The Indictment and Immunity in the MK Tally Gotliv Case: Making Sense of the Process

Photo by Yonatan Sindel/Flash90

A quick refresher on the background:

In June 2024, the Attorney General announced that Member of Knesset Tally Gotliv should be investigated on suspicion of disclosing classified information. The opening of a criminal investigation against a Member of Knesset requires review by the Attorney General. This followed Gotliv’s disclosure on Twitter, now X, of the identity of the partner of activist Shikma Bressler as a Shin Bet officer, in violation of the law.

MK Gotliv refused the State Attorney’s Office summons to appear for questioning, arguing that her statements were made in the course of fulfilling her duties and that, accordingly, she enjoys parliamentary immunity and cannot be prosecuted. It should be noted that this claim is contrary to the accepted legal view, under which immunity does not apply at the stage of a criminal investigation.

In July 2025, the State Attorney’s Office announced its intention to file an indictment against Gotliv, subject to a pre-indictment hearing. Gotliv did not appear for this hearing either. The filing of the indictment was delayed because the Minister of Defense was required to sign a certificate of confidentiality. This certificate was intended to prevent the publication of classified information concerning the identities of Shin Bet personnel and operational methods. After a nine-month delay, the Minister of Defense signed the certificate of confidentiality, thereby enabling the indictment to be filed.

What is the charge attributed to Gotliv?

MK Gotliv is charged with disclosing and publishing classified information—an offense under the General Security Service Law. The law provides that a person who discloses or publishes classified information under the law without authorization is liable to three years’ imprisonment.

Does MK Gotliv have immunity?

Under Israeli law, as in other countries, there is a distinction between substantive immunity and procedural immunity.

Substantive immunity, also known as immunity in the performance of parliamentary duties, provides protection against the initiation of criminal or civil proceedings, and to the taking of any legal action against a Member of Knesset, where the vote, statement, or act was carried out in the course of fulfilling the MK’s duties.  It cannot be removed and remains with the MK forever, including after the end of their term of office.

Alongside this immunity, there are also several forms of procedural immunity. The one central to the present matter is immunity from criminal prosecution for acts performed by an MK that are not within the scope of fulfilling their duties.

The Attorney General’s determination that MK Gotliv should be prosecuted means that, in the Attorney General’s view, what MK Gotliv did was not done in the performance of her role. Accordingly, this view holds that she does not enjoy substantive immunity.

What are the criteria for determining whether an MK’s action was performed in the course of fulfilling their role?

Substantive immunity is not absolute. Immunity is indeed intended to guarantee an MK’s freedom of action and their ability to freely represent their electorate. However, the starting point is that an MK is subject to the law, and immunity is not intended to allow an MK to break the law or to turn the Knesset into a city of refuge.

The case law of the courts has placed particular emphasis on the manner in which the offense was committed: whether it was an offense committed in the heat of the moment, in which case it would enjoy immunity, or whether it was a planned, deliberate offense, generally not covered by immunity, that was the product of prior planning.

As is made clear from the indictment, MK Gotliv not only failed to remove the publication from her Twitter account, which has tens of thousands of followers, but also insisted on the publication in a demonstrative, public, and repeated manner through posts on her social media accounts as well as in interviews with media outlets. She declared that she would continue to do so.

Indeed, the case law has held that especially broad protection should be afforded to statements by Members of Knesset, based on the premise that freedom of expression—that is, speeches, interviews, and articles—is their primary working tool. Through it, MKs express their positions, including on controversial issues.

It has further been held that MKs are particularly exposed to being caught by prohibitions relating to defamation, incitement, and the like. Protecting an MK when they speak on political matters is the central purpose of immunity. It has therefore been held that an MK must be allowed to express their position without fearing that they will stray from what is permitted into the commission of a criminal offense.

However, it may be difficult to view MK Gotliv’s statements as a “straying” beyond the permitted bounds. After all, she repeatedly published the name of the Shin Bet officer, in explicit violation of the law. The court has warned against the abuse of substantive immunity, and it is difficult not to see Gotliv’s continuing conduct as an abuse of that privilege.

What is the expected procedure now? Can the Knesset grant Gotliv procedural immunity?

Since 2005, the rule has been that Members of Knesset do not have procedural immunity unless they request it in accordance with the procedure set out in law.

Under the Immunity Law, if the Attorney General approves the filing of an indictment against a Member of Knesset, the Attorney General must provide a copy to the MK, the Speaker of the Knesset, and the Chair of the House Committee.

At this stage, the MK has 30 days to apply to the Knesset and request that it grant them immunity on the basis of one or more of the grounds defined in the law. In brief, these are:

1. The offense with which the MK is charged was committed in the course of fulfilling their role; in other words, the act or statement is covered by substantive immunity;
2. The indictment was filed in bad faith or in a discriminatory manner;
3. Where the offense was committed in the Knesset as part of parliamentary activity, and the Knesset has already conducted internal proceedings regarding the MK, such as ethics proceedings, and refraining from conducting criminal proceedings, considering the severity of the offense, its nature, or its circumstances, would not cause significant harm to the public interest;
4. Where there is concern that conducting the criminal proceedings would harm the functioning of the Knesset or its committees, or the representation of the electorate, provided that refraining from conducting the proceedings, considering the severity of the offense, its nature, or its circumstances, would not cause significant harm to the public interest.

On what grounds does MK Gotliv base her request for procedural immunity?

