(Emphasis added – M.A., 3).
Things are different in the case before me. First, there is no representative problem, since at the time of the formulation of the 2014 agreements, Aaronson, Weiss and Hirsch were not organisers or employees of Siemens Israel. Second, this is not a plea bargain, but rather an immunity by virtue of an engagement in a state-witness agreement, which, according to the claim, without these agreements, the accuser would not have had evidence to prosecute anyone.
As it emerges from the justices' words, in all the above rulings, the criticism is on the dismissal of the directors and not on the conviction of the corporation. The corporation's exemption will result in no one being held to blame. This is not what the court meant.
In her article, Shira Gertenberg, ""Screws in the System?": On the Importance of Imposing Criminal Liability on Officers – Following the High Court of Justice 4395/12 Cohen v. Central District Attorney's Office, Mishpatim 44, 631 (2014, hereinafter: Gertenberg, Screws in the System), The author notes that section 23 requires proof of the existence of the elements of the offense in the organization. According to her, in the case of the railway, the officers were deleted from the indictment and did not confess, on the grounds of evidentiary difficulties, and therefore, in fact, the corporation could not be convicted. According to her (ibid., at p. 656):
Such an arrangement [of the admission and non-conviction of the managers] could have met the requirements of section 23, since it does not require an actual conviction or prosecution of the organist, but rather proof that the mental and factual element existed in the organ..."
In other words, in order to attribute criminal liability to the corporation, the accuser must prove that the elements of the offenses of which Siemens Israel is accused existed in organs on its behalf. However, there is still a vision for the date, since this matter will be discussed in the framework of the main proceeding, while we are currently in the stage of preliminary arguments. It is possible that following the hearing of the evidence, questions will arise, such as in which of the organs the elements of the offense existed, and what happens when some of the elements of the offense existed in one organ and some in another, a question that has not yet been decided in case law. However, as stated, at this stage, we assume that the facts of the indictment will be proven, according to which the state's witnesses are indeed organic, and that the elements of the offenses attributed to the defendant are met. In addition, following the testimonies, it will be possible to examine whether the immunity granted to the organs was made out of proper considerations (more on this below).