- The Supreme Court has more than once noted the fact that a gift of a significant scope creates an obligation on the part of the recipient towards the giver of the gift, and it seems to me that in our case there should be no dispute that this is an exceptional gift in its scope – about NIS 1.5 million.
In a Criminal Appeal 5083/08 Benizri v. State of Israel [Published in Nevo] (June 24, 2009) The Supreme Court referred to benefits in the scope of About half of the relevant amount for our purposes, and noted that "These are benefits of very considerable monetary value, which are not acceptable even among friends" (paragraph 52).
The transfer of a gift in the form of a huge sum to a public figure creates an enormous obligation on his part, and can even be seen as an evidentiary indication of the existence of an improper purpose on the part of the giver of the gift.
- The fact that the defendant is a very wealthy person has weight in terms of the significance of the scope of the gift, but it should not be seen as completely uprooting the incriminating significance that can be attributed to the amount of the sum, since the matter is also examined from the perspective of the recipient of the gift, i.e., from the potential impact on his modus operandi, certainly when the giver is aware of the deviations of such an amount in the landscape of the life of the public figure and can anticipate the same effect.
The nature of the loan agreement
- According to the prosecution, the loan agreement should be viewed as intended to disguise the improper purpose underlying the transfer of the money, certainly when an examination of it shows that its main terms are fictitious terms.
- In its summary, the defense discussed the chain of events that led to the loan agreement, arguing that while the defendant was convinced that the loan was reported by Ben-Eliezer to the Knesset, it was not possible to infer from what was stated in the loan agreement that there was an improper concealment intent.
It was further argued, based on the defendant's testimony in court, that the defendant was willing to transfer the money to Ben-Eliezer as a gift, and it was actually Ben-Eliezer who insisted that the sum of money be transferred to him as a loan to be reported to the Knesset, and that he would return it to the defendant at a future date, and therefore the defendant did not scrutinize what was stated in the agreement, especially since an examination of the details included in it shows that it is reasonable to assume that they were given by Ben-Eliezer.
- There is no dispute that after Ben-Eliezer expressed to the defendant his desire to receive a sum of money from him, the defendant approached Luknin and asked him to arrange for the preparation of a loan contract. Vaknin described that he expressed surprise to the defendant about the possibility of giving a loan to a member of Knesset, and the defendant explained that in view of Ben-Eliezer's age, he could not receive a mortgage, and in any case asked Ben-Eliezer to report the loan to the Knesset in the usual procedure, and the latter confirmed that he would do so. The defendant also stated to Vaknin that Ben-Eliezer asked that the loan remain discreet, and when Vaknin asked the defendant how Ben-Eliezer would repay the loan, the defendant told him that when Ben-Eliezer sold an apartment that he owned, the loan would be repaid.
Following the conversation, Vaknin contacted attorney Terry Almoznino, whom he knew, and told her that the defendant wanted to lend $400,000 per person, without informing her of the borrower's identity. Vaknin recounted in his testimony that he was asked by her how the loan would be repaid, and he replied what the defendant had told him, namely that the loan would be repaid when the apartment was sold (Prov. 23.11.16, pp. 445, 12-4). Vaknin requested that Adv. Almoznino send him a generic agreement, with the intention of filling in the missing details, and this agreement was sent on the same day [P/92(a)]. Five days later, on September 25, 2011, Orit (the secretary of Manofim) sent Luknin an email entitled "Attached is the loan agreement with the changes from today (marked)", to which was attached a draft agreement that includes various details and data (P/92B). A few hours later, at 12:16, another draft was sent, including changes and deletions.