Oshri and Nahum - Section 48 of the Competition Law - Officer's Liability - Supplementary Notes
- The offense set forth in section 48 of the Competition Law concerns a breach of the duty of an officer of a corporation to supervise and do everything possible to prevent an offense under the Competition Law by the corporation. We discussed above the foundations of the offense as a formula after Amendment 21 to the Law, which applies in our case. The above further determined that the elements of the offense under section 48 of the Competition Law were fulfilled in Oshri and Nahum, with respect to the concrete charges and the dates on which they were made.
- In their summaries, Oshri and Nahum raised additional arguments, of general applicability, in relation to the offenses attributed to them by virtue of section 48 of the law. We will now address these arguments.
- The double penalty – Nahum claimed in his summaries that he should be acquitted of the charges under section 48 of the Competition Law because he had already been convicted and sentenced for violating the duty of supervision in relation to that period. The argument was based on the judgment given in the Belfer case: Criminal Case (Jerusalem District) 24177-02-17 State of Israel v. Belfer. In the same case, Nahum was convicted of offenses under Section 48 of the Competition Law and sentenced to a prison sentence of one month to be served with community service, along with a fine and a suspended sentence. According to Nahum, the indictment in the Belfer case was born out of the same investigation that also led to the indictment that is the subject of the proceeding before me; he further argued that the decision to file two separate indictments, in close proximity, stemmed from the accuser's considerations; that the indictment in the Belfer case was filed in February 2017, and therefore Nahum's conviction for breach of the duty of supervision extends to the entire period preceding that date, and that in this state of affairs, it is not possible to charge him again for such a violation in relation to that period. This is by virtue of the defense set forth in section 5 of the Criminal Procedure Law, "I have already been tried", due to an act of the court and due to a "double risk". It was further argued that the mere conduct of the criminal proceedings against Nahum on the dates following his conviction in the Belfer case gives him a defense from justice (even though Nahum did not refer in his summaries to the fact that such a claim was raised by him at any time after the judgment in the Belfer case and prior to the summaries).
In the circumstances of the case, I am unable to accept these arguments.