Criminal Case (Petah Tikva) 22481-04-17 State of Israel v. Al-Jamal Moving Ltd. - part 8

The witness, Mrs. Hennik: I went into the pit together with the Green Police, the pit is located in Taybeh, but the entrance to it is from Qalansua.

The Honorable Judge Nuriel:  Are there 2 or more entrances?

The witness, Ms. Hennick: I know of one entrance" (transcript of the hearing of November 8, 2018, p. 55).

289. I will also refer in this matter to a hearing held on December 21, 2017 as part of the state's request to issue a judicial clearance order for the pit (another order 55249-11-17). In this hearing (pp. 9-10), the Ministry of Environmental Protection's attorney, Adv. Yoni Shamir, argued as follows: "When we see that the access is only from the homes of respondents 8 and 9, the natural thing is to attribute to them the responsibility for this. To the court's question as to whether there is no access for anyone to pass through there, I answer no and present the court with photographs, and when we look at the aforementioned access roads, we see that the only way to access the pit is north of the pit through respondents 8 and 9, as stated.  I present to the court another order from 2013.  The only two entrances as of 2013 and to the present day are through the territory of respondent 8, the path from the direction of Qalansua and the second entrance is through the house of respondent 9.  Today, more houses were added there."
290. Another piece of evidence to which the accusing counsel refers in his summaries is the lease contract signed between defendants 22-23 and defendants 20-21. In this contract (P/78) in clause 6(a), defendants 20-21, who are the tenants, undertook to pave a road to the pit: "Prior to the commencement of the mining work in the leased area, the tenants shall erect earthen embankments that will delimit the excavation area from all its boundaries, except for the side in the corner on the southern side, which is the side designated for the access road to be paved by the tenants and at their expense to the leased area."
291. I will refer to this contract in detail below, but for our purposes now I will say that the mere fact that a contract was signed indicating an intention to perform an action does not constitute evidence that such an action was indeed performed. At most, it was in order to serve as an aid to other evidence. However, as stated above, the evidence indicates that no such road was paved.  I will also note and elaborate on this later, in this contract itself, all the obligations are qualified to be made after receiving the appropriate permits, and as will be detailed below, these permits were not received.
292. From the above, I have come to the conclusion that the direct evidence brought by the accuser does not establish the joint commission of the offenses attributed to defendants 20-21 together with defendants 8-9. It was not proven that there was a direct route by which trucks drove from the Kach site to the pit and dumped waste into it, a fact that if it had been proven, could have pointed to cooperation between defendants 20-21 and defendants 9-8.
293. Counsel for the accuser pointed to a series of circumstantial evidence that is prima facie in order to prove that the defendants were joint perpetrators.
294. First, the accuser's counsel points to an economic motive that led the defendants to commit the offenses. According to him, the legal site has a quota limit for the permitted landfill, and therefore any truck that entered the site of the 28th site for the purpose of burying waste and the state from it in the unique way towards the pit and dumped the waste in the pit, would have caused double profit to the defendants. Both due to the entrance fee to the legal site and due to the savings in space on the site itself.
295. However, as stated above, it has not been proven that this did indeed happen. As explained above, insufficient evidence was not presented to prove that this scenario did indeed occur, and therefore there is no evidence, neither direct nor circumstantial, to prove the guilt of the defendants. The mere existence of a motive for committing such an offense is neither evidence nor circumstantial evidence that the offense was indeed committed.
296. Another set of circumstantial evidence that the accusing counsel points to deals with the contractual relationship between defendants 21-20 and defendants 22-23.
