The Selective Enforcement Claim:
- The defense, as stated, sought to reduce the sentence of the defendants also due to the selective enforcement and discrimination that the accuser used in her attitude toward the defendants in comparison to the other conspirators and straw women. It was argued that the filing of the indictment only against the three defendants, and the exclusion of the other conspirators and the straw women from the criminal proceeding, discriminated against the defendants and violated the principle of equality.
I do not accept this argument, and I will clarify.
- As is well known, and in accordance with the customary case law, the accuser's choice to file an indictment only against some of those involved in the affair will not necessarily give rise to a claim of discrimination.
On the aforesaid matter, see the words of the Honorable Justice A. Hayut in Criminal Appeal 37/07 Pereg v. State of Israel (March 10, 2008):
"The general rule is that as long as it has not turned out that the failure to prosecute some of those involved in a certain case stemmed from arbitrariness or improper considerations, such partial enforcement, even though it violates the principle of equality, does not justify intrusive judicial review, whether by way of ordering to prosecute the rest of those involved or by comparing the situation of those involved who were prosecuted with those who were not prosecuted."
The case law also held that the burden of proving a claim of selective enforcement is on the defendant, see in this regard Criminal Appeal 3215/07 Anonymous v. State of Israel (August 4, 2028):
"The claimant will have to show, first and foremost, that this is a distinction between those whose similarities are relevant to the matter, in the sense that he justifies a similar approach to the question of the filing of an indictment. In the second stage, the claimant will have to show that the basis of the distinction is an improper motive, whether in the form of arbitrariness, consideration of considerations that are not relevant or, G-d forbid, consideration of considerations that are improper... The burden of proving them, which are not simple at all, is on the defendant, since the State Attorney's Office, like any administrative authority, enjoys the presumption that its actions are lawfully carried out."
- In our case, the defense did not lift the burden imposed on it and did not show that the accuser's choice not to file an indictment against the other conspirators stemmed from an improper motive or investigative failures.
It should be recalled that in accordance with what is stated in section 6 of the general part of the amended indictment, the identity of the other conspirators is not known to the accuser. The defense's argument that the accuser and the investigators could have located those other conspirators was made in vain and without referring to the need to base it on the investigative materials.