Supreme Court Justice Noam Sohlberg ruled Monday that the criminals in the Holyland affair, including former Prime Minister Ehud Olmert and former Jerusalem Mayor Uri Lupoliansky, may remain free until the appeals of their convictions are heard.
At their sentencing in May, Tel Aviv District Court Judge David Rozen ordered all seven convicts in the trial to begin serving their prison terms on September 1. Convicted with Olmert and Lupoliansky were developers Hillel Cherney and Avigdor Kelner; former Jerusalem city engineer Uri Sheetrit; Meir Rabin, the top aide to state’s witness Shmuel Dechner; businessman Dan Dankner and former Jerusalem councilor Eli Simhayoff.
Olmert and Lupoliansky also asked to delay payment of the heavy fines levied in the case.
While Sohlberg agreed to postpone imprisonment, he ruled there was no justification in postponing the financial penalties imposed on them.
He also ordered the hearing in the appeal by Cherney and Kelner to be held within three months. Asher Grunis, president of the Supreme Court, ruled that an expanded panel of five justices would preside over the appeal. Justice Salim Joubran will head the panel, joined by Yoram Danziger, Neal Hendel, Isaac Amit and Uzi Vogelman.
After recounting the scope of the bribery case, which involved some 16 defendants, 150 witnesses, 9,000 pages of protocol and 750 pages of judges' rulings, Sohlberg wrote that the appellants presented their case not as legal arguments or as appeal against credibility but rather as debating.
"As a rule, an appeal is not meant to start the journey from the beginning but rather to allow the appellant to assert that in his opinion the legal apparatus was in error and to try to convince the forum," he wrote. "Some of the appeals do not bear the characteristics of an appeal. I cannot specify them because they are many."
Even so, Sohlberg remarked that the "appeals are not in vain. Even if on the face of it the principles of the District Court's ruling seem well-founded, and even if it is reasonable to surmise that most if not all of the appellants will serve their sentences, some of their appeals – both general and specific – deserve to be heard."
The judge singled out the testimony of state witness Shmuel Dechner. While the District Court only convicted the suspects after finding support for Dechner's testimony, Sohlberg wrote that in his opinion it should be "verified that the support was strong enough."
He also noted that a legitimate question is whether an influential person is an agent for bribery, as Meir Rabin was deemed, and if someone who employs an influential person is a bribe giver, as Dan Dankner was deemed.
Regarding Lupoliansky, the former mayor of Jerusalem, he said the question arises from the appeal what differentiates a donation from bribery, noting that some money went to the Yad Sarah charity and not into the pockets of the one who received the bribe. The questions, according to Sohlberg involve the awareness of the recipient of the money that it is a donation, as well as the lack of proof that something was received in exchange for the bribe, even though the strict letter of the law does not require such proof, which bears implications for the awareness of the one receiving the bribe. He also questioned whether the testimony leads to only one explanation or to an alternate one as asserted by the defendants.
Sohlberg noted that he wavered whether to distinguish between appellants, given that their circumstances vary and that the quality of the testimony against each one is different, in deciding who starts or does not start their prison term immediately. In the end, he decided not to because the repercussions of one appeal can influence another, and because the exceptional characteristics of the case are relevant to all the appellants.
Regarding his distinction between delaying imprisonment and not postponing the fines, Sohlberg remarked that the public interest requires immediate enforcement of the punishment. He noted that Eli Simhayoff and Uri Lupoliansky claimed that they could not bear the costs, but they had yet to prove that their financial situation does not allow doing so.
Unusual to postpone prison terms
In a long hearing on Thursday the seven, who were sentenced to prison terms ranging from three to seven years, argued that they should remain free until their appeals have been decided. Their lawyers tried to prove their clients’ convictions were highly likely to be overturned, and therefore they should not be incarcerated now.
Prior to Sohlberg's verdict, prosecutors had argued that it was unusual to postpone prison terms in such cases and the convicts, including Lupoliansky, who is ill, should go to prison at once.
The defense had argued that their clients’ appeals were likely to be successful because the convictions relied heavily on testimony from state’s witness Dechner, who died before most of the defense attorneys had a chance to cross-examine him.
“We see the court was aware of certain of the state’s witness’ limitations” and made sure to corroborate his statements with other evidence, Sohlberg said in response, prior to his ruling.
Sohlberg had also hinted that the verdicts were primarily based on Rozen’s impressions of the witnesses, circumstances in which the Supreme Court tends to avoid intervening.
While the state presented precedents for not delaying the sentences of people convicted of similar crimes, in past cases of public figures convicted in district court the Supreme Court has agreed to postpone punishment. So it was in the cases of former Interior Minister Aryeh Deri, former Health Minister Shlomo Benizri, and former President Moshe Katsav. Former Finance Minister Abraham Hirchson was an exception; he chose to appeal without asking for a delay in his incarceration, and conducted his appeal from prison.
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