Criminal Case (Jerusalem) 28759-05-15 State of Israel v. Eran Malka - part 116

Third, in the absence of an agreement to cancel the charges that were in the original indictment and were omitted from the amended indictment, in light of Adv. Perry's insistence that this is a retraction of the charge leading to an acquittal, and in light of the Section 94(b) The Attorney General's Office has the right to dismiss the indictment after the defendant responds to the indictment with the consent of the prosecutor and the defendant to this, I determined in the framework of the judgment that with respect to them "Charges included in the original indictment (and defined as separate affairs)"But"are not found at all in the amended indictment...  There is a distinction regarding the applicability of section 92 toKindness on the one hand, and sections 93-94 of the Kindness Ordinance on the other", and therefore the accuser should be seen as retracting those charges (affairs).  I added that this approach follows the path already paved in the current proceeding, "Similar to the sixth charge in the case of the Kahlon affair, which was also included in the original indictment, and in respect of which the accuser announced on 28 June 2000 that she was withdrawing from this charge in relation to defendants 2 and 4", and these defendants (Fischer and Biton) were acquitted of this charge By agreement.  I also noted there that the said distinction is anchored in legal documents that will be detailed if necessary.  In light of the controversy that arose in the framework of the arguments for punishment regarding the charges that did not appear in the amended indictment, it is important that Fischer is acquitted of the same offenses as opposed to their dismissal (since the dismissal of an indictment on the grounds of protection from justice does not constitute taking a position on the question of the existence of sufficient evidence for a conviction, as distinct from an acquittal based on evidentiary considerations): The MustHavabove, paragraph 9 of the judgment of Deputy President Meltzer; Parashat Elmalah, supra, paragraph 163 of Justice Elron's judgment).  I will therefore refer to the judgment of Judge Kedmi in a criminal appeal (Tel Aviv District) 6/87 Kahzam v. State of Israel, IsrSC 5748(1) 92 (1987), in which it was held that although the prosecution may request that the indictment be amended by deleting offenses without the defendant being acquitted of them, "Of course, the court – on its own initiative or at the request of the defendant – may refuse such an amendment, if it does not involve an explicit withdrawal of the charge" (ibid., para. 4).  With regard to the considerations that need to be decided whether to condition the amendment of the indictment on the withdrawal of the charges that were dropped in the amended indictment, Judge Shetzky noted: