The Supreme Court unanimously accepted the prosecution’s appeal and increased the sentence of businessman Avraham Nikashvili to 21 months in prison, instead of the 14 months imposed on him in the district court, after his conviction for bribing NIS 1.5 million to the late Benjamin Fuad Ben Eliezer And money laundering. In doing so, the Supreme Court accepted the position of the prosecution and dismissed the defendant’s appeal both in the matter of the conviction and in the matter of the sentence.
The Supreme Court stated that the friendship between a public servant and the bribe-giver does not constitute a defense against conviction for the bribery offense in light of the nature of the give-and-take relationship that often involves a professional and friendly relationship and also clarified that the bribery offense His public status in favor of the bribe-giver. The court also sent a message that the punishment of bribes should be aggravated by imposing imprisonment for a significant period.
Avraham Nikashvili was convicted, after conducting evidence, of bribing Fuad Ben Eliezer in the amount of NIS 1.5 million and signing a fictitious loan agreement designed to disguise the bribery that constitutes money laundering. In return, the late Ben Eliezer testified in favor of Nikashvili in a trial against The tax authorities after being charged with a tax assessment in the amount of NIS 350 million. The Tel Aviv-Yafo District Court (Rev. B. Sagi) sentenced Nikashvili to 14 months’ imprisonment and a fine of NIS 1 million.
The prosecution appealed to the Supreme Court on the soundness of the sentence, while the defendant appealed both on the basis of his conviction and on the sentence. The State Attorney’s Office requested that his appeal be dismissed, since the late Ben-Eliezer testified on behalf of Nikashvili in a lawsuit he conducted against the Tax Authority that concerned a tax liability of NIS 350 million, taking advantage of the “aura” that surrounded the late Ben-Eliezer in light of his public duties. With regard to the sentence, the prosecution was of the opinion that the sentence imposed was excessive in excess of its voice, and therefore its sentence should be considerably aggravated.
The Supreme Court (Justices Handel, Baron and Grosskopf) accepted the position of the State Attorney’s Office and stated in the judgment that the term “action related to his position”, performed by a public servant in exchange for a gift he receives, should be interpreted broadly, and that “the connection to the position must not be expressed Precisely in an action that is included among those that are the powers, duties or duties of the public employee, but in an action that stems from his very status as a public employee and is related to the fulfillment of his position. ” Therefore, it was determined that when Ben-Eliezer testified in favor of Nikashvili in a lawsuit he conducted against the tax authorities, taking advantage of the “aura” associated with his public status, including being a public servant, in support of the appellant’s claim… The circumstances of his acquaintance with the appellant and his contribution to the advancement of the interests of the state. “
The Supreme Court also ruled that the late Nikashvili and the late Ben Eliezer were friendly, but there were also professional ties between them in the context of Nikashvili’s field of activity, and therefore it was determined that the grant of NIS 1.5 million to the late Ben Eliezer was motivated, friendly and corrupt. The court ruled that the existence of a mixed motive does not negate the criminal responsibility of the bribe-giver, and as long as there is any corrupt motive, which upholds the elements of the bribery offense, a bribery offense should be convicted.
The court rejected the defense’s contention that Nikashvili should be acquitted because he claimed the friendly “motive” in the relationship between the two was dominant and the “wrong motive” was secondary, and ruled that the friendly motive did not whiten the criminal act.
The Supreme Court noted in the judgment that “criminal law recognizes a person’s complexity. For example, he may be undecided long before committing the act, but when it is done, the criminal act is attributed to him. Was transferred to a public employee, such a defendant does not necessarily fall outside the scope of criminal responsibility. A criminal offense. The question of the dominance of the member’s motive or his “percentage” is not decisive as to criminal liability.
With regard to the sentence, the Supreme Court ruled that an actual imprisonment of 14 months is neither deterrent nor appropriate, given the amount of the bribe, the bribe recipient – a former MK and senior minister and the concealment mechanism that included signing a fictitious loan agreement, and the aggravating trend of bribery offenses Even in the aggravation of the fixed penalty on the side of the offense of bribery in law. After considering Nikashvili’s personal circumstances, his sentence was aggravated and he was sentenced to 21 months in prison.
The Supreme Court noted that the fact that the bribe was given to a high-ranking public servant, who is among the most influential stratum of public servants, cannot be ignored. In addition, it should be remembered that the bribery was disguised in a loan agreement whose content did not correspond to reality – which led to his conviction also for the offense of money laundering.
The state was represented in the Supreme Court by Adv. Sarit Misgav from the Criminal Department of the State Attorney’s Office. In the District Court, the case was handled by Adv.