Criminal process
The Criminal Procedure
The criminal process is a complex one involving various enforcement authorities: the investigative unit – usually the police (it could also be the securities authority or tax authority), and the prosecuting unit – a police claims unit (when it comes to relatively minor offenses) or the prosecutor’s office.
The criminal process begins with an investigation (see arrest for investigative purposes).
In most cases, the investigation is conducted without arresting the suspect.
The police are allowed to request the arrest of a suspect in order to prevent them from interfering with the investigation, fleeing justice, or endangering public peace, or if there are special investigative actions that need to be taken while the suspect is under arrest (see arrest for investigative purposes).
At the end of the investigation, the suspect will be released unless a charge has been filed, in which case the court may extend the suspect’s arrest by an additional 5 days in order to bridge the period between the end of the investigation and the filing of an indictment and a request for detention until the end of proceedings.
In a hearing on detention until the end of proceedings, witnesses are not examined, instead, the court examines the existence of evidence and testimonies in the file without getting into the question of the credibility of the witness or the weight of the testimony.
The purpose of the process is to determine whether the defendant will be detained during his trial, or if it is possible to settle for restrictive conditions that less infringe on the defendant’s freedoms – house arrest, removal, financial bail (see detention until the end of proceedings).
If the defendant is arrested until the end of the proceedings, the criminal process will be relatively short and should be completed within 9 months, however, a Supreme Court judge is allowed to order the extension of the arrest for an additional period of 150 days and can do so repeatedly (in most cases these are serious crime cases).
After the court determines under which conditions the defendant will stay during his trial, the main case hearing will begin. During the case proceedings, evidence will be presented and witnesses examined.
The main case will open with the reading of the indictment to the defendant when the defendant is allowed to give his response to the indictment.
After the defendant’s response to the indictment, a date will be set for proofs.
The proofs process is divided into two – the claim phase – in which the claimant will bring her evidence proving the guilt of the defendant, and the defense phase – during which the defense will bring evidence and testimonies that contradict the evidence of the claim. In most cases, the defendant’s testimony opens the defense phase.
At the end of the phases, the summaries of the claim will be heard, and then the defense.
After the summaries, a verdict will be given deciding whether the defendant is guilty or not.
If the defendant is acquitted, the criminal process will end.
If the defendant is convicted, the sides will argue for the punishment.
After the arguments for punishment, the defendant’s punishment will be decreed.
Within 45 days after the verdict, the parties are allowed to file a notice of appeal on the issue of conviction and/or on the issue of punishment to a higher legal authority.
Detention days
Detention for the purpose of an investigation or a ‘detention days’ is anchored in Section 13 of the Criminal Procedure Law (Enforcement Powers – Detentions), 1996 (hereinafter: the Detentions Law). For convenience, the full text of the law is as follows:
13. (A) A judge shall not order the arrest of a person unless he is convinced that there is reasonable suspicion that the person committed an offense, which is not a sin, and one of these defects exists:
(1) There is reasonable basis for fear that the release of the suspect or his non-arrest will lead to disruption of investigation or trial processes, evasion of investigation, judicial proceedings or execution of imprisonment, or will lead to disappearance of property, influence on witnesses or damage to evidence in another way;
(2) There is reasonable basis for fear that the suspect will endanger the safety of a person, public safety, or national security;
(3) The court is convinced, for special reasons to be recorded, that there is a need to take investigative steps that can only be taken when the suspect is under arrest; the court will not order an arrest for this reason for a period exceeding 5 days; if the court is convinced that it is impossible to carry out the investigation process within the said period, it may order an arrest for a longer period or extend it, provided that the total periods do not exceed 15 days.
The criminal process begins when a complaint is filed with the police by someone or when information is received by the police that someone has committed an offense. The information can be obtained in various ways such as; intelligence information, media coverage. When the information is received, the police will open an investigation.
