A blot on the criminal justice system

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.

Thus, the 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 disclosure.

“We didn’t realize Israel was a police state,” they say.

TO ANSWER the question concerning the statute of limitations in a substantive manner, one must look at the foundations of the statute of limitations doctrine.

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.

Moreover, a 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 compelling.

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 re-sets.

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.

Attorney General 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 elections.

We have much to be proud of in the Israeli justice system.

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.