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Israel: Pre-Indictment Plea Bargains Allowed

(Aug. 23, 2012) On July 25, 2012, the Knesset (Israel's parliament) passed an amendment to the Criminal Procedure [Consolidated Version] Law, 5742-1982. The amendment provides the prosecution an additional way to proceed in a criminal case where it finds sufficient evidence to prove a suspect's guilt, but prefers not to indict as this is not in the public's interest, either based on the extent of resources that are needed for conviction or because of the inappropriateness of criminal sanctions under the circumstances.

Whereas prior to the amendment the only options available to the prosecution were either to indict the suspect or to close the file, the amendment provides a third option, namely the possibility of the prosecutor reaching an agreement with the suspect whereby the suspect confesses in exchange for the prosecution's commitment to refrain from indicting the suspect and for closing the criminal file (hereafter “pre-indictment plea bargain agreement”).

According to the amendment, the prosecutor may offer a suspect a pre-indictment plea bargain agreement in cases that involve less serious offenses or offenses committed under mitigating circumstances, when the suspect does not have a criminal record for the preceding five years. In determining the conditions that should be included in the agreement, the prosecutor must consider the rules that are applicable to judicial considerations for the imposition of penalties. The prosecutor must not enter an agreement if (s)he believes that the appropriate penalty in the case against the suspect should include imprisonment.

The amendment lists several conditions that may be included in the agreement, such as the suspect's consent to provide compensation to the victim and to the state, commitment to avoid any criminal activity and to comply with a treatment program, and a promise to pay restitution.

In order to guarantee transparency, the amendment requires advertising of the closing of the file based on the agreement, of information regarding the offense and related circumstances, of a description of the facts to which the suspect confessed, and of a list of the legal provisions applicable to the case as well as the conditions that were included in the agreement. The information has to be posted on the prosecution's website without identifying either the suspect or the victim of the crime. The amendment further requires that a report on the number of cases closed based on pre-indictment plea bargain agreements be prepared and submitted by the Ministers for Homeland Security, of Police and of Justice to the Knesset Committee of Constitution Law and Legislation an annual basis. (Criminal Procedure (Amendment No. 66) 5772-2012 & Draft Bill Criminal Procedure (Amendment No. 61) (Conditional Arrangement forClosing a File) 5769-2008, Knesset website [both in Hebrew] (both last visited August 23, 2012).)