This section states:
"The court may, in its judgment, do one of the following:
(1) to accept the appeal, in whole or in part, and to change or cancel the judgment of the previous instance and give it another in its place, or to return the trial with instructions to the previous instance; If the court accepts the appeal as aforesaid, it may impose on the defendant any punishment that the previous court was authorized to impose, whether or not the defendant began to bear the sentence imposed on him by the previous court or finished serving it;
(2) dismiss the appeal;
(3) to render in connection with the judgment any other decision that the previous court was authorized to make."
- These rules were established alongside what is stated in section 216 of the Code of Criminal Procedure, which states in clear language that "the court may convict a defendant of an offense for which his guilt was revealed from the facts that were proven, even if it is different from the one for which he was convicted in the previous instance, and even if the same facts were not argued in the previous instance." The appellate court is therefore authorized to convict the respondent (or the appellant) of any offense that emerges from the facts of the case - provided that the latter has been given a reasonable opportunity to defend himself against such a conviction and that he will not be subjected to a punishment that is more severe than that which was observed from the outset in the indictment.
- This authority has been interpreted extensively in case law. Thus, for example, it was held that this power allows the appellate court to convict "any offense that has a basis in the evidence material" (see: Criminal Appeal 295/10 Anonymous v. State of Israel, para. 78 [Nevo] (April 2, 2012) (emphasis added - A.S.)), including offenses more serious than those of which the defendant was convicted and offenses from which he was acquitted, even when no state appeal was filed (see: Borowitz, at p. 206; Criminal Appeal 4503/99 Ephraim v. State of Israel, IsrSC 55(3) 604, 621-623 (2001); Additional Criminal Hearing 4052/01 Peter v. State of Israel, paragraphs 5-6 [Nevo] (July 2, 2001); Criminal Appeal 385/87 Tallawi v. State of Israel, IsrSC 42(1) 140, 152 (1988); Criminal Appeal 11331/03 Kis v. State of Israel, IsrSC 59(3) 453, 476-477 (2004);Criminal Appeal 5706/11 Ron v. State of Israel, paragraphs 150-151 [Nevo] (December 11, 2014); Additional Criminal Hearing 4603/97 Meshulam v. State of Israel, IsrSC 51(3) 160, 199-200 (1998); Criminal Appeal 4398/09 Hamoud v. State of Israel, para. 13 [Nevo] (August 1, 2011)).
Copied from Nevo
- The principle of truth is somewhat withdrawn in extreme cases, the exceptions of the exceptions, such as those that give rise to the need to disqualify credible evidence obtained by the state in violation of the law - since the state must not try to enforce the criminal law and establish legality by means of illegal acts (see: section 56A of the Evidence Ordinance [New Version], 5731-1971; Criminal Appeal 5121/98 Issacharov v. Military Prosecutor, IsrSC 61(1) 461 (2006); Criminal Appeal 2868/13 Haibtov v. State of Israel [Nevo] (August 2, 2018); and Yosef Elron, Criminal Law - At a Crossroads, Salim Jubran Book 841 (2023)). This principle also removes from the rule set forth in section 217 of the Code of Criminal Procedure, according to which "the court shall not increase the sentence imposed on a defendant, unless an appeal is filed against the sentence."
- Subject to such limitations, whenever an appeal proceeding is pending before the Criminal Appeals Court, the court has the authority in principle - which is also its duty - to convict the defendant of any offense for which his guilt arises from the facts that have been proven beyond a reasonable doubt, if the defendant had a reasonable opportunity to defend himself against such a conviction. This authority derives from the very existence of the criminal proceeding, which the court is responsible for investigating and is not in any way subject to the state's position. The authority and obligation to render a true judgment are at the core of the court's role as the body responsible for safeguarding the public interest in the enforcement of criminal law. The prosecution cannot dictate to the court what offenses it must convict the defendant of criminal offenses, which offenses he must acquit, and what punishment it must impose on the defendant. The prosecution may or may not open a criminal proceeding on its own, and it may, in accordance with the accepted rules, withdraw from the indictment or the appeal it filed (regarding the withdrawal of the state's appeal, see: section 206 of the Kindness Act). The prosecution, of course, also chooses which arguments to raise (or not raise) before the court. However, what will be determined, at the end of the day, in the judgment of a court that hears a criminal proceeding, is always subject solely to its judicial discretion - a discretion that is subject to the law, the facts and the judge's basic duty to rule on the truth.
