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.
- Even at the beginning of the accuser's summaries, it is noted that these are the offenses of which they were accused (paragraph 49 of the accuser's summaries)
- Subsequently, in paragraphs 53 and 398 of the accuser's summaries, and similar to what was stated above in the case of defendants 20-21, 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.
- In view of the reasons detailed above in the case of defendants 20-21 (see above, sections of the judgment), 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 facts proved in the case of the defendants
- There is no dispute that these defendants are the owners of plots 88 and 90, plots that constitute part of the area of the pit that this indictment deals with.
- In 2000, a lease agreement was signed between these defendants and defendant 21, in the framework of which the defendants rented the area to defendant 21. This agreement was extended from time to time, and as defendant 21 testified, the area is still leased to him even during the trial (P/78, P/79).
- Defendant 22 testified about the purpose of renting the area: "We agreed that Mr. Khadija would dig the land, remove the sand, sell it, do whatever he needed. Afterwards, he will seal the pit and hand it back to us (minutes of the meeting of 12 May 2024, p. 35).
- This is how he testified about the extension of the lease agreement: "When 2010 came and we needed the land, we discovered that the land was still plowed, not yet sealed, and there were already negotiations between us that were already underway, Mr. Khadija, after all, he would constantly show us permits or show us that he had submitted permits and ask for signatures, we would sign for him. It's all according to the book. And when 2010 came and we still hadn't received the land, we turned to him and said, 'Listen, me, it's still a pit, I haven't closed it yet. I've already lost a lot of money. Help me with that. Me, it won't take long and I'll close it.' So our consideration was between two things, or I'll go head to head with him, the courts and you'll know what will happen to it, years and money. Or I'll make an extension with him, let's put it this way, for sums that I have no choice but to receive. Because either I will stay with the pit with problems or according to what he told me he will seal it" (minutes of the meeting of 12 May 2024, p. 35).
- The witness Netta Henik testified (8 November 2018) and a document (P/105) was submitted through her according to which already in May 2014 a report was sent to defendants 22-23 and other defendants about a waste hazard located in an area belonging to defendants 22-23, and even a report of fire and smoke rising from the waste.
- An additional inspection report was sent to the defendants in the same month due to another patrol (P/106).
- In March 2016, another tour was conducted by the witness Henik and a report was sent again (P/114). This report explicitly warns of waste dumping and waste hazards in an area belonging to defendants 22-23.
- Defendant 21 testified that he reported to defendants 22-23 about what was happening in the area, including the dumping of waste in that area: "We would meet for certain periods, I don't remember how many and I would explain to them what was happening with the pit, why it went on? What is the reason? And I would update them on everything... I also spoke with Jamal and the waste, and I think with Mu'tasem as well." And when asked if he reported to them when the waste disposal began, and whether he told them that he intended to contact the Ministry of the Environment, he replied: "Yes, the situation in which they invade into this pit is throwing waste, I don't, I go and start everything they go in to document it, I call the director of the Ministry of Environmental Protection." (Minutes of the meeting of February 15, 2023, p. 792). Defendant 22 confirmed in his testimony that he was indeed in contact with defendant 21 regarding what was happening in the pit. When asked in cross-examination how he knew that Defendant 21 was in contact with the municipality in order to obtain permission to close the pit, he replied: "Because I always ask him. I was always in touch with him." When asked about the frequency of contact, he replied that he did not remember, but: "But the fact that I was constantly asking him, saying no, asking him, is yes" (Transcript of 12 May 2024, p. 52).
- Defendant 23 confirmed in his testimony in court that he was aware of what was happening in his area, he testified that: "I was interrogated by the police so I knew there was a problem there, there was a problem. And we contacted him, whether in writing or not, and we knew all the time that we were contacting him, he said it's okay, I'm working on the permits" (Transcript of May 12, 2024, p. 85). As may be recalled, his interrogation with the police was about the waste that was dumped on his property, and in this testimony he confirms that as a result he was aware of this and even contacted defendant 21 on the matter together with defendant 22.
- Indeed, in a letter dated February 2017, defendants 22-23 address defendant 21 through an attorney and warn him of the environmental hazards on the ground, stating that they are aware of this in light of their police interrogation.
- It is not even possible to ignore the fact that defendants 22-23 are not only the owners of the pit, but they live near it. Defendant 22, according to his testimony, lived about 200 meters from the pit near the Jamal family, and defendant 23 testified that he lived about a kilometer and a half from the pit. The events described in the indictment take place over the years and on a large scale. The claim that the owners of the pit who live near it do not know what is happening in the area they own is difficult to accept.
