Three coalition members submitted a bill on Monday to repeal the crime of fraud and breach of trust—an ambiguous charge that Prime Minister Binyamin Netanyahu is standing trial for (along with a bribery charge, which has been repeatedly disproven in court).
The bill’s explanatory notes state that the crime of breach of trust has drawn sharp criticism from legal experts across the political spectrum over the years, on the grounds that it grants exceptionally broad power to prosecutors and law-enforcement authorities and invites claims of selective and biased enforcement.
“The law-enforcement system uses this vague offense to retroactively determine what is considered criminal, even when the conduct is not defined as an offense under the Penal Code, and can retroactively decide what is criminal at its discretion,” the notes state. “Many cases that were opened and accompanied by high-profile arrests and draconian tools such as wiretaps, phone-penetration warrants, and search warrants later collapsed.”
The bill’s sponsors, Simcha Rothman, the chairman of the Knesset Constitution, Law and Justice Committee; coalition chairman Ofir Katz (Likud); and New Hope MK Mishel Buskila, also noted that no indictment has ever been filed against a judge or a prosecutor for fraud and breach of trust, despite countless conflicts of interest in which they have been involved over the years.
They also noted that other countries—such as Australia, South Africa, and U.S. states including Oregon and Florida—have repealed this offense or similar ones from their statute books, concluding that the very existence of such a vague offense violates basic principles of law, justice, and morality. Additional countries are currently in the process of doing so.
“This is a catch-all provision that severely undermines the principle of legality and the foundations of criminal law, which establish that there is no crime and no punishment unless they were defined in advance by law—meaning a person should not bear criminal liability for an act that was not prohibited at the time it was committed,” the sponsors stated.
They added that Israel has clear laws to penalize public corruption, including bribery, money laundering, insider trading, fraud, forgery and obstruction of justice. The proposed bill would replace the “catch-all provision” with clearly defined offenses, such as first-degree conflict of interest and trading in government information, while tightening disciplinary measures and ethics oversight.
It should be noted that repeated efforts have been made to amend or repeal the clause over the past two decades.
Former attorneys general Meni Mazuz and Yehuda Weinstein previously proposed reforms that would require prosecutors to prove “substantial harm” to one of three values—public integrity, public trust or the proper functioning of public service—before citing such charges. However, the proposals were never implemented.
The passing of the bill, slated to be discussed next week by the Ministerial Committee for Legislation, would have major implications for Netanyahu’s trial.
(YWN Israel Desk—Jerusalem)
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One Response
But without it, how will prosecutors be able to go after political enemies who fail to commit prosecutable offenses? While it is often called “Honest services fraud” in reality it means politically incorrect (as defined by the prosecutor) behavior; no one is ever prosecuted for doing what the prosecutor’s ideology supports. In Israel this is a very serious problem since the judiciary and prosecutors tend to be from the far left secular side of the spectrum (reflecting their ability to appoint their own successors, thereby entrenching those who were in power in the late 1940s and early 1950s), while the rest of the political world is dominated by right-center and religious groups.