Another argument made by the defense was that the offenses were allegedly committed in the years 1999-2000, while the indictment was filed only in 2005. Today we are more than 11 years after the alleged date of the offenses. The prosecution did not provide a concrete explanation for this considerable delay in filing the indictment, and the fact that Elhanan Tenenbaum was abducted to Lebanon is not a sufficient reason for such a long delay, since the case does not rise and fall on his testimony. If that were the case, the court would have acquitted Defendant 3 of all guilt, since Elhanan Tenenbaum is a criminal who lacks any basic credibility and his testimony should not be given any weight. In addition, there is nothing in Tenenbaum's testimony that can connect or associate Defendant 3 with the commission of the offenses attributed to him. When it comes to an indictment that is filed about five years after the alleged acts were committed, it is very difficult for the defendant to gather his evidence and keep documents that support his claims. In this sense, the defendant suffered significant evidentiary damage. All the tests set out in the case law regarding the existence of evidentiary damage are met in this case, and there is no doubt that this can cause a substantial deprivation of the defendant's defense.
In light of the omissions detailed above, and since there is no possibility of repairing the damage caused to defendant 3, he should be acquitted of all charges.
- Similar arguments were also raised by defendant 4, although they were not formulated as a "defense from justice" claim. The main argument relates to the wording of the indictment, when Adv. Meirovich, representing defendant No. 4, argued that it was a vague and general wording, which makes it difficult for the defendant to defend himself. Thus, for example, the accuser refrained from mentioning the exact dates on which the acts attributed to defendant 4 were committed, nor did the specific facts relating to him be detailed. In addition, the indictment did not include essential details that should appear in it, such as the place where the criminal act was committed and the time when it occurred. It was further argued that the indictment was drafted without distinguishing between a special norm and a regular norm, due to the multitude of offenses and charges. The defendant claims that there was no reason to attribute to him, together, offenses contrary to the law The Penalties and offenses on The Customs Ordinance [New Version] (Hereinafter: "The Customs Ordinance") and the law From the"From, since the tax laws are a specific norm that pushes the general norm in the Penal Law. The accuser did not claim that her appeal to Penal Law stems from the absence of a specific punitive clause that imposes impropriety in the conduct of defendant 4, and therefore the reliance on sections of the Penal Law is inappropriate, according to the claim.
Defendant 4 claims, as stated, that there is a phenomenon in the indictment of multiple charges, by way of splitting the various provisions of the law into many components. This, according to him, should be regarded as a defect that harms his defense. Thus, for example, the 16th charge attributed to defendant 4 is a full copy, from a factual point of view, of charges 2 and 4 to 7 in terms of VAT offenses, in the sense that in each of the charges, the accuser attributes to him the provision of false information or a false report to various parties, with the intention of evading or evading payment of tax. In this, Adv. Meirovich sees unnecessary duplication.
- As part of the extensive summaries of defendant 5, his attorney, Adv. Ehud Dagan, argued that his client should be acquitted of all guilt even for reasons of protection from justice.
Adv. Dagan noted that he had already raised this claim at the end of the prosecution's case, but it was rejected in the court's decision of October 22, 2008. Today, at the end of the trial, there is justification for repeating the claim, based on facts or new claims. The arguments on which Adv. Dagan bases the applicability of the defense from justice are as follows:
- a) The indictment was filed without Defendant 5 being given a proper opportunity to address the allegations raised against him in the indictment.
- b) The prosecution refused the offer of defendant 5 to re-interrogate him, after the indictment had already been filed, and in the framework of this interrogation, the defendant was prepared to address all the allegations in the indictment.
- c) The prosecution's request to acquit defendant 4, Avi Kalamaro, of the charges attributed to him in the framework of the eighth indictment, is selective enforcement against defendant 5. The prosecution concealed its intention to request the acquittal of defendant 4 during the trial, which is in fundamental contradiction to the principles of justice and legal fairness.