in the Tel Aviv civil court to request an annulment of the restraining order against them. The Haredi press savaged Bialostosky, and a few days after the court hearing, 1,500 people demonstrated against the contractor outside his Bnei Brak home. Posters with photographs of him and Friedman, with the caption "May the names of wicked people rot" were distributed throughout the city.

The contractors, for their part, printed tens of thousands of posters for distribution in Bnei Brak and Jerusalem and issued a "newspaper" called Guardians of Truth setting forth their version of the events. A compromise reached three weeks ago, on the night another demonstration against Bialostosky was held, led to the erasure of the 11 civil suits. The two sides agreed to arbitration by another private court, Badatz of the Eda Haredit sect, in Jersualem.

Refusal and Ostracism

So much for the prosecution stage - two or three handwritten lines - even if millions of dollars are at stake. There is no need to describe in writing the course of events or the reasons for the suit; that will all be done orally, before the judges. Many of the disputes in Bnei Brak and other Haredi cities are brought to this place. The "Court of Rabbi Nissim," as it's called, is the largest private court in the world, with 36 dayanim, most of them volunteers who sit for one shift a week and make their living as rabbis in neighborhoods or religious institutions.

Some of the cases involve gray and black areas, notably legal clarifications of transactions between Haredim carried out in the Bnei Brak tax haven. Occasionally, Palestinians who have legal issues with Haredim turn to this court, on the assumption that they will get a quick and efficient hearing - and in the knowledge that no one will ask to see an ID card or an entry permit to Israel. More sensitive subjects handled by the court include complaints and suspicions of violence or indecent acts committed within the closed Haredi milieu.

"A large part of our hearings deal with 'black' issues, but that is not our raison d'etre," says a senior dayan of Badatz Bnei Brak, who spoke to Haaretz on condition of anonymity. "Even when we hold a hearing in which someone is accused of committing indecent acts, the question of reporting to the authorities arises. The court is very conscious of the obligation to report and tries not to become a system that covers up offenses.

"When someone suspected of committing indecent acts against a child appears before the court, he has two alternatives: agree to psychiatric treatment or be turned over to the police. Even if the law thinks that he should be imprisoned immediately, we think that if he has a chance to be cured, we will give him that chance. We have our own values; we do not operate in a vacuum. We have the 'Shulhan Arukh.' If my impression is that the person does not constitute an immediate danger to anyone else, I have the right to decide that he will undergo treatment rather than punishment." He emphasizes that "such things occur only on the margins of the court - I have encountered them only once or twice."

Before a suit is filed, it is recommended to the plaintiff that he find out in advance if the accused will agree to the arbitration of this court. Under the custom of "following the defendant," the accused can determine which rabbinical court will hear the dispute. If the defendant refuses to attend a religious court or prefers a regular court, he will usually be subjected to a lengthy campaign of pressure, which in certain circumstances will result in the most serious sanction a rabbinical court can issue: a "writ of refusal." Effectively, this amounts to ostracism, a prohibition to be in contact with that person.

In the Bialostosky case, two writs of refusal were issued over the years, against both sides, in which the members of the community were enjoined "not to visit the home of the ostracized, not to eat with him, not to invite him and not to include him in anything requiring [a quorum of] 10."

According to Rabbi Farbstein: "We do not get to even five writs of refusal a year, but the possibility is important. This is something the community also wants: for the court to issue a writ of refusal against anyone who refuses to accept its authority. The public wants religious law and is forbidden to resort to the [state] courts."

Nevertheless, he adds: "most of our means of enforcement are moral-cultural. If there are two people and we rule in favor of one of them, the second can tell us: 'I know the truth and I will not abide by your ruling in my case.' I will tell him: 'My evaluation is that in the end you will accept my ruling.' That is a classic situation, an internal lever: listen to what the Torah says. It is true that I can also phone the head of his kollel [yeshiva for married men] - that too is a means of enforcement."

The court fee is minuscule. In contrast to civil courts, where the fee for launching a financial suit starts at NIS 694 and can soar to thousands of shekels, depending on the amount of the suit (2.5 percent of the amount), here there is a fixed fee of NIS 250 to initiate a procedure plus NIS 200 for every hour of the court hearing. There are no orderly statistics here, but the average waiting period for the first hearing is about two weeks, and most of the cases are concluded in one to three sessions.

