It was proven that in October 2013, as part of the tax appeal, Ben-Eliezer submitted to the court an affidavit supporting the defendant's claim that he was a foreign resident, without mentioning the transfer of the money, and three months later he testified in the same proceeding, and even then he did not describe the transfer of the money.
The explanation given by the defendant to the question of why the transfer of the money was not mentioned in the affidavit he submitted, and in Ben-Eliezer's affidavit was found to be one that did not reflect the full picture, since the testimonies of his three attorneys in the tax appeal showed that the transfer of the money was not reported to any of them before the affidavits were submitted to the court, and that it was discovered to two of them only three days before Ben-Eliezer's testimony in court, and this too in light of an explicit question asked by them. In the aforesaid context, it was determined, on the basis of a set of reasons, that the transfer of the money to Ben-Eliezer, prior to the submission of the affidavits and his testimony in court, was characterized by a clear trend of concealment, and this trend even continued when it became clear that during his first interrogation, the defendant persisted in his claim that he did not need anything from Ben-Eliezer and did not ask him for anything, and without noting that Ben-Eliezer gave testimony in support of the residency claim that he raised in the tax appeal.
It was held that the clear trend of concealment detailed above constitutes a significant evidentiary indication of the existence of an improper purpose on the part of the grantor.
It was further held that the transfer of the money (and the non-return of it) bound Ben-Eliezer, and even if it could be argued that at that point in time when it was transferred, the full intention to use his testimony was not crystallized, as soon as the request was made for him to testify (in the opinion of the defendant while raising his name as a potential witness), the causal connection between the gift and the consideration was "locked".
- the combination of all the data detailed, and especially the economic interest that I have discussed, which spilled over into the relationship that prevailed between the defendant and Ben-Eliezer; the fact that the amount of money transferred is a huge sum, certainly when it is given to an incumbent public figure; the fact that the transfer of the money was "backed up" in a loan agreement that included data that did not correspond to reality (nor even the facts clarified below); and the fact that the transfer of the money in the context of Ben-Eliezer's testimony in the tax appeal was characterized by a clear trend of concealment – all of these lead to the conclusion that the prosecution succeeded in proving that Also An improper purpose was at the basis of the transfer of the money.
- Given the fact that the transfer of the money was carried out at the request of Ben-Eliezer and not at the initiative of the defendant, and on the basis of the data detailed regarding the closeness that the defendant felt to Ben-Eliezer, his financial abilities, his character and his social and economic conduct, I do not believe that the improper purpose was the dominant of the two, but still, the entry of a financial interest into the picture of the relationship, prior to the date on which the money was transferred, together with the proof of the element of "in favor", is sufficient to paint the transfer of the money in bribery colors without the need to view the improper purpose as the dominant purpose. This is true on the assumption that it will be proven that the bestowal was also given for An action related to his position of the recipient of the bestowal.
Can Ben-Eliezer's testimony in the tax appeal be viewed as an "act related to his position"?
- It was argued in the defense summaries that Ben-Eliezer's testimony in the tax appeal does not meet the definition of "an action related to his position", as it puts it:
"However, in our case, it is absolutely clear that the testimony of the late Ben-Eliezer in favor of his old friend in court was not made within the organizational framework in which he operated, and in fact there is no connection between his public position – as a Knesset member at the time and as a minister at the time of receipt of the loan – and his testimony in court. In his testimony, the late Ben-Eliezer did not make use of the connections and ability to operate the results of his position as a member of Knesset, and as stated, there is no connection or connection between the two things!".