The argument of counsel for defendants 23-24 that there is no room for combining the sums is unclear, since the second addendum to the law, before and after the amendment, instructs to examine whether an action was carried out or a number of actions were carried out, in the minimum amount in the specified period. Hence, it is possible to sum up all the funds in which actions were carried out during a certain period, whether they originated in one tender or in a number of tenders.
In any case, the place to clarify this matter is within the framework of the evidentiary process, insofar as it is conducted, and does not currently justify the cancellation of the indictment or part thereof.
Protection from Justice - Personal Circumstances
- Counsel for defendant 11 argued that there was no reason to file an indictment against him, due to his son's mental and health condition, and the defendant's personal circumstances as a result. The defendant's son is autistic with a low level of functioning, he is in nursing care, with behavioral disorders, and suffers from epileptic seizures. The defendant is his main caregiver, and he has a special relationship with him. His physical presence is important for the son when he resists treatment or experiences seizures, and his presence is also important for the son's mental state. Conducting the proceeding will require a lot of time and resources from the defendant, and he will prefer to devote them to his son. His request for a stay of proceedings was denied.
- The prosecution, on the other hand, argued that without taking lightly the son's medical condition and the difficulties accompanying the family, this does not establish a claim of protection from justice. The claim of protection from justice due to such circumstances is rarely accepted, and it is not even a case of harm to the defendant himself as a result of the conduct of the proceeding, but rather to his son.
- The main purpose of the defense of justice is to ensure that the criminal proceedings are just, fair and proper. In general, this is a violation of the fairness of the proceeding resulting from the conduct of the authority or a violation of the sense of justice as a result of circumstances that are not dependent on the authority, but they base "the conclusion that in the given case it will not be possible to guarantee the defendant a fair trial, or that the conduct of the criminal proceeding will substantially harm the sense of justice and fairness" (Criminal Appeal 4855/02 State of Israel v. Borowitz, IsrSC 59(6) 776, 806-809 (2005); see also: Criminal Appeal Authority 1201/12 Kati'i v. State of Israel, in paragraph 10 of the opinion of the Honorable Justice Neil Hendel and in paragraph 3 of the opinion of the Honorable Justice Hanan Melcer [Nevo] (January 9, 2014)).
Indeed, in very rare cases, medical circumstances may serve as a basis for a claim of protection from justice. However, it is not easy for the court to adopt a claim of protection from justice for personal reasons (and compare: Criminal Case (District Court, Tel Aviv) 63871-06-16 State of Israel v. Anonymous [Nevo] (February 7, 2018); Criminal Case (District, Jerusalem) 1470-03-20 State of Israel v. Berland [Nevo] (August 3, 2020)).
- The defendant's personal circumstances, which are the result of his son's medical and personal condition, do not constitute circumstances that justify the dismissal of the indictment.
Indeed, from the opinions that were submitted in the matter of the defendant's son, a very complex and difficult picture emerges. Without going into the details of his condition, due to the privacy of the individual, it should be said that the defendant's son suffers from a general developmental delay and a 100% disability in mobility, his abilities are lower than his chronological age, he is diagnosed on the autism spectrum, does not function independently, has difficulty communicating, suffers from behavioral disorders, and is being treated by a psychiatrist. The opinion also shows that the defendant is the main therapeutic factor, that he is the main caregiver in whose presence his son calms down and agrees to receive treatment, and that prolonged absence from the son's environment is expected to lead to a significant deterioration in his condition.