katsav appeal 311.
(photo credit: Marc Israel Sellem/The Jerusalem Post)
Former president Moshe Katsav, now appealing his rape conviction, appears to have gotten himself deeper in trouble when it emerged that police are accusing him and alleged confederates of harassing some witnesses and approaching others to either change existing testimony or obtain new testimony.
These infractions, labeled “obstruction of justice,” were reportedly perpetrated through private investigators hired by Katsav and his family.
Whatever the facts in this specific Katsav imbroglio – and we do not here presume to pass judgment – it raises very basic issues of jurisprudence almost unique to Israel as distinct from other democracies.
Relations between policemen and PIs are never friction- free in any country, if only for the mundane reason that private eyes are the civilian counterparts of officers, sometimes (though not necessarily) working at cross-purposes to the police and second-guessing police work. By definition, their methods are different from those of the police, a fact that naturally doesn’t contribute to harmony.
Then there is the popular image of private detectives lurking at the
seamy underside of the law, profiting from surveillance on unfaithful
spouses, eavesdropping on cheating employees, snooping on insurance
swindlers, and bugging or debugging shady premises.
But all this doesn’t begin to account for the animosity, intimidation
and thwarting of PIs common in this country. Police and prosecution
commonly threaten private detectives who conduct investigations
paralleling those of the police in felony cases. This often involves
law-enforcers contravening the law to undermine both the investigators
and their clients.
The language of the law in Israel doesn’t fundamentally differ from that
in other democracies, but the law’s practical application and judicial
interpretation is singularly dissimilar. It has come to the point that
in Israel the very hiring of PIs by suspects is regarded as vaguely
Law-enforcement authorities bully PIs. Under Supreme Court guidance,
judges tend to perceive any contact with witnesses, potential witnesses
or anyone involved in a case as harassment and/or obstruction.
This, irrespective of the fact that on occasion these very courts weigh evidence procured via such activities.
Yet the stigma of harassment accusations can be applied quite
arbitrarily in Israel, never mind whether or not PIs actually tried to
influence testimony. Indeed the stigma sticks even if so-called
harassment was committed years post-trial.
This hostile environment for private investigators differs markedly from
the situation in the US, where defense attorneys are expected to use
PIs to gather exculpatory or other evidence on behalf of defendants.
That is seen as inherently legitimate. In Britain, the resort to a PI is
not regarded as untoward. In Israel it is – official rhetoric to the
What should trouble the general public obviously isn’t so much the
professional travails of private investigators, most of whom were a
priori cognizant of the murky environment in which they would be plying
their trade and are quite capable of taking care of themselves. What
need bother us are the legal rights of defendants.
By browbeating and stymieing private investigators, the police and
prosecution limit the abilities of defendants to help themselves.
Most democracies tolerate the private collection of proof as the right
of any accused who seeks to be proactive in establishing his/her
innocence despite the supposed presumption of innocence. The harsh
disapproval of such self-help in Israel could severely hamper the rights
of defendants in some cases.
This is distantly akin to viewing a suspect’s insistence on remaining
silent and refusing to answer interrogators’ questions as prejudicial at
the subsequent trial.
Underlying this is an implicit presumption of guilt, which contradicts
British common law and the Anglo- Saxon philosophy of justice on which
our legal system is largely based. While the burden of proof is placed
on the prosecution, the proof-gathering field isn’t relinquished and
deemed the exclusive preserve of the prosecution.
Clearly, nothing done on behalf of a client can justify harassment of witnesses, suborning of perjury, etc.
Yet the line between preventing hanky-panky and constricting legitimate self-defense is extremely thin.
Violating it in either direction is equally objectionable.