A revolution in criminal law? Closing a case by arrangement

27 Jul 2018 · Criminal law · Translated from the Hebrew original

Closing a case by arrangement

Amendment 66 to the Criminal Procedure Law, 5742-1982, has now come into force. Before the amendment took effect, the legal position allowed the prosecutor, after receiving the investigation file, to act to file an indictment or to close the file, in accordance with the law and the Attorney General's guidelines.

As for filing an indictment, after the prosecutor has reviewed the investigation file and is persuaded that there is evidence of the required strength for convicting the suspect, at least prima facie, he must act to file an indictment in a competent court, according to the type of offence and subject to the right to a hearing.

As for closing the file, where such a decision has been made, these were the options before the amendment: the prosecutor is authorised to order the closure of a file for lack of guilt or lack of evidence, or alternatively to order closure for lack of public interest. The guiding considerations are set out in the Attorney General's guidelines.

It should be noted that each of the above grounds for closure leads to a different result. Closure for lack of guilt leaves the suspect's criminal record clean in the plain sense, whereas closure of the file for lack of evidence or lack of public interest is included in the internal records of the Israel Police. These records are not open to everyone, but there are bodies entitled to receive this information under the Criminal Registry Law, so the stage at which the ground for closure is decided carries significant weight. There is also a ground for closure of "no prosecution" that is used in the police.

The Attorney General's guidelines set prosecution policy, in order to create effective and equal enforcement mechanisms as far as possible. The guidelines are not unequivocal but outline a general policy, and the final decision rests with the authorised official. For example, the starting point when closing a file for lack of public interest is that there is sufficient basis to file an indictment, but the key question in closing a file on this ground concerns the public interest, in other words, whether the evidence, despite being strong enough for a criminal conviction, justifies putting the suspect on trial and determining his guilt in criminal proceedings. It should be stressed that a prosecutor's decision to order closure of a file for lack of evidence or lack of public interest can be appealed to the appropriate body.

Under the law a prosecutor will file an indictment, and refraining from prosecution reflects an exceptional and unusual act, since everyone is equal before the law. The prosecutor may choose this alternative only in extreme cases in which no harm will be caused to the public interest. This is a mechanism of moral and value-based considerations, since prima facie there is evidence against the suspect to put him on trial.

The considerations for closing a file for lack of public interest are set out in the Attorney General's guidelines. Among the considerations are: the severity of the act, the suspect's personal circumstances, rehabilitation efforts, the suspect's cooperation with the authorities, administrative proceedings and sanctions taken against the suspect in parallel, and also the effect of the criminal proceedings on the defendant, the opinion of welfare officials, a probation officer's report and others. It was also determined that the considerations must address the personal circumstances of the victim of the offence: the more serious the harm to him and the less repairable the damage caused to him, the heavier the weight of the public interest in prosecution, as well as other vital interests of the State.

And now a new player has entered the range of grounds for closure, allowing the prosecutor to classify the investigation file as closed on the ground of "closing a case by arrangement". The additional option does not detract from the grounds for closing an investigation file set out in law.

It should be noted that the authority to close a case by arrangement is limited to a file in which the prosecutor believes that the appropriate punishment for the offence does not include actual imprisonment, and the offences are a misdemeanour or a lesser offence ("chet" or "avon"), that is, offences whose maximum penalty is up to three years' imprisonment.

Under the amendment the prosecutor is authorised to reach understandings with the suspect. The prosecutor is also authorised to undertake to refrain from filing an indictment in return for an admission and subject to compliance with the arrangement between the parties. The amendment also addresses the status of victims of the offence.

The possible components of the arrangement are a fine paid to the State Treasury, financial compensation to the victim of the offence, a treatment programme and measures to restore the previous situation.