297. In 2000, a contract was entered into between defendants 22-23 and defendants 20-21. As part of this contract (P/78), defendants 22-23 leased to defendants 20-21 the plots 88-90, which constitute a significant part of the pit. As part of this contract, defendants 20-21 undertook to rehabilitate the pit and clog it with lumpy waste, thus returning it to its previous state, i.e., agricultural land.  At the end of the 10-year lease period, the contract was extended for an additional five years (P/79).  Counsel for the accuser points out that defendants 20-21 undertake in the contract itself to carry out the offense described in the indictment, i.e., blocking the pit with lumpy waste.  Counsel for the accuser also points to the testimony of defendant 21, who confirms that the filling of the pit with waste should have yielded him a profit of NIS 20 million (transcript of the hearing of February 1, 2023, p. 716).  In order to strengthen his evidence, counsel for the accuser points to the defendants' numerous attempts to obtain permits from the authorities to fill the pit with waste, a fact that attests to how important this was to the defendants.
298. I will say already that the presentation of an economic motive for the commission of an offense is not sufficient to constitute even circumstantial evidence that an offense was indeed committed. Beyond that, however, I am under the impression that the conclusions drawn from the defendants' conduct, as inferred by the accuser's counsel, are erroneous and at the very least insufficient to prove beyond a reasonable doubt that this was their intention.
299. The defendants, through the testimony of defendant 21 and the arguments of their counsel, point out that already in the preamble to the lease agreement, it was determined that before the actions for the purpose of filling the pit with waste were carried out, the approvals, licenses and permits required for this by law would be obtained. It was also determined that the responsibility for this lies with defendants 20-21. From the evidence presented, both by the defendant and by the accuser herself, it appears that defendants 20-21 did indeed make every effort to obtain such certificates.  Initially, approval was given for the excavation of the pit (P/56) and the mining is carried out accordingly.  Subsequently, in June 2003, a permit was granted by the local committee for "irregular use for quarrying sand/dirt and filling of lumpy waste" (P/57).  However, this permit is not enough, and indeed the defendants do not begin to carry out the action, but rather submit a plan for a "dry waste landfill site", and the plan even receives the approval and recommendation of the local committee (P/58).  However, in September 2005, the District Committee did not approve the plan (P/59).  In 2012, the defendants filed another application for irregular use in order to fill the cistern with inert materials instead of dry waste (P/60), but in February 2013 the local committee stopped the discussion of the matter (P/61).  The defendants still do not give up, and in April 2013, through an environmental planning company, they submit a request to fill the pit with surplus soil (P/62).  Following this, a meeting was held in May 2013 between the planning company and senior officials in the Taybeh Municipality and the Waste Division of the Ministry of the Environment, at the conclusion of which it was stated that "the local authority, in cooperation with the ministry, will examine the developers' request to rehabilitate the northern cistern by landfill" (N/63).  As a result, the head of the Waste Division in the Ministry of Environmental Protection addressed the local committee engineer in a letter in which he detailed the situation at the site, including the consequences of pirated waste, and supported filling the site with inert materials only in order to prevent further damage to the environment (P/64).  As a result, in October 2013, an application was filed on behalf of the defendants for a permit to fill the pit with inert materials (P/65), but at the November meeting of the local committee, the request was rejected "for lack of authority" (P/66).  Defendant 20 is still continuing her efforts and filing a motion for reconsideration (P/66B), but no decision has been made on the matter.
300. The conclusion that emerges from the above is that the defendants invested considerable efforts and resources in order to try to obtain permits to fill the pit. Indeed, it is clear that they have an economic motive to fill the hole, but it is not clear to me how these efforts constitute circumstantial evidence that the defendants have broken the law. The impression is that the defendants are doing everything in their power to obtain legal approval for their actions.  It is true that a person who has not received legal permits may turn to perform the same act illegally, but evidence must be presented that he has indeed done so.  As stated, evidence was not presented at a sufficient level for this, and therefore the mere fact that the defendants had a motive and acted extensively for this purpose, cannot constitute circumstantial evidence that they did indeed commit the offense.
