Knesset Has Yet to Redefine 'Breach of Trust' in Wake of Lieberman Trial

The Justice Ministry pledged to amend the definition of the offense, but has yet to do so a year later.

Reuters

A year after the Justice Ministry pledged to amend the definition of the “breach of trust” offense that is central to prosecuting corruption cases, no amendment has yet been sent to the Knesset.

The ministry made the promise after the Jerusalem Magistrate’s Court acquitted Foreign Minister Avigdor Lieberman on a breach of trust charge in the case involving ambassador Zeev Ben Aryeh.

The verdict was one of several acquittals in similar cases and highlighted the need to amend the legal terminology.

Many corruption cases against public figures have been opened because of suspicions of fraud and breach of trust, such as businessman Morris Talansky, Boaz Harpaz, and Maj. Gen. Niso Shaham, who is charged with having sexual relations with subordinate policewomen.

Former Prime Minister Ehud Olmert was convicted of breach of trust in the Investment Center case and MK Tzahi Hanegbi was acquitted of the charge in the case of the political appointments he made.

Judges, academics and politicians have heaped criticism on the vague terminology of the offense, which enables defendants to evade a conviction. They also say the clause doesn’t define the forbidden act that constitutes breach of trust. Consequently, the act doesn’t qualify as a criminal offense, which says that a person cannot be punished for his conduct without being warned in advance that it is prohibited.

Despite Attorney General Yehuda Weinstein’s confidence in the evidence against Lieberman in the case of the ambassador, Lieberman’s acquittal convinced Justice Ministry jurists that the offense’s terminology must be amended.

In 2009 then attorney general Menachem Mazuz (who is to be appointed Supreme Court justice next week) drafted a proposal to sharpen the breach of trust offense’s terminology and assign a harsher punishment for it.

The draft describes four clear situations constituting breach of trust – acting in conflict of interest, receiving benefits or perks, using inside information, and deception or passing on false information. The bill also includes a general clause allowing the prosecution a wide berth for indicting for this offense, even for acts that were not mentioned in the law’s description, with the attorney general’s approval.

The amendment also says the penalty for breach of trust will be raised from three to five years in prison.

When Weinstein was appointed the attorney general, he wanted to push the amendment, but objected to the general clause and the initiative stalled.

Since Lieberman’s acquittal, a professional team headed by deputy attorney general for criminal affairs, Raz Nizri, has resumed the discussions on the bill. The team made some changes in the draft. It also considered determining that breach of trust cases will be tried in district courts. This option, however, has been struck down.

The professional team has completed its work, but the meetings in the attorney general’s office about the amendment were put off again and again. Justice Minister Tzipi Livni also seems in no hurry to advance the initiative.

In the past Mazuz said that former Justice Minister Yaakov Neeman had thwarted advancing the proposal.

“The existing situation is convenient for the government figures,” Mazuz said in an interview with Haaretz after Lieberman’s acquittal. “It makes it difficult for the prosecution and the courts to convict. If there are acquittals, the prosecution hesitates to serve indictments and them the judges find it easier to acquit in the next case. On the other hand, if the law is clear and succinct, they’d be in trouble.”

At the end of the month it will be 10 years since the central verdict interpreting the offense. It was handed down in the case against Shimon Sheves, the Prime Minister’s Office director-general during Yitzhak Rabin’s 1992-95 term. Sheves was convicted on two charges of breach of trust, for using his position to advance his friends’ business affairs.

Even after the verdict had been given, the offense still lent itself to too much interpretation and remained in the gray area. In the verdict acquitting Lieberman the judges addressed the vagueness of the offense’s terminology.

They said that the Supreme Court wanted to set clear borders for the breach of trust offense, but the borders “are still not clear enough and in any case we believe the defendant’s acts, as proved, do not fall within them. In this situation there is no clear guidance for a public official, the police, the prosecution and the courts what the criminal prohibition is. This state of affairs infringes on the principles of legality and the effectiveness of the struggle against corruption,” they wrote.

The Justice Ministry said the draft has been completed and a discussion is expected with the attorney general on how to advance the proposal.