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- The factual element of an offense is built on three layers: a behavioral element – an act of fraud or breach of trust; circumstantial elements – a public servant who performs in the performance of his duties; and an act that harms the public. The mental element required for the offense of fraud and breach of trust is actual awareness, or blindness, of the nature of the act, of the existence of the circumstances, and of the possibility of causing the consequences of the act, which are counted among the details of the offense. It is sufficient for the employee to be aware of the factual and physical elements of the breach of trust.... ".
- As to the factual element of the offense, in our case there is a behavioral component, since the inclusion of payment for private work performed in his home, as part of payment for work that Yossi performed for the IPS, constitutes an act of fraud and breach of trust on the part of the defendant. The circumstantial elements are also present in our case, since the defendant is a public servant who acted in the performance of his duties and the act harms the public coffers. As to the mental element, there is no doubt in my view that the defendant was aware of the nature of the act, the existence of the circumstances and the results of the act.
- In view of all of the above, I determine that the accuser met the burden of proving what is stated in indictment 11, and that in the acts described in this indictment, the defendant, as a public servant, stole something that is the property of the state or something that came to him by virtue of his work, which was worth NIS 3,000, and also committed, as a public servant in the performance of his duties, an act of fraud or breach of trust that harms the public, even if the act did not constitute fraud if it was done against the individual.
Charge 12
The Indictment
- As part of the dependency relationship described in the general part of the indictment, and with the aim of giving the defendant a gift so that he would continue to assist him in obtaining jobs in the IPS, and maximizing his profits from work in the IPS, Klaus granted the defendant's requests on three additional occasions in 2018, as detailed below.
First Event -
- On May 6, 2018, the defendant traveled with his wife, the defendant, on vacation for a few days in Eilat, on the occasion of his wife's birthday. Shortly thereafter, the defendant called Klaus and spoke with him, among other things, about the defendant's desire for Klaus to purchase an iPhone mobile phone for him (hereinafter: "the device") as a birthday gift for his wife. Klaus did as requested by the defendant, spoke with his friend who lives in Eilat (hereinafter: "the friend") and transferred the payment for the device to her in the sum of NIS 3,800 by bank transfer so that she would purchase the device for the defendant. After the friend purchased the device, on May 7, 2018, she called and coordinated with the defendant a meeting place near the hotel where the defendant and his wife were staying, and gave him the device.
Second Event -
- On or about September 27, 2018, Yaniv Saadi (hereinafter: "Yaniv") carried out renovation work that included the replacement of parquet at a cost of NIS 4,500 (not including VAT) for the defendant in an apartment at 21/10 Sderot HaZionot St. in Pardes Hanna, which the defendant rented. After the renovation work was carried out, the defendant contacted Klaus and asked him to pay for the renovation carried out by Yaniv. Klaus acceded to the defendant's request, and transferred to the defendant a check for Yaniv's ordinance in the amount of NIS 5, 265 NIS 10462 withdrawn from Klaus's bank account numbered 507283 at Bank Hapoalim.
Third Event -
- On a date that is not known to the accused, in October 2018 or thereabouts, the defendant purchased merchandise for his personal use for private renovation work in the penthouse of the "Friedmayer" store, 04143875 P.C. in the Ramla branch (hereinafter: "Fried-Meir"). The defendant contacted Klaus and asked him to pay for his expenses to Fried-Meir. On October 29, 2018, after the purchase of the goods, Klaus acceded to the defendant's request, and transferred to the defendant a check for NIS 7, 300, numbered 10463, drawn from Klaus's bank account with the number 507283 at Bank Hapoalim, for "Fried-Meir". On October 29, 2018, the defendant paid Fried-Meir using Klaus's check.
- In his aforementioned actions described in the three incidents, in his act as a public servant, the defendant took a bribe worth NIS 16,365, in exchange for an action related to his position. The defendant was charged with three offenses of taking a bribe, an offense under section 290(a) of the Law.
The Response to the Indictment 12
- In the first incident , the defendant denied what was attributed to him.
In the second incident , the defendant confirmed what was stated in this indictment, according to which a payment that was transferred to Yaniv for work he performed in the defendant's apartment in Pardes Hanna, was paid through Klaus, as part of the payment of Klaus's debt to the defendant, as a result of a loan that Klaus took from the defendant.