Attorney General Issues ‘Cautious’ Guidelines for Investigating Public Figures

It is thought that the first time the preliminary examination protocol was used was in the investigation of Prime Minister Benjamin Netanyahu in the so-called Bibitours case

Israeli Prime Minister Benjamin Netanyahu, left, listens to then-cabinet secretary Avichai Mendelblit during the weekly cabinet meeting at his Jerusalem office, on November 16, 2014.
AP Photo/Gali Tibbon, Pool

A directive drawn up by Attorney General Avichai Mendelblit specifies that public figures suspected of a crime be subjected first to a preliminary examination, which does not involve an interview under caution. “Ordinary” citizens who are suspected of a crime would normally be questioned under caution.

Mendelblit said the guideline is needed as a cautionary measure in cases involving government ministers or lawmakers and that sometimes the only alternative is to close an investigation.

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The protocol has been used in recent years against a few public figures, and has in effect become a permanent procedure. It is thought that the first time the preliminary examination protocol was used was in the investigation of Prime Minister Benjamin Netanyahu in the so-called Bibitours case, under Mendelblit’s predecessor as attorney general, Yehuda Weinstein.

That probe lasted three years, and Netanyahu was not questioned. MK Miki Rosenthal (Zionist Union) petitioned the High Court of Justice against it, claiming it violates the principle of equality before the law. He called for setting rules for the use of such procedures.

Despite prosecutors’ objections, justices required the attorney general to standardize the issue. After the instructions were drawn up, Rosenthal registered an objection to what he called its vague language. The court ordered Mendelblit to consider amending it, resulting in the latest version of the directive.

An additional hearing on the petition is scheduled for Monday.

The preamble to the directive says “the opening of a criminal investigation against a person where an indictment is not eventually filed, may have wide repercussions on the person being investigated (such as a police record or being included in police databases) and inflict damage on a personal, family, social or employment scale, with all the ensuing repercussions. A criminal investigation also tends to have public significance beyond the person being investigated. As a result, caution is necessary, and an examination before a decision is made to open an investigation.”

Mendelblit provides two examples of situations warranting a preliminary examination. The first is intelligence implicating a senior official that comes from a secondary source. Because the intelligence did not come from a primary source, there is no basis for opening an investigation, and yet, says Mendelblit “due to the public sensitivity and possible repercussions of the issue, it is important to clarify the basis for the complaint and whether it should lead to an investigation or whether the cloud may be lifted. Therefore it would be proper to hold a preliminary examination before any decision is made about whether to shut the case.”

The second example is one where “the fact of opening an investigation would have great impact on the person’s area of responsibility.”

Mendelblit’s directive specifies that in the preliminary phase, no one may be questioned under caution. Nor should they be asked to take a polygraph test “except in extraordinary circumstances and with the approval of top officials.”

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The new directive would prohibit searches, staged confrontations between suspects and electronic surveillance. It would permit the collection of documents and other forms of intelligence from police and the media, financial checks and the recording of witness statements — including polygraph tests of potential witnesses — and the receipt of aid and intelligence from foreign countries.

The directive does not limit the duration of such an examination, but it does specify that every effort must be made to conduct it “in the timeliest manner possible.”

In its reply to the court, the state prosecution rejected the argument that the directive gave public officials an advantage over private citizens facing investigation. The state said the preliminary examination in fact “reflects a stricter approach against public figures.” It allows for a lower evidentiary bar in launching a probe against a public figure, compared to that required for an individual not in public office.

In addition to Netanyahu, in recent years preliminary examination have been conducted against public figures including Interior Minister Arye Dery, former coalition whip MK David Bitan and Isaac Herzog, the former opposition chairman who now heads the Jewish Agency for Israel.

The probe against Herzog became a full-fledged investigation, which was later closed for lack of evidence. The investigations of Dery and Bitan are ongoing. But probes against former cabinet ministers Silvan Shalom and Gideon Saar, and against former Bank Hapoalim CEO Zion Kenan were closed before becoming investigations.

Rosenthal said in response, about the guidelines: “The more the discussion of the petition advances, it seems the prosecutors are pasting patches all over the place to cover all the holes in the guidelines, which hurt the principle of equality before the law, give preferential treatment to suspects with connections and damages investigatory work in criminal cases.”

Rosenthal’s lawyers in his petition to the High Court are Yuval Yoaz, Elad Mann, Avigdor Feldman and Yemima Abramovith.