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A. Introduction
In recent years, due to the political situation in Israel, Israeli diamond dealers have been travelling abroad more often in order to meet with their clients.
As a result, there has been a direct increase in the number of losses and thefts involving Israeli diamonteers outside the country and new problems are being faced by both Israeli and non-Israeli insurers which provide coverage to these diamonteers.
In an event of loss or theft of diamonds occurring outside Israel, the police investigation of the event is carried out and recorded in the police file outside Israel. However, due to a special Jurisdiction Clause in most of the Jewellers' Block policies issued to Israeli diamonteers, the court proceedings concerning the coverage under the policy will be held in Israel.
The problem arises when the declination of coverage is based on the police findings, or where there are discrepancies between the insured's testimony to the local authorities at the scene of the occurrence, and the insured's report to the insurers.
How will the foreign documents or testimonies be brought as evidence in the Israeli Court?
B. Documents to be presented by the person who created/prepared them
According to the Israeli Evidence Law, the contents of a document can be proven only by the person who created or prepared the document. Should the insurer wish to bring the local police report or the findings of the policeman or of the investigator as evidence, such document, will not stand by itself, and the relevant witness should attend the court hearing to be cross-examined.
Several exemptions are provided by the Evidence Ordinance. Certain governmental documents and others such as: public official records or bank records may be presented to court on their own as evidence.
Other documents which may be presented in court in this manner, are "Foreign Documents" - which relate to foreign public documents.
A report made by a police officer or investigator is not, according to Israeli Courts, a "Public Document" (C.R.A. (Tel Aviv) 777/71, The State of Israel v. Uriel 1974 (3) P.M. 10) - and thus it cannot be presented to court without testimony being given by the person who issued it.
Hence, in order to submit a foreign police report to the Israeli Court - the police officer must testify.
C. Testimony of Foreign Witness
There are several ways in which a foreign witness may testify before the Israeli Court. All of these options are problematic, mainly since they depend on the witness' own willingness:
 (a) In person - the witness must come to Israel and give testimony under oath. This is a difficult option, being costly (flights, accommodation and per diem for the officer), and subject to the witness' own will.
(b) Conducting the taking of the evidence abroad - this solution is even more costly (including the costs for the Judge as well), and is not easily agreed to by the Courts.
(c) Conduct of the hearing using a closed circuit television system during which the foreign
witness gives evidence through a videoconference system, and is cross-examined through these means. This option is the one preferred by the courts as being the least expensive, and allowing the court to have a first hand impression of the witness.
We should note that not in every case of foreign witnesses will the Court allow the option of the video-conference, and such decision may derive from the unique circumstances of each case, including the security situation in Israel (RCA 6635/02 Superplast v. Societe Nouvelle de Chimie Industrielle 56(6) PDI, 739; RCA 3005/02 Smith Kline Beecham P.L.C. v. Unifarm and Others, 56(6) PDI 865). Usually a regular hearing with the personal attendance of the foreign witness in the Israeli court room is preferred.
D. Subpoena and Letter of Request:
As mentioned, the above three options can only be used if the witness is willing to testify. Unlike Israeli witnesses - a foreign witness who is reluctant to appear before the court cannot be brought to Israel by a subpoena issued by the Israeli Court, but there are several ways to force such a witness to attend the Israeli court hearing.
The law on Legal Aid Between Countries - 1998 enables a party to a civil claim to request the court to approach the Foreign Court Authorities to force a witness to give testimony in an Israeli court. The party submitting such a request may be required to deposit a security for the expenses of the witness. Israel is a signatory on The Hague Convention on Civil Procedure and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the courts may be requested to subpoena a foreign witness, by way of filing a "Letter of Request to Obtain Evidence" to a Court in the foreign country. There are other conventions that were signed by Israel and other foreign countries through which a witness can be subpoenaed to give testimony in their own country, without the need to travel to Israel. For example: The Regulation of Legal Aid to Foreign Countries (Agreement with Austria on Civil Procedure) - 1982.
Parties who wish to rely on this convention should approach the court with a formal request and send a list of questions to a legal authority in the foreign country, where a taking of evidence including interrogation can be conducted using these questions. The responses are recorded and then sent to the Israeli Court. Another option is to have the attorneys of both parties travel to the foreign country, with the permission of the court, to conduct an interrogation of the witness in the foreign court before a court judge and then the record is submitted to the Israeli Court.
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