Case Number
CrimA 71/83
Date Decided
6-27-1984
Decision Type
Appellate
Document Type
Full Opinion
Abstract
The Appellants in the appeal and cross appeal of the judgment given by the Magistrate's Court were convicted for conspiracy to commit a felony pursuant to section 499 of the Penal Law, 5737-1977, and for election bribery under section 122(1) of the Knesset Election Law [Consolidated Version], 5729-1969. This followed a campaign for election to the Knesset whereby their faction included a promise to provide housing at low rental and on convenient terms in apartments which Appellant No. 1 would purchase with his own funds and with funds of investors over whom he enjoyed personal influence. It was also held that the Appellants' list paid numerous activists remuneration on election day for work that was not in fact performed. On the other hand, the Appellants were acquitted of similar offences attributed to them in connection with dispensing funds to certain public and community leaders in order that those persons would then exercise their influence over their followers, and with providing funds to a list vying for election to a local municipality in exchange for influencing its followers to vote for the Appellants' Knesset List. From this follow the appeal and cross appeal to the Supreme Court.
The Supreme Court gave judgment as follows:
A. The essence of a free election is not merely physical freedom to cast one's ballot in the booth, but more importantly, one's absolute intellectual and psychological freedom to participate in the election process. Any action that either restricts or denies the voter's freedom of thought or expression be it by bestowing upon him a benefit or by coercing him to accept the views of another violates the basic principle of honest, independent elections. [p. 758]
B. (1) An offence under section 122(1) of the Knesset Election Law requires proof that a bribe was given or offered, with the intent of influencing the voter.
(2) Section 123 of the Knesset Election Law adopts for purposes of bribery the principles established under section 293 of the Penal Law, mutatis mutandis.
C. (1) To prove the elements of bribery under the Penal Law, the State must establish beyond reasonable doubt: that a public servant is involved; that there was the taking or giving of a benefit in the form of a bribe; that the giving or taking was in exchange for a certain activity which itself was connected to the employee's duties; and that the giving or taking of the bribe was done with the intent of obtaining some material benefit, either immediately or at an appropriate time in the future.
(2) In viewing the facts in their entirety, attention should be paid not only to the facts as they appear on the surface, but also to the entire fabric of relations between the giver and the taker, as well as the explicit and implicit intent of the actors. The intent of the legislator with respect to the norm that he intended to achieve must be considered vis a vis what the giver and taker of the benefit sought to accomplish by their acts.
D. There is no requirement of mutuality of intent between the giver and the taker of a bribe. In principle, there is nothing to prevent a situation whereby the giver is innocent while the taker is guilty, or vice versa.
E. The offence of campaign bribery under section 122(1) of the Knesset Law lies in the very act that an offer is made.
F. (1) An error attributable to the legal interpretation of a norm is not a defence under section 12 of the Penal Law.
(2) The fact that criminal acts committed in the past went unpunished does not sanction the commission of such acts now or in the future.
(3) Mistake in a legal norm or unpunished acts in the past may be raised, if at all, in connection with the severity of the punishment meted out by claiming that the absence of clear precedents or guide-lines left the campaign activists unaware of the full significance of their conduct.
G. (1) Whether a certain platform is legal or not depends upon an examination of the particular facts, the explicit and implicit contents of the platform, and the manner of its presentation to the public.
(2) A platform proposing a solution to the problem of housing is legal; however, if the platform contains not only a plan of action, but also a promise to certain voters that if they vote for a specific candidate, they will obtain housing on attractive terms, it is illicit and tainted by election bribery. [p. 759]
H. (1) While acts of charity by candidates should not be forbidden, they should be done discreetly.
(2) Because acts of charity or the dispensing of favours close to an election could serve as a camouflage for bribery of voters, the true intent of the person dispensing the favour should be closely examined.
(3) If the motive is genuine, then the intent is proper. If, however, the purpose is to garner votes on election day, then the intent is illegal.
(4) If both motives are present, the intent that actually guided the actor is the determinative one.
(5) In examining intent, one may be assisted by precedent and by logic.
I. (1) In examining the organizational and publicity aspects of a campaign, one starts from the fact that the use of paid election activists is not illegal.
(2) However, if the activist has no real function to perform in the campaign, and the only reason for his salary is to influence him and his family to vote for a certain candidate, the payment is tainted by election bribery and he who makes such a payment has committed election bribery under the Knesset Election Law.
(3) One should carefully examine the circumstances under which a worker purports to be engaged in organizational activities in exchange for payment.
J. Pseudo-employment is characterized by the following: general apathy on the part of the candidate regarding what the employee will do; the lack of a genuine need for the services of the employee either in whole or in part; employing workers out of all proportion to the number of voters in the locale; and lack of proportion between what the worker does and the amount of his remuneration, and between the number of voters in an area and the amount of money expended in hiring campaign workers there.
K. There is nothing illegal in community or public leaders identifying with a certain candidate in seeking to promote his candidacy by appealing to their followers. However, while such an alliance is proper if based on an affinity of idea or position, it is illegal if based on direct payment to the leaders in exchange for their support and the support of their followers. [p. 760]
L. That the recipient of a payment was not a person of influence is irrelevant if the person giving the payment intended that the recipient exercise his authority over his followers.
M. (1) As in the case of employing campaign workers, dispensing a favour for both pure as well as corrupt purposes is also considered an election bribe.
(2) In examining intent, one must consider whether bona fide campaign activity was the primary consideration received in exchange for the payment, or whether the payment was given in order to secure the vote of that person as well as those subject to his influence. If the latter is the case, then the payment is an election bribe.
N. (1) Mutual assistance between two parties or movements is proper so long as the alliance is based on an affinity of ideas or personalities. However, if the assistance of one party to another has an ulterior motive, such as monetary help or a deal to buy the influence of one party on behalf of another, then the alliance may be illegal because it is intended to dispense a favour in exchange for obtaining influence over potential voters.
(2) The principles established in connection with buying the influence of leaders applies in even greater force to an alliance between two parties.
O. Section 123(2) of the Knesset Election Law forbidding the giving of a bribe to influence the conduct of a third party does not depend upon how much influence is wielded. Buying influence of any degree is forbidden, and the influence bought need not necessarily be of one, the supposed benefactor, whose command is obeyed blindly by a certain group.
P. The Knesset Election Law does not recognize vicarious liability for offences committed by a list's activists. Therefore, the leadership of a list can be held liable only if the acts were committed at their initiative, approval or assistance.
Keywords
Criminal Law -- Conviction, Criminal Law -- Criminal Procedure, Criminal Law -- Offenses
