NGO calls for prosecution supervision

Movement for Quality Gov't wrote Justice Minister, requesting oversight for state prosecution.

By DAN IZENBERG
August 24, 2010 02:09
NGO calls for prosecution supervision

Hapoalim. (photo credit: Courtesy)

 
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The Movement for Quality Government wrote to Justice Minister Yaakov Neeman on Monday, requesting his timetable for establishing a body to oversee the state prosecution.

Neeman has apparently set such a timetable.

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The letter came one day after a blistering ruling by Tel Aviv District Court Judge David Rosen, who lambasted the state prosecution, and closed the indictment against two executives at the Yarkon Street branch of Bank Hapoalim. The executives had been charged with breaking the Prohibition on Money-Laundering Law by failing to present information on clients’ accounts to the Israel Money Laundering and Terror Financing Prohibition Authority.

Even before dealing with the merits of the charges, Rosen closed the indictment on the grounds that the criminal procedure conducted by the state violated the principles of justice and judicial fairness.

The case was reminiscent of the affair involving the wiretapping of phone calls by former prime minister Ehud Olmert’s senior aide, Shula Zaken, during the police investigation of former justice minister Haim Ramon. In that case, the state prosecution failed to hand over wiretapping transcripts to the defense. State Comptroller Micha Lindenstrauss, who recently investigated that affair, accused senior state prosecutors of gross negligence.

In the Bank Hapoalim affair, Rosen accused the prosecution of failures regarding four separate aspects of the case and concluded: “The state acted in a faulty and harmful way. Its conduct borders on the scandalous. This is true of each of the four incidents and is certainly true when the four are taken together.

“The state failed to hand over an inconceivable amount of evidence to the defense.



It withheld thousands of documents, both after it filed the indictment, and for many months afterwards.”

The judge continued, “The state made incorrect statements in the district and supreme courts regarding the secret photographs, as well as the affair involving prosecution witness Leon Boiko. An indictment was served against the defendants, in contrast to the many kinds of arrangements the prosecution reached with the banks’ clients.” The latter were also investigated.

In one of the failures referred to by Rosen, the state withheld from the defense more than 38 large boxes of material containing tens of thousands of documents, including the testimony of key witnesses during police questioning.

In early 2009, after the indictment had been filed, the defense asked the prosecution twice whether it had handed over all the evidence. On both occasions, the state did not reply to the letter. When the state began to call up witnesses on December 13, 2009, it informed the court it had transferred all evidence in its possession to the defense. But on January 6, 2010, the state announced it had discovered the additional evidence.

Regarding the contradictory announcements of the prosecution, Rosen wrote, “The state’s declaration in court is taken as the true state of affairs. An incorrect declaration by the state can damage the foundations of the judicial process. An incorrect declaration can also undermine public confidence in the prosecution and its representatives…Public confidence is the breath of life of a society that depends on law and order.”

Rosen added that the fact the prosecution discovered the additional evidence a year after filing the indictment may have meant it did not read the material itself.

In which case, it prepared the indictment without knowing all it should have known about the case.

Another issue had to do with secret photos taken of people entering the offices of the two defendants, Alek Leder and Yaakov Sverdlik. The conversations in their offices were taped, and the photos were taken to connect the voices to the specific individuals.

The defense asked for the photos, declaring that they constituted evidence.

The state refused to hand them over, saying that according to the police, the visitors had only been photographed from the back, and their faces could not be seen.

Leder’s lawyer, Shimon Dolan, rejected the state’s argument; he noted that the visitor’s faces would have been seen when they left the room. Furthermore, if the photos were useless, why had the state asked the court to extend its permit to take more secret photos for another two months? In the ruling, Rosen quoted trial testimony by a police investigator who confirmed that the visitors’ faces could be seen on their way out. It emerged that the prosecutors had never seen the photos at all; they had allegedly relied on the statements of police investigators who had seen the photos, and then gotten the information wrong.

The judge charged that “the state’s declarations were, at the very least, based on half-truths.” In the case of the state’s witness, Leon Boiko, Rosen concluded that the state had “distorted” the truth in declaring that Boiko was not a state’s witness; it was being untruthful in declaring it had not promised Boiko anything in return for his testimony, which incriminated Leder and Sverdlik.

Afterwards, prosecutor Tali Najari did admit that the police had let Boiko know before his testimony that it would pay a fine of NIS 200,000 he owed to the income tax authority for income he failed to report.

In a statement to the court, Najari acknowledged that the state “had erred regarding the information it gave…and in doing so misled, not deliberately, the district and supreme courts.”

In an article in Monday’s Yediot Aharonot entitled “Rot,” the former head of the Courts Administration and Jerusalem District Court Judge Boaz Okun wrote, “The verdict given yesterday [Sunday] minced no words and served as a warning, but it is not the only such decision.

Recent court decisions paint a grim and frightening picture of a black wind blowing through the corridors of the prosecution, expressing itself in overeagerness to convict, in statements that are half-truths and in concealing evidence.”

Okun warned that the prosecution itself may become rotten “because there is no mechanism of oversight, no learning the lessons of the affair and no accepting of responsibility. No prosecutor is asked to be accountable because the prosecution is above everything.”

Meanwhile, the Justice Ministry issued a statement saying it is “studying the court’s ruling. However, already from first reading, it appears the state disagrees with some of the court’s findings.

“We must stress the importance of filing the indictment and conducting the case, which is one of the first against bank officers in accordance with Paragraph 3 of the Prohibition of Money- Laundering Law. Bank officers are the front-line guards, the first link in the chain of reporting which banks must do in the international struggle against money-laundering and terror financing.

This is the reason why it is so important to press charges, given the potential for harm that can be caused the state and its economy.

“The comments made by the court regarding the conduct of the prosecution were discussed in court – after the court, as is its practice, raised the matter. Since the state’s disclosures were made, discussed and even published, the proper conclusions were reached and lessons learned.

“The prosecution does not believe the defense of the defendants was so badly damaged as to justify the cancellation of the indictment. And from a first reading of the court’s decision, it seems that the court did not discuss in detail the degree of the damage that incurred.

“We are concerned with an investigation in which enormous amounts of material were gathered, and it is only natural that when dealing with so great a volume, mistakes will happen. With all due respect, one should not accept the approach that mistakes which did no damage to the defendant’s defense should lead to the cancellation of the indictment.

“Despite the acquittal, we hope the message will get through – that bank employees are not immune from criminal trial, and that the obligation to report applies to every citizen of the state as part of the struggle against money-laundering and terror financing.

In this context, the prosecution welcomes the establishment of an economic court, and is considering bringing money-laundering cases before it.”

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