- In this framework, the principle of truth, as I explained above, prevails, inter alia, what the prosecution claims in the indictment, in the appeal and in all other frameworks of criminal law. As a rule, the court will not be harsh with the defendant beyond what he was asked to do by the prosecution, but, as stated, this rule is reversed from the principle of truth: the court's authority and basic duty to rule on the truth.
- For example: not so long ago, two members of the current panel (my colleague, Justice Y. Elron, and myself) were partners (together with Justice Ronen) in the judgment they gave in the state's appeal, in which we were asked by the state to impose an actual prison sentence on the respondent for a period of 28 months. Despite this request, as those responsible for the prosecution of criminal cases from the perspective of the public interest as a whole, we sentenced Respondent Deshm to serve 36 months in prison. My colleague, Justice Elron, explained our judgment in the following terms:
"The state argued before us [...] that the proper punishment for the respondent is 28 months in prison... I do not ignore this. Nevertheless, I would suggest that we impose a more severe punishment than the punishment proposed by the state (which is included in the punishment compound for which it is claimed). The court's responsibility to render a proper and appropriate judgment extends throughout the length and breadth of the criminal proceeding - from the trial court to the appellate court... I cannot lend my hand to a punishment that is inappropriate and appropriate and deviates significantly and is evident from the punishment that should be imposed on the respondent in this case. If I do so, I will deviate from my worldview for many years when I come to sentencing this or that defendant, according to the totality of the sentencing considerations in which we order" (see: Criminal Appeal 1663/24 Alyan v. State of Israel, paragraph 25 of the judgment of Justice Elron [Nevo] (June 12, 2025) (hereinafter: the Alyan Case)).
- From here - to the application before us.
- The application before us
- In summary, in the framework of the present motion, we were asked to determine that since the State announced, after the hearing of the appeal, that it no longer insists on its request to convict the Respondent of the sexual offenses that it attributed to him, while at the same time it asked us to convict him of the offense of assault - without this being conditional on the Respondent's consent to this - we did not have the authority or, at the very least, the justification to convict him of the offenses of fraudulent rape. According to the respondent, in these circumstances the offense of assault drew the upper limit of our authority or, at least, of what was proper and correct to determine in our judgment. Given the factual and legal analysis that was laid out in our judgment of March 23, 2025, the respondent's counsel requests that we issue before us a judgment that is contrary to the facts, the law and the truth - as if we did not find the respondent, a gynecologist by profession, as someone who committed acts of fraudulent rape on the victims of the offense, as opposed to assault and nothing else, on the basis of the proven facts. These facts included inserting the respondent's fingers into the genitals of the victims of the offense under the false pretense of gynecological treatment, when these actions, contrary to custom, brought the victims of the offense to sexual arousal. The victims of the offense gave their consent to perform such actions in the belief that it was legitimate gynecological treatment, and therefore their consent was not consent; Hence the respondent's proven guilt of fraudulent rape.
- In these circumstances, a judicial determination that the respondent does not bear criminal liability for fraudulent rape would be a distortion of reality. This court cannot accept this distortion; Therefore, the law of the application to be rejected.
- I will detail my reasoning behind this clear conclusion.
The sequence of events following the hearing of the appeal
- At the end of the hearing of the present appeal, which took place on September 18, 2024, after the parties' arguments had been heard in full, I commented to the respondent's counsel, in his presence, as follows:
"The judges [of the District Court - A.S.] They are impressed when they compare before their eyes the precedent of this court, which says that victims of an offense of this kind, in the entire spectrum of offenses that we have, unfortunately, of this type, are not always accurate, and therefore we have to look for the hard core of the truth, in every testimony. And Justice Carmel says, this is the hard core. Judge Renner says, this is the hard core.