A Prime Minister on Trial: Qs and As

The Prime Minister's trial reconvenes with a pandemic raging and the elections campaign continuing. What can we expect?

Flash 90

Is Netanyahu’s trial expected to be conducted as planned despite the latest wave of the COVID-19 pandemic?

During the latest lockdown, the panel of judges decided to postpone a scheduled hearing. This happened after the Director of the Courts, in accordance with the President of the Supreme Court and with the Acting Minister of Justice and the Bar Association, decided that during the lockdown the courts will postpone hearings in various proceedings, subject to the judges' discretion. Now that the lockdown restrictions have been eased the trial can continue as planned. If at any point a new lockdown is enacted, it will again be subject to the discretion of the panel of judges in the case whether to continue as planned or postpone hearings again.

Can the fact that we are in an election period disrupt the trial?

There is no reason to disrupt the proceedings. It is possible that the court will consider, in setting dates for evidence, that the defendant in the trial is a candidate in the election, and therefore will not set hearing dates in the last days before the election - keeping in mind that although it is his right to be present, the court may exempt him from most hearings. The court will only grant such exemption if it finds that it does not infringe on the Prime Minister's defense.

Is there a connection / influence between the functioning of the transitional government and the Netanyahu trial?

No, the fact that this is a transitional government is not relevant, and the trial will continue to be conducted exactly as it was conducted until the day the Knesset was dispersed.

How long will the proceedings take?

In Israel, criminal proceedings can drag out for a very long time—often, even several years. This is especially true when, as in this case, they involve multiple and complex indictments. If the judges decide to conduct the trial at the maximum possible speed and efficiently, with several sessions taking place every week, as Judge Rosen did in the case of Ehud Olmert, the District Court proceedings could be completed within a year—but such a scenario is unlikely in this case.

Must Prime Minister Netanyahu be present in the courtroom for all the sessions?

Requiring the defendant to attend all sessions of his or her trial is the default position. However, it is certainly possible, to exempt Netanyahu from being present, as long as he has adequate counsel and his defense is not impaired. Of course, he must be present in the courtroom if he himself wishes to testify.

What are the stages of the proceedings?

By law, the first panel that hears the case is one of a three district court judges. After this court issues a verdict, both the prosecution and the defendant can appeal to the Supreme Court. There too, such cases are usually heard by three justices, but an expanded panel can be convened for such an important case.

What about the immunity of public figures?

Prime Minister Netanyahu can argue that he is entitled to substantive immunity (rather than procedural immunity, which he waived). It is likely that this claim will be rejected, in light of legal precedents which a set very strict limits on substantive immunity (immunity for actions related to the performance of one’s duties). In any case, this issue can be raised in a preliminary phase of the trial, before the defendant responds to the charges in the indictment.

What are the typical sentences for the crimes with which the Prime Minister is charged: bribery, fraud, and breach of trust?

The maximum sentences are 10 years in prison for bribery, and three years for fraud and breach of trust, but the sentences handed down are usually much lighter.

Can there still be a plea-bargain agreement?

Yes. In Israel a defendant can reach a plea bargain at any stage of the proceedings, before conviction or acquittal. If the parties wish to reach a plea bargain, it must be approved by the court—but it is very rare for the court to refuse to do so.

Why isn’t the trial being broadcast live?

Until a few weeks ago, no Israeli court proceedings had ever been broadcast live (with the exception of the Demjanjuk trial which was live on TV, and the Eichmann trial, which was broadcast on the radio). Recently, Supreme Court president Esther Hayut, in a precedent-setting decision, ruled that sessions of the High Court of Justice, when of particular importance, could be live-streamed, and this was indeed done. But there is no reason to start broadcasting criminal trials, even one with such a high media profile as Netanyahu’s.

Will the verdict relate to all three cases in which Netanyahu faces charges (files 1000, 2000, and 4000)?

The verdict handed down at the end of the trial will relate to all the charges. It is possible, of course, that the court will convict Netanyahu on only some, and acquit on others. It must first hear all the testimony and the arguments of both sides on the charges, and then issue a single verdict.

Is there a precedent anywhere in the world of a sitting prime minister facing criminal charges?

It is very rare for an incumbent prime minister in an advanced democracy to find themselves on trial. In many countries, including Israel, it is often the practice for a prime minister or other high official to either resign or suspend themselves when indicted- or even investigated- while in office.

A notable exception was Silvio Berlusconi of Italy. When he was named prime minister in 2008, he was already on trial for tax evasion (the proceedings began in 2005 and ended with his conviction in 2012). He was tried on other charges in February 2011, while still in office, and continued to serve as prime minister until he resigned (with no direct connection to the criminal cases against him) in November 2011.

There have also been instances of prominent politicians who were not incumbent prime ministers when they faced the court, but were the heads of their parties and were clearly potential candidates for the highest office. For example, Andreas Papandreou of Greece led his Socialist Party in the elections of November 1989 and May 1990, while on trial. Janez Janša headed the list of the Slovenian Democratic Party, one of the two major parties in that country, in the July 2014 elections—after he had already been convicted in a final verdict and been sent to prison. In both cases, Papandreou’s and Janša’s parties lost the elections.

The original article was published in the Times of Israel in May 2020.