However, in suspicion of committing an offense that is not a felony (the punishment specified by law is less than 3 years in prison), a police officer of the rank of sergeant and above may order not to investigate if the offense is not of public interest.
The Israeli Police, as the body investigating the offense and its circumstances, has a vast array of investigative actions (for example: interrogation, confrontation, identification procedures, surveillance and more). The investigation style and the use of various investigative means depends on the type of offense and the circumstances of its execution. Therefore, if you are summoned to the police, it is important that you consult without delay with an experienced and professional criminal lawyer, as your first version given at the police station will be decisive for the fate of the whole case.
If you do not have the opportunity to consult with a lawyer before the investigation, it is important that you know that you have the right to demand from the investigator to consult with a lawyer, you also have the right to remain silent.
It should be emphasized that you have the right to remain silent and the right to consult throughout the investigation (that is, you can decide in the middle of the investigation not to answer the investigators’ questions or to ask them to allow you to meet with your lawyer without delay).
After you present your version or in certain circumstances you avoid doing so, the officer in charge of the investigation will release you to your home, unless:
There is suspicion that you will not appear for further investigation.
There is suspicion that you will interfere with the investigation, either by hiding evidence or by influencing witnesses.
There is suspicion that your release will endanger the safety of a person, the safety of the public or the security of the state.
If you are suspected of one of the following:
An offense punishable by death or life imprisonment.
A security offense.
An offense under the Dangerous Drugs Ordinance, except for an offense relating to drug use or possession of drugs for personal use.
An offense committed with severe violence or cruelty or using a firearm or cold weapon.
Domestic violence.
You are released on bail, and there is a reasonable basis to believe that you have violated the terms of release.
There is a need to take investigative actions that can only be carried out when the suspect is in custody.
If a decision is made to arrest you, you must be brought before a judge within 24 hours (subject to exceptions).
If you are arrested for investigative purposes, the investigation is time-limited and supervised by the court. The court has the authority to detain you for a period of 15 days, and to extend the period by an additional 15 days. In any case, the court does not have the authority to order your detention for a period exceeding 30 days! (In very exceptional cases, usually in serious crime offenses, the detainee can be held in custody for up to 75 days, provided that the government’s legal advisor approves it).
At the end of the investigation, you will be released to your home, unless the prosecutor declares that an indictment will be filed against you and the court is convinced that there is a prima facie reason to request your detention until the end of the proceedings, the court may extend your detention for a period not exceeding 5 additional days.
During this period, an indictment will be filed against you in the competent court (an offense up to 7 years of imprisonment to the Magistrates’ Court and an offense over 7 years of imprisonment to the District Court, subject to exceptions), see detention until the end of the proceedings.
As mentioned, the Israeli Police have a wide range of investigative actions. The order, nature, and quantity of investigative actions change from investigation to investigation and depend on the development of the investigation, which is based, among other things, on your version (for example, adding details during an additional investigation or witnesses who were not mentioned in the first investigation, may pave the way for a request to extend your detention).
Therefore, it is important to hire a professional lawyer who will advise you on how to behave in the investigation in order to avoid arrest and minimize it to the necessary minimum.
Intersection measure
Detention until the end of proceedings is anchored in Section 21 of the Criminal Procedure Law (Enforcement Powers – Arrests), 1996 (hereinafter: the Arrest Law). For convenience, the section in its entirety is provided below:
21. (A) If an indictment has been filed, the court before which the indictment has been filed may order the arrest of the defendant until the end of the legal proceedings, if one of the following conditions is met:
(1) The court believes, based on the material submitted to it, that one of the following conditions exists:
(a) There is a reasonable basis to suspect that the release or non-arrest of the defendant will lead to the disruption of legal proceedings, evasion of trial processes or avoidance of imprisonment punishment, or will lead to property disappearance, influence on witnesses or damage to evidence in other ways;
(b) There is a reasonable basis to suspect that the defendant will endanger the safety of a person, public security, or national security;
(c) The defendant is charged with one of the following:
(1) An offense punishable by death or life imprisonment;
(2) A security offense as specified in section 35(b);
(3) An offense under the Dangerous Drugs Ordinance [New Version], 1973, except for an offense related to drug use or possession of drugs for personal use;
(4) An offense committed with severe violence or cruelty or using a cold or hot weapon;
(5) A family violence offense as defined in the Prevention of Family Violence Law, 1991,
unless the defendant proves otherwise.
