Legal Analysis / A fair probe with no concessions
When former prime minister Ehud Olmert was in office, he allowed himself to behave as if he were conducting his own investigation. He determined the length of sessions and set the timing, leaving himself time between one date and the next to consult with his lawyers. He was questioned at his house, on his home turf, not at a police facility.
This time his investigation must be conducted like that of any private citizen. The so-called Buzaglo test - the principle of ensuring every citizen equality before the law - was formulated in the 1970s by then-attorney general Aharon Barak and Central District prosecutor Sarah Sirota. This took place during an investigation into a candidate for governor of the Bank of Israel, who was suspected of bribery.
Olmert enjoyed, for the year since his term in office ended, a privilege enshrined in the Basic Law on the Government. That law states that a criminal investigation will not be opened against a former prime minister on suspicion of an offense committed during his term, or for a year after his term has ended, except with the attorney general's consent.
That law, however, is not relevant to the investigation of Olmert in the Holyland affair. The exception proves the rule: The law grants one particular privilege, so it's clear that the former prime minister has no other privilege.
Because of MKs' immunity from arrest, which only the Knesset can lift, ministers and MKs have not been arrested during investigations. Thus the power to arrest a suspect has been taken away from the police, depriving them of an important means of preventing obstruction of an investigation. But in the Olmert case, the police have this power to arrest.
The decision not to seek Olmert's arrest will have to stand up to others cases, especially the arrest of former Jerusalem mayor Uri Lupolianski long after the beginning of the investigation.
Still, the decision on whether to arrest Olmert should be based on the existence of a "reason for arrest" as defined in the Arrest Law. Otherwise, the court will reject a request by the police, if they make one. The reason could be a fear that the investigation will be obstructed.
Such concerns are recognized, for example, in situations where there is a chance that suspects will coordinate their stories or influence witnesses. Concerns that suspects will coordinate their stories increase if all other suspects have not been questioned or are still in custody. The court has also stated that obstruction of an investigation must be concrete, not vague.
Using arrest as a means of preventing obstruction and the coordination of stories can be essential when the offense is bribery, because such deals are made in secret. The Criminal Code took this matter into account in determining that a person may be convicted of bribery on the testimony of only a single witness who was partner to the crime. As the High Court ruled a few months ago, in contrast to other offenses, there is no need to corroborate the evidence of a state's witness to bribery.
The court said that "a state's witness is never the most righteous person in his generation. The term 'state's witness,' which sounds official to an ordinary person, does not have the same respectful ring as 'secretary of state' and does not really reflect anything but a euphemism about a criminal."