Indictments
- The indictment accuses these defendants of committing offenses of dumping construction and lumpy waste and dirt in the public domain, removing waste to an unauthorized site, polluting a water source and causing unreasonable air pollution.
- In addition, the indictment accuses defendant 21 of committing offenses of breach of liability by an officer of a corporation, in accordance with the Maintaining Cleanliness Law, the Clean Air Law, and the Water Law.
- At the beginning of the accuser's summaries, it is also noted that these are the offenses of which they were charged (section 49 of the accuser's summaries).
- Subsequently, in paragraphs 53 and 285 of the accuser's summaries, the accuser seeks to convict them of additional offenses of operating a waste disposal site illegally, operating a waste disposal site without a business license, and failing to pay a landfill levy.
- The accuser relies on section 184 of the Criminal Procedure Law and notes that the defendants have been interrogated for a long time regarding all the offenses and will not be subjected to miscarriage of justice if they are convicted of offenses other than those mentioned in the indictment, after they have been proven at trial, and after they have been given a reasonable opportunity to defend themselves.
- Section 184 of the Criminal Procedure Law states as follows: "The court may convict a defendant of an offense for which his guilt was revealed from the facts proved before him, even if these facts were not alleged in the indictment, provided that the defendant was given a reasonable opportunity to defend"
- The accuser does not claim and does not indicate that new facts were discovered during the hearing. She seeks to convict the defendants of additional statutory clauses that she attributed to other defendants, but not to these defendants. No explanation was given as to why the defendants were not charged with these counts in the indictment, and now they are being convicted on these counts. The accuser did not even raise this during the long trial that took place, and for the first time she asked for it in her summaries.
- Indeed, the case law held that there is no need for an explicit warning of the defendant during the hearing in order to convict him of another offense, but some explanation is required for this petition and why it is raised only at the summary stage. It is impossible to ignore the fact that these sections in which the accuser is now seeking to convict the defendants are found in the indictment, but with respect to other defendants. From this it can be seen that the accuser herself believed that these indictments relate to the actions of others and not to the actions of these defendants, and as stated, she has not explained the change.
- Therefore, I will not grant the accuser's request in this matter and will not discuss the accuser's petition to convict the defendants on these counts.
The Legal Basis
- The accuser in the indictment and in its summaries bases the charges against these defendants, as they are "joint operations". In addition, the accuser relies on the defendants being "possessors" and as a result, they are responsible for what happened to him.
Performing Together
- Section 29 of the Penal Law, which deals with the parties to the offense, states that:
- Committing an offense – including committing it together or through another.
- Those who participate in the commission of an offense while committing acts for the purpose of committing it, commit it together, and it does not matter if all the acts were committed together, or if some of them were committed by one and some by another.
- The courts have discussed extensively the definition of a "joint operation." In Criminal Appeal 2950/11 Elior Noam Chen v. State of Israel (Nevo, May 8, 2014), the Supreme Court reviewed the basic principles underlying this definition: "Section 29(a) of the Penal Law states that a 'perpetrator of an offense' is including a 'joint perpetrator'. Section 29(b) instructs us that "those who participate in the commission of an offense while committing acts for the commission thereof are committing acts together, and it does not matter whether all the acts were committed together, or if some of them were committed by one and some by another." The co-perpetrator of an offense takes a direct part in its commission. "The ranking of the parties to a multi-participant offense is headed by the perpetrators together. They are the main partners in the commission of the offense. The partnership between them is expressed in the fact that they took part in the commission of the offense as direct perpetrators" (The Anonymous Case, p. 402). In Criminal Appeal 2103/07 Horowitz v. State of Israel [published in Nevo] (December 31, 2008), this Court summarized the characteristics of the joint perpetrators as follows: "Jointly perpetrators are those who took a direct part in the main commission