Prosecutors Say Hanegbi Acquittal Paves Way for Successful Appeal

It was impossible to miss the disappointment on prosecutors' faces yesterday when they heard the verdict on Kadima MK Tzachi Hanegbi.

But both the prosecutors themselves - Erez Padan and Na'ama Sultanik - and their superiors rejected the suggestion that the prosecution suffered a resounding failure. Instead, they pointed to two crucial elements of the majority opinion issued by Judges Aryeh Romanoff and Oded Shaham: first, that politicized appointments could in principle constitute the criminal offense of fraud and breach of trust, and second, that there was indeed sufficient evidence to conclude that Hanegbi made improper political appointments.

"It wasn't a defeat," said Padan. "From a procedural standpoint, Hanegbi wasn't acquitted." Rather, he said, the court decided the charges should be dropped due to considerations of justice - primarily, the fact that Hanegbi had no grounds for thinking his behavior was indictable, since politicized appointments were common practice and no one had ever been indicted for it before.

The prosecution has not yet decided whether to appeal, but several people involved in the case said they saw no choice but to do so.

It has also not yet decided whether to ask the court to rule that the offense of which Hanegbi was convicted - a felony count of perjury - involves moral turpitude. But here too, people involved in the case said they found it hard to see how such an offense could not be deemed to entail moral turpitude.

The prosecution had long viewed the Hanegbi case as its flagship in the war on political corruption. Former attorney general Menachem Mazuz, who filed the charges, believed it could, for the first time, determine that improper political appointments are a criminal offense - which in turn would significantly reduce the scope of such appointments in the future.

He also thought Hanegbi, due to the massive and systematic nature of his appointments, was a fitting vehicle for the test case.

Thus while a senior legal figure familiar with the case acknowledged that the verdict was "something of a disappointment," he hastened to add that "it's important to look at the majority judges' normative determination" - namely, that improper political appointments can indeed constitute a crime.

Indeed, some prosecutors said this finding strengthens a possible case against former prime minister Ehud Olmert's political appointments.

Nevertheless, prosecutors lambasted Romanoff's decision to join the third judge in acquitting Hanegbi on the grounds that he had no reason to think he would be indicted for such appointments, using terms like "mistaken" and "problematic."

"The meaning of Judge Romanoff's ruling is that a criminal who knows a certain offense is not enforced can commit that offense and then claim in his defense that he had expected the law not to be enforced, and therefore has immunity," the senior legal official said. "There is no precedent for this in previous court rulings, and such a ruling cannot be allowed to stand."