Attorney General Menachem Mazuz's decision not to indict Prime Minister Ariel Sharon in the affair of the Greek island and lands in the Lod area, due to "insufficient evidence," puts an end to a complex process of investigation by the police and evaluation of the strength of the evidence by the prosecution.
In deciding whether or not to indict, the attorney general exercises a "quasi-judicial" authority. As Mazuz himself said in his detailed and reasoned decision, "The prosecutor must assess the evidence himself, and in this context, he must also second-guess the court's assessment of the evidence and the weight that should be given to it, and on the basis of this comprehensive evaluation, he must reach a conclusion as to whether there indeed exists a `reasonable chance of convicting.'"
As Mazuz stressed in his decision, which clarifies his approach, he rejects the view that when a prosecutor harbors doubts about the existence of sufficient evidence to convict, he should submit an indictment and let the court do the work. Regarding the suspicions that Ariel Sharon took a bribe from David Appel, the attorney general's conclusion was unambiguous: that the evidentiary material did not provide a sufficient evidentiary foundation for indicting either Sharon or his son, Gilad.
The attorney general found that "the evidentiary material suffered from weakness with respect to every element of the crime, and does not, taken altogether, form an overall structure capable of standing on its own." He stated this conclusion even more sharply when he said that the evidence "does not even bring us close to the existence of a reasonable chance to convict." In his words, "in every single element of the foundations of the crime that we examined and analyzed, there arose a reasonable doubt, and sometimes even more than that."
From the prime minister's perspective, this was a complete acquittal, achieved by a detailed and reasoned decision not to indict. True, the attorney general based his decision to close the case on "insufficient evidence," but a close reading of his opinion shows that in effect, he decided not to indict because he believed that no crime had been committed. Thus the attorney general's decision effectively removes all suspicion from the prime minister.
Mazuz noted that former state prosecutor Edna Arbel submitted a detailed opinion in which she recommended "indicting Sharon on charges of taking a bribe from Appel." But he confined himself to this single sentence, not including any details from Arbel's opinion in his own - despite the High Court of Justice's ruling earlier this month that when the attorney general acknowledges the existence of a contrary opinion by the state prosecutor, he must also publish a "comprehensive summary" of its contents.
"Public petitioners" retain the option of petitioning the High Court against Mazuz's decision, but the court's intervention in such a case is very rare and generally very limited, though not impossible. However, the court could order publication of the state prosecutor's opinion, or a comprehensive summary thereof. It could also order the release of the draft indictment that she prepared, or even of all the evidentiary material. That would provide the public with a clear picture of the entire process.