On Wednesday, I reported that according to MK Bezalel Smotrich, “fraud” and “breach of trust” should not be on the books as criminal offenses, because they are “fluid and undefined,” and the biases of the police and prosecution set the goalposts for these alleged crimes.
The item regarding those two offenses was a tiny part of a complex and erudite list of amendments to the country’s justice system which I presented and analyzed (Media Ignore Smotrich’s Plan to Repair the Judicial System, Calling It a Plot to Exonerate Netanyahu).
Smotrich is not a political novice and has seen countless times in his career how a seemingly innocent comment he made ballooned into a major scandal that later lingered for years in the “controversies” section of his Wikipedia page. So, he probably should have realized that the fact that former Prime Minister Benjamin Netanyahu is facing those two charges in court would play into the hands of the media that would ignore all the brilliant notes in his proposal, and focus only on how this is his way to free Boss Bibi from jail.
It didn’t help that Netanyahu, too, joined the chorus against Smotrich, stating in a patronizing manner that sometimes his friends try too hard to help him, and he doesn’t need help, thank you very much.
For my part, I was attacked online as a propaganda horn for Bibi – by friends who also didn’t bother to read my report. It so reminded me of the newspaperman during the Great Depression who approached a disheveled, unemployed worker, asking him if the reason for their plight was ignorance or apathy, and the guy answered: “I don’t know and I don’t care.”
But then, on Thursday morning, Makor Rishon published a preview of what they promised would be a lengthy article in their Friday edition, written by Shlomo Piotrkovsky, titled: “Jurists from across the political spectrum agree: the crime of ‘fraud and breach of trust’ should be abolished.”
Piotrkovsky quotes Dr. Raphael Bitton from the Sapir College Law School; Prof. Boaz Sanjero, Head of the Institute for Safety in Criminal Justice, who teaches at the Western Galilee and Sapir colleges; and Prof. Mordechai Kermanitzer and Dr. Amir Fuchs from the Israel Democracy Institute. These distinguished scholars definitely represent the full, left-to-right spectrum in Israel’s academia, and they all want the offense to be removed from the criminal code.
“A criminal offense must meet two main conditions: it must be clear, and it must be as limited as possible,” explained Dr. Bitton. “Why must an offense be clear? Because otherwise people wouldn’t know how to avoid it, and would later discover that they had committed an offense without even choosing to do anything wrong – and in modern criminal law, we convict people only when they acted on a bad intent.”
Dr. Beaton added that in his view, “the system’s ambiguity here is not a bug but a feature. It’s very convenient for the judicial system that the offense remains unclear. This gives it a large assortment of advantages in the power struggle against the political echelon.”
And this is the broken and corrupt judicial system, rife with nepotism and dominated by the elites which Smotrich is out to reform.
Prof. Sanjero noted that “one central opinion among criminal law experts is that the offense is unnecessary, since it slides into the area of discipline and ethics, and captures behaviors that do not fit the cut and dry nature of criminal law.”
He added that the Israeli judiciary is overwhelmed by what’s known as “moral panic,” as fraud and breach of trust offenses have become an instrument that’s being used too frequently in the criminal justice system.
In Israel’s reality, this has become a catch-all crime –– a concept that has no place in criminal law.
“The very existence of this offense harms autonomy and human dignity,” Prof. Sanjero argued.
