Counsel for defendants 21-22 argued, with respect to the tenth, fourteenth, twenty-fourth, and twenty-fifth charges, that they did not adequately detail the contacts that took place between those involved in the arrangements for the purpose of advancing it. The twenty-fifth charge mentions contacts without detailing them at all, and the rest of the charges relate to contacts but do not specify all of them. According to them, offenses should be attributed only in relation to acts that the prosecution has the power to prove, and the charges should not be left vague.
Counsel for defendants 23-24 further argued that the eighth, thirteenth and nineteenth charges do not include sufficient factual detail, and that the eighth charge does not attribute to defendant 23 any action. At the hearing, counsel for the defendants agreed that a factual clarification was needed in order to decide the claim, and that the arguments would be reserved for him.
- The prosecution, on the other hand, argued that it was not required to detail the details of the contacts that led to the formulation of a restrictive arrangement, especially when these were not known to it, and that the details required in the framework of the prosecution case could be proven. Nor is there any need, according to her position, to present the details of the agreements, but only a description of the nature of the agreement. According to her, the indictment includes all the facts required to prove the elements of the offenses, and she even added additional details or examples, more than necessary, and even though they do not exhaust the contacts. This does not expand the scope beyond the agreements detailed in the indictment, nor should the wording of the actions carried out be viewed as alternative claims.
- As is well known, the prosecution is required to include in the indictment "a description of the facts that constitute the offense, indicating the place and time to the extent that it is possible to clarify them" (section 85(4) of the Criminal Procedure Law). The offense of a restrictive arrangement is formed where there is an arrangement to which the parties are business managers, and at least one of the parties restricts himself in a way that is liable to harm competition (section 2(a) of the Economic Competition Law).
- The defendants' arguments relate to the lack of detail regarding the manner in which the arrangements were formulated and the type of communication that was conducted between the parties for the purpose of formulating them, and the details of the agreements themselves, both with regard to the lines that are the subject of the arrangements, and with regard to the actions required by the parties to the arrangement in order to carry it out. All of the arguments do not relate to the elements of the offense, but rather to various aspects that may indicate its existence. Therefore, these are not details that must be included in the indictment (see, for example: Criminal Case (District, Central) 26713-03-21 State of Israel - Competition Authority v. Goldman [Nevo] (January 11, 2022)).
- As is well known, the prosecution has the prerogative to draft the indictment as it sees fit, and the court will intervene in matters relating to its wording only in rare cases (Criminal Appeal 229/19 State of Israel v. Anonymous, at paragraph 34 of the opinion of the Honorable Judge Yosef Elron [Nevo] (December 30, 2019); Criminal Appeal 4484/05 Gonen v. State of Israel, at paragraph 11 [Nevo] (8 August 2006)). This is not a case in which the prosecution omitted from the indictment material details to substantiate the offenses attributed to the defendants, and therefore this is not the exceptional case that justifies intervention in the formulation of its facts.
- I also did not find that the absence of this detail would impair the defendants' ability to defend themselves. As stated, the details that the defendants sought to add to their interest in the evidence for the commission of the offenses. The investigation materials have long since been transferred to the defense, and all the evidence available to the prosecution to prove the guilt of the defendants is also available to them. Hence, the defense must assume that the prosecution will use all the available evidence in order to establish the existence of the elements of the offenses attributed, and formulate their defense accordingly, and if the prosecution does not do so, the conclusions will be reflected in the verdict.
- Therefore, the defendants' claims of insufficient detail in the indictment are rejected.
Defect in the indictment - more detailed wording in the general part
- Counsel for defendants 21-22 further argued that the general part of the indictment is too detailed and includes irrelevant facts that do not constitute an offense, and that are not necessary for the purpose of clarifying the indictment itself, in violation of the law and contrary to the instructions of the State Attorney. According to them, this section does not relate to the offenses attributed to the defendants, and once a consolidated indictment has been filed, even if the background is relevant to some of the defendants, it should not be applied to all of them. They also argued that the fact that the tenders are public is sufficient to establish the aggravating circumstances, and there is no need for additional details in this context.
- The prosecution argued, on the other hand, that the general part describes the legal arrangements behind the tenders in question, and lays out a factual and circumstantial background for the offenses of coordination of tenders and fraud. According to her, this is also not an attempt to create a more serious image than what the defendants actually performed, and it was explicitly stated that each defendant was involved "according to his part." Hence, the fact that some of the defendants are not attributed involvement in local authority tenders is not enough to disqualify this part of the indictment.
- As noted, the court will be inclined not to intervene in the wording of the indictment. The information included in the general part of the indictment, regarding the obligation of local authorities to provide transportation services to children to educational institutions, relates to many of the tenders discussed in the indictment. Even if this is not information that establishes which elements of the offenses are based, it is relevant to understanding the broad context of their commission. It is also easy to distinguish between the defendants for whom this information is relevant, and those who have nothing to do with the transportation of children, in accordance with the tenders whose coordination is attributed to them.
- Therefore, the argument that the general part of the indictment should be amended is rejected.
Additional flaws in the prosecution's conduct - the filing of the indictment after its cancellation and the double risk
- Counsel for defendants 1-4 further argued that the indictment was lawfully filed in the Jerusalem District Court, and once it was canceled, the prosecution is not entitled to resubmit it, unlike an indictment that was canceled because it was filed illegally. According to him, in order to transfer the proceeding to the Central District Court, the prosecution should have acted in accordance with the law and applied to the President of the Supreme Court. This conduct also contravenes the provisions of the Criminal Procedure Order (Court Determination Regarding the Economic Competition Law) (Amendment), 5784-2024, according to which pending proceedings in the Jerusalem District Court will not be transferred to the Central District Court. In this way, the prosecution abused its power.
Counsel for defendants 5-8 and 19-20 added, in this context, that in canceling the indictment and resubmitting it, the prosecution abused its authority in order to choose a better panel.