Exceeding Her Authority, Justice Minister Warned State Prosecutor Not to Fight ex-PM Olmert's Release

As a result, State Prosecutor Shai Nitzan changed his position

Justice Minister Ayelet Shaked on May 4, 2018.
Emil salman

Justice Minister Ayelet Shaked warned State Prosecutor Shai Nitzan last June not to oppose the decision to reduce the prison sentence of former Prime Minister Ehud Olmert, and Nitzan changed his position, sources told Haaretz.

Shaked often says she does not interfere in the prosecution’s work, but this is the second time she has exceeded her ministerial authority and intervened in a specific case. The first was when she announced that her request led to an investigation into an activist of the anti-occupation group Breaking the Silence who had revealed that he assaulted a Palestinian during his military service.

The independence of the attorney general and the state prosecutor is enshrined in a report by a committee of legal experts headed by Justice Shimon Agranat in 1962, and in a directive by the attorney general from 2003. The directive states that the attorney general will “use the powers granted him by law in the realm of criminal law based on independent considerations, without subservience to the policies of a minister or the government.”

In the 2003 document, the attorney general noted that in special cases where political, security or public considerations warranted it, he would consult the justice minister. But “this should be reserved for the most exceptional cases to prevent as much as possible the involvement of the political echelons in decisions in the criminal realm.”

The Justice Ministry’s website echoes this thought, stating that the minister “does not intervene in specific cases but can determine directives involving general policy” of the prosecution and the attorney general’s office.

The matter of Olmert’s early release was solely in the prosecution’s jurisdiction, and according to the parole laws, the justice minister has no authority to intervene. The prosecution was strongly opposed to an early release for Olmert because he was under a criminal investigation at the time amid suspicions he passed classified material to unauthorized people during the writing of his memoirs.

The prosecution said Olmert had sent classified material out of prison more than once, Olmert had been warned and his actions showed a pattern of fraudulent behavior. But the parole board rejected the prosecution’s charges and said the removal of the material was a one-time act by a prisoner “whose conduct was impeccable.”

The prosecution had intended to submit a request to delay the parole board’s decision but the committee required a response by the end of that day. It was reportedly at this point that Shaked texted Nitzan, who is known for his close working relationship with Shaked.

Officials in the state prosecution who were involved in the matter said they did not know about Shaked’s intervention and believed that the prosecution should oppose Olmert’s release. In contrast to Nitzan’s earlier position that the prosecution should oppose an early release, in a meeting that June afternoon at the attorney general’s office, Nitzan reversed himself.

A statement the Justice Ministry released that evening said that Nitzan recommended early release because “the entirety of the circumstances” showed that there was no reason to oppose early release and that the attorney general, Avichai Mendelblit, had accepted Nitzan’s recommendation. Prison Service chief Ofra Klinger later criticized the parole board’s decision.

Shaked showed leniency toward Olmert in general. She supported his first request for clemency while he was still behind bars, going against the recommendation of the Justice Ministry’s clemency committee.

In any case, President Reuven Rivlin turned down Olmert’s request. Shaked later supported lifting restrictions on Olmert, against the opinion of professionals in her ministry. Shaked refused to reveal her position on a request Olmert submitted to lift the designation of moral turpitude that accompanied the former prime minister’s conviction on bribery charges, but her position can be surmised by the support she expressed for Olmert’s first request for clemency.

In response to Haaretz’s query on how Nitzan responded to Shaked’s text, whether it influenced him and whether he thought it appropriate for the justice minister to intervene in the matter, he said: “The power to object to any decision by the parole board is by law in the hands of professionals in the state prosecution and the state prosecutor who heads it.”

As Nitzan put it, “The prosecution examines each case individually in light of its particular circumstances and a decision is made in light of pertinent and professional considerations. That was the situation in this case as well. Moreover, we do not find it appropriate to discuss gossip, and this neither confirms nor denies anything that was claimed.”

The justice minister’s office responded: “Ehud Olmert served his sentence. The approach of the minister to any offender who had good behavior in prison and isn’t a danger to the public is to reduce the sentence by one-third.”