In her letter to the House Committee, MK Gotliv argues that three of the four grounds listed above apply in her case.

First, she argues that her actions were carried out in the course of fulfilling her duties and that she therefore enjoys substantive immunity. She argues that the disclosure of the Shin Bet officer’s identity was intended to bring the truth regarding the events of October 7 to the public’s attention. She argues that her statements in the media and on social media, which she describes as her primary means of maintaining contact with her constituents, lie at the heart of her representative role as a Member of Knesset.

Second, she argues that the indictment was filed in bad faith and in a discriminatory manner. According to her, the Attorney General is pursuing her personally and is opening investigations and preliminary examinations selectively.

Third, Gotliv argues that conducting criminal proceedings over her statements would cause real harm to the representation of her voters in the Knesset, and that refraining from conducting such proceedings, given the severity of the offense and its circumstances, would not harm the public interest at all — the fourth ground.

Which body makes the decision regarding immunity?

In the first stage, the matter is discussed by the House Committee. A decision by the House Committee to grant immunity requires the approval of the Knesset plenum. By contrast, a decision by the committee not to grant immunity is final. Voting in both the House Committee and the Knesset plenum is open, and no special majority is required.

Can a Knesset decision to grant immunity be appealed?

A decision by the Knesset plenum to grant immunity, thereby approving the decision of the House Committee, is final as far as Knesset proceedings are concerned. However, a petition may be filed with the High Court of Justice against the Knesset’s decision, since it is a “quasi-judicial” decision of the Knesset and is subject to ordinary judicial review. In this case, the Knesset decides the matter on the basis of factual findings and legal norms, in a manner that is close in nature to a judicial determination. Therefore, the judicial review exercised by the High Court of Justice in this context is not especially narrow, as it is with respect to Knesset legislative proceedings or decisions concerning the Knesset’s internal working procedures.

It should be noted that a decision by the House Committee not to grant immunity is also not immune from judicial intervention, and the MK may petition against a decision not to grant them immunity.

If the Knesset grants Gotliv immunity, does that mean an indictment can no longer be filed against her?

Procedural immunity is temporary immunity. A Knesset decision granting immunity is valid only for the duration of that Knesset. During the term of this Knesset, it will not be possible to file an indictment against her for this offense, unless there is a change in circumstances. Therefore, if the current Knesset, the 25th Knesset, decides to grant Gotliv immunity, that immunity will be valid only until the end of the term of that Knesset.

This means that if Gotliv is elected to the next Knesset, the Attorney General will be able to decide again to file an indictment, and the exact same process will then be repeated: Gotliv will have 30 days to apply to the Knesset and request immunity.

If the current Knesset now grants immunity to MK Gotliv, and she is not elected to the next Knesset, then upon the convening of the new Knesset her term will expire, and she may be prosecuted.

It is important to note that under Israel’s Immunity Law, the limitation period stops running once immunity is granted. The period during which bringing the MK to trial for a particular offense was prevented will not be counted as part of the limitation period for that offense.

Since the 2005 amendment to the law, has the Knesset granted procedural immunity?

Since 2005, following Amendment 33 to the Immunity Law, there have been only a few cases in which Members of Knesset have applied for immunity, and only one case in which the Knesset decided to grant immunity. That was in the matter of MK Haim Katz, against whom an indictment was filed attributing to him offenses of fraud and breach of trust.

In this case, he applied to the Knesset for immunity, and the Knesset granted the request. A petition filed with the High Court of Justice on the matter was dismissed after it became theoretical with the dissolution of the outgoing Knesset and the establishment of the new Knesset. It was held that the Attorney General could file the indictment in the current Knesset, and MK Katz could again apply for immunity. Ultimately, MK Katz did not submit a renewed request for immunity, and a plea agreement was reached with him.

Are there any additional consequences to the filing of an indictment against a Member of Knesset?

First, under the Knesset Rules of Procedure, where a decision has been made to file an indictment against a Member of Knesset, even if the Knesset has granted that MK procedural immunity, the House Committee may determine that the MK may not be a candidate for the position of Speaker of the Knesset, Deputy Speaker of the Knesset, or chair of a committee.

Second, under the Deri-Pinhasi rule, an indictment for a serious offense prevents a person from serving as a minister or deputy minister.

Assuming the bill to dissolve the Knesset passes three readings, would there be any impediment to considering MK Gotliv’s request?

By virtue of longstanding practice, significant restrictions apply to the Knesset’s activity during an election recess, and the Knesset does not customarily hold discussions on controversial matters. However, the Immunity Law provides that once a request for immunity is submitted, the Speaker of the Knesset must refer it to the House Committee as soon as possible, in order to minimize the harm to the principle of equality before the law (a principle that many argue the institution of immunity substantially impairs).

Former Knesset Legal Adviser Adv. Eyal Yinon previously addressed this question and held that the above practice does not override the statutory provision. This is despite the difficulties that, in his view, arise from holding discussions on a request for immunity during an election recess, including the heightened concern that Members of Knesset will decide the request on the basis of political-party considerations, as well as the fact that, if immunity is granted, it will in any event be valid for only a short period of time. Accordingly, it was held that an election recess does not prevent the House Committee from holding a discussion on a request for immunity, provided that the discussion is not held just a few days before the elections.

In the present case, even if the elections are brought forward, they are not expected to be held before September. Since the discussion of MK Gotliv’s request has been scheduled for June 8–9, this leaves time to reach a decision ahead of elections.