I do not know former foreign minister Avigdor Liberman. I have never met the man
nor do I have any relationship with him or with the political party which he
heads. I certainly have no idea whether he committed serious financial and other
crimes, as alleged by the attorney general.
What I do know, however, is
that the protracted investigation of Liberman, the abandonment of the
overwhelming majority of the allegations against him and the filing of a pared
down indictment underscore much of what is seriously wrong with the criminal
justice system in Israel.
The Liberman investigation has been going on
for between 11 and 16 years depending on whose version of events one accepts.
During that time, details of the investigation have flooded the media: the
charges, who was interrogated, how many times, what documents were discovered,
and so forth. This was not a “leak”; this was an open floodgate of information
consciously designed to vilify Liberman in the public eye, and to exalt the
prosecutors and investigators.
The source of these disclosures was never
investigated since this is considered normal operating procedure in the Israeli
criminal justice system – notwithstanding the fact that release of information
concerning an ongoing investigation is a serious crime. Liberman, of course,
could not substantively respond to the allegations in detail.
public aspect of the investigative process (which should not even exist) is
stacked against the potential defendant. An ordinary citizen, faced with such
constant and protracted public vilification, would “break.”
And that is
what prosecutors want: to secure an unfair advantage, to the point that the
subject of the investigation, under enormous pressure, cannot maintain a calm,
logical defense. More than one defendant, under the crush of such a process, has
reached a “plea bargain” even for crimes that he did not commit. If nothing
else, Liberman must have tough skin, very tough.
I have been asked many
times, by questioners both in Israel and abroad, as to how the investigation
could last so many years: “Isn’t there a statute of limitations?” “Can justice
really be done after 16 years?” Local questioners somehow understand, sub
silentio, that the criminal justice system in Israel leaves much to be desired,
and is not based on “fair play.”
When these questions are posed by my
colleagues from abroad, I am embarrassed to reveal this fact of Israeli life to
them. Supporters of Israel from abroad are often shocked by my
“We didn’t realize Israel was a police state,” they
TO ANSWER the question concerning the statute of limitations in a
substantive manner, one must look at the foundations of the statute of
In the United States, the Constitution recognizes
that delay constitutes unfair punishment of the accused, beyond the issue of the
underlying crime. Thus, the Constitution’s speedy trial clause (the 6th
Amendment) protects those accused of criminal offenses against unreasonable
delay between indictment and trial. The due process clauses (5th and 14th
Amendments) protect against unreasonable delay between alleged commission of a
crime and the indictment.
It is generally stated that statutes of
limitations serve several purposes: to protect individuals from having to defend
themselves against charges where the basic facts have become obscured by the
passage of time; to prevent government officials from taking action against
political rivals for acts in the far-distant past; to encourage and require law
enforcement officials to act promptly in investigating criminal allegations; and
to ensure that criminal trials take place in an atmosphere where witnesses and
other evidence are fresh and credible.
In simple terms – it is normally
impossible to prove anything “beyond a reasonable doubt” when 16 years have
passed. Even if prosecution witnesses declare without hesitation that their
memories are infallible, this is generally simply incorrect.
defendant may simply not be able to challenge or scrutinize the allegations
because he himself does not remember. In the case of political figures, the
crying need for swift adjudication of criminal allegations is even more
To be sure, there are situations where the statute of
limitations is extended.
These include heinous crimes such as murder or
terrorism, and situations where the defendant flees jurisdiction, thus himself
causing a delay in justice.
In Israel, all of the above considerations
theoretically apply. However, one simple provision of law effectively pulls the
rug out from under the doctrine of a statute of limitations. Under Section 9 of
the Criminal Procedure Law, the statute of limitations is “tolled” (frozen)
during the investigation period. In fact, it is not just frozen, it
Thus, if the statute of limitations is seven years, and the
investigation takes place from year six to year 10, the new seven-year period
would extend until year 17. If the prosecutor’s office sends a file back to the
police to fill in some element of the investigation, the limitations period
re-sets again and again. This means that in practice, if the authorities so
wish, the statute of limitations period can be extended forever. Justice delayed
is justice denied.
When the attorney general’s office decided not to
prosecute Liberman for the overwhelming majority of the issues raised in the
investigation, it did not simply announce the closure of the file. Instead, it
issued a 95- page (!) memorandum explaining its decision.
What is the
purpose of such a memorandum? Ostensibly, to make the process transparent and
allow public scrutiny.
On its face, the memorandum process would prevent
an attorney general from closing a criminal case for political or other improper
reasons. In reality, of course, the purpose of the memorandum is to convict the
non-indicted defendant in the public eye without the benefit of a trial or any
chance of public exoneration or judicial scrutiny.
Yehuda Weinstein concluded his memorandum with the phrase: “let the public read
and judge.” While Weinstein should be congratulated for his candor and admission
as to the true, and totally improper, purpose of the memorandum, he erred
fundamentally in issuing the memorandum, the purpose of which was to hang
Liberman from the public gallows without trial, and on the eve of
We have much to be proud of in the Israeli justice
But there is also much in the criminal justice system for which
we should hang our collective heads in shame: one-sided disclosures of
sensitive, private information; delays; and hanging public figures in the city
square before and sometimes without trial. Shame.
The writer is an
international attorney based in Tel Aviv.
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