Failing the Buzaglo Test

How Law Enforcement Authorities Confront Criminal Violations by Public Officials

Policy Paper No. 71

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  • Cover Type: Softcover
  • Number Of Pages: 188 Pages
  • Center: Democratic Values and Institutions Program
  • Price: 45 NIS

The obligation to enforce the law against a public official in the same way that it is applied to the “average Joe” is known in Israel as the "Buzaglo Test." This study examines whether law enforcement authorities apply the law equally when public officials are suspected of criminal violations. Its conclusions are based on an analysis of several cases in which public officials have been suspected of committing crimes.

This essay is a study that examines whether law enforcement authorities apply the law equally when suspicions arise of criminal violations by public officials. The obligation to enforce the law against a public official in the same way that it is applied to the "average Joe" is commonly known as the "Buzaglo Test." According to this test, if a public official is suspected of having committed a crime, the decision whether or not to indict him must be reached through the same procedures and according to the same considerations that are used to decide whether or not to indict any other person. This standard also applies to the court's decision whether or not to convict - a public official should not be treated more leniently or more harshly than anyone else.

The aim of this study is to examine whether law enforcement authorities actually implement the Buzaglo Test. In recent years - given the relative increase in suspicions of criminal acts by public officials - this question has arisen on several occasions. In many cases, law enforcement authorities, in particular the Attorney General and the State Attorney's Office, have decided not to file indictments against public officials and when they have, the courts have sometimes acquitted the accused. We have, therefore, decided to examine several cases in which public officials have been suspected of committing crimes in order to determine whether law enforcement authorities have applied the law equally. In this study, we have focused on the Attorney General and on the State Attorney's Office (and occasionally on the Supreme Court).

Regrettably, the answer to the question at the crux of this essay is negative: despite numerous pronouncements by law enforcement officials regarding their commitment, in theory, to the Buzaglo Test, in practice, it has not been implemented. The Attorney General and the State Attorney's Office have repeatedly failed to apply it and have shown leniency toward public officials. In fact - even if not in theory - they have devised more rigorous tests for deciding whether or not to indict them.

In examining these cases, we focused on the field of evidence. We looked at how law enforcement authorities evaluated the evidence gathered against public officials and how they decided whether or not to indict. From this analysis, it emerges that, with respect to the application of the Buzaglo Test, the Attorney General and State Attorney's Office make the same mistakes over and over again. First, they give too much weight to the version of events provided by public officials suspected of criminal offenses. Even when the public official's version is illogical or inconsistent with all other evidence, the Attorney General and State Attorney's Office repeatedly conclude that the public official has succeeded in raising reasonable doubt. The respectful manner in which they treat the versions given by public officials is outrageously incongruent with the usual and more cautious manner in which law enforcement authorities treat the questionable versions offered by other suspects.

Second, the Attorney General and State Attorney's Office refuse to draw incriminating conclusions from all the evidence in its entirety, even when this is appropriate. In criminal law, evidentiary material is often a mosaic that is missing several pieces, and the police will never possess all of the information. For this reason, the prosecution is only required to prove guilt beyond a reasonable doubt since absolute certainty is almost impossible. Therefore, in many cases, defendants are convicted even when part of the evidentiary mosaic is missing, i.e., when the overall evidence makes it impossible to reach any other reasonable conclusion. However, with regard to public officials, the Attorney General and State Attorney's Office refuse to look at the whole picture. For public officials, apparently, the partial mosaic of evidence is impossible to complete, even when the overall evidence demands one conclusion - an incriminating conclusion.

This refusal to consider the whole picture is reflected in several ways. The prosecutor stubbornly searches for a "smoking gun" - i.e., direct evidence that will enable the guilt of the suspect or defendant to be proven with certainty and not just beyond a reasonable doubt. When it concerns public officials, the authorities unreasonably expect the criminals to leave plenty of evidence and to conduct their shady dealings in an explicit and documented fashion. Moreover, the Attorney General and State Attorney's Office refuse to file indictments against public officials based solely on circumstantial evidence as they do in the case of any other person.

Finally, the failure of the prosecutor is also manifested in the fact that with respect to public officials, conclusions are not drawn on the basis of presumptions that are usually applied against other people. This is primarily the case when it comes to proving the mens rea (criminal intent) of an offense through the presumption of awareness. When it concerns public officials, these authorities refuse to apply this presumption; they do not assume that public officials are aware of the significance of their behavior and the circumstances, or of the possibility of the natural consequences of their actions - although they normally and frequently assume it when other suspects and defendants are concerned. Thus, if a suspected public official claims a lack of awareness regarding his or her behavior, the prosecution assumes that it will be impossible to refute this claim even if it may be presumed that a normal person in the public official's shoes would have been aware of the behavior or circumstances in question.

In this study, we describe how the Attorney General and State Attorney's Office have failed to apply the Buzaglo Test in five famous cases: the "Bar-On Hebron Affair", the "Greek Island Affair", the "Annex Research Affair", the "Ben-Gal Affair" and the "Derech Tzelecha Affair". Preferential treatment given to public officials may also be reflected in how those conducting the investigations are themselves treated. An instructive example of this is the Mizrahi case, which we also discuss. We show that when the authorities file indictments against public officials, a higher standard of evidence is applied in comparison with that required in normal cases. In practice, the Buzaglo Test is not implemented. Furthermore, an analysis of the Mizrahi case demonstrates that a person who diligently and uncompromisingly enforces the law against senior officials puts himself in danger and puts his professional future at risk.

The structural quandary arising from this study is whether someone who serves as Attorney General, and by virtue of this position, who is also the legal counsel of the Prime Minister and his cabinet, is the right person to decide their fate when they are suspected of criminal offenses - is this not a situation of institutionalized bias? Is it not incumbent on us to separate the two functions of the Attorney General - legal counsel to the government and head of the general prosecution?

Equal enforcement of the law is the essence of democracy and a sine qua non for public trust in the criminal justice system. It is, therefore, the duty of law enforcement authorities to restore the Buzaglo Test to its former glory so that it is not simply a poetic phrase that denotes going through the motions, but a standard that is also actually applied: one law for all, the citizen and the public employee, the junior civil servant and the highest public official.