High Court: Wiretap evidence for felony can be used to prove minor crime

The ruling could harm Netanyahu’s defense regarding the cellphone hacking issue.

Israeli High Court hearing on whether Netanyahu can form next government despite indictment he faces. (December 31, 2019) (photo credit: YONAH JEREMY BOB)
Israeli High Court hearing on whether Netanyahu can form next government despite indictment he faces. (December 31, 2019)
(photo credit: YONAH JEREMY BOB)

Wiretapping evidence originally obtained to try to prove a felony crime can be used at trial to prove a low-grade misdemeanor, the High Court of Justice ruled Monday.

Although the issues are not identical, the ruling could have far-reaching implications for the trial of former prime minister Benjamin Netanyahu regarding the cellphone-hacking issues that have rocked the proceedings for the last two months.

It could even strengthen the prosecution’s hand in any potential plea-bargain negotiations that may soon restart after being frozen when former attorney-general Avichai Mandelblit stepped down at the start of February.

The potential connection between the rulings could be the High Court allowing evidence obtained in a highly invasive way, wiretapping, to be used for a low-grade crime, even though the court that approved the wiretapping had been told it was being undertaken to prove a felony.

In fact, Israeli law only allows wiretapping or cellphone hacking to obtain evidence to prove a felony.

 Head of opposition and head of the Likud party Benjamin Netanyahu (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST) Head of opposition and head of the Likud party Benjamin Netanyahu (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

However, in the case that Justices Yosef Elron, George Kara and Anat Baron decided on Monday, an initial case for bribery against a Border Police commander fell apart and was eventually downgraded to mere fraud and breach of trust.

Despite this change, the High Court said investigations are an art, not a science. Further, it said the police must be given some slack for such probes and cannot be expected to know exactly what they will find and what crimes that evidence may be translated into using to prove in court.

Moreover, the justices emphasized the importance of backing the police campaign to combat corruption by public officials who abuse their power and the public’s faith.

The Netanyahu case involves objections to cellphone hacking, not wiretapping.

Further, in the Netanyahu case, the police have been accused of going beyond an initial court order both in time and subject matter, also different from this case.

Still, such a definitive High Court ruling is likely to put wind into the sails of the prosecution.

In the specific case at hand, the Border Police commander had been accused of illegally allowing Palestinians to cross into Israel without a full, standard security check. He allegedly had developed a relationship with a Palestinian woman who asked him to get them into Israel as a personal favor.

The Border Police commander was also accused of having his government-issued vehicle illegally serviced by Palestinians and in Palestinian-controlled territory.

After a lower court had convicted him on some charges, a mid-level appeals court tossed the conviction, saying the wiretapping evidence could not be used for a mere misdemeanor conviction.

The High Court ruling sends the case back to the mid-level appeals court to rehear the case, with the wiretapping evidence remaining valid.