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There are grounds for fearing that Morris Talansky would refuse to return to Israel to testify should Prime Minister Ehud Olmert ultimately be indicted, and therefore, it is essential to have a court depose him now, before he leaves the country, the State Prosecutor's Office told the High Court of Justice yesterday.

The brief was filed in response to a petition by Olmert and his former office manager, Shula Zaken, against the Jerusalem District Court's decision to hear prior testimony from Talansky. Zaken is also a suspect in the case, which revolves around allegations that Olmert received illicit funds from Talansky. A three-justice panel is slated to hear the petition today.

The brief said that Talansky's testimony is essential to the prosecution's case. It also said that while Talansky himself is still a suspect in the case, the suspicions against the American businessman are not serious enough to justify keeping him in the country against his will any longer.

Yet at the same time, it said, the fact that he remains a suspect arouses concern that he would not return to Israel to testify against Olmert if the premier is indicted, for fear that he might face charges himself. And since the Israeli authorities would have no effective means of forcing him to return, it is essential for the trial court to hear his testimony now.

The brief also noted that if Talansky's prior testimony indeed undercuts Olmert's right to a fair trial, as his attorneys argue, Olmert has the option of summoning Talansky back to the stand himself once the trial begins. If, as he claims in his petition, Olmert has no doubt that Talansky would agree to return, that option ought to suffice, the prosecution argued.

On a more technical note, the brief argued that Olmert and Zaken do not actually have the right to appeal the lower court's decision to depose Talansky, because this was an interim decision. By law, interim decisions made by trial courts cannot be appealed directly; they can only serve as a basis for appealing the final verdict. Nevertheless, the brief continued, due to the public importance of the case, the prosecution is not asking that the petition be rejected on technical grounds. Instead, it will argue that the lower court's decision was correct, and should therefore be allowed to stand.