(2) The court has ordered a bail and the bail was not given to the satisfaction of the court or a condition of the bail has been violated, or a cause for cancelling the bail release has occurred.
(B) The court shall not issue an arrest order under subsection (a) unless it is apparent, after hearing the parties, that there is prima facie evidence to prove guilt, and for the purpose of subsection (a)(1), the court shall not issue an order as aforesaid unless the following conditions are also met:
(1) The purpose of the arrest cannot be achieved by a bail release and release conditions that infringe on the defendant’s freedoms less;
(2) The defendant has a lawyer, or the defendant has announced his wish not to be represented by a lawyer.
(C) If the defendant had no lawyer and he did not announce as stated in subsection (b)(2), the court shall appoint a lawyer for him and for this matter the instructions of Chapter B of the Criminal Procedure Law [Combined Version], 1982 (hereinafter – the Criminal Procedure Law), or the instructions of the Public Defense Law, 1995 (hereinafter – the Public Defense Law), as relevant, shall apply; As long as no lawyer has been appointed, the court may order the defendant’s arrest for periods not exceeding 7 days each, provided that the total duration does not exceed 30 days.
(D) Notwithstanding the provisions of subsection (b), the court may, at the request of the defendant or his lawyer, postpone the hearing, to allow the defendant or his lawyer to review the investigation material and order the defendant’s arrest for a period not exceeding 30 days.
(E) An arrest order under this section shall remain in force until the verdict is given, unless the court has decided otherwise; The provisions of this section shall not apply to an arrest order.
The request for detention until the end of proceedings is filed after the investigation has been completed, along with the indictment.
The court is authorized to order the defendant’s arrest until the end of proceedings against him, provided that the following three cumulative conditions are met:
1. The existence of prima facie evidence (explained below).
2. The existence of a cause for arrest (explained below).
3. And there is no possibility to release the defendant alternatively (explained below).
Prima facie evidence – These are raw pieces of evidence collected in the investigation file that have the potential to lead to the defendant’s conviction. In other words, the court sitting on the bench in the state’s request for detention until the end of proceedings does not examine the quality (weight) of the evidence, but only their existence in the investigation file.
And in the language of the ruling:
“Even within the framework of prima facie evidence, the court must establish findings. These findings are prima facie, and their concern is not the actual evidentiary power hidden in the investigation material. Their concern is the potential evidentiary power hidden in the investigation material. Indeed, “prima facie evidence” always requires an assessment of the chances for future development, against the backdrop of the existing complex and its inherent problems. Therefore, the question that the judge needs to ask himself, with regard to this evidence, is whether the nature of the evidence – against the backdrop of the complex of evidence and the lens found at this stage – is such that there is a reasonable chance that this evidence will turn into regular evidence at the end of the criminal process, which on its basis, alone or in addition to other potential evidence, it will be possible to determine as required the defendant’s guilt. “Prima facie evidence for proving guilt” are therefore raw evidence for which there is a reasonable chance that their processing during the trial – by examining them in investigations, by determining credibility and weight – will lead to (regular) evidence that establishes the defendant’s guilt beyond a reasonable doubt. This achieves a proper balance between the conflicting social values. Indeed, it is not proper to arrest a defendant unless there is a reasonable chance that the existing evidence against him, after passing through the crucible of the criminal process, has the power to prove his guilt. If the investigation material does not fulfill this, it is not appropriate to deny the defendant’s freedom” (Criminal Appeal 8087/95 Shlomo Zada vs. State of Israel).
