Indictment and Trial

Dismissal of an Indictment and Preliminary Arguments

An indictment is not the end of the story

Has an indictment been filed against you? The proceeding is only beginning, and before a single piece of evidence has been heard, the defense has tools at its disposal to attack the indictment itself. Section 149 of the Criminal Procedure Law lists a series of preliminary arguments that a defendant may raise, and their acceptance may lead to dismissal of the indictment, its amendment, or a stay of proceedings.

The main preliminary arguments

Lack of local or subject-matter jurisdiction; a defect or invalidity in the indictment; the facts described do not constitute an offense; prior acquittal or conviction for the same act (double jeopardy); expiration of the limitation period for the offense; immunity; absence of a lawful hearing, where the duty of notice and hearing under Section 60Aleph was not fulfilled; and defense of justice, the argument that the prosecution stands in substantial contradiction to principles of justice and legal fairness.

An additional route: application for dismissal by the prosecution

Alongside the arguments in court, it is possible to apply directly to the prosecuting authority with a request to withdraw the indictment, under Section 94 of the Criminal Procedure Law, based on new evidence, defects that were discovered, or personal circumstances. Such an application, when properly structured, ends cases without conducting a trial. A stay of proceedings by the Attorney General is also an existing avenue in suitable cases.

Timing is decisive

Preliminary arguments are generally raised at the beginning of the trial, and some of them are barred if not raised in time. The meaning is this: the preliminary examination of the indictment must be carried out immediately upon receiving it, not on the eve of the arraignment. Israel Arama, a former member of the Tel Aviv District Attorney's Office, examines every indictment through the eyes of someone who drafted indictments himself, and knows where they break. Contact us for advice immediately upon receiving the indictment.

Defense of justice

What is the doctrine of defense of justice?

Defense of justice, now anchored in Section 149(10) of the Criminal Procedure Law, allows the court to dismiss an indictment or cure defects in the proceeding when the prosecution or the conduct of the proceeding stands in substantial contradiction to principles of justice and legal fairness. This is the court's tool of review over the conduct of the enforcement authorities themselves.

When is the argument accepted?

The test established in the case law is three-stage: identifying the defects in the proceeding and their severity; examining whether conducting the proceeding despite the defects causes severe harm to the sense of justice; and balancing the interests, the gravity of the offense against the gravity of the defect, where the remedy may be dismissal of the charge, exclusion of evidence, or mitigation of the punishment. The recognized grounds are: selective enforcement (prosecution of one person while ignoring others in an identical situation); extreme delay in handling the case; a governmental promise that was breached; improper investigative conduct; and improper involvement of authorities in the commission of the offense.

A strong argument that requires a foundation

Defense of justice is not a slogan: the courts accept it sparingly, and only when it is supported by a solid factual foundation, comparative data for selective enforcement, a documented timeline for delay, and documentation of the promises and conduct. Building the foundation begins already at the investigation stage: preserving documents, documented requests, and demands for materials. A defense attorney who considers the argument from day one comes equipped with it; one who remembers it only in summations is too late.

Legal representation

Israel Arama, a former member of the Tel Aviv District Attorney's Office, identifies from the inside the patterns of conduct of the prosecuting authorities and knows when they cross the line that gives rise to a defense of justice. Contact us for an initial consultation without obligation.

Plea bargain

What is a plea bargain?

A plea bargain is an agreement between the prosecution and the defense under which the defendant admits agreed facts, usually amended and reduced, and in return the charges and the sentencing position are agreed: an agreed sentence, a sentencing range, or freedom to argue subject to a ceiling. Most criminal cases in Israel end in plea bargains, and the real question is not "if" but "when and on what terms".

The advantages and the risks

Advantages: certainty instead of a gamble; reduction of the indictment counts, sometimes from a felony to a misdemeanor, a change that affects the record and the entire future; shortening an exhausting and expensive proceeding; and opening the door to outcomes such as non-conviction and community service. Risks: an admission is almost irreversible; the court is not bound by the arrangement and may depart from it (although in such a case it will usually allow withdrawal of the admission); and an arrangement signed too early, before exhausting the examination of the evidence, may amount to waiving a case that could have been won.

A good plea bargain is born from a position of strength

The quality of the arrangement is derived directly from the quality of the defense: a prosecution that understands it is facing defense counsel who knows every weakness in the case, and is prepared to conduct a full trial, offers an entirely different arrangement than one facing a pressured defendant. Therefore, the right approach is the opposite of intuition: first build a defense case as if going all the way, and only then approach negotiations.

Legal representation in negotiations with the prosecution

Advocate Israel Arama, a former member of the Tel Aviv District Attorney's Office, conducted plea bargain negotiations from the prosecution side, and knows exactly what motivates prosecutors to be flexible, what their red lines are, and where there is real room to move. Contact us for an initial consultation with no obligation before agreeing to any proposal.

Private criminal complaint

What is a criminal complaint?

A private criminal complaint, under Section 68 of the Criminal Procedure Law, allows a private individual to conduct criminal proceedings himself against someone who harmed him, without the state. The complainant personally files a "private indictment" with the Magistrate's Court, and he, through his attorney, fulfills the role of the prosecutor: presents evidence, examines witnesses, and sums up. At the end of the proceeding, the defendant may be criminally convicted in every respect.

For which offenses can a complaint be filed?

Only for offenses listed in the Second Schedule to the Criminal Procedure Law, including: common assault, threats under certain circumstances, trespass, damage to property, defamation (the criminal publication offense), violation of privacy, harassment, and offenses under intellectual property laws. These are precisely the offenses that the police tend to close for "lack of public interest," and the complaint is the answer: when the state has chosen not to act, the injured party acts on his own.

A powerful tool, also as a means of pressure

A well-drafted complaint changes the balance of power in disputes: neighbors, online defamation, business and family disputes. The respondent faces the risk of a criminal conviction, and this often ripens into a settlement: an apology, compensation, and removal of publications. On the other hand, anyone against whom a complaint has been filed must treat it with full seriousness: this is a real criminal proceeding, and the prosecution is even authorized to take it over and conduct it itself.

Legal representation in complaint proceedings

Advocate Israel Arama, a former member of the Tel Aviv District Attorney's Office, drafts and conducts private criminal complaints for injured parties whom the system has turned its back on, and defends respondents against baseless complaints. Contact us for an initial consultation with no obligation.