On January 26, 2000, at a hearing held in the District Court, counsel for the parties informed the court that they had reached an agreement whereby the respondent would retract his denial of the facts in the indictment and that the prosecution would dismiss the indictment. Against the background of the aforesaid, and in accordance with the Section 94(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: The Kindness), the court ordered the cancellation of the indictment.
This is, in a nutshell, the sequence of the respondent's arrest proceedings, from the day of his arrest until the day of the cancellation of the indictment filed against him. We will return in more detail later on to the decisions of the courts in the stages of extending the respondent's detention and until his detention until the end of the proceedings.
The procedure under section 80(a) of the Penal Law
- On February 8, 2004, a little more than four years after the cancellation of the indictment, the respondent filed a request with the Tel Aviv-Jaffa District Court for compensation for his arrest and for payment of his defense expenses according to Section 80(a) of the Penal Law, 5737-1977 (hereinafter: Penal Law). The hearing on the application took place on December 27, 2004, and on November 13, 2005, the court (the Honorable Justices S. Rotlevy, A. Tal and A. Salomon Cherniak) gave its decision (P.C. (Tel Aviv) 5155/99 Shober v. State of Israel).
- In its decision, the District Court noted the essence of the enshrined right In section 80(a) to the Penal Law and examined whether one of the two causes of compensation set forth in the section existed: "there was no basis for guilt" or "other circumstances justifying it." As part of the examination of the first ground, the court discussed at length the prima facie evidence that had accumulated in the respondent's case and mentioned, inter alia, his incriminating statements, the lack of cooperation on his part from a certain stage onwards, and an alibi claim that did not refute the suspicions against him. The court rejected the argument that the police had tried to make a false accusation against the respondent or had refrained from examining the required investigative directions, and ruled that the evidentiary failure that was discovered retroactively did not indicate that there was no basis for accusing the respondent.
From here, the court turned to examine whether there are "other circumstances that justify this." The court rejected the respondent's argument for the existence of a conceptual identity between the cancellation of an indictment (as in his case) and a complete acquittal, noting the distinctions that exist between the two, in theory and in practice. It was held that since no evidence was heard in the main proceeding, and in the absence of a positive determination as to the respondent's innocence, the burden of proof imposed on him is particularly strict.