If there is no prima facie evidence, the court will not order the defendant’s arrest until the proceedings are completed.
After the court has established that there is prima facie evidence, it must examine whether there is a reason for arrest.
If there is no reason for arrest, the defendant will be released to his home.
Arrest reason – there are 3 reasons on which the court relies to order the arrest of the defendant until the end of the proceedings:
a. Disruption of judicial proceedings (influence on witnesses, disappearance of evidence).
b. Evasion of trial or enforcement of imprisonment.
c. Danger – when there is a reasonable basis for suspicion that the defendant will endanger the security of a person, public security, or state security.
For the purpose of the danger reason, a presumption has been established (the burden of persuasion on the defendant to prove that he is not dangerous) that if an indictment is filed in one of the following paragraphs, a reason for danger arises (statutory danger):
(1) An offense whose penalty is death or life imprisonment;
(2) A security offense as stated in Section 35(b);
(3) An offense according to the Dangerous Drugs Ordinance [New Version], 1973, except for an offense related to drug use or possession of a drug for personal use;
(4) An offense committed with severe violence or cruelty or using cold or hot weapons;
(5) Family violence offense as defined in the Prevention of Family Violence Law, 1991.
It has been determined in the ruling that as a rule, property offenses are not counted among the offenses that constitute the reason for danger, unless the offense is committed systematically, in a noticeable volume, or by an organization of several criminals, or by using special and sophisticated means (Criminal Appeal 5431/98 Frankel and others vs. State of Israel). In any case, each case is examined on its own.
If the court determines that there is prima facie evidence and there is a reason for arrest, still in accordance with the mandate of the legislator entrenched in Section 21(b)(1) of the Arrests Law, the court is obliged to examine whether it is possible to release the defendant as an alternative to arrest – on bail and release conditions that infringe on the defendant’s freedom less.
Only if the answer to this is negative, the court orders the defendant’s arrest until the end of the proceedings.
During the Interrogation
If you haven’t committed any crime, present your version without fear, clearly, answer all the investigators’ questions, and make sure your words are recorded.
If you have committed a crime, you have the right to remain silent (know that your silence has a price – that is, if you refuse to cooperate with the investigators, there is a high likelihood that you will be arrested, and your silence may strengthen the prosecution’s evidence).
Remember, you are not obliged to provide answers or explanations to the police (think long-term!), if you present an incriminating version, you might immediately be released to your home, but it could cost you dearly during the case management in court (conviction or imprisonment).
If you have an alibi (you were in a certain place or with a certain person during the alleged crime), it is important that you provide the names of the people or your location at the beginning of the investigation.
Do not sign your statement without reading it, and if the statement is inaccurate or does not correctly reflect your version, demand the investigator to add or correct the statement.
If you do not understand what is written in your statement – do not sign it!
Confrontation – if you haven’t committed any crime, agree to a confrontation and present your version to the other side. If you have committed a crime, you have the right to remain silent.
Do not believe the police’s promises (for example, confess to the charge and the judge will ease the punishment), as their goal is to extract a confession from you for committing the crime, which will almost exclusively be the basis for your conviction.
Remember, even your words that are not said during a formal investigation are documented and recorded, and when the day comes they will serve as evidence against you in court.
You have no friends in the police, there’s no good cop and bad cop, the cop’s goal is to get a confession out of you, and the investigators use various interrogation tactics for this.
Remember, even walls have ears, as part of the investigation procedures especially when it comes to multiple suspects, the investigators ‘accidentally’ or ‘absentmindedly’ leave the suspects together unsupervised. Know that at the police station or in a patrol car there are no coincidences, everything you say will be recorded by hidden cameras or voice recording and used as evidence against you in court.
If you are arrested and put in the detention cell, do not talk in the cell with anyone, as there is a high likelihood that it is a police plant.
