Former defense attorney: Decision to compel Netanyahu to testify is "scandalous""

November 14, 2024   

Yesterday, the Jerusalem District Court rejected Prime Minister Benjamin Netanyahu's request to postpone the start of his testimony in the trials being conducted against him. This decision presents Netanyahu with difficult options. According to attorney Avichai Yehosef, who participated in Netanyahu's defense team in cases 1,000 and 2,000, this is an "outrageous decision" that could bring the court into the political arena - contrary to all legal procedures. According to the attorney, anyone who thinks that Netanyahu can simply avoid giving testimony or postpone it without consequences is unaware of the legal complexity of the situation. "If Netanyahu chooses not to testify, this could serve as a reinforcement of the evidence against him and worsen his legal situation. On the other hand, he has no way to appeal this interim decision, because this is not possible under the criminal procedure used in Israel. The only legal option open to him is to petition the High Court to change the decision, but the chances of such a petition being accepted are low." Why is the court's decision so outrageous? According to Attorney Yehosef, the Criminal Procedure Law allows flexibility in the order in which witnesses are presented. A section of the law explicitly states that the defendant is given the option of not testifying first in the defense case. In other words, it was certainly possible to grant the prime minister's request, especially at a time when he was required to manage critical state affairs - to change the order of witnesses and adapt it to the special circumstances in which the country, which is in a forced war and has been suffering attacks from several fronts for over a year, has found itself. In addition, Attorney Yehosef mentions the principle of the 'balance of convenience' - a consideration that many judges mention in their rulings. According to him, the 'balance of convenience' is a legal principle that refers to the expected impact of a decision pending before the court on the parties. When a decision is likely to cause significant harm to one party, while a reverse decision will not cause significant harm to the other party, the court tends to choose the less damaging option. "In this case, postponing the testimony or changing the order of the witnesses would not cause significant harm to the prosecution," says Attorney Yehosef. "In contrast, requiring Netanyahu to testify three days a week, while he is managing emergencies and making critical decisions, is likely to harm the functioning of the government and the security of the state, and certainly goes against the balance of convenience." Attorney Yehosef wonders how the court expects the prime minister to conduct his testimony. "Is it expected that the prime minister will stop an urgent cabinet meeting, claiming that he must appear to testify in court?" According to him, the demand for Netanyahu to appear to testify also stands in stark contrast to the main claims made against him and the state's leadership on October 7. "Some claim that the prime minister abandoned the security of the state, because he was busy with other matters on October 7. Even if this claim is found to be incorrect in the future, what exactly does the court expect in its decision? How does this decision improve the prime minister's supervision and vigilance regarding the war threats currently facing the State of Israel?" According to Attorney Yehosef, there is a sense of 'severe severity' in the court's treatment of Netanyahu. He mentions the 'Buzgalo test' coined at the time by former Supreme Court President Justice Aharon Barak, who ruled that the law should treat everyone equally. According to Attorney Yehosef, when a reserve soldier finds himself facing an indictment in a criminal proceeding, sometimes for offenses much more serious than those currently attributed to the Prime Minister - and claims that he cannot prepare for his testimony properly, because of the reserve service imposed on him, the court will grant his request and reject the testimony. "This constitutes a 'reverse Buzaglo test.' "There is no reason for the Prime Minister to suffer from conditions that are less favorable than those received by the ordinary citizen. If a reserve soldier is allowed a deferral due to his service, all the more so should the Prime Minister's circumstances be taken into account, because a violation of the Prime Minister's rights is a systemic violation, which could affect the entire country." According to Attorney Yehosef, it is important to note that the case against Netanyahu is not in a bad state, and that Netanyahu, in normal times, would not have been expected to object to giving testimony or try to delay the trials being conducted against him. According to him, the judges even recommended that the prosecution withdraw the bribery charge against Netanyahu in Case 4,000, the most serious charge, without which the offenses attributed to the prime minister would be at the lower criminal level. The prosecution insists for some reason on continuing the trial. "Therefore, I believe that there is no justification for being harsh with Netanyahu in this way, especially when there is a chance that the cases may end in a complete acquittal.". The court's involvement in policy and political decisions According to Attorney Yehosef, for years the Supreme Court has been careful to avoid entering the political and diplomatic arena, arguing that this is not its area of ​​responsibility. The court's decision in Netanyahu's case greatly jeopardizes this clean and balanced position. "There are many who claim that Netanyahu cannot serve his sentence alongside his role as prime minister and must declare incapacity - and therefore, on the face of it, the court's decision seems very strange - as if it is trying to force Netanyahu to consider incapacity. "If this is true, this is a blatant and unnecessary invasion of the court into the political arena," says Attorney Yehosef. "I would not be surprised if representatives from the right come tomorrow and claim that the court is pushing Israel into a constitutional crisis during a war - something that would be unthinkable.".