Criminal Case (Center) 6040-07-20 State of Israel v. Arkadi Shkovitzky - part 72

Main Inquiry

559. The witness is married to Tavorinsky and works at D.B.S. as a financial manager. She recognized Rauf's picture (P/105) and stated that Rauf worked for a short period of time at D.B.S. Rauf visited the company's offices several times and was employed for 3-5 months. It appears that no employment contract was drawn up in his case. The witness did not remember which project Rauff worked on, and does not know how he came to work for the company. The engineers were given to the company by her husband or Hasidian, the engineer. She does not know where Rauf physically sat (pp. 714-715).
560. There are employees at D.B.S. who work "daily" and have an attendance report in their case, and there are those who work globally and receive a global sum that is closed with Tavorinsky (p. 716). When asked why in Rauf's case there are slips that reflect two months instead of one month, she explained that this can happen when a certain employee is not reported on time, and the pay slip is corrected in the following month. According to her , "These are rare cases that happen, but it happens from time to time that you forget that there are 30-40-50 employees, so you miss one or we didn't report it correctly to an accountant, so the slip is corrected a month later" (p. 717).
561. When asked how much they knew how much to pay Rauf, she replied that "the secretary calls every day to ask who worked what worked, or if it was a global job then he worked this month or he didn't work this month" (p. 717).

Cross-examination

562. Most of the engineers who work at D.B.S. are in the field and not in the company's offices (p. 724). The witness does not know why Rauff was fired from his job at D.B.S. (p. 724).

The Haganah Affair

The Defendant's Testimony

Main Investigation (Transcript 4.1.2023)

563. The defendant denied that Rauf transferred the sum of 28,600 US dollars to him and his wife (p. 542). He also denied that Rauf asked him to repay the loan money after he immigrated to Israel in 2015 (p. 543). The defendant did not contact Tavorinsky with a request that he employ Rauf at D.B.S. in such a way that Rauf's salary would not reflect his actions for D.B.S. (p. 543). The claim that Tavorinsky employed Rauf in order to give the defendant a gift is also incorrect, since the defendant has no influence over contractors (p. 543).
564. The claim that Rauf did not provide the consideration to D.B.S. is not true. The defendant claimed that there were witnesses who said that Rauf had come to the Nazareth area five times and that his wife (apparently of Tavorinsky – M.B.) also said that he used to go there, also for the purpose of collecting his pay slips (p. 543). The defendant does not know how much Tavorinsky paid Rauf.

Rauff called him to inform him that he had been fired from his job, and he (the defendant) told him that it was none of his business (p. 543). The defendant denied taking a bribe in this charge (p. 543).

565. The defendant wondered, if he really owed Rauff money, why did Rauff sign a lease with him and give him checks? (p. 543).

Cross-examination (transcript of March 22, 2023)

566. The defendant confirmed that he knew Rauf, but denied that he had received from him the sum of $28,600 (whether as a loan or as an investment). The defendant confirmed that Rauf had invested money in his wife, but stated that he did not know the amounts. Rauff did not contact him with a request to return the sum (p. 558). When Rauff arrived in Israel in 2014, he wanted to buy an apartment owned by the defendants, the defendant made a contract with him and he gave an advance – hence the sum of $28,600. Rauff then asked for the sum back, and even though according to the contract there is no advance payment, Rauff received back part of the sum because he was a family member (pp. 559-560).
567. The defendant testified that Tavorinsky wanted to raise the company's standard (the company's capability) and for that purpose he had to recruit for D.B.S. an engineer. When he was told that Tavorinsky did not say this in his testimony, he insisted that Tvorinsky said so (p. 560).
568. The prosecutor referred the defendant to his statements in the interrogation dated November 18, 2018 ( 110-111), according to which he agreed with Rauf that he would try to find him a job for the amount that the defendant owed him. The defendant's response in his testimony was: "Not related... This sum, this amount was canceled, I just felt that it was a little uncomfortable, because my mother said to me, 'Listen, this is my friend, if you can give him the money back' and all that" (p. 561). The prosecutor also noted that the police investigator Marciano asked the defendant to refer to document P/165 that was located on his phone, when Marciano did not yet know what it was. It was the defendant who explained to the police that he had agreed with Rauff that he would find him a job for the amount he owed him (as opposed to what he said in his testimony that Tavorinsky needed an engineer).

The defendant claimed in his testimony that he did not even know that Rauf had gone to work for Tavorinsky and that he only found out about it later when Rauf told him that Tavorinsky was firing him. To the question of why he did not say this to the police, he replied that he might not have been asked (p. 561), and to the question of why this did not come up in Tavorinsky's cross-examination, he replied that it was at the discretion of his defense attorney (p. 562). The defendant insisted that he was not obliged to Rauf money, but only felt uncomfortable with the fact that Rauf made a deal with him and lost money (p. 563). He has no explanation for why he said other things to the police (p. 563). The defendant tried to link the matter to his being in custody, but at that stage of the interrogation the defendant was no longer in custody (pp. 563-564).

569. When asked if he did not know about the documents he received on WhatsApp, such as Rauf's employment certificate (P/121), the defendant replied that this was during the period when Rauf told him that Stvorinsky was firing him. To the claim that the employment certificate was sent as early as December 2016, while Rauf continued to work until June 2017, the defendant had no answer (p. 564). Later in his testimony, to the question of why Tavorinsky sent him the employment certificate, Stvorinsky replied that he knew Rauf, and it is possible that he wanted him to hand over the document to Rauf (p. 571). It is also possible that Rauf asked Tavorinsky for this (p. 571). To the claim that Tavorinsky gave the certificate to the defendant because in fact Rauff did not work for him and came to D.B.S. Only a few times in order to collect pay slips, the defendant responded: "But he passed on secrets, or something" (p. 573).
570. As for Rauf's pay slips, the defendant stated that he received them only after Rauf's employment ended, when Rauff spoke to him about the fact that he may not have worked for Tavorinsky long enough to be eligible for unemployment benefits and asked him to speak with Tavorinsky (pp. 565, 568). Rauff spoke to him about Tavorinsky because Tavorinsky had contacted him and knew him (p. 565). The defendant rejected the claim that Rauf's employment with Tavorinsky was a fiction (p. 565).
571. The defendant did not know how to explain why Rauf sent him the document P/165 (details of the sums he received from D.B.S. and deductions from the sum of ₪28,600) (p. 566). The defendant insisted that he was not obligated to forgive anything and that the document did not say that it was a debt (pp. 567-568). The defendant insisted that Rauf did not transfer money to him, but to his wife's company, in 2014 (p. 567). To the argument that Rauf calculated the amount that the defendant still owed him, the defendant replied that according to the contract he was not obligated to pay money, but that there was a sum of NIS 11,000 or 12,000, which they paid to Rauf out of consideration (p. 568).
572. The defendant refuted the argument that Tavorinsky had covered his debt to Rauf as a way of giving the defendant a bribe. When asked what the logic was different, whether he could offer a different explanation, he replied: "I don't have any logic" (p. 568). To the argument that Tavorinsky did this because the defendant controlled him in the IPS and controlled his contractual profit, he replied that contractual profit was determined in a IPS tender (p. 571). The defendant insisted that he did not owe Rauf and that Tavorinsky did not cover any of his debts (p. 572). He further claimed that if Rauff had been obligated to pay money, Rauf would not have paid for a period of about two weeks in which he lived with the defendant (p. 572, I will mention already that Rauff testified that he did not give checks at all, and that he made a contract with the defendant only because he needed a residential address). As to Tavorinsky's testimony, according to which Rauf did not work on any project, the defendant claimed that he did not know about it and had nothing to do with it (p. 574).

Charge 10 - The accuser's summaries

573. Despite the absence of an incriminating confession by the accomplice Tavorinsky in this charge, the accuser claimed that she met the burden of proving what was attributed to the defendant.
574. The accuser referred to the fact that the defendant confirmed that Rauf transferred a certain amount to him and his wife, and that Rauf approved the granting of a loan to the defendant in the amount of $28,000. According to the accuser, the classification of the transfer of the money is irrelevant in order to prove the elements of the offense of bribery – whether the money was transferred for the purpose of "investment" or "loan". The accuser also referred to the fact that Rauf asked the defendant for the money back many times, and the defendant did not return the money to him.
575. The defendant linked Rauff to Tavorinsky. Rauff received a "monthly salary" from Tavorinsky, but some of the coupons were bi-monthly. According to the accuser, this was a fictitious employment, since Rauff received a salary but did not really work for Tavorinsky. This is according to the testimonies of Tavorinsky, Ronit Tavorinsky, who worked for the company, Hassidian, the chief engineer, and Rauf himself. Thus, Hassidian saw Rauf once or twice and did not know what Rauff had done at the company for about 7 months; Rauff traveled to the company's offices in the north of the country only 20 times; Rauff barely spoke Hebrew and therefore was unable to advise or provide professional service to Tavorinsky. The defendant himself told the police that he would let Rauf work for the amount he owed Rauf, and thus this sum would be erased from the defendant's debt to Rauf.
576. The defendant lied in his cross-examination when he stated that he did not know in real time that Rauf was working for Taburinsky. In addition, the defendant gave an illogical version and did not know how he received Rauf's pay slips (P/166) and the confirmation of his employment with Tavorinsky (P/121, P/122). The accuser also referred to the complicating evidence P/165 that Rauf sent to the defendant on WhatsApp, which included the calculation of the salary that Rauf received from D.B.S. against the defendant's debt to Rauf.
577. The accuser claimed that she had proven beyond a reasonable doubt that from the point of view of the defendant's criminal mind, the sum that Tavorinsky paid to Rauf was intended to cover the defendant's private debt to Rauf. The defendant himself confirmed in his interrogation with the police that as far as he was concerned, the payment was intended to cover a "virtual debt". At the same time, the defendant knew very well that Tavorinsky "employed" Rauf not for reasons of retribution and kindness, nor for reasons of "friendship" with the defendant, but because of Tavorinsky's dependence on the defendant by virtue of his position as a construction officer in the IPS – a fact that Tavorinsky confirmed in the rest of the details of the indictment.

Charge 10 - The Defense's Summaries

578. The defense denied everything attributed to the defendant in the framework of the tenth indictment. According to the claim, in 2014, Rauff came to Israel for a visit, stayed with the defendant, and the defendant asked him for a loan for renovations. The defendant received from Rauf the sum of $28,600.

In 2015, Rauff came to Israel to settle there. The defendant rented him an apartment for six months, but a few days after signing the contract, Rauff asked to leave the apartment because it was too small for his family. After a while, the relationship between the two was renewed. Rauff purchased an apartment in a TAMA 38 project in Holon, on the defendant's recommendation. In practice, the construction did not progress and the defendant did not feel comfortable with the matter because he recommended the purchase.

579. Later, Rauff asked the defendant to help him find a job as a construction engineer. Rauff asked the defendant if he knew people from the industry, and the defendant said he would look into the matter for him. In 2016, during a work meeting, Tavorinsky asked the defendant if he knew an engineer who was looking for a job because he wanted to increase DBS. The defendant recommended Rauf and gave Rauf Tavorinsky's phone number. A few days later, Rauff called the defendant and thanked him for helping him find a job with Tavorinsky.
580. The contact between Rauff and the defendant was cut off for about six months, until one day when Rauff called the defendant and told him that he had been informed of his dismissal from DBS. Rauff begged the defendant to speak with Tavorinsky in order to change the situation and return him to work for a few more months so that he would be entitled to unemployment benefits. Rauff was so nervous about his dismissal that he sent the defendant a WhatsApp message in which he canceled the defendant's debt to him. The defendant, for his part, told Rauf that there was no connection between the debt and his dismissal, and also told Rauf that he had no connection to D.B.S. The defendant did not discuss this with Tavorinsky.

