In criminal case 64963-05-16 in the case of defendants 7 and 8 and in criminal case 64921-05-16 in the case of defendants 9 and the Jamal brothers earthworks Ltd.
- The accuser seeks to convict defendants 7, 8 and 9 and the Jamal Brothers earthworks company in a tax appeal of the offenses attributed to them in the consolidated indictments, that at the end of the evidentiary process, the accuser proved beyond a reasonable doubt that the defendants committed all the offenses attributed to them. On the other hand, the defendants did not meet the burden required to refute their commission of the offenses. They are not included in the scope of the exceptions with regard to the presumption that exists in the law. The evidence indicates that the officers did not do everything in their power to prevent the commission of the offenses, all this in addition to their direct responsibility for their commission, which was proven beyond a reasonable doubt. The accuser proved that the defendants committed offenses of air and water pollution under the Water Law , and that they should be convicted of these offenses as well. The defendants played contradictory versions on the witness stand, replaced defense lines with suppressed claims, so that their versions should not be accepted and their claims should be rejected.
On behalf of Defendant 8:
- Counsel for defendant 8, Attorney Slava Rudenko, seeks to dismiss the accuser's arguments that their purpose is to exceed the boundaries of the indictments. According to him, no clear evidence was presented linking defendant 8 to the consequences inside the pit or the pushing of waste into the pit. The defendant denied what was attributed to him, both in his interrogations and in his testimony. The evidentiary material does not make it possible to determine, at the level of proof required in a criminal trial, the actual dumping of the waste by the defendant or anyone on his behalf, into the pit, neither the amount of the consequences nor the extent of the waste that was added to the pit queue during the relevant period. Moreover, the evidence establishes an evidentiary basis for the conduct of the enforcement and accusing agencies, which amounts to selective enforcement, conducting a tendentious and non-exhaustive investigation, with unexplained investigative failures, deviation from enforcement procedures, and the like. Therefore, it is lawful to order the cancellation of the indictments against the defendant on the grounds of protection from justice. The accuser's investigators did not act in accordance with the investigative procedures that require steps to stop the offenses. From the outset, the Ministry of Environmental Protection's investigators conducted a biased investigation, ignored exculpatory evidence and did not carry out the investigative actions necessary to identify those responsible for the waste disposal. It was further argued that there is no evidence to determine the area of the pit or evidence that determines whether the trucks and shovels that were documented are indeed there, moving and dumping waste in the area of the pit and not outside the area of the pit. In fact, apart from the unproven assumption that the defendant was behind the consequences of the pit in its northern part, there is no evidence that would substantiate his criminal conviction. It was further argued that the most obvious investigative failure was the lack of documentation of the amount of waste that existed in the pit at the beginning and at the end of the period of responsibility attributed to it, and it should be determined that the amount of waste found in the pit was not proven at any point in time, and it was not proven that any amount of waste was added during the period relevant to the indictments against him. Moreover, the accuser's claim regarding joint execution is intended, according to him, to deal with the lack of evidence that would allow him or any of the defendants to attribute responsibility for specific consequences in the pit. The accuser did not prove a comprehensive plan, in which all the defendants participated, and it is lawful to reject her claim of joint execution. In addition, it was not proven that the defendant caused air pollution or groundwater in any way, and he should be acquitted of all the environmental offenses attributed to him. The same applies to offenses under the Business Licensing Law.
On behalf of Defendant 9 (in the main case):
- Counsel for defendant 9, Adv. Aya Shrik, argues that the accuser did not prove what is attributed to the defendant and that he should be acquitted in full or due to doubt. Alternatively, to determine that he has been protected from justice. The accuser seeks to convict the defendant on the basis of mere allegations regarding alleged "motives". He often makes use of basket terms, alternative and even contradictory claims. In addition, in her summaries, she noted the accuser's exceptional request, in her opinion, to convict under section 184 of the Code of Criminal Procedure, when she had the necessary information at the time of drafting the indictment. According to her, there is no legal basis for making use of section 184 of the Code of Criminal Procedure. The defendant is nothing more than a victim of an offense, so that his prosecution has caused him ongoing legal torture. It seems that the "crime" of defendant 9 is that he lives in the vicinity of that pit, and in the suffering caused to him by the activity in it. The state should have proved the commission of the offenses attributed to us, in our case, tens or hundreds of prima facie waste consequences with clear positive evidence, and such in the case of defendant 9 are not available. Moreover, she is of the opinion that the defendant has been protected from justice for the violation of his rights as a suspect and for the prolongation of the enforcement proceedings. The Ministry of Environmental Protection did not act in accordance with its role and duties towards the defendant as someone who lived near the pit and towards the public. The ministry did not act to stop the hazard as soon as possible and an ongoing investigation was carried out. Hence, the filing of the indictment and its conduct are contrary to the basic principles of justice and legal fairness.
On behalf of Defendant 9 in Criminal Case 64965-05-16 (name as Defendant 2):
- The defendant's attorney, Adv. Aya Shrik, petitions to acquit the defendant of a full acquittal or due to doubt, and in exchange for him to accept his arguments from justice and order the cancellation of the indictment. The main point of the indictment is patrol reports in which the defendant was not observed. In the videos whose admissibility conditions have not been proven, the accuser is holding on to the defendant's statements, which were taken without insisting on his right to consult with the public defender, and not in his language. The filing and conduct of the indictment are contrary to the basic principles of justice and legal fairness, in light of the defendant's unlawful discrimination vis-à-vis others, infringement of basic rights, and delay. In light of this, the court is requested to order the cancellation of the indictment. The accuser also has evidence regarding a single incident, according to the accused, the defendant appears to be pushing into the pit. The incident does not indicate the management of a waste station on the site. From here, no solid and admissible evidence was found for the defendant's duty. In addition, the accuser does not have evidence to prove an offense in the area of possible air or water pollution on the site, and the defendant must be acquitted of these offenses as well.
