New Law Gives Judges the Power to Throw Out Unjust Indictments

The Knesset passed a law yesterday giving courts the right to withdraw an indictment in a preliminary hearing, without examining the merits of the case, if the court believes that "submitting the indictment or conducting the criminal proceeding is in fundamental conflict with the principles of justice and legal fairness."

The law, which passed unanimously in the second and third hearings yesterday, marks a revolutionary change in Israeli criminal law by introducing an element that strengthens the defense and restricts the prosecution.

The concept underlying the law had previously been recognized in the Israeli legal system, but only through court rulings, not through legislation - and was used sparingly for this reason.

Justice Minister Daniel Friedmann supported the law, which was proposed by the Likud faction chairman, MK Gideon Sa'ar, and the chairman of the Knesset Economics Committee, MK Moshe Kahlon (Likud). The state and military prosecution, along with the police and Shin Bet security service, opposed the legislation. A similar law is due to be proposed for military law as well.

"From now on, the legal authorities need to be cautious in their actions," said MK Menachem Ben Sasson (Kadima), chairman of the Knesset Constitution, Law and Justice Committee. "The statement here requires them to do justice on their way to making law."

However, Rachel Edelsberg, who is in charge of the Public Security Ministry's prosecution department, warned that such an expansive law would lead to courts being flooded by lawyers' requests for preliminary hearings in a bid to get indictments withdrawn.

Circumstances that would warrant a withdrawn indictment, according to the bill's proponents, include a situation in which the state was involved in an offense causing the indictment to be filed, an intolerable delay in filing the indictment, and defects in the investigation.

For instance, an indictment handed down against one person in a fight that involved 10 people and took place a long time beforehand could be withdrawn under the new law, as could an indictment against a state's witness whom the state had agreed not to prosecute.

A 1996 court ruling set a precedent for the use of the defense now anchored in law. The verdict in what is known as the bankers affair stated that the indictment would be withdrawn if it were filed in a manner that includes "scandalous conduct involving some persecution, oppression and abuse of the defendant ... cases in which the conscience is outraged." Since then, the courts have allowed this defense in less extreme cases as well.

Once it became clear that the Knesset would pass the law, the debate centered around whether to require a more restrictive "extreme conflict" with the principles of justice or a "fundamental conflict" - the more expansive wording which Sa'ar and Friedmann supported and which the MKs eventually adopted.