The claims that the defendants cannot be charged with an offense in light of plea bargains made with others
- The proceedings against Shahar (Mavi), Gilad (Maharel) and Naveh (Triple C) have ended as already mentioned above in plea bargains. As part of these arrangements, the second charge, which concerns Indra, was deleted from the amended indictments.
With regard to Shachar and Gilad, the facts relating to the coordination arrangement made in Balam Indra were added to the facts in the first indictment, and the arrangement regarding Balam Indra was described as an arrangement made in accordance with the agreement of the subject of the first indictment; Shahar and Gilad were charged with the offense of being a party to a restrictive arrangement (see amended indictment of June 3, 2021 (Shahar) and amended indictment of December 9, 2021 (Gilad); with regard to Naveh, the second charge was deleted and the amended indictment did not include the facts relating to the coordination arrangement made in Balam Indra, P/19(a)).
- During the proceedings and in some of the summaries of the arguments, a general defense argument was raised against the background of the deletion of various charges in the plea bargains made with Shahar, Gilad and Naveh. The claim was made in relation to a number of charges. The argument was raised by some of the defendants, although not as a central one, also in relation to the second charge of Lt. Col. Indra (see paras. 219-220 for the summaries of Zeiger and Harel). Therefore, we will address it already now and in its general form.
- The essence of the argument is that since the accuser did not attribute to an employee or an organ of a defendant-company certain facts or offenses – including facts that are the subject of certain charges that were deleted as part of the plea bargains – and when she did not attribute to him that he was a party to a restrictive arrangement, there is no place or possibility to attribute such facts or offense to the company itself against which the proceedings continued. It was also argued that in such a situation there is no place or possibility to attribute an officer's liability (by virtue of section 48 of the Competition Law) on the basis of an offense committed by the company (we will address the claims in connection with section 48 of the Competition Law).
- The defendants' arguments were based, inter alia, on the doctrine of judicial estoppel or legal impediment, and by virtue of section 149(10) of the Criminal Procedure Law. It was argued that the attribution of the acts and offense to the company in these circumstances – after they were deleted in the framework of a plea bargain and not attributed to the employee or the organ – is unreasonable and unjust (e.g., paragraphs 606-611 of the Wei and Oshri summaries and Appendix 1 there; paragraphs 800-808 of the Zeiger and Harel summaries; Triple C's arguments in response to the indictment of December 11, 2017 and in the response of December 6, 2020, paras. 86 ff. to Triple C summaries).
- Wei and Oshri requested that the decision in this context be based on the decision in criminal case (Jerusalem District) 28759-05-15 State of Israel v. Malka (March 24, 2019). In the decision in the Malka case , it was determined that raising a factual claim in the framework of an indictment against one defendant – including a claim in an amended indictment as part of a plea bargain – "prevents the accuser from raising a factual claim against another defendant in the same proceeding that is in direct contradiction to that" The court relied on the doctrine of judicial estoppel and referred to the impediments that arise "when one defendant is convicted on the basis of an indictment containing a fact that contradicts, in a direct and irreconcilable manner, a fact that is alleged against a second defendant whose trial continues to be clarified." In view of the above, the court in the Malka case ordered the amendment of the indictment against the defendant, whose case continued to be clarified by way of changing any fact that was alleged in a particular indictment against him and which stood in direct contradiction to the facts that the other defendant admitted to in the plea bargain that was made with him. For the sake of completeness, it should be noted that in criminal case (Tel Aviv District) 57576-11-18 Yehoshua v. State of Israel (June 25, 2019), the court addressed the Malka case and expressed a different position regarding the weight and significance of facts in an amended indictment that was made as part of a plea bargain with regard to the case of another defendant in the same case.
- In our case, there is no need to go into detail about the matter. This is because even if we follow the court's approach in the Malka case , this does not apply to the case before us, which is not similar to what was discussed there.