The Legal Basis
- The accuser also claims that they can be convicted in one of two tracks. As "joint operations" or as owners of the field and by virtue of strict responsibility.
Together Promotions
- A joint perpetrator is required to fulfill both the mental element required for the offense committed jointly and the mental element of awareness of the very act of acting together with the others. In other words, it must be proven that the perpetrators acted together with the aim of committing the particular offense attributed to each of them. See, for example, on this matter Additional Criminal Hearing 1294/96 Uzi Azoulay Meshulam et al. 11 et al. v. State of Israel , 52(5) 1. 1998)
- There is no dispute that defendants 22-23 did not commit the offenses attributed to them with their own hands.
- The only active action attributed to defendants 22-23 is the extension of the land lease contracts vis-à-vis defendant 21. The indictment accuses defendants 22-23 of carrying out actions together with the other defendants. The contract extension was made only in front of defendants 20-21, so that it is certainly not possible to attribute to them "together" with other defendants since no connection with them has been proven. Moreover, in the execution of a lease extension, there is no act to commit the offense or even an act that enables the commission of the offense and amounts to "assistance". I have not found that it has been proven at any stage of the trial that there is no question as to who is the landlord.
- Defendants 20-21 were acquitted of what was attributed to them in the indictment, so that defendants 22-23 cannot be convicted of any cooperation with these defendants.
Owning the field
- 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.
- Section 3424 of the Penal Law states that the definition of "possession" is: "the control of a person over something that is in his possession, in the hands of another or in any place, whether the place belongs to him or not. and anything that is in the possession or possession of one or more members of a group, with the knowledge and consent of the others, shall be deemed to be in the possession and possession of each of them and of all of them alike."
- Contrary to what was stated in the case of defendants 20-21, in the case of defendants 22-23, no evidence was presented that they were in possession of the area. Not every property owner is also a "holder" of it. In accordance with the section of the law quoted above, for the purpose of "possession" control is required.
- The Supreme Court in Criminal Appeal 250/84 Dan Hochstette v. State of Israel, M(1) 813 (1986), held that: "Control is determined by reality in practice and not by the legal right to that object. Therefore, a thief may control the object, while the owner of the object may not control it." In other words, the mere ownership of the object, or as in our case, in the field, is not sufficient to prove a presumption.
- The defendants are indeed the owners of the area, but no evidence has been presented that they have the ability to influence what happens on the ground itself. They transferred possession of the area to defendants 20-21, while setting conditions in the contract, as presented above, that obligated him to act in accordance with the law. The accuser did not present any evidence of the tools in the possession of these defendants in order to influence the dumping of the waste in the pit.
- As stated, I am convinced that the defendants were aware of what was happening in the pit, but the question is what they could have done. Moreover, it appears that they contacted defendant 21 at some point in the matter, and it also appears that they received updates from him about what had happened. And since I have come to the conclusion that defendants 20-21 did what is required of them in the matter, it is not possible to demand that defendants 22-23 take additional actions beyond that.
- The circumstances indicate that defendant 21 is the businessman operating in the field, while defendants 22-23 derive a profit from the fact that they are the owners of the area, but apart from their ability not to extend the contract, it is not possible to point to any means of control that they have regarding what is happening on the ground.
- The argument that the mere extension of the contract is a breach of their duty to take all reasonable measures in order to prevent the offense does not stand in light of the circumstances on the ground. The result of not renewing the contract could have been the transfer of control of the area to them. It cannot be said that this was in order to assist in the prevention of the offenses. On the contrary, Defendants 20-21 have many abilities and means than Defendants 22-23 in order to act on the matter (and indeed they did) and the transfer of control to Defendants 20-21 was in order to reduce the ability to take action to prevent the offenses.
- Beyond the above, I will note that I find it difficult to understand the accuser's demand of these defendants. The state itself has been aware all along that defendants are throwing waste and other offenses regarding what happens in the pit. The state and its various authorities are unable to prevent this. It does not accuse defendants 22-23 of being part of the active acts that took place in the pit, but rather of not preventing it. How could these defendants, in their economic and health situation, and in fact their status in society, have acted to prevent the offenses, where the state has not been able to act?
- In view of the aforementioned rule, I order the acquittal of defendants 22-23 of those attributed to them in the indictment.
Conclusion