301. Counsel for the accuser also points to the irrational conduct, according to him, of the defendants in their commercial relations. On one level, counsel for the accuser points to P/282, an agreement signed between defendant 20 and defendant 7, which is owned by defendant 8. In his opinion, the signing of this agreement indicates that the claim of defendants 20-21 that they acted constantly against defendants 7-9 who invaded their territory is inconsistent with the fact that at the very time they signed a cooperation agreement with them.  Defendant 21 explained this in the framework of his cross-examination (transcript of the hearing of May 15, 2023, pp. 960-961) by saying that he and his partner, Mr. Zvi Cohen, did not believe that the fact that they had a dispute with defendant 8 was in order to prevent the possibility of a financial gain that would result from the fact that defendant 7 would be their customer on the legal site, and that he was afraid of violence on the part of defendant 8 if he refused to sign an agreement with him.  It should be noted that Mr. Felix Feinstein, an inspector on behalf of the Ministry of Environmental Protection, testified that: "I remember that an agreement was also given between K.H. and El Jamal Transport, regarding the invoices I don't remember if we received them, I'm not sure it's relevant, if waste entered a legal site there is no problem with that" (Minutes of the hearing of October 3, 2019, p. 180).
302. I am of the opinion that in the totality of the circumstances, this is a satisfactory explanation. A person's desire to minimize damages by being able to earn at least money from the waste that will be legally buried in his possession is not a far-fetched idea in the business world, and this agreement cannot be seen as proof that they "jointly commit" the offenses attributed to them in the indictment.
303. Another level of commercial relations is between defendants 20-21 and defendants 20-23. Counsel for the accuser points out that although defendants 20-21 did not fulfill their obligation in the first agreement and did not return the land in the condition promised to defendants 22-23, defendants 22-23 inexplicably did not implement the warning note that was supposed to be given to them on other land belonging to defendant 21, did not file a personal claim against defendant 21, even though they had his personal guarantee. They did not promote an arbitration mechanism that was agreed upon in the contract, but agreed to reduce the wages they would receive for the land as part of the additional agreement, while in some years they would not receive rent at all.  Defendant 21 explained this (ibid., pp. 884-895) by saying that in accordance with the circumstances that arose, negotiations were conducted between him and defendants 22-23, with the help of an arbitrator, and in view of the situation that arose, agreements were reached.  It should be noted that defendant 22 in his testimony (transcript of the hearing of May 12, 2024, p. 35 and p. 45) confirmed this in fact when he testified that in view of the situation in which the pit is not closed and they have no means to deal with it, and they did not even want to invest money and resources in filing lawsuits in the courts, they came to the conclusion that the preferred option is to continue the agreement, even if this would lead to a reduction in the amounts.  This was also done with the understanding that defendant 21 had spent a lot of money in his attempts to bring about the closure of the pit.  This explanation certainly fits in with the totality of the circumstances and is not unusual in the business world.  It is not always "worthwhile" for a party to the agreement to insist on its existence, both in view of the efforts and resources required in filing a lawsuit and in view of the circumstances in which the return of the area to defendants 22-23 in the current situation would not have brought them any benefit and would have even incurred a loss since they could not make any use of the land in their possession.  The continuation of the agreement, according to their version, stemmed from the hope that later on defendants 20-21 would be able to return it to them in a situation that would allow them to use it.  Therefore, I did not find that this argument of the accuser's counsel is intended to constitute aid to the accuser's evidence or circumstantial evidence to prove what is stated in the indictment.
304. From the aforesaid, I have come to the conclusion that even in the circumstantial evidence claimed by the accuser, there is nothing to establish a joint offense of the offenses attributed to defendants 20-21 together with defendants 9-8.

