There has been a lot of discussion recently about “the submarine affair.” Reading some of the op-eds – among them Yuval Yoaz’s (“And meanwhile they can keep talking,” November 23) – suggests that, at least when it comes to the criminal aspect, there have been many mistaken analyses concerning what a “conflict of interest” is.
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For example, Yoaz emphasized “criminal intent” as the relevant element in deciding whether Prime Minister Benjamin Netanyahu committed a criminal offense by being involved in negotiations to buy three submarines from a German company with connections to his own personal lawyer. The public likes to ponder the questions of “What he knew” and “How could he not have known?” And since the public already assumes that “he knew,” a gap has developed between the way the public perceives the actions and the way the legal system is acting. This gap damages the public’s trust in the legal system, but it originates from faulty analysis.
The criminal offense of breach of trust states that a public official has acted in a way that could harm the public interest. “Conflict of interest” is a special case in breach of trust. The basic assumption is that a public official should only have the public’s interest at heart. In conflict of interest cases, the official also has an additional interest (personal or public) in addition to the public’s interest. An offense is liable to occur when a public official acts in a situation where he has a conflict of interests.
“Liable” to occur – but not for certain. It is immediately clear that many actions by public officials take place where they have a conflict of interests – from a government minister who makes a decision about welfare payments that could affect members of his own family, to a council official who decides to carry out improvements to his own neighborhood. By definition, these are acts with a conflict of interests. However, this does not mean a public official commits an offense every time he is aware of such circumstances – which is a good thing.
What is consistently absent from the analyses is the fact that, time and again, the Supreme Court has ruled that not every conflict of interest is criminal. For an individual to be convicted of an offense of breach of trust, it is necessary that there be “significant harm” to the public interest. There must be “an additional inimical aspect.”
Therefore, in order for someone to be brought to trial – and for the court to convict them – it is necessary to go through a number of stages. For the conflict of interests to be considered criminal, it must be determined that a “personal interest” was liable to have influenced the public official’s decision; it is necessary to examine whether the public interest was fulfilled and whether the public official acted within the scope of his authority or exceeded it. Also, it must be determined whether the conflict of interests was open or hidden; whether exceptional benefits accrued to the official; whether there was an inherent element of corruption; and whether the official’s interest was economic and personal, or something else.
This is not a matter of absolute conditions, but the principle is clear: Not everything that is perceived as “inappropriate” is also criminal. There is a gap – and in a properly run country that does not rush to deny an individual’s freedoms, it is fitting that there be a gap between what should lead to a criminal investigation and when the public believes that should happen.
At the same time, at both levels – the public and the criminal – it is important to examine all the circumstances and not focus only on the “conflict of interest.”
If we focus on the action attributed to the prime minister, irrespective of the question of whether he knew that attorney David Shimron was representing clients with an economic interest in the deal, from the partial picture that is emerging it is obvious that the discussions took place with the participation of many professionals, and many supported the deal.
The issue came to the prime minister in a conventional manner, considering its nature and importance. The premier himself derived no personal benefit from the deal. The relationship between Netanyahu and Shimron is not a relationship based on anything improper. Moreover, there are a number of additional considerations indicating that even if people believe it may have been more appropriate for the prime minister not to have been involved in the deal, there is still a great distance between his actions and the criminal realm – and there is no justification for an investigation.
The writer is a criminal lawyer who represents clients in breach of trust cases and once represented Netanyahu on another matter.