In recent years, the court president, Rabbi Karelitz, has rarely presided in practice, and the senior judge is Rabbi Silman. His panel on financial and property matters, which sits once a week, is most in demand - there is a waiting list of two months and more. Rabbi Silman also deals, in the court and outside it, with issues of morality, such as supervising modesty, "spiritual committees" of Haredi media outlets and complaints of violence and indecent behavior. The rabbi is the senior authority of the semi-official "sanctity and education patrol" in Bnei Brak - a relatively refined version of the "modesty patrol" in Jerusalem.

A senior police officer who has Rabbi Silman's personal number listed in his phone memory, told Haaretz: "There is excellent cooperation with the Haredim and with Rabbi Silman in particular. This is the kind of thing you did not see in the past. There used to be alienation, it was impossible to enter Bnei Brak without being pelted with stones, and anyone who talked to the police was automatically a moyser [informer]."

The officer sees nothing wrong with the fact that the court and Rabbi Silman deal with criminal matters. "In cases of offenses within the family there is mutual consultation," he says, "an attempt to find solutions of one kind or another. Rabbi Silman is very pragmatic. This is a community with particular traits, and we cannot ignore that. There is a custom of 'ask the rabbi,' and that's fine."

No Set Rules

The corridor is also the waiting room, leading to the three courtrooms, only one of which is usually active. Those waiting have at their disposal a bookcase packed with sacred texts, a low shelf and three wooden benches. Most of them, though, prefer to stand or pace back and forth along the corridor, memorizing the arguments they will put forward in the courtroom. A woman who filed a suit against a Haredi newspaper she used to work for picks up a book of Psalms from the shelf; it also holds a plastic box for charity, the book "The Light of Life," a pamphlet with the religious strictures for menstruation and a Bnei Brak phone book.

Nevertheless, there is a ceremony that opens the first hearing in a case. Each litigant in turn picks up a piece of velvet cloth that lies permanently on the desk, and lifts it slightly into the air while the judges look on. This brief act, which is known as kabalat kinyan ("agreement to the transaction") and expresses symbolically the consent of the two sides to have the case heard here, is performed in full consciousness.

"Do kabalat kinyan," the judge tells a Palestinian building contractor from the village of Bidiya who is suing a group of Haredi clients - and a small cultural abyss opens up in the courtroom. Finally, they explain it to him: "Nu, in short, pick up the hankie. That means you accept any judgment that will be given here."

There are no clear rules for presenting one's case; each party has the right to bring a lawyer, rabbinical counsel or neighbor to speak on his behalf, or he can argue his own case. Occasionally the judges are handed a document or a note on a scrap of paper, a tsetel. The court here is adapted to the Haredi custom of signing deals on scraps of paper. Transactions, sometimes involving vast amounts of money, are also still made by verbal agreement.

In cases of company law, which does not exist in halakha, the dayanim improvise. "Lacunae exist in every judicial system," Rabbi Farbstein says. "Our whole system in regard to commerce tries to address the essence, and not only the restrictions or the formal definitions. The first question a dayan needs to ask himself concerns the essence of the business relations between the two litigants, and only afterward about the implications of their contracts."

The judges usually aim to reach a compromise; only if that fails do they issue a judgment. The Palestinian contractor, for example, was sympathetically treated by the judges, but then a small argument broke out between two of them. Rabbi Farbstein told the contractor that he should forgo some of his demands, because "this is not your last job in the city - it's worth your while." But Rabbi Silman remarked: "Excuse me, I quite agree with him that to build for NIS 600 a square meter is not worth it for him." In the end, a compromise was found.

Mainstream Nightmare

Earlier this month, with the respite in the Bialostosky case and the Torah portion of Mishpatim (variously translated as "ordinances," "laws," "norms") being read in synagogues that Shabbat, the newspaper of Lithuanian Jewry, Yated Ne'eman, published a lengthy article about the ban on utilizing the civil courts of the state judicial system.

"Even if the judges in those courts are Jews and live in the Land of Israel," the paper wrote, "and even if they wear a skullcap and put on phylacteries every day and so forth, their Jewish way of life can in no way minimize the gravity of their deeds and their assault on the Torah of Moses, and their name in Israel shall be 'judges of the civil courts,' with all that this entails."

Bialostosky and his supporters maintain, rightly, that he is not the first Haredi to turn to state courts in an attempt to bypass the judgments of rabbis and religious courts. Indeed, in recent years the most senior figures in the Haredi world have gone to "secular" courts, conducted ugly disputes and overturned custom once they understood that they would not get the judgment they wanted in the Haredi courts.