(1) the severity of the act and its circumstances;
(2) Assessing the nature and strength of the evidence related to that act;
(3) The Authority's Enforcement Policy"
- Indeed, the residual nature of criminal law requires that other means available to the state authorities when they come to enforce the law, and therefore law enforcement agencies must examine, in each and every case, whether the criminal proceeding is the appropriate procedure in the circumstances of the case (Criminal Appeals Authority 6621/23 State of Israel v. Green, para. 11 (April 7, 2025); High Court of Justice 88/10 Schwartz v. Attorney General (July 12, 2010)). On the other hand, the starting point is that the decision to prosecute a suspect is at the core of the discretion of the prosecuting authorities, who have the knowledge, professionalism and experience in the matter (High Court of Justice 9443/16 The Movement for Quality Government in Israel v. State Attorney, para. 14 (August 15, 2017)).
- I do not believe that the defendant pointed to a flaw in the Authority's decision to prefer the criminal proceeding to the administrative channel. In a hearing held on February 23, 2022, counsel for the accuser noted that the decision of the Chairman of the RNA was based on considerations of the seriousness and circumstances of the act, as well as on the strength of the evidence and the Authority's enforcement policy. After the evidence was presented to the court, it can be seen that at the time of the decision to file an indictment against the defendant, the accuser had good evidence of the commission of the offenses. Another consideration relevant to the exercise of discretion is "the severity of the act and its circumstances". It could not be ruled out that the circumstances of the case carry a gravity that justifies proceeding with the criminal proceeding, given that alongside the offenses of the Consultation Law, evidence of the offense of fraudulent receipt was found. Moreover, the circumstances of the commission of the offenses carry elements of deception, by virtue of the very elements of the offense of fraudulent receipt, as well as significant elements of sophistication and a wide spread of the offenses. These considerations are in line with the considerations set by the RNA in designated criteria set by it: "Criteria for Routing - Criminal Investigation / Administrative Enforcement Procedure". In the same criteria, it was noted that an examination of the Authority's enforcement policy considerations should include considerations of varying priorities; Considering effective deterrence at the point in time when the decision is made; The amount of time that has elapsed since the offense was committed and its consequences; Comparison with enforcement in similar cases; and extenuating circumstances of the violator. The defendant did not point to reasons that indicate that the decision to file the indictment deviated from the RNA's enforcement policy in a manner that justifies the cancellation of the indictment.
- Another layer of the defense from justice is the claim that the authority took selective enforcement against the defendant. An argument that is parallel to this argument is the argument that the defendant also raises, that there was room to suffice with his warning by the authority. This argument is also liable to be rejected, because no basis has been laid before me to show that the authority did indeed take a proceeding against the defendant that discriminated against him in comparison to others.
- At the basis of the claim of selective enforcement is the defendant's complaint that an indictment was filed against him, while no proceedings were taken against others. Typically, the distinction between selective enforcement and legitimate partial enforcement is found in the considerations that guided the law enforcement authorities (Tubul, para. 45). Selective enforcement therefore exists where the authorities have distinguished between similar persons or similar situations on the basis of extraneous consideration or out of sheer arbitrariness (High Court of Justice 6396/96 Zakin v. Mayor of Be'er Sheva, IsrSC 55(3) 289, 305 (1999); Borowitz at pp. 813-816). There are other cases in which selective enforcement may take place, when the decision to prosecute a person unreasonably violated equality (Borowitz, at pp. 814-816; Criminal Appeal Authority 1611/16 State of Israel v. Vardi, at paragraphs 65-80 of the judgment of Vice-President Melcer and at paragraphs 1-3 of the judgment of Justice D. Barak-Erez (October 31, 2018)).
- The defendant referred to a number of cases in which he claimed to indicate selective enforcement, and these cases I will refer to below:
Administrative Petition (Tel Aviv) 56856-01-16 USG Capital v. Israel Securities Authority (April 14, 2016) - From the details that emerge from the decision, it can be learned that this is a company that manages a trading arena at its own expense, which has submitted an application tothe INA for a trading platform license. The proceeding discussed the Petitioner's request to cancel the RNA's decision to prohibit it from carrying out algorithmic trading activity, as part of a request for a temporary injunction. However, I do not believe that it is possible to learn from this case for our purposes. It is not clear what proceedings were taken, if any, against the Petitioner there, and more importantly - the circumstances of the case do not indicate that this was an activity of a fraudulent nature, and that it was a company that was in the process of obtaining a license.