of the offense. They 'serve as one body to carry out the criminal task' that operates through different arms... Together, they constitute the 'hard core' of the commission of the offense. They are the 'inner circle' of execution. Committing the offense together requires that on the mental level, each of the perpetrators together will have the mental element of the offense as well as an awareness that they are acting together..." (Paragraph 47; see also: Criminal Appeal 2247/10 Yemini v. State of Israel, [published in Nevo], paragraphs 22-23 (January 12, 2011) (hereinafter – the Yemini case); and more recently: Criminal Appeal 6365/12 Anonymous v. State of Israel, [published in Nevo], paragraph 12 of my judgment (October 9, 2013)). According to the broad meaning given by the case law to the term "perpetrator", a joint perpetrator does not have to be the person who committed the elements of the offense – in whole or in part (Criminal Appeal 2801/95 Corkin v. State of Israel, IsrSC 52(1) 791, 802 (1998)). The physical presence of the main perpetrator at the scene of the offense is not necessary (Additional Criminal Hearing, Meshulam, pp. 26-32; see also: Criminal Appeal 9716/02 Rimawi v. State of Israel, [published in Nevo], paragraphs 19-20 of the judgment of Judge A. Hayut (February 15, 2010)). An indication that an accomplice is a co-committer is his control over the criminal act. The element of controlling the criminal act serves as an auxiliary tool for examining the status of an accomplice to the offense as a joint perpetrator (see: Additional Criminal Discussion Meshulem, p. 26). This was noted by President E. Barak in the Anonymous case: "What characterizes the operation together is that it is the master of the criminal activity. He has substantive functional-control over the criminal activity, together with the other co-perpetrators. It is part of a joint decision to commit the offense. It is part of the overall plan for the realization of the prohibited criminal act. He works with the other performers, so that each of them controls – together with the others – the entire activity. His status in relation to the decision to commit the offense is that of an "insider." His contribution is "internal." His part is essential to the realization of the joint plan..." (p. 403). A person's control over the offense is not a necessary condition for classifying him as a co-perpetrator. As determined in case law, a person's part in an offense must be examined in accordance with a combined test, according to which "the stronger a mental element may suffice, and vice versa" (Yemini, paragraph 22)."
- From the aforesaid it can be learned that in order to prove joint commission, it must be proven on the factual basis at least that some part was taken in the commission of the offense. And in the emotional element, we are aware that we are doing something together.
- The act can also be by way of omission, as long as it is part of the joint criminal activity of the perpetrators.
- In his summary, counsel for the accuser points to a series of evidence, some direct and some circumstantial, which, according to him, is sufficient to prove that the defendants committed acts together.
- The direct evidence brought by the accuser's counsel all deals with proving the fact that there was a road from the 28th site to the pit and that trucks with waste made their way in this way in order to empty the waste in the pit.
- This evidence was brought to the court by means of 3 witnesses: Defendant 11 – Mr. Liwa Natur, Defendant 24 – Mr. Raif Rayan and Defendant 9 – Mr. Izzat Jamal.
- Liva Natur, who worked as a driver for defendant 7 and was convicted in this proceeding and sentenced, testified after his sentence and described that there was a shortcut from the 28 site to the pit and as a driver he arrived at the 28 site, but there the usher directed him to the pit in order to dump the garbage there (minutes of the hearing of 16 June 2020, pp. 427-431).
- This witness was interrogated by the police on 21 September 2016 (P/126). During this interrogation, he confirmed that as a truck driver, he threw waste into the pit several times, on the orders of his manager, Defendant 8. There is no mention in this testimony of the same way that he described in his testimony in court, which ostensibly connects Site 28 to the pit. Moreover, it should be noted that the offense committed by this witness is documented in the action report of the witness Felix Feinstein (P/80), in which it is described that the truck in which he was seen driving arrives at the pit from the direction of defendant 8's house, and there is no mention of any road from the site of 28 to the pit.
- This testimony was given in court four years after the incident and after his interrogation by the police. He did not provide an explanation for the change in the version, and therefore this testimony should be treated as suppressed testimony.
