Former President Moshe Katsav will not begin serving his prison sentence until the Supreme Court has ruled on his appeal, because there is a chance his rape conviction might be overturned, Supreme Court Justice Yoram Danziger decided yesterday.
"I can't say the chances of former President Moshe Katsav's appeal against his conviction for raping A. from the Tourism Ministry are without foundation, or that we are talking about vain or empty arguments," Danziger wrote.
Danziger said the alibi Katsav presented to the Tel Aviv District Court - that he was not in either a Jerusalem hotel or his Tel Aviv office on the dates when A. claims he raped her in those venues - appears to have some basis, and must be clarified when the court hears his appeal.
Nevertheless, Danziger added, he sees little chance of Katsav's conviction for lesser sexual offenses against two other women being overturned.
Danziger also justified his decision to release Katsav on the grounds that the former president had been at large throughout his trial - indicating that he wasn't considered a public danger - and that there is no danger of him fleeing.
The prosecution had opposed Katsav's request to delay his entry into jail, but Danziger's ruling is final and cannot be appealed.
Katsav was sentenced in March to seven years in jail. The sentence stemmed primarily from his conviction for having twice raped A., an employee of the Tourism Ministry, while he was serving as tourism minister.
Danziger gave particular weight to two arguments raised in the appeal. One was that the district court should have considered the alternate line of defense Katsav presented: that his relations with A. were consensual. That could undermine the rape charge.
The district court rejected this argument because throughout his police investigation and his court testimony, Katsav denied having had sex with A. at all; his attorneys raised the consensual sex claim only in their summation. Nevertheless, Danziger said, this claim should be examined.
The second was Katsav's alibi. At the time of the alleged rape in a Jerusalem hotel, Katsav claimed, he was at a meeting in his office. And at the time of the alleged rape in his office, he was at an event honoring the Iranian Jewish community.
The district court rejected these claims. But Danziger said they did not seen to be baseless, and should the Supreme Court accept them, that would affect its ruling on his appeal.
According to rules laid down by the Supreme Court a decade ago, prison sentences should not be postponed while an appeal is being heard unless certain conditions are met. Danziger was thus careful to stress in his decision that this precedent-setting ruling had also left room for judicial discretion, and that its list of criteria was not exhaustive.
One of those criteria was if the prison term were short enough that the appellant would have served all or most of it by the time the appeal was heard. That is not the case for Katsav.
But when the chances of an appeal being accepted are not negligible, the need to defend the appellant's right to freedom may take precedence over other considerations, Danziger wrote.
Regarding the prosecution's claim that Katsav should be treated like any other convict, Danziger agreed. "Nevertheless, it is inappropriate to deprive the appellant of his rights because of the lofty position he once held," the justice added.
A legal source familiar with the case told Haaretz it was important for the prosecution to oppose Katsav's request because it generally opposes deferring sentences for people convicted of serious crimes, and it did not want to be seen as treating a senior politician more leniently than an ordinary person. But he denied that Danziger's ruling was a blow to the prosecution, noting that the three-justice panel that hears the appeal might well reach a different conclusion regarding Katsav's arguments.
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