The defendants' responsibility for committing the offenses by virtue of being "holders"

305. Counsel for the accuser points to another way to prove the guilt of the defendants, by virtue of the fact that they hold the area where the offense was committed.
306. Counsel for the accuser does not make a distinction in his arguments, but it is possible to find in his words two ways in which this presumption establishes criminal liability. One is the very possession that makes them "joint operations" in his opinion, and the other is in view of the strict liability established in the law for these offenses.
307. First of all I will say that with regard to the very question of whether defendants 20-21 are in possession of the land, my opinion is the same as that of the accusing counsel. These defendants rented the area and it has been in their possession for about 25 years. Defendant 21 testified about many actions he carried out in the field.  Whether actions vis-à-vis the law authorities in order to enable him to achieve his goal in this area, or actions in the field itself, such as digging the pit, erecting a fence and erecting an earthen embankment.  At no point in his testimony did he claim that he was prevented from entering the area or carrying out any action in the area he was paid.  The claim that defendants 7-9 invaded the area is not an argument that indicates that defendants 20-21 have no control over the area.  Even a person whose home has been broken into, even if it is an ongoing series of burglaries to his home, does not lose control of the house and the fact that he owns the house.  Defendant 21 did not claim at any stage in his long testimony that he was prevented from entering the place or that he was prevented from conducting activities in the field, even if he suffered damage as a result of the alleged actions of defendants 7-9.
308. On the other hand, it is not clear to me the argument of the accusing counsel that the mere fact that the defendants own the land imposes liability on them for the commission of the offense or makes them accomplices in the commission of the offense.
309. In continuation of the previous example that I cited above, a person who owns a house and another person breaks into it, certainly does not become a joint perpetrator by virtue of being the owner of the house, in order to be considered a joint perpetrator, the accuser must prove his complicity in the act or omission, and as stated, the direct evidence that the accuser's counsel claimed does not prove this.
310. I will note that the accusing counsel in paragraph 402 of his summaries referred to case law relating to the definition of "possession". A review of the case law to which he referred indicates that it deals with offenses in which possession is one of the elements of the offense, such as possession of drugs or possession of weapons. In these offenses, the mere proof of possession is sufficient to prove that the holder committed an offense.  However, this is not the case in our case, possession of territory in itself does not constitute an offense.
311. Another way to prove the guilt of the defendants can be by virtue of the fact that they are the owners of the land and by virtue of strict responsibility. Indeed, in a law where the mental element required is that of strict liability, this means that the prosecution is not required to prove a mental element of criminal thought or negligence, but rather it is sufficient to prove the factual element of the offense. However, the defendant has a defense if he proves that he acted without criminal thought or negligence and took all reasonable measures to prevent the offense.
312. The legislature deliberately and for the purposes of law enforcement found that in certain laws the requirement to prove a mental element would lead to the fact that it would not be possible to achieve the social goal underlying the law and to protect social values in these areas, and therefore it determined as an exception the possibility of committing a criminal offense without requiring proof of a mental element. I will turn again on this matter to Rabin Wakey's book "The Penal Law", vol. 1, where (p. 504) they describe as follows: "Towards the middle of the 19th century, a position began to develop in common law (and in the legal systems that will be derived from it) according to which there may be offenses whose factual foundations are not accompanied by any mental component, not even negligence. In accordance with this approach, in offenses relating to public policy (such as traffic, planning and construction, environmental protection, sanitation, work safety, etc.), it is possible, if necessary, to impose absolute liability that is not contingent on the proof of any mental element on the part of the defendant."
313. As detailed above, it was proven that offenses were committed by defendants 8 and 9, and I also determined that defendants 20-21 were in possession of the area. Therefore, this is sufficient to prove their guilt in these offenses. However, as stated, the defendants have the opportunity to prove that they have taken all reasonable measures to prevent the offense.  As I will detail below, I believe that they did so.
314. Already in the aforesaid, the efforts of defendants 20-21 to obtain permits to fill the pit were described. As part of these efforts, it was evident that defendants 20-21 approached the authorities and exposed to them the illegal dumping of waste in the pit. For example, Document N/64 is a document prepared by Mr. Uri Tal, the Center for the Treatment of Building Waste at the Ministry of Environmental Protection.  This document, as indicated in its title, is a follow-up to the request of the site planner hired for this purpose by defendants 21-22, Mr. Danny Amir.  In this document, it is stated that there is a "wild dumping of waste" at the site and that the permit holder, who are defendants 20-21, are interested in rehabilitating the pit in order to prevent further damage to the environment.  It can be learned that as early as 2013, before Defendant 21 was interrogated for the first time, the defendants approached the authorities in order to bring about an action that would stop the dumping of the waste.
315. In addition, a number of prosecution witnesses testified that defendant 21 complained to them about the actions of defendants 8-9, as I will detail below.
316. At the hearing held on November 12, 2019, the witness, Mr. Felix Feinstein, was cross-examined by counsel for defendants 20-21 and answered as follows: " Isn't it true that people on the B.C. website, and especially Defendant 21, have personally reported to you about the criminal activity they see taking place north of their legal site, and told you that they are losing money because waste that is supposed to reach them and is supposed to pay a landfill levy at their legal site is poured into the pirate pit, is that true?
317. It came up in the interrogation of Defendant 21. In addition, I met with defendant 21 on one of the tours and he showed me the waste inside the pirate pit, it was in 2013 if I'm not mistaken, he complained about throwing waste there. As of the resumption of activity in the pit in 2015, there have been no complaints since then.  In 2013, yes" (p. 208).

