Justice Minister Ayelet Shaked is planning to submit an amendment to the Law of Breach of Trust and Fraud, for consideration by the ministerial legislative committee next Sunday. According to Shaked, “the bill draws a clearer line dividing between actions constituting a criminal violation and actions that are only a disciplinary issue, for the sake of all levels of the public interest.”
Although the work on the amendment has been going on for six years now, it is being submitted against the background of several cases of disgraced senior public servants attracting much public attention: former Prime Minister Ehud Olmert who is challenging his prison term this week; and MK Aryeh Deri who had been ousted in disgrace from his Interior Ministry post 20 some years ago only to retake it this month.
The amendment is to Section 284 of the Penal Code, 1977/5737, which currently defines breach of trust and fraud as “a public servant who commits, as part of his work, fraud or breach of trust which harms the public, even if such an act would not have constituted a violation had it been committed against an individual.” Such a person will be sentenced to three years’ imprisonment.
According to Shaked, the current language of the law does not define clearly enough the boundaries of the violation, so that one of the most crucial elements of criminal law, designed to fight against corruption in the public domain, is too dim to be applied effectively. Over the years, Shaked argues, this lack of clarity has led to a situation whereby it is no longer certain what constitutes an unacceptable act by a government official.
The new legislation changes the definition of a criminal violation by a public servant as follows:
1. Action taken in connection with carrying out his duty or through using his position as a public servant with a conflict of interests, which affects or may affect the personal interest of the public servant or his relative.
2. Receiving a benefit by the public servant or his relative which was awarded him based on his public service position, with the exception of a benefit which is legally allowable.
3. Use of inside information which the public servant received as part of his position or while carrying out his tasks, including the transfer of information in order to derive a benefit for the public servant or his relative.
“Inside information” is defined as information that has not been made public and not yet intended to be publicized, whose content, shape, origin, circumstances of obtainment, or protocol of possession attest to the duty to keep it secret, even when it is going to be publicized eventually.
4. Misrepresentation before a government authority or another public entity fulfilling a legal public function, or their representatives, or delivering a false report to a public entity, including concealing for the purpose of deception essential information which should have been revealed under the circumstances, all in connection with carrying out his duty or through use of his status when it could influence the considerations of the public entity in carrying out its task.
5. Misrepresentation or offering false information as part of the public servant’s function to a person who isn’t a public servant requiring the former’s services as public servant, all of it in a manner which may affect a person’s rights, including concealing essential information which under the circumstances should have been revealed, in order to deceive.
6. Action undertaken in connection with fulfilling his duty or through use of his status, in a serious, systematic or ongoing exception from a binding law or regulation, which caused an essential damage to the public interest with which he is entrusted.