(photo credit: Ariel Jerozolimski)
The state prosecution told the High Court of Justice on Tuesday that it had changed its mind about the harsh indictment it drafted last January against then-president Moshe Katsav solely on the basis of the evidence pertaining to the cases of the two key complainants, "Beit Hanassi Aleph" (the first Aleph), and "Tourism Ministry Aleph" (the second Aleph).
Yehuda Ressler, one of the attorneys representing Beit Hanassi Aleph, accused Attorney-General Menahem Mazuz of a lack of objectivity in changing his mind about the original draft and deciding to drop all the charges against Katsav regarding his client.
On Tuesday, the High Court held its final hearing on six petitions calling on the court to cancel the plea bargain and the decision to close the file regarding Beit Hanassi Aleph.
In the draft indictment, Mazuz said he was considering charging Katsav with having forbidden intercourse by exploiting a relationship of dependency, plus two counts of committing an indecent act against Beit Hanassi Aleph, and of rape and committing an indecent act against Tourism Ministry Aleph. Later, the state announced that it was considering charging Katsav with a second rape count in the case of Tourism Ministry Aleph.
However, on June 28, the state announced that it had decided to close the file regarding Beit Hanassi Aleph and charge Katsav with committing indecent acts without consent by applying pressure in the case of Tourism Ministry Aleph and another woman.
Supreme Court President Dorit Beinisch called on the state to answer three questions: What caused it to change its mind; what level of certainty did the state believe prosecutors must have that a court will convict the suspect for them to indict him; and what does the law say about the need to include the most serious suspicions against a suspect in an indictment based on a plea bargain.
The court will rule at a later date. It will have to decide whether Mazuz's decision to make such far-reaching changes in his original draft was "unreasonable to an extreme degree," the only criteria it has at its disposal to justify intervening in the attorney-general's decision.
Deputy State Attorney Shai Nitzan, who argued on behalf of the state, said the prosecutors' change of mind followed a hearing granted Katsav's lawyers, Avigdor Feldman, Zion Amir and Avraham Lavie.
"The hearing provided new angles for looking at the evidence," Nitzan said. And, he continued, in the case of Beit Hanassi Aleph, the gap between a decision to close the file or to indict Katsav according to the charges included in the January 23 draft had been narrow in the first place. After the hearing, the prosecutors concluded that Beit Hanassi Aleph's testimony had been contradicted by other witnesses and by external facts. Furthermore, her own testimony to police had been rife with contradictions, Nitzan said.
He said there was evidence that the relations between Katsav and Beit Hanassi Aleph were romantic and not based on force.
Given the evidence, it would be hard to prove Katsav had raped Beit Hanassi Aleph or even that he had exploited his authority over her, Nitzan said.
He added that it was not only Mazuz who had concluded that the case against Katsav in the matter of Beit Hanassi Aleph was flimsy, all 10 members of the advisory team of prosecutors had reached the same conclusion.
To overturn the state's decision, "You would have to determine that a collective decision of experienced attorneys was unreasonable to an extreme degree," Nitzan told the court.
With regard to Tourism Ministry Aleph, Nitzan said the state believed her version that Katsav had exploited his authority over her. However, the statute of limitations had expired on that charge. The only way they could charge Katsav in her case was by accusing him of rape.
However, the prosecutors believed they would have a hard time proving Katsav had used force - which was a condition for making a rape charge in 1999, when the two incidents allegedly occurred.
There were also problems regarding the evidence in the case of Tourism Ministry Aleph, including an affectionate letter she wrote to Katsav after the two alleged rapes had occurred, Nitzan said.
Beinisch had asked Nitzan why the plea bargain indictment did not specify more serious acts by Katsav than putting his hand on her knee while they were riding in a car. The court president wanted to know why there was no mention of the former president's touching intimate parts of Tourism Ministry Aleph's body.
Nitzan said this had been the best he could obtain in his negotiations with Katsav's attorneys.
In reply to a question by Justice Ayala Procaccia as to whether the state had been influenced by Katsav's senior position, Nitzan replied, "Absolutely not. We do not distinguish between a minister and a beggar."
Ressler accused the state of making up a story to defend Katsav.
"How can the attorney-general provide a version that Katsav did not claim himself? After all, Katsav said he had no sexual relations whatsoever with Beit Hanassi Aleph," Ressler said.
"Something is wrong with the state prosecution."
Ressler also accused Mazuz of deliberately providing the court with one-sided evidence. "I could understand had the prosecution made one argument, that is, that the court could only intervene if it was convinced the prosecution's decision was unreasonable to an extreme. But that is not what it did. It also published only the half of the evidence that supported its case. It did not present a single fact that supported the first Aleph's case."
Kinneret Barashi, one of the two lawyers representing Beit Hanassi Aleph, accused the state of providing the court with one-sided evidence to make her client look bad. For example, she said the state had relied on one witness, a friend of Beit Hanassi Aleph, who told police investigators that Beit Hanassi Aleph was obsessed with Katsav and jealous of his relations with other women. However, she added, the witness had also said that Beit Hanassi Aleph irritated her. Furthermore, all the other witnesses had contradicted this one.