- In the Malka case , a plea bargain was reached that included an admission of facts regarding a particular charge that were alleged to be in direct contradiction to what was alleged in that charge in relation to the defendant against whom the proceedings were ongoing. It was held that a conviction based on a confession is equivalent to a judicial determination that these are the facts that occurred in reality, and that such a verdict also binds the accuser in a way that created difficulty in raising contradictory claims against the remaining defendant. This is not the case before us. Here, certain charges were deleted from the original indictment and were not attributed to Shahar, Gilad or Naveh in the amended indictments for which they were convicted as part of plea bargains. In any event, these defendants did not confess to these charges. Nothing has been determined regarding these charges. The verdicts in the case of Shahar, Gilad and Naveh did not address the charges that were dropped. In relation to these, there is no judicial determination, and the expungement of the charges does not constitute a determination that the acts were not committed. A verdict following a plea bargain is tantamount to determining findings regarding the facts of the given indictment. It does not constitute a determination with respect to what was not included in the amended indictment, between facts and charges that were not included in it. In any case, there is no talk of any contradiction, let alone a "frontal contradiction" or "irreconcilable" vis-à-vis the original indictment against the other defendants. It should be noted that the reference in the Malka case to a possible contradiction even in view of the extraction of certain facts and the refraining from including other facts, apparently in the context of the presentation of facts within the scope of a particular indictment, did not involve the deletion of charges as in the case before us.
- Indeed, when the accuser suffices with the defendant's confession but on some of the facts, "the indictment will be seen as if it included from the outset only the facts to which the defendant confessed, and it will be treated as if the defendant confessed to all the facts in the indictment" (Y. Kedmi, On Criminal Procedure, 1385 (2009). In any event, a conviction based on a plea bargain does not constitute a judicial determination in relation to the charge that was dismissed.
- Similarly, the argument was rejected that the expulsion of an offense in the framework of a plea bargain made in the case of one of two people who were accused of committing it together, contradicts the conviction of the other for the same offense. It was held that: "... The offense of manslaughter was dropped from the indictment in the minor's case as part of a plea bargain with him, and he was convicted of another offense according to his confession. In this situation, there is no direct contradiction to the appellant's conviction of manslaughter as a joint perpetrator with the minor, since no contradictory finding was established in the judgment of the minor in relation to him" (Criminal Appeal 8260/06 Potomaca v. State of Israel, at paragraph 8 of the judgment of the Honorable Justice A. Procaccia; See also paragraph 8 of the judgment of the Honorable Justice Y. Alon, where it was noted that this was not a matter of "speaking with two voices" (6 November 2008); See and compare also Criminal Appeal 1872/16 Dzeldetti v. State of Israel at paragraph 49 (May 18, 2017); and Criminal Case (Jerusalem District) 366/04 State of Israel v. Biderman at paragraph 123 (January 20, 2010)).
- Even the reference to the High Court of Justice 8948/22 Sheinfeld v. the Knesset, in paragraphs 27-29 of the judgment of the Honorable Justice E. Stein (January 18, 2023) and the words made there regarding obstruction and judicial estoppel (i.e., regarding the appointment of MK Deri as a minister) are of no benefit to the defendants. This is because, in the circumstances of the case, the plea bargains should not be regarded as any statement or position on the part of the accuser with respect to the charges that were dropped, and the verdict based on the plea bargains does not constitute a judicial determination in relation to these charges.
- The accuser's agreement to expunge certain charges from the indictment as part of a plea bargain with a defendant does not mean that the accuser's position is that there is no sufficient evidentiary basis for a conviction on that charge. Preparing a plea bargain requires an examination of many and varied considerations. These include considerations relating to the public interest, the interest in law enforcement, the advantages of obtaining a confession on the part of a defendant, the evaluation of the evidence infrastructure, the consideration of the conduct of the trial, the efficiency and resources required, the individual circumstances of the defendant and his status, the interest of the victim, and more. This is a delicate and complex work of weighing (see, for example, Criminal Appeal 5699/07 Anonymous (A) v. Attorney General (26 February 2008)). This is true, and perhaps even more so, in a large-scale affair like this one, when we are dealing with an indictment with multiple defendants and multiple charges, with a vast body of evidence, and allegations of coordination over a number of years. In view of the above, the argument that a plea bargain that includes the dismissal of certain charges against any of the defendants – while convicting him of others – should not be accepted as evidence that the accuser's position does not have sufficient evidence to prove the charges against him. Another position may unjustifiably make it difficult to reach plea bargains in such cases and harm the institution of plea bargains.
Harel and Zeiger sought to build on the fact that the plea bargain with Gilad was made at an "advanced stage" of the proceedings (p. 6985, paras. 6-8). This does not change our case. The plea bargain with Gilad was made during the prosecution's case and before all the prosecution witnesses were heard. No basis was laid for the fact that evidentiary considerations were at the basis of the plea bargain.
