Criminal Case (Jerusalem) 28759-05-15 State of Israel v. Eran Malka - part 110

The discussion in the previous chapters regarding the defects and omissions that occurred with regard to the preservation and disclosure of the investigative materials in this proceeding clearly proves the importance of adherence to the duty of documentation, not only on the part of the investigative body but also on the part of the prosecuting body.  In the current context of documenting plea bargains, it was held that "the agreements between the parties to the plea bargain must be clearly and fully expressed in the formal agreement they reach and report to the court...  There is no room for informal understandings, behind the scenes, alongside the formal plea bargain" (Criminal Appeal 9097/05 State of Israel v. Warshilovsky, para. 7 (July 3, 2006)).  Moreover: "The parties to the plea bargain must formulate the arrangement in a way that best clarifies the understandings between them, including the obligations that each party assumes.  For on the basis of these understandings, the parties to the arrangement – and especially the defendant – formulate expectations of one kind or another, just as each party to the contract formulates expectations on the basis of the agreements formulated in the contract" (Additional Criminal Hearing 1187/03 State of Israel v. Peretz, IsrSC 59(6) 281, 297-298 (2005)).  This principle was often used by the accuser in order to refute defendants' claims regarding plea bargains that were made with them without written documentation of this (High Court of Justice 5807/07 Abu Shehadeh v. Central District Attorney (July 11, 2007); High Court of Justice 3602/11 Laham v. Haifa District Attorney's Office (July 20, 2011); High Court of Justice 2321/18 Atawneh v. Zevulun District Police (April 16, 2018); High Court of Justice 13/22 Alloush v. Israel Police, para. 14 (April 25, 2022)).  It is not excessive to apply the principle in only one direction, and to allow the prosecution to raise against another defendant in the same proceeding the claim that it entered into a plea bargain with his co-defendant without putting in writing the details of the arrangement, its date, its terms, the party that approved it, and the considerations underlying it, as required by its own managers.