On behalf of defendants 20 and 21:
- Counsel for the defendants, Adv. Dan Tsafrir, argues that the accuser did not meet the burden of persuasion imposed on her to prove the foundations of the offenses attributed to the defendants. On the other hand, there is the defendants' version, which is supported by many testimonies and evidence submitted by the accuser herself. According to him, any result that does not lead to a complete acquittal not only constitutes a prohibited change of face of what is detailed in the indictment, but will be given in contravention of the law and in contravention of hundreds of pages of evidence supporting the version of defendants 20-21. On the other hand, the defendants presented consistent and coherent lines of defense that were supported by the testimonies of the prosecution witnesses and by many evidences, in addition to the prosecution's evidence, which supported and strengthened the version of defendants 20-21. Defendant 21 testified in a complete, coherent and reliable manner. In our case, the accuser asks the court to make use of section 184 of the Code of Criminal Procedure, as I know that I have no evidence. The accuser did not meet the increased burden of persuasion in proving that defendants 20-21 were joint perpetrators – the required factual element was not proven, and certainly the mental element was not proven – and no evidence was presented in this regard. Defendants 20-21 were also not proven guilty of being a "holder" or of an offense of omission. In addition, it was not proven that defendants 20-21 had a mental element of awareness that they were contributing and helping, since it was proven in dozens of evidence by both the accuser and the defense that defendants 20-21 complained of activity long before they were summoned for interrogation and were partners of the police in the undercover investigation. The indictment attributed to defendants 20-21 is the most exceptional of the exceptions, and constitutes a legal precedent that has no parallel in Israeli jurisprudence. Both because of the precedent-setting legal procedure according to the accuser seeking to establish a conviction for negligence, and because of the aggressive change of front made by the accuser, while conducting the trial, even in contradiction to the factual framework written in the amended indictment. No precedent has been found for an indictment of hundreds of tons of waste against those who all the accusing supervisors stand and claim that there was no suspicion against defendants 20-21 who jointly commit offenses committed by defendants 7-9. Moreover, the accuser's supervisors emphasize that during the undercover investigation stage, defendants 20-21 cooperated with the police and assisted them in gathering evidence. The accuser believes that she met the burden of persuasion after presenting "3 direct evidence" in the form of the testimony in court of 2 convicted drivers and 9 defendant. The accuser's thesis does not come close to demanding the burden of persuasion. In addition, the amended indictment constitutes exculpatory evidence that certainly refutes the claim of "the operation together", since it also refutes the accuser's entire claim in its summaries, which constitutes an illegal change of façade. The accuser is trying to create a circumstantial system, which stems from a misunderstanding of the commercial logic of the 20-21 process or a misunderstanding of cultural conduct in the Arab sector. There was also a claim of protection from justice due to selective enforcement vis-à-vis the Taybeh local authority, and protection from justice due to scandalous conduct that violates the defense's right to conduct a proceeding in a fair manner, and even raises a serious concern that the court will be misled.
On behalf of defendants 22 and 23:
- Counsel for the defendants, Adv. Ohad Megui, seeks to order the acquittal of defendants 22 and 23 of all the charges attributed to them, in light of the accuser's failure to prove beyond a reasonable doubt the elements of the alleged offense to the standard required in criminal cases. The accuser used the term "ignorant" without distinguishing between the different parts. This lack of distinction undermines the clarity of the charge and makes it difficult for the defense to be defenced. The accuser tries to create criminal liability out of a factual vacuum by turning passive legal ownership into active criminal activity – a distortion that has no basis in criminal law. In this case, the defendants did not assume any role in a criminal plan, had no ability to influence the type of waste discarded, the location of the dump or its timing. The defendants never committed an "act of participation" in environmental offenses in any way. As for the economic motive, the state claims an economic motive by relying exclusively on Khadija's testimony – whom it calls unreliable. The state tries to present economic suspicion instead of proving a specific criminal motive. It was not proven that the defendants knew of any connection between the payments they received and the environmental offenses, and certainly not that they sought to increase the profit from the offenses. The defendants acted in complete good faith, unaware of criminal activity. If their actions were as serious as the accuser claims, why did the authorities not take any enforcement action against them for so many years? In addition, the accuser opted for selective and selective enforcement by prosecuting only the male defendants, while the sisters – full partners in the ownership of the plots – were not investigated at all and were not charged. This choice raises serious questions about the lawsuit's considerations and violates the principle of equality before the law. The legal ownership of the plots is shared equally by all the brothers and sisters, so that the liability applies to the owners indiscriminately. As for the claim of "turning a blind eye" to criminal activity, it was claimed that the state turned a blind eye in a blatant and ongoing manner. The authorities knew about the criminal activity at the site, received reports and complaints, carried out tests and samples, documented, and nevertheless chose not to take effective action to stop the activity. This situation has created a general public perception, especially among the defendants, that the acts that were first hurled at them in 2013 were innocent, dealt with by the authorities, and resolved in some sort of arrangement. Moreover, the accuser has failed miserably in proving the mental element required for a criminal conviction. In the present case, the accuser did not prove the elements of the offense – a double failure that requires a complete acquittal. The defendants honestly believed that this was a legal sand mining activity according to the original agreement, received explanations from Khadija and saw no external sign of criminal activity. The conviction of the defendants in these circumstances will constitute a serious distortion of the principles of criminal law and will even create a dangerous precedent whereby any property owner will become criminally responsible for the actions of the tenant, a situation that will destroy the foundations of commerce and the economy in the State of Israel.
Discussion and Decision