The main points of the amendment

• Limitation period: under the amendment, the period set for meeting the terms of the arrangement is not counted within the limitation period.
• Types of offences: the amendment allows an arrangement in a lesser offence, a misdemeanour, and a felony listed in the schedule.
• The prosecutor's undertaking to refrain from filing an indictment is conditional on the suspect admitting the offence and meeting the terms of the arrangement, provided that the prosecutor sets out the facts and the statutory provisions and states, in a reasoned decision, the circumstances showing that the appropriate punishment does not include actual imprisonment and that meeting the terms of the arrangement satisfies the public interest in not prosecuting.
• Content of the arrangement: the arrangement will include a description of the facts and statutory provisions for which there is sufficient evidence for an indictment, the suspect's admission, the conditions the suspect must meet, the period for meeting the terms of the arrangement and the way of proving that the conditions were met, and a declaration by the suspect that he understands the terms of the arrangement.
• Date of closing the file: after the prosecutor has verified that the terms of the arrangement were met, he will close the file on the ground of "closure by arrangement".
• Threshold conditions for closing a case by arrangement: in the prosecutor's opinion the suitable punishment for the suspect does not include actual imprisonment, the suspect has no criminal record in the last five years, including an arrangement made with him in the past, and there must be no pending investigations or trials.
• Terms of the arrangement: the prosecutor may determine that the defendant, as part of closing the case by arrangement, must pay a fine to the State Treasury and/or compensation to the victim of the offence. The maximum amount of compensation or fine may not exceed ₪14,400, to be paid within one year at most. Note that this is a maximum amount even where several offences are included in the arrangement. The suspect may also be required, as part of the arrangement, to sign an undertaking to refrain from committing an offence for a period not exceeding one year, to comply with the terms of a treatment programme set by a probation officer, including performing community service, and to be under the supervision of the probation service for a period not exceeding one year and, in special cases and on the probation officer's recommendation, for a period not exceeding eighteen months. The amendment also allows agreement to measures to repair the damage as listed in the schedule, restoring the previous situation, for a period not exceeding one year.
• Inspection of investigation material: before signing an arrangement the suspect may inspect the investigation material and a draft indictment if it is not identical to what is described in the arrangement.
• It is not possible to file an appeal against closing a case by arrangement.
• Refusal of the arrangement and/or failure to meet its terms: the suspect's refusal to carry out an arrangement will lead to the filing of an indictment, unless new information is brought to the prosecutor, in which case he may act to close the file on one of the grounds set in law. Note that even if the suspect did not meet the terms of the arrangement, the prosecutor is authorised to close the file and refrain from filing an indictment when new information reaches him that justifies it. Clearly, the suspect will not stand trial if he met the terms of the arrangement.
• Moreover, under the above section, if an indictment is filed after partial performance of the arrangement, the court will take this into account at sentencing. If the suspect is acquitted, the money he paid will be returned to him. Putting a suspect on trial after an arrangement was offered to him is possible, but the prosecutor will be barred from seeking actual imprisonment, unless new information was brought to his attention.
• In addition, the suspect's admission within the arrangement is not evidence at trial.
• Publication of arrangements: the prosecution authority must publish arrangements in a way that ensures transparency about the exercise of discretion, without identifying details of the suspect or the victim of the offence.
• Amendment of the Criminal Registry Law: under the Sixth Schedule to the amendment, the Criminal Registry Law will be amended so that information about files closed by arrangement will be obtainable as if the prosecutor had decided not to investigate or not to prosecute.
• Amendment of the Crime Victims' Rights Law: under the Sixth Schedule to the amendment, the Crime Victims' Rights Law will be amended so that the victim or his representative may inspect the details of the arrangement. In addition, section 17 of the Crime Victims' Rights Law was amended so that the victim of the offence may express his position, similar to expressing a position when a plea bargain is being formed.

In summary, the amendment creates an intermediate path whereby, in suitable cases and for certain offences, an effective mechanism can be used that allows, on the one hand, refraining from prosecuting a suspect in relatively minor offences and, on the other, creating a tangible effect of retribution and deterrence that fits the circumstances of the case.

"He who covers his transgressions will not prosper, but whoever confesses and forsakes them will obtain mercy" (Proverbs 28:13)

Notes

• 1. Passed by the Knesset on 6 Av 5772 (25 July 2012).
• 2. Sections 62-63 of the Criminal Procedure Law, 5742-1982 ("the Law").
• 3. See: the Attorney General's guidelines on the Ministry of Justice website.
• 4. Section 60A of the Law, Attorney General guideline 4.3001, last updated November 2008, published on the Ministry of Justice website.
• 5. Guideline no. 1.1, considerations for closing a file for lack of "public interest", last updated 1.1.2003.
• 6. Criminal Registry and Rehabilitation of Offenders Law, 5741-1981.
• 7. Sections 64-65 of the Law.
• 8. Section 62 of the Law.
• 9. In accordance with section 2 of the Criminal Registry and Rehabilitation of Offenders Law, 5741-1981.

The content above is general and presented for information only. It is not a legal recommendation, a substitute for legal advice or a legal opinion. Do not rely on it, and its use is not a substitute for personal, case-specific legal advice.