Defect in the indictment - facts that do not constitute an offense
- Counsel for defendant 9 further argued that the acts attributed to him in the twenty-third indictment do not constitute an offense. According to them, according to the indictment, defendant 9 was present at the meeting that related to the settlement. They also claimed that indictments had been filed in the past for brokering a restrictive arrangement, but only when the realtor was also a beneficiary as an employee or a subcontractor.
- The prosecution argued, on the other hand, that the evidence shows that defendant 9 acted as an intermediary between the parties to coordinate the tender described in this indictment, and that the argument that a brokerage does not constitute a restrictive arrangement offense was rejected in the case law. Hence, the facts of the indictment indicate that the offense of a restrictive arrangement was committed together.
- According to Section 29(b) of the Penal Law:
Those who participate in the commission of an offense while committing acts for the purpose of committing it, commit it together, and it does not matter if all the acts were committed together, or if some of them were committed by one and some by another.
A joint perpetrator is a person who took part in the commission of an offense, by way of doing an act that is necessary to promote a joint plan, even if he does not fulfill all the elements of the factual basis, when all the actions performed by the joint perpetrators merge, and each perpetrator is also responsible for the actions of the others, even if his part is smaller. In order to prove that an offense was committed jointly, the prosecution must establish the required mental element, as well as the awareness of each perpetrator of the actual commission of the offense together (Criminal Appeal 2929/02 State of Israel v. Swirsky, 57(3) 135, 141 (2003); see also: Criminal Appeal 954/17 Abu Arar v. State of Israel [Nevo] (June 10, 2019); Criminal Appeal 2895/07 Farhi v. State of Israel [Nevo] (25 October 2007)).
- According to the indictment, defendant 9 participated in the meeting in the presence of other parties involved in the settlement. His actions in the framework of the negotiations for an arrangement were not detailed. However, it is not possible, at this stage, to determine that this presence is not sufficient to establish the commission of a party offense to a restrictive arrangement. It is clear that the conviction of the defendant of an offense depends on the acts that will be proven by the evidence. Hence, it is not possible to decide the argument until after hearing the evidence.
- I also did not find any substance in the argument of counsel for defendant 9 that the offense could not be attributed to him because he was not among the beneficiaries of the offense. Even if in the past they were convicted as joint perpetrators, but those who gained something from committing it, this does not negate the possibility that he will be convicted of an offense involved who earned nothing. Either way, this is another matter that depends on hearing the evidence.
- Therefore, the claim of a defect in the twenty-third indictment, due to facts that do not reveal an offense, is rejected.
Defect in the indictment - attribution of offenses of doing business with prohibited property under the Prohibition of Money Laundering Law
- Counsel for defendant 9 further argued that he could not be charged with the offense of money laundering in relation to the sum of ILS 16,230, which was committed, according to the twenty-eighth indictment, in December 2016 (section 861 of the indictment), because the amount was lower than the minimum amount set by law.
- Counsel for defendants 23-24 argued that the sum attributed to the defendant in the nineteenth indictment - ILS 570,000 in the period between September 1, 2017 and August 31, 2018 - did not reach the minimum prescribed by law, due to the manner in which it was paid over the course of a year. According to him, it is not possible to sum up the money received on two different charges, under these circumstances. He also argued that if the offense of money laundering had not been attributed to the nineteenth indictment as well, but only one money laundering offense in respect of the thirteenth charge, the criminal score of defendant 23 would have been lower and very close to the score of a person involved against whom no indictment had been filed.
- The prosecution argued, on the other hand, that defendants 9 and 10 are charged with additional money laundering offenses committed during this period - both, together with defendant 11, were charged with money laundering in the amount of ILS 1,247,163 between December 2016 and February 2017, and defendant 9, together with defendants 11 and 12, committed money laundering in the amount of ILS 1,549,807 between November 2016 and February 2017 - and that the aforementioned sum could be added to these amounts.
Thus, the prosecution also claimed with regard to defendants 23 and 24, that the nineteen actions they performed were attached to the indictment, and it was found that these met the minimum requirement, and indeed, the lowest scope attributed to the defendants was above the minimum amount prescribed by law.
- According to Section 4 of the Prohibition of Money Laundering Law:
Anyone who commits an action with property, knowing that it is prohibited property, and is of the value set out in the Second Appendix, shall be sentenced to seven years' imprisonment or a fine ten times the fine stated in section 61(a)(4) of the Penal Law...