- In the circumstances of the case, the argument that the plea bargains are inconsistent with the instructions of the State Attorney (Instruction No. 8.1 – Instructions for Preparing a Plea Bargain) (February 12, 2009) should not be accepted since no basis was laid for a material contradiction or unreasonableness vis-à-vis the other parties involved.
- Zeiger and Harel sought to build on what was said in criminal appeal 3558/17 Chevra Kadisha Le-Bukhara v. State of Israel, at paragraph 22 (July 12, 2017) and in criminal appeal 6532/17 State of Israel v. Chasdei David to the Bukharan community, at paragraph 30 (April 8, 2018). The Supreme Court noted there that the desirable situation is for a corporation to bear criminal liability together with the organs that acted on its behalf illegally, because imposing liability on the organs as well contributes to deterrence. At the same time, it was emphasized that even when the organs cannot be prosecuted, this does not exempt the corporation from responsibility for its actions. In our case, le-khatḥila, both the corporations and the organs were prosecuted. At a certain point, plea bargains were made with some of the organs. Accordingly, the organs were convicted of a significant part of the charges attributed to them in the first place, while at the same time a number of charges were dropped, all within the framework of plea bargains that were found to serve the public interest and in a manner consistent with the purpose of deterrence mentioned above. This situation, in which organs were prosecuted and convicted on a large part of the charges, is not similar to the situation as was the case in the Chevra Kadisha case, in which no organs were prosecuted le-khatḥila. In any event, the aforementioned rulings do not lead to the conclusion that the deletion of some of the charges against any of the organs justifies exempting the corporation – which was itself a party to the coordination and was intended to benefit it – from liability for those charges. In any case, the aforesaid does not benefit the defense.
- In light of all of the above, the defense's arguments should be dismissed based on the plea bargains made with Shahar, Gilad and Naveh. This is both in general and in relation to the second charge concerning Balam Indra (it should be noted that with regard to the second indictment, the arguments of Wei and Harel should not be accepted, both on the grounds that the facts relating to Balam Indra were included in the scope of the plea bargains made with Shachar and Gilad, and also for the reason that it was found that Oshri and Zeiger themselves were parties to the restrictive arrangement).
The Second Charge: The Result
- The result of the aforesaid is that it has been proven, beyond a reasonable doubt, that the coordination and restrictive arrangement that is the subject of the second indictment – Balam Indra – between Wei and Oshri, Harel and Zeiger, and Triple C, all as described in the second charge. Therefore, I convict Wei and Oshri, Harel, Zeiger and Triple C of the offense of being a party to a restrictive arrangement under section 47(a)(1) of the Competition Law, as drafted on the eve of the commencement of Amendment No. 21, together with sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A of the Competition Law. With respect to the defendant companies – V, Harel, and Triple C, the conviction is also based on section 23(a)(2) of the Penal Law.
Oshri and Nahum - Section 48 of the Competition Law - Officer's Liability
- As part of the second indictment currently under discussion, Oshri and Nahum were charged with offenses under Section 48 of the Competition Law. Oshri was charged with such an offense in addition to the offense of a party to a restrictive arrangement discussed above. Nahum was charged with this indictment only for an offense under section 48 of the law.
- For the reasons detailed above in the hearing in section 48 in connection with the first charge (paragraphs 108-118 above) – here too it was proven that the elements of the offense under section 48 of the Competition Law were fulfilled in Oshri and Nahum with respect to the second charge and the date on which it was committed: both are active managers in companies; Wei and Triple C were convicted of the offense of a party to a restrictive settlement in the charge here; Oshri and Nahum were not able to prove that they had done what was required for the purpose of supervision and to prevent violations of the Competition Law.
- Wei and Oshri argued that an active manager cannot be charged with both the offense of a party to a restrictive arrangement (according to section 47(a)(1) of the Law) and also of the offense of breach of the duty of supervision and that he did nothing possible to prevent the offense of a restrictive arrangement (according to section 48 of the Competition Law as amended after the amendment) and that these are contradictory claims (see, for example, the arguments in Wei and Oshri's motion to amend an indictment dated November 23, 2020 and in the response to the response of December 6, 2020).
I cannot accept this argument.