These words are consistent with the statements of defendant 21 in his first interrogation of 19 December 2013 (N/27), where he told his interrogators, Mr. Felix Feinstein and Mr. Sagi Azani: "Around 2008 or 2009, the Jamal brothers started pouring waste into the pit and I fought with them several times and I complained to you about the Jamal brothers pouring and I said that I would show you exactly where they were pouring and I took both you and Felix to show me" (p. 3).

317. These words were even confirmed by Mr. Sagi Azani, Director of the Investigations Department in the Green Police, who during the period relevant to the indictment served as a supervisor and partly of the time as a substitute for the head of the team, when he answered the attorney for defendants 20-21 in his cross-examination: " Felix Feinstein also testified here that you and he together supervised Jamal's pit and Ephraim Regev from the Taybeh environmental unit and logically noted that Abed Khadija was the one who complained about the piracy consequences of the pit, do you know these complaints?
318. Abed spoke to me several times.
319. When I asked Felix, he mentioned that he had worked since 2013 and complained about what was happening in the pit?
320. It may be" (transcript of the hearing of June 15, 2020, p. 400).
321. This witness even confirmed that he made observations of the pit from the site of 28 belonging to defendants 20-21, and this was open. This fact strengthens the claim of defendants 20-21 that they cooperated with the accuser in the investigation of the dumping of the waste. "  When you made observations from the mountain in the direction of the pit, did all the employees of the C.H. know that you were observing?
322. I don't know where Felix watched, even though I trust him 100%. When I came to the observation point from the mountain of K.H., I came openly."  (ibid.).

 Mr. Felix Feinstein himself testified in this regard that: " I went up the mountain of garbage of Koh.  I went up the mountain and from the top I looked at Pit Jamal, a pirate site, between the cities of Qalansawa and Taybeh, and at some point I identified the dumping of debris."

319. Moreover, this witness confirmed that defendant 21 even provided him with evidence regarding the dumping of the waste in the pit: " I am presenting you with a diary of your investigation file, will you agree with me that a large part of the investigation file and the evidence that you received and which are found in the diary of the investigation file were actually materials provided to you by Abed Khadija and K.H. for filming for films that Abed Khadija himself filmed the criminals throwing in the pit and passed it on to you? A. Yes, he gave me material" (ibid., p. 402).
320. Witness Ephraim Regev, who served as a supervisor in the Environmental Enforcement Unit of the Taybeh Zemer Municipality, also testified that Defendant 21 had complained to him even before 2013 about the consequences of the waste at the site:

" Q.  You mentioned that you have known the pit since you started working in 2009, Jamal's pit, have they already started dumping waste there since 2009?

1. I don't know, but at the beginning when I started working there, I saw consequences.
2. So since 2009, Jamal's pit has been a source of environmental hazards?
3. I don't know with 2009 but maybe a year, I was pretty new there.
4. Do you know of any complaints that Mr. Khaldija complained about the same pit?
5. Yes.
6. Tell us a little about these complaints.

S.T.  I know that Mr. Khadija has a plot in Jamal's pit, I don't know exactly her points, and he would tell me that they were pouring out there and that I would go and take care of them.