- It should be noted that this witness was not cross-examined by counsel for defendants 20-21, since he left the courtroom with permission that day.
- Raif Rayan, who also worked as a driver for defendant 7, also testified in court on June 16, 2020, after he was convicted and sentenced in this proceeding. In the course of his testimony (pp. 432-436), the witness describes a number of descriptions regarding the way of work: "There is a big hill there, there is one named 'Abd Karim Hadija, and we used to pour this sand so that the trucks would have more and more access to the access roads, and it was not one place... When you go to the pit, there was someone there who was evacuating me... There's a pit there, the site is 100 dunams, I don't know why it's divided, it didn't interest me, when you go to the pit and it's a descent, let's say cars got down, they put the waste and then you have to cover a layer so that there will be access, it's lumpy waste, it's a station of lumpy waste, there will be access to trucks, it's a work procedure... We have the hill of the site there and behind it everything is a pit, each pit has a different approach, I don't know which pit they are referring to, but when I went and poured and they stopped me at the station, I realized that it was a Jamal pit and they took the truck."
- In response to a question from counsel for defendant 8, the witness replied that he "did not have to make a round" in order to reach the pit.
- Contrary to the testimony of Liva Netor, this witness did not directly testify to the existence of a road from the site of Koch Koch to the pit, but this can be deduced from his words. However, it should be noted that the witness's interrogation at the police was not submitted to the court and this testimony cannot be examined against his statement to the police. This witness was also not cross-examined by counsel for defendants 20-21 for the reason mentioned above.
- Izzat Jamal testified directly to the existence of a road from the site of Koch Koh to the pit and even pointed to a map (N/89) of its location. He also testified that this was done at the request of defendant 21 so that he could fill the hole in order to meet his obligations to defendants 22-23.
- I did not trust the testimonies of this witness, who in his own case repeatedly changed his versions, and even when he was clearly identified in the field, claimed that he was not the case. I will also refer to the words of the accuser's counsel in his summaries in section 332: "Izzat turned out to be an unreliable witness." The accuser's counsel tries to grasp the rope at both ends. On the one hand, he determines that he is an unreliable witness, and on the other hand, he seeks to rely on his testimony for the purpose of convicting defendants 20-21. Indeed, the court does take the path of "plaginen speech". However, as I described above, the testimony of this defendant is clearly unreliable and is full of contradictions and lies. So it is difficult to determine that he is telling the truth in this matter.
- The aforesaid regarding the lack of confidence and the weight of the testimonies of these witnesses as to the existence of a road from the site of Koach to the pit is not only due to the difficulty of giving credence to the testimony of these witnesses, but rather to reliance on many pieces of evidence brought by the accuser herself and originating from authorities of the accuser herself. This evidence indicates that there was no road from the Kach site to the pit, and in the many observations made by the inspectors on behalf of the accuser, no trucks were observed coming to the pit in such a way in order to dump waste.
- The main witness on behalf of the accuser was Mr. Felix Feinstein, Inspector of the Green Police Central District, who coordinated the investigation in this case. He testified before the court in a number of sessions, both before the previous panel that began hearing this proceeding and before me, and was cross-examined by counsel for the defendants. From his testimony, it was clear that he was familiar with the investigation material and was well acquainted with the area from his many visits. In all of his testimony, there is no mention of the aforementioned road between Site 28 and the pit. On the contrary, the witness insisted that there was no such way. It should be emphasized that the period on which this witness testified coincides with the period on which the three accusing witnesses testified on which she relies in this matter.
- Feinstein was asked by the accuser's counsel to explain, in accordance with his familiarity with the area, what were the ways to access the pit, and accordingly the witness testified:
"The witness, Mr. Feinstein: Okay, so I said that there are basically two entrances, one from the north in Nahal Ramon here, and the other entrance is from the direction of the main road and then the western entrance is actually adjacent to the territory of Gaza, he has a house, a horse farm, all kinds of other tools, trucks,