Following the acquittal of Foreign Minister Avigdor Lieberman of charges of fraud and breach of trust last week in Jerusalem Magistrate’s Court, an until recently dormant proposal to rewrite the definition of the crime is now back on Justice Ministry’s agenda.
The most derided offence in the Israeli law book today is "fraud and breach of trust." Defined in just 27 words, so vaguely phrased that a prosecutor winning a conviction for this crime could be likened to winning the lottery. To this day, no senior Israeli public figure has ever been sent to jail on a charge of fraud and breach of trust. That is not to say that there is not a long list of senior politicians who found themselves behind bars, featuring, among others, Shas leader Aryeh Deri and senior Shas party politician Shlomo Benizri, former Kadima Finance Minister Avraham Hirschson, and former Kadima MK Omri Sharon, son of former Prime Minister Ariel Sharon. However, these figures were sent to prison on more serious charges such as bribery, theft or violating party financing laws.
“If we look up the definition of corruption in international treaties it is almost identical word for word to the definition for the crime of breach of trust,” former Attorney General Manny Mazuz told to Haaretz. “In practice, the name for the crime breach of trust should be "act of corruption." It’s impossible to give a complete definition for corruption since it can come in many different forms.”
When Mazuz proposed redefining the offense of fraud and breach of trust in 2009 he sought to replace its current vague definition with four clear-cut instances of breach of trust: acts committed in a conflict of interest, receipt of special favors, use of insider information, and misrepresentation or the provision of false information. The new draft of the law also includes a general clause that provides leeway to prosecutors filing indictments under this offense for acts not foreseen at the time the law was drafted subject to the approval of the attorney general. The amended law would also increase the severity of the punishment for those convicted of the offense from three to five years imprisonment and change it from a misdemeanor to a felony. This would also change the legal forum for hearing these cases from lower level magistrate courts to higher district courts.
Since Mazuz proposed the bill back in 2009, the amendment had been stuck in the legislative process. Mazuz says that the justice minister at the time of his proposal, Daniel Friedmann, thought that the offence's proposed definition was too amorphous and did not approve its publication as a draft bill. When Yaakov Neeman became justice minister, to Mazuz’s surprise, he approved the publication of the bill. However, it became stuck in the Ministerial Committee for Legislation and Mazuz suspected that Neeman intended to drag out the process.
When Yehuda Weinstein took over as attorney general, he wanted to continue his predecessor's work and made some small changes to Mazuz’s proposal, which was brought before the Ministerial Committee for Legislation again in 2011. However, arguments over it continued while the legal case against former Prime Minister Ehud Olmert was working its way through the courts and the corruption case against Foreign Minister Avigdor Lieberman was being examined.
Today, after Lieberman’s acquittal the initiative to amend the definition of the offense has been revived and the Justice Ministry understands that it must implement it.
“It was an embarrassment,” Prof. Mordechai Kremnitzer said of Lieberman’s acquittal. “An embarrassing failure by the judges.” However, Kremnitzer differs with other legal professionals who were quick to attack the prosecution’s early decision to file an excessive indictment based on an apparently minor act. “The prosecution had to present this case and any court that was not straining to acquit would have convicted,” he says. Kremnitzer’s words match those voiced in the past week by senior prosecutors. After parsing through the court’s verdict to determine whether or not to file an appeal, they found what they said was a string of mistakes. Kremnitzer, like Weinstein, and others in the State Prosecutor’s Office are shifting the spotlight from the allegations that the prosecutors made a judgment error when filing the charges against Lieberman to allegations that it was the judges of the Jerusalem Magistrate’s Court, who made the mistake.
“It appears that it wasn’t easy for the judges to ignore the fact that they were dealing with senior political figure,” says Kremnitzer. He added that the judges probably were reticent to convict a figure that in some ways represented the Israeli public, much more than they would be for the average Joe. “It’s true that as you rise through the ranks the acquittal rate is higher and it’s harder to achieve a conviction,” he says. Mazuz says that this problem was reduced in the 2000s but that in the past two years the pendulum is swinging back in the other direction.
Still, says Mazuz, even if a rewritten definition to the crime is passed by the Knesset, Israel’s judges will still determine whether it leads to an increased conviction rate.
“I don’t believe in wonder cures,” says Mazuz. “A clearer law, clearer rulings and precedents can help but they are no substitute. If a judge reaches all sorts of strange conclusions both legally and in terms of the evidence, nothing will be able to help.”
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