The backlash against the constitutional revolution comes from a variety of sources, both inside and outside the justice system. This is part of a broader shift in Israeli public opinion, also reflected in the emerging preference for appointing judges with a conservative agenda. One of the main victims of this counter-reaction is the doctrine of abuse of process, imported by the Israeli courts from English law in the 1990s. For Israel, a country without a constitution, this was a major boost for the individual rights, in particular the fundamental human rights to due process. According to the doctrine, if the administration of a criminal proceeding seriously impairs the sense of fairness and justice, even if an accused committed the crime with which he is charged, the court may revoke the indictment. against the accused without convicting him.
The doctrine of the defense against abuse of process was not adopted in a vacuum; it is in keeping with the spirit of the constitutional revolution initiated by the Supreme Court in the 1990s. Essentially, it limits the power of the state over the individual. Yet in recent years, following the backlash to the constitutional revolution, it appears that the doctrine of defense against abuse of process has fallen out of favor with the courts. At the same time, the state is trying to recover the power it lost with the constitutional revolution, under the banner of “governance”, even if it means undermining civil rights.
Recently, the Supreme Court (Judge Amit) went so far as to criticize the excessive use that defendants and their lawyers have made of the abuse of process in recent years. According to Judge Amit, the allegations of abuse of process divert the criminal procedure from the right track and the objective of investigating the truth, make the criminal procedure even more cumbersome and lengthy, and effectively create a reversal of roles, because “the accused becomes the prosecutor”. , and the prosecution must now prove that it acted lawfully.
However, the doctrine has recently received unwitting support from an unexpected source, as the adoption of the “aggregation theory” has become common practice among defense attorneys.
Adoption of the “aggregation theory”
The “Nisso Shaham case” caused a stir within the Israeli police. In what has been dubbed the ‘commissars affair’, over a short period of 16 months, seven commissioners were retired or fired from the police, after the Israel Police’s Home Affairs Unit investigated on them for suspicion of sexual harassment and other sex crimes.
Only a few of these cases have been prosecuted. In the Shaham case, the prosecution was able to prove that despite a conflict of interest (due to his consensual intimate relationships with junior female police officers), former Jerusalem District Police Commander Shaham , handled various requests from these police officers in a professional capacity (change of units, staffing a position, taking leave to study, etc.).
However, the legal difficulty in Shaham’s case was that while the general pattern flowing from his conduct was wrongful, none of the acts crossed the criminal line on their own. The legal question then arises: can the defendant, a civil servant, be convicted of fraud and breach of trust due to a recurring pattern, even if each specific act is not, in itself, an offence? This issue led to a dispute between the courts and eventually ended up in the Supreme Court.
The Supreme Court answered in the affirmative in its majority opinion. This set the legal precedent that the “aggregation theory”, with the underlying legal ideology that “a broad view is needed, as opposed to breaking down conduct into smaller particles and analysis of each particle individually’ should be adopted. Thus, a conviction for breach of trust can be established on the basis of cumulative actions which do not constitute an offense in themselves.
However, the implementation of the aggregation theory recently took a surprising turn in a new Tel Aviv District Court ruling. In obiter, Judge O. Maor asserted that the aggregation theory should also be applied to abuse of process claims. According to Judge Maor, the revocation of an indictment against an accused must be considered in the light of the cumulative failures of the authorities. Thus, even if each individual failure does not cross the line of violation of the principles of justice and equity, the addition of all the violations could establish a “total” which crosses the line of material violation of the principle of justice.
Applying the “aggregation theory” to abuse of process claims significantly reduces the burden on the defendant. Today, the accused must point to a serious fault in the conduct of the authorities, a fault which seriously violates the principles of justice. Statistics show that this burden of proof is very heavy, if not impossible. On the other hand, pointing out multiple small defects (which are very common) is much easier, and it would allow the defendant to clearly point out aggregate defects that constitute a “substantial breach of the principles of justice and legal fairness,” establishing abuse of process in defence.
Opinion obiter or trend?
Admittedly this is just an obiter opinion of the court, but as the saying goes, a gun appearing in act one will fire in act three. Once the legal basis for applying the “aggregation theory” to the defense of abuse of process has been established, it gives the defendant a very powerful tool, and defense attorneys are likely to use it extensively. According to some estimates, this claim could be former Prime Minister Benjamin Netanyahu’s main line of defense in his various court cases.