1. So did he complain about these spills?
2. Yes" (Minutes of the hearing of May 31, 2020, pp. 343-344).
3. An echo of this evidence can be heard in the testimony of defendant 8 when he was cross-examined by counsel for defendant 20-21: " Q. You said in your testimony today in court, that it all started, you looked at me, but in fact it all started because of Abed Khadija who complained about you, that you were dumping waste in the pit and also filed a civil lawsuit against you for that, right? A. Yes" (Minutes of the hearing of January 31, 2022, p. 550).
4. Defendants 20-21 did not suffice with filing complaints against defendants 7-9, but also acted against them independently by filing lawsuits in court.
5. On May 21, 2014, a lawsuit was filed by defendant 20 against defendants 7-10 and their families (C.A. 39017-5-14) (P/67). This is a statement of claim that extends over 66 pages, backed up by many evidence, including photographs taken by Defendant 20 to prove the consequences of the waste by Defendants 7-10. Prior to the filing of the statement of claim, two warning letters were sent by counsel for defendant 20 to defendants 7-10.  A review of the file in the "Net HaMishpat" system shows that a fee was paid to open the file in the amount of about NIS 50,000.  The lawsuit was filed by a large and well-known law firm and it can be assumed that a significant sum of money was paid for filing the lawsuit.
6. In light of these facts, I found it difficult to understand on what the accuser's argument that this was an "artificial" claim was based on. Counsel for the accuser points out that in the statement of claim there are a number of "false arguments" (cooperation with the competent authorities, the recognition of these parties that defendants 20-21 are not part of the waste disposal). Beyond the fact that some of these arguments were analyzed above and I am of the opinion that they are not false arguments at all, even if they were, the mere fact that a plaintiff raises incorrect arguments does not make a claim an artificial claim.
7. Another fact that in the opinion of the accuser's counsel proves that this is an artificial lawsuit, is the reaching of a settlement agreement that led to the dismissal of the claim and its cancellation shortly afterwards. This argument is also not intended to prove artificiality. Defendant 21, during his cross-examination by the accuser's counsel, explained the rationale behind reaching an agreement through the mediation of another respected person in the company in which all the defendants are located.  He further explained that he believed that there was indeed a benefit in that agreement at the beginning and led to the cessation of the dumping of waste, but very quickly it became clear to him that defendants 7-10 were returning to their ways, and therefore he again sent a warning letter to them, and when all this did not help, he filed another lawsuit (minutes of the hearing, May 15, 2023, pp. 942-955).  He also explained the difficulties in enforcing the settlement agreement and the fear of violence.  I trusted these explanations, they make sense with the circumstances.  In any event, I did not find in the arguments of the accusing counsel any proof, certainly not at the level required in a criminal trial, that this is an artificial claim.
8. The same is true of the fact that as part of the dismissal of the lawsuit, an injunction against defendants 7-10 was revoked. The cancellation of the injunction was part of the settlement agreement, and therefore defendant 21's explanations regarding the circumstances are also applicable to this.
9. I do not ignore the dispute that arose between defendants 21-20 and defendants 22-23 on the question of whether defendants 22-23 were indeed part of the settlement agreement, or whether their mere fact that they were registered in the agreement is a forgery. However, I did not find that there is a need to decide this matter in the framework of this judgment, since I did not find that there is a need to decide the question of the artificiality of the claim in this dispute, in view of all the circumstances detailed above.
10. On January 25, 2016, another lawsuit was filed by Defendant 20 against Defendant 9 and his son (Civil Case 49704-01-16) (P/75). Here, too, there is a 66-page statement of claim that was filed by the same law firm and a fee of about NIS 25,000 was paid. Defendant 21 explained that the lawsuit was filed when it became clear to him that all of his other efforts were bearing fruit.
11. On September 10, 2017, Defendant 20 filed a motion to dismiss the claim, in view of the fact that an indictment was filed in the proceeding we are currently discussing, and he believes that there is no reason to conduct these two proceedings simultaneously. Defendant 21 further explained in his testimony that this also stemmed from the fact that defendant 9 and his son were in bankruptcy proceedings and therefore there was no point in conducting the civil proceeding (transcript of the hearing of February 1, 2023, p. 710). These explanations are indeed consistent with the totality of the circumstances presented to me.  Indeed, the application is submitted after the indictment is filed, and a copy of it is even transferred to the court hearing the civil proceeding.
12. Counsel for the accuser also refers to a "gross lie" in the words of counsel for defendants 20-21 in the framework of a "pre-trial" meeting in the civil proceeding, by claiming there that the second claim was filed in light of the breach of agreements by defendant 9 after the first claim was deleted. I cannot accept his argument, from what has been said above it appears that this was indeed the case.
13. From the above, it is possible to learn about the great efforts and considerable resources invested by defendants 20-21 in order to bring about an end to the dumping of waste in the pit over the years. This is sufficient to meet the law's requirement to take all reasonable measures to prevent the offense.
14. This is certainly true in light of the fact that the state and its various national and local authorities have not succeeded in stopping the dumping of waste at all this time, neither by legal means nor by caring means.

Conclusion

333. In view of the aforesaid rule, I determine that the accuser did not meet the burden imposed on her to prove the guilt of defendants 20 and 21, and I order acquittals from those attributed to them in the indictment.

Defendants 22-23