The defendants further argued that the choice of the cut-off point between the 17 defendants against whom it was decided to file an indictment and those against whom no indictment was filed, the calculation of the "criminal score" of each involved was not detailed, and the ranking that was made was arbitrary, while a cut-off line could have been determined in other places as well.
- The prosecution, on the other hand, argued that prosecuting all those involved would have burdened the judicial system, prolonged the duration of the proceeding, and reduced the public interest in its existence. According to her, the limited resources of the enforcement authorities are a legitimate reason for prosecuting only some of those involved. During the investigation, suspicions were discovered of coordination of about 160 tenders by about 100 suspects, and under these circumstances the investigation could have continued for many years and disrupted the other activities of the Competition Authority. Therefore, the investigation was focused on a number of criteria: the restrictive arrangement was perfected and implemented; The offense of fraud has been perfected and has borne fruit as a result; Matching a tender in an expected scope of at least ILS 4,000,000; and coordinated a tender by a public body. Objective parameters that can be clarified at an early stage of the investigation and characteristics that indicate the severity of the offenses were selected.
She added that after it became clear that there was sufficient evidence against about 50 people involved (who are not companies), and in order to prevent the burden and prolongation of the process, it was decided to focus enforcement on the prosecution stage as well, and to prosecute those involved with the highest involvement, based on two parameters: the number of offenses committed by each suspect, and the amount of money received as a result. These circumstances reflect the severity of the acts and the severity of the harm to competition, and they are clear and measurable. All the suspects were ranked according to the grades they received in each parameter, compared to other people involved, and in the end, an indictment was filed against the 17 defendants and other companies, whose involvement was the greatest according to the criteria. According to her, the choice of 17 defendants actually stemmed from the gap between the 17th-ranked suspect and the 18th-ranked suspect, who was not indicted. She also emphasized that the indicators reflect the severity of the acts and the degree of involvement in the entire affair. According to her, even if the distinction could have been made in a different way, this does not establish a claim for selective enforcement.
- It also argued that the criterion of minor or dominant involvement in offenses is not appropriate for a large-scale affair, and it may be controversial. According to her, this is an evidentiary question, since the degree of involvement depends on the decision as to whether a number of arrangements should be considered a single arrangement or a number of arrangements. It also argued that calculating the score according to the number of coordinations, as opposed to the number of coordinated tenders, would have resulted in a particularly high score for a person who participated in a number of coordination meetings, as opposed to someone who participated in a single coordination meeting with a number of participants. With regard to the offense of fraud, she argued that there is a violation of the protected values even if the perpetrator of the offense did not win the tender. As for the examination of the actual funds received, she added that at the investigation stage, only the scope of the potential tender was examined, because it was not known whether the contract would be extended, and at the stage of filing the indictment, weight was given to the actual profit, which constitutes an indicator of the degree of severity. According to the prosecution's position, there was also no reason to stop investigating the tenders that the realization of the works did not reach the sum of ILS 4,000,000, in order to preserve equality, and the termination of the tender should not be attributed to a particular suspect due to the suspicions against him. Nor is there room to give a partial grade in relation to the commission of a particular offense, to the person involved who committed the offense but the profit he received in the end was lower.
- As to the method of calculating and normalizing the criminal score, the prosecution argued that each suspect received a score ranging from 0 to 1 in relation to each type of offense he committed - that is, a score for restrictive arrangement offenses, a score for fraudulent offenses, a score for money laundering offenses - and a score in relation to the amount received, and in total, each person involved received a score ranging from 0 to 4. Calculating the score that weighted the number of offenses committed by each suspect in relation to each type of offense out of the total amount of offenses of that type, as well as the total amount. She also argued that this would give appropriate weight to each of the offenses, which protect different interests, and are similar in severity, hence there is no basis for the claim that increased weight should be given to a particular offense. She also added that the scoring system allows for an overview of the entire affair, and an examination of each tender on its own merits would not have allowed for the selection of those involved whose actions are more serious.
- She further emphasized that there is no basis for the existence of an improper motive, and that the prosecution is entitled to consider the severity of the acts and the centrality of the suspects in the affair as a whole. According to her, each defendant asks that the criterion that assists him be weighed, and many different parameters could have been considered, but it is not enough that additional considerations could have been considered, in order to establish a claim for selective enforcement. She further argued that the choice to examine the involvement of the defendants in the affair as a whole is not invalid, even if there is a basis according to which the involvement of a defendant in one charge or another is small in relation to those involved who were not prosecuted in that charge. It also emphasized that after ranking those involved and identifying those against whom an indictment will be filed, the prosecution made sure that they were indeed the dominant people involved in the affair.
- As for the cut-off line, the prosecution argued that in order to balance the public interest in prosecuting as many people as possible and the interest of efficient use of public resources, it was decided to prosecute about 15 defendants. Therefore, she chose a cross-sectional line between the two people involved whose criminal score gap was the largest among all those involved who were ranked between 10 and 20.
- She added that attributing laundering offenses to defendants is consistent with the Authority's policy in cases where systematic and ongoing offenses amounting to tens of millions of shekels were committed.
Did the defendants claim protection from justice due to selective enforcement?
- According to section 149(10) of the Criminal Procedure Law [New Version], 5742-1982, a defendant may claim, as part of his preliminary arguments, that he has a claim for protection from justice if "the filing of the indictment or the conduct of the criminal proceeding contradicts the principles of justice and legal fairness."
The doctrine of protection from justice - in its current form - was initially formulated in criminal appeal 4855/02 State of Israel v. Borowitz, 59(6) 766, 806-807 (2005) and was subsequently anchored in section 149(10) of the aforementioned Criminal Procedure Law. This broad doctrine relates to a series of serious flaws in the filing of the indictment or in the conduct of the criminal proceeding, which may violate the right to a fair trial (Criminal Appeals Authority 5334/23 Abergal v. State of Israel, para. 48 [Nevo] (July 14, 2024); Criminal Appeal 7218/22 Elmelah v. State of Israel, at paragraph 162 of the opinion of the Honorable Judge Yosef Elron [Nevo] (January 29, 2025)).