The Jerusalem District Court held a hearing Sunday on Prime Minister Benjamin Netanyahu’s motion to quash the indictments in his corruption case due to alleged defects in the case.
Netanyahu's attorneys demanded that the prosecution amend the indictment to add details regarding the alleged crimes committed by the prime minister, which the lawyers claim is necessary to mount a proper defense. If their request is accepted, it would further delay the evidentiary phase of the trial, which has already been postponed until February.
Netanyahu's lawyers filed a request last week seeking to quash the indictment based on alleged procedural flaws in the case. The request also included a claim that the prime minister was protected by parliamentary immunity when the indictments against him were filed. The case is being heard by a three-judge panel headed by Judge Rivka Friedman-Feldman.
Netanyahu has been indicted for bribery, fraud and breach of trust in three cases, dubbed Cases 1000, 2000 and 4000. Case 4000, in which Shaul Elovitch, the former controlling shareholder of the Bezeq telecommunications company, and his wife, Iris, have also been charged, involves allegations that the prime minister provided regulatory concessions to Bezeq in return for favorable news coverage on the Bezeq-owned Walla news website.
Case 1000 involves allegations that Netanyahu received lavish gifts from wealthy business figures including Israeli Hollywood producer Arnon Milchan in return for acts benefitting Milchan.
Case 2000 is centered around allegations that Netanyahu offered Arnon Mozes, the publisher of Israel’s most popular paid daily newspaper, Yedioth Ahronoth, government policy favorable to the newspaper in return for favorable news coverage by the daily.
The defendants – Netanyahu, the Elovitches and Mozes – were not present in the hearing. The prime minister's defense said that the indictment is missing details, such as the list of demand the Netanyahu family made for favorable coverage in the Walla website in Case 4000, and the gifts the Netanyahu couple received as part of Case 1000.
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"We're in the fog of war," said his Boaz Ben Zur, who along with Amit Hadad is representing Netanyahu, and who claimed that the indictment does not sufficiently describe the alleged offenses in such a way to understand what it at issue in the case. "The burden of proof is on the prosecution. If it takes a week or two [to amend the indictment], that's fine. Otherwise, we'll lose our way in the evidentiary phase."
In reference to the allegations that Netanyahu demanded that the Walla news website skew its coverage in his favor, Judge Oded Shaham said,"The defendants are entitled to know what demands for [news] coverage were met and have the right to get the full picture. The absence of detail on this matter demands an explanation."
Judge Moshe Bar-Am said that "the details are very relevant."
Yehudit Tirosh, who represented the prosecution in the hearing, said that "In many cases, we don't elaborate on each and every detail," noting a case in which the former mayor of Ashkelon was convicted of taking bribes. "The story is found clearly in the indictment, and it is not supposed to map out the investigative materials. The point is to tell the story to the defendant so that he knows what to defend himself against."
The lead prosecutor of the case, Liat Ben Ari, said that in Case 1000, "We know what was bought for the defendant and for how much money, but not what was given to him and when."
The defense has until January 4 to respond to the indictment, and the evidentiary phase is currently due to begin in February. If the judges accept Netanyahu's position, the trial's timeline will be postponed significantly. The prosecution would need time to reassemble the materials and could prompted additional requests for investigative material from the defendants.
Both the defense lawyers and prosecutors agree that the defendants’ claims concerning the use of purportedly illegal investigative tactics in the questioning of witnesses who turned state’s evidence in the case should be decided at the end of the evidentiary stage of the trial rather than in the current preliminary proceedings.
Defense lawyers for Netanyahu and Shaul and Iris Elovitch submitted motions that the flaws in the case, when taken together, constitute abuse of process, meaning legal grounds on which a case that is fundamentally flawed can be dismissed in the interests of justice. The claim of abuse of process does not refer to the merits of the indictment itself, but to the way it was investigated and decided upon.
In their objections to the indictment against the prime minister, his lawyers allege that Netanyahu was targeted in advance and that improper criminal means were used, including pressure exerted on witnesses.
“The investigative material reveals severe acts that call for the indictment to be quashed – a crime that was not investigated, but invented,” the court filing stated. It also alleges that Attorney General Avichai Mendelblit failed to abide by the requirements in filing charges against a member of parliament, and therefore the prime minister is immune from being charged.
On Thursday, prosecutors contested the claims that there had been serious errors in the police investigation. “There were no defects in the process of filing the indictment,” a statement from the state prosecutor’s office said.
"After hearing the evidence, the factual picture reflecting the truth will become clear to the court. This is in contrast to the skewed and distorted picture now presented by Defendant 1,” the prosecution said, referring to Netanyahu. As for the claims of immunity by Netanyahu, the prosecutors called them “completely baseless.”
In a brief filed last week with the court, Netanyahu’s lawyers alleged that in addition to the immunity that the prime minister has due to the failure to follow procedure in charging him, Netanyahu has substantive immunity in Case 2000 because any actions that he took were in the course of his parliamentary duties. All his contacts with Mozes were part of Netanyahu’s job as a Knesset member and to “advance a political parliamentary process,” and are therefore covered by the parliamentary immunity accorded members of parliament, his lawyers said.
The prosecution said in response that Netanyahu’s actions were not carried out as part of his parliamentary duties. Instead, they argued, they were a “detailed and planned discussion over a proposed bribe by Defendant 4, Mr. Mozes, and the desire of Defendant 1, Mr. Netanyahu, to take advantage of it for his personal benefit.”
As for the claims of immunity because Mendelblit and prosecutors did not follow the proper parliamentary and legal procedures in filing the indictment against Netanyahu as a Knesset member, the prosecution told the court: “Netanyahu himself withdrew the request for immunity less than a month after it was submitted, and in doing so, the process requesting immunity ended.
"No explanation has been given as to why [Netanyahu's] claims are only being raised only now, after almost a year has passed since the date of the deliberate and considered waiver [of immunity],” they added.
At Sunday's hearing, when asked by Judge Friedman-Feldman why the immunity defense had not been raised earlier by Netanyahu, Amit Haddad responded: "What was he supposed to do during that year? Do a rain dance? The only place to make that argument is in these proceedings."