Charge 10 - Hearing

581. According to the defense summaries, the defendant asked Rauf for a loan for renovations and received from him the sum of $28,600. According to the defense summaries, Rauff waived the defendant's debt in a WhatsApp message he sent to the defendant after his dismissal from D.B.S. I will address the waiver claim below, but I will note at this point that in light of the aforesaid, there is no longer any dispute that the defendant received a loan of $28,600 from Rauf, which he did not repay to Rauff.
582. There is no dispute that Rauff received seven pay slips from D.B.S., in the period between August 2016 and August 2017, and received from D.B.S. a total of NIS 66,200, after the defendant "linked" between Rauff and Tvorinsky. The defense argued that the defendant did so in order to help his friend Rauff get a job, because he felt uncomfortable because of a deal between them that did not work, without any connection to the loan that the defendant received from Rauf, and that Rauff did indeed work for D.B.S. and earned his bread honestly. The accuser, on the other hand, claimed that the defendant did so in order to cover his personal debt to Rauf through a fictitious transaction in D.B.S. which is owned and managed by Tavorinsky.
583. The evidence in the file indicates that Rauf's employment at D.B.S. There was indeed a fictitious employment: Rauf actually came to work a small number of times (relative to the period of his "employment"), according to him, as well as according to Tavorinsky and his wife, in contrast to what is stated in his pay slips that refer to being present for about 23-25 days a month; The testimonies indicate that Rauf was not connected to any project at DBS. - This while the employment certificate stated that he was working on projects throughout the country; Rauff does not speak Hebrew and he testified about himself that this was the reason no one wanted to employ him at the time - how, then, did he give professional advice and guidance to Tborinsky? Tavorinsky did testify that the communication between the two was conducted in Russian, but Rauff insisted that the two spoke in Hebrew; three of the seven pay slips that Rauff received from DBS. included salary for an additional month – I do not accept the explanation given casually by Rauf, according to which this is acceptable in Russia. According to Ronit Tavorinsky, this is a rare matter that may happen as a result of a mistake, however, I find it difficult to accept that the same rare matter occurred in good faith in three out of seven pay slips, over a total period of one year. Moreover, Rauff described his work at D.B.S. as one in which he examined projects together with Tavorinsky and gave him "trade secrets", and therefore Tavorinsky paid him significant sums. This is a vague description that has not received further detail or explanation, and as such it is unreliable in my opinion. It should be added that Tavorinsky himself stated in his testimony that he did not know what Rauf meant by "secrets of the profession."

Even if, in terms of schedules, Rauf's employment took place at the same time that Hasidian the engineer was engaged in another project (a claim supported by Michael's testimony), in light of the description of the characteristics of Rauf's "employment" at D.B.S., this is still a fictitious employment.

584. Rauff sent the defendant the document P/165, detailing his monthly salary from D.B.S. and subtracting the total amount of the salary from the amount of the loan he gave to the defendant. This document is directly related to the loan and the salary that Rauff received from D.B.S. This is a very central and significant piece of evidence that establishes the connection between Rauf's employment at D.B.S. and the defendant's personal debt to Rauf. According to this document, Rauff sought to show the defendant that even after the payments he received from D.B.S. and Tavorinsky, the defendant still owed him about $10,000. When asked why he had reduced the amount he received from Tavorinsky from the defendant's debt, Rauf explained that he understood that the defendant thought that this was how he was repaying the debt. In other words, Rauf, who was reluctant to testify against the defendant and even tried to claim that his employment at D.B.S. was done lawfully, testified that he himself understood that the defendant had sought to repay his debt by employing him at D.B.S. Although Rauff denied in his testimony that the defendant had explicitly told him that this was how he was repaying the loan, however, in his interrogation with the police, he noted that the defendant had asked him to give up the money in light of the help with Tavorinsky, and it is unreasonable that Rauf drafted the document P/165 without agreeing in advance with the defendant. I will note that the defendant did not offer any explanation for the fact that Rauf sent him the document P/165.
585. There is no dispute that the defendant made a connection between Rauf and Tavorinsky. Although Tavorinsky did not confess to the charges against him in this indictment, the evidence indicates that he did not receive real services in return for the salary he paid to Rauf. Why, then, did he pay Rauf? As I noted in the course of the hearing in Charge 6, in which the defendant is also accused of receiving a bribe from Tavorinsky, in that indictment, the telephone conversations between Tavorinsky and the defendant, as well as Taburinsky's testimony, revealed that Tavorinsky saw the defendant as a senior official who had the authority to make decisions in the IPS, to give work to contractors and to influence the amount of the retraining fees. In his testimony, Tavorinsky confirmed the claim regarding his motivation to bribe the defendant. These words are fine for Charges 7 and 8, and they are also fine for our purposes, even though Stvorinsky did not admit to the charges against him in this charge.

