Charge 9 - Hearing
- There is no dispute in his case that Hatuka performed private work of building a roof in the villa and that Hatuka received a check for this work in the amount of NIS 7,070 from Klaus. The question that requires a decision is whether this payment was a bribe to the defendant, as the accuser positioned, or whether it was a loan repayment, as the defense position. As I will explain below, the accuser was able to prove beyond a reasonable doubt that this was a bribe payment to the defendant.
- Klaus confessed and was convicted of bribing the defendant. In his testimony, he tried to disavow this and claim that his confession stemmed from the need to please his interrogators and his desire to end the case – in a manner that shows, inter alia, that there is no incriminating tendency against the defendant in his statements. However, after this failed attempt, he again stood behind his confession. This, with one change, was his claim that the payment to the cutter was made for work in Rimonim Prison. Even after he was declared a hostile witness and cross-examined by the accuser's attorney (without his statements to the police being submitted to the court file), Klaus confirmed his confession and rejected the defendant's claim regarding the repayment of the loan, but continued to claim that the check was given for the construction of a pergola in Rimonim Prison (which also shows that there is no incriminating tendency in the witness's statements). This claim regarding work in Rimonim Prison must be rejected, in the absence of any evidence of this work, when Klaus himself testified that the work was never carried out, and when the defendant never claimed that the payment that Klaus transferred to her was for a pergola in Rimonim Prison.
Therefore, I am of the opinion that Klaus's testimony should be split by way of "Pelginen Divora" – to accept his confession of bribing the defendant, and to reject the part in which he claimed that the payment was intended for work in Rimonim Prison (in the matter of Pelginan Divora, see, for example, Criminal Appeal 7659/15 Harush v. State of Israel (April 20, 2016, para. 30).
- The defense's version, according to which Klaus's payment to Klaus was made as part of the repayment of a loan that the defendant gave to Klaus, encounters a number of clear difficulties. First, this is a suppressed version that arose for the first time at the evidentiary stage – in the defendant's testimony and in only one question that Klaus was asked in his cross-examination (when Klaus denied the claim regarding the repayment of the loan). Until this version, the defendant presented two other versions, the first in his interrogation with the police, according to which Klaus gave him a loan, and the second in response to the indictment, in which he denied that the payment was made to Klaus through Klaus. It can be seen that the defendant presented a variety of versions in the matter, which has implications for his own credibility and that of his versions.
- As for the defendant's suppressed version of a loan he gave to Klaus, in addition to the fact that Klaus denied receiving a loan from the defendant and was not accused during his cross-examination that he was not telling the truth, the claim that Klaus served as the main contractor in the renovation of the defendant's home was not raised at all in Klaus's testimony. In other words, the defense refrained from addressing the issue at the center of the defendant's defense on this charge in the framework of Klaus's testimony.
- 00In addition, it is illogical that Klaus served as the "main contractor" in the renovation in circumstances in which the defendant and Hatuka correspond and Hatuka receives direct instructions from the accused. The defense also did not attempt to support this claim during Hatuka's testimony, nor did it raise the claim that Klaus served as a main contractor in response to Hatuka's claim that he did not know Klaus.
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- The accuser claimed that the defendant's version, according to which Hatuka's work was part of a renovation of the defendant's house, for which Klaus was responsible, was rejected in terms of schedules. This was because Hatuka carried out the pergola work as early as May 2018, "pursued" the defendant to receive payment for the work, and in the end received the payment only in September 2018, while the renovation work in the defendant's house was due to an explosion of a pipe in the penthouse in September 2018. The accuser referred to two conversations on this matter – 5281 and 5313, both dated September 26, 2018. In the first, the defendant spoke with the insurance company following an explosion in a pipe, and in the second, the defendant spoke with Klaus about the explosion, but still without mentioning that Klaus was responsible for renovating the house. It can therefore be learned that the work carried out in the apartment following the explosion of the pipes was late and unrelated to Hatuka's work, which was carried out as early as May 2018. The claim that Klaus was responsible for Hatuka's work as part of a broader renovation is therefore rejected for this reason as well.
I will therefore conclude that the defendant has failed to provide a satisfactory alternative explanation for the fact that Klaus paid for work performed in the motel he owned.
- The evidence relating to the general relationship between the defendant and Klaus indicates that Klaus tried on various occasions to please the defendant, knew that he could improve his situation if he benefited the defendant, and did not hide the fact that he received some of the work from the defendant.
Klaus did not know how to specify the number of times he helped the defendant with his private assets and those of his relatives, and hence this is not a case or two. As for his words to the defendant – "If you make a profit, I will also make a profit" – Klaus did not provide an explanation for these words, and therefore I am of the opinion that they should be interpreted in their plain terms: when the defendant makes a profit, there is also a profit for Klaus, although according to these things it is impossible to know what that profit is for Klaus. However, the defendant himself testified in this matter that Klaus's profit is in relation to the defendant's attitude towards him. These words support the accuser's argument that Klaus saw the defendant as someone who could benefit him. Although the defendant denied dependence on his testimony, he did not deny the claim that he had the opportunity to help Klaus ("Not that I didn't have the opportunity...").