It can be seen that the period of Rauf's "employment" is between August 2016 and August 2017. Charge 6 concerned the months of May and June 2016; Charge 7 in August 2016 and several months thereafter; Charge 8 in the months of December 2016 to February 2017. These are periods that coincide with (or very close) to the period that is the subject of the tenth indictment. The motivation that was proven regarding those charges therefore exists in our case as well.

586. The defendant's testimony in this indictment is not at all reliable. The defendant claimed in his testimony that he did not even know about Rauf's employment at D.B.S., until after Rauf's dismissal. However, in the defense summaries it was noted that Rauf called the defendant a few days after the defendant recommended him, and thanked him for his help in finding a job with Tavorinsky. In addition, the defendant received Rauf's employment approval from Tavorinsky, and when he tried to claim that the permit was sent to him after Rauf's dismissal, he did not have an answer to the fact that the permit had already been sent in December 2016, whereas Rauf's dismissal took place in the summer of 2017. According to Rauf's testimony, the defendant gave him one of Taburinsky's checks. It should be noted that in accordance with case law, the lies of a defendant on a central issue to the charge (and indeed in our case we are dealing with a central issue – the employment of Rauf by Tavorinsky and D.B.S.), can serve as support and even as aid to the prosecution's evidence against him, especially when it comes to material lies that get to the root of the matter (see, for example, Criminal Appeal 3965/22 Maxim Tal v. State of Israel (of March 30, 2023, para. 29).
587. Moreover, the defendant claimed in his testimony that he did not receive the sum of $28,600 from Rauf (whether as a loan or as an investment), and explained that Rauf purchased an apartment from the defendants and transferred the sum of $28,600 as part of the advance, part of which he later received back from them because he was a friend. The defendant had no explanation for the fact that he had given a different version to the police, in which he confirmed that he had received a loan from Rauf. In addition, in the defense summaries, in which, as stated, the defense confirmed that the defendant had asked and received a loan from Rauf for the purpose of renovations, it was claimed that Rauf had waived the debt, after he informed the defendant of his dismissal from D.B.S., when he was very stressed.

This argument was first made only at the summary stage, and it does not make sense on its face, since why would a person who is stressed about his dismissal and the fact that he is not yet entitled to unemployment benefits, give up a significant financial debt, and even more so when the defendant makes it clear to him that there is no way to help him? But beyond that, Rauff sent the defendant document P/165 in which he details his salaries from D.B.S. and deducts the total salaries from the loan amount of $28,600. This action by Rauff indicates that he insisted on paying the debt and did not waive it.

588. The defendant claimed in his testimony that the reason for which Tavorinsky employed Rauf was his desire to raise the company's classification by recruiting an additional engineer. However, Tavorinsky himself did not mention this as a reason for hiring Rauf, but rather referred to the fact that the engineer's Hasidic was engaged in another project. The defense attorney did not raise the issue of the company's classification in Tavorinsky's interrogation. The defendant tried to give a legitimate explanation for Rauf's employment by Tavorinsky, but the most relevant party in the matter, Tavorinsky, gave a different explanation and no attempt was made to clarify with him the reason raised by the defendant. This matter also has implications for the defendant's credibility.
589. In the framework of the hearing of the offense of bribery attributed to the defendant, the issue of the defendant's mental element must be addressed. Did the defendant know that Rauf's employment by Tavorinsky and D.B.S. was a fictitious transaction intended to give the defendant a gift that would cover his personal debt to Rauf? I am of the opinion that the answer to this question is yes.

The defendant is the one who made the connection between Rauff and Tavorinsky. In his statement to the police, the defendant stated that he tried to find a job for Rauf in the amount that the defendant owed him. The very idea indicates that the defendant knew that Rauff would not really work. For if this is real work, in which Rauff works and receives a salary for his labor, how does it cover a debt of about $30,000? After all, the salary is given against the work itself and not against the debt. Only if the wages are paid without work being done, can the salary be seen as money that Rauff receives instead of the money that the defendant has to repay him. I will add that Rauff himself understood that this is how the defendant repays him the debt, and when I discussed the characteristics of the employment, I came to a clear conclusion that this was a fictitious employment.