On video: The Zadorov trial (Studio - Neidat Contact, News - Court spokespersons, Yes - Shlomi Gabai)
The case of the murder of the late Tair Rada from 2016 fascinated the entire country. In recent years, the media and social networks have been a platform for the dissemination of information, articles and various speculations regarding the degree of responsibility of the accused in the murder of Roman Zdorov, who was acquitted this morning in the district court in Nazareth. Zdorov stayed for about 15 years in prison, and now the question arises of the compensation he may receive from the state.
A defendant who is acquitted of a criminal offense often suffers many damages due to his imprisonment and/or arrest, financial damages, loss of earning time (during the arrest and trial), mental anguish and mental damages, damage to his good name, legal expenses etc. All these are added to the mark of guilt and the shadow of suspicion that hangs over his head even after the acquittal.
This is how Aharon Barak, during his tenure as President of the Supreme Court, described the consequences of the criminal process for the accused: "A person's becoming a criminal defendant changes his life. It has weighty consequences and many consequences for all areas of his life. The 'status' of a defendant is difficult for a person. With the filing of the indictment, his world changes. The mental and social equilibrium he enjoys is shaken. He is subject to new risks. He is socially harmed. He is financially harmed. His days and nights are not the same as the day before yesterday."
He has a long road to mental and financial rehabilitation ahead of him.
Zadorov after the acquittal (Photo: Reuven Castro)
In such a case, the winner will be allowed to take two routes:
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Compensation under Article 80 of the Penal Code:
This is a section intended for exceptional cases in which the court may order compensation and indemnification from the state coffers for an accused who is acquitted of a crime, for arrest, imprisonment or for defense expenses.
Section 80 is an expression of a balance between the interest of a defendant who has been unjustly prosecuted and then the state must bear the costs of the defense required to be spent in his trial and the public interest that the state not shy away from prosecuting criminals.
These compensations will be given only in the presence of certain conditions.
A threshold condition for the activation of the section is that the accused be acquitted by the court.
In this case, it is necessary to examine how the investigation in his case was conducted, whether he was justly prosecuted considering the investigation material that was in the state's possession, the court must examine whether the procedure against the accused was conducted properly and fairly.
The mere acquittal of a person is not necessarily evidence that the police and the prosecution did not act with due care, and therefore, not every person who is acquitted will be awarded compensation based on that section of the law.
In addition to the aforementioned, there may be cases in which, even if the filing of the indictment is not found to be invalid based on the evidence collected, still,
The court may order the payment of compensation for reasons of justice.
This is a general and broad reason that also includes additional considerations that are not necessarily related to invalidity in the legal process.
Compensation due to the tort of negligence
- Section 35 of the Torts Ordinance: The claimant must be entitled to receive compensation based on the tort of negligence, to convince that there was negligence in prosecuting him and filing the indictment and conducting the legal proceedings in his case.
In such a case, an argument that can lead to compensation is one of the following options - the procedure was not conducted in a fair or proper manner;
The prosecution did not have enough good, reliable or sufficient evidence to prosecute;
Dover was in a negligent investigation and more.
It will be emphasized that it is not enough for a person to be acquitted of a crime to show that the prosecution and the investigating authorities were negligent.
What compensation is acceptable to award?
As part of the criminal procedure, it is acceptable to award punitive damages according to section 80. For this matter, the regulations for compensation due to arrest or imprisonment, from 1982, specify the maximum amounts for the purpose of awarding compensation or awarding expenses.
Section 8(a) discusses the maximum amount for the purpose of awarding compensation and states: "The maximum amount of compensation for a day of arrest or imprisonment is the 25th part of the average monthly wage in the economy on the day of the court's decision regarding compensation", meaning, NIS 472 per day as of today.
In addition, the addendum to the regulations discusses the maximum amounts for the payment of defense expenses, depending on the court hearing the case - the Magistrate, District or Supreme Court and the amounts range from NIS 700 to NIS 4,500. In addition to compensation in the criminal proceedings, the victim can
claim additional compensation in a civil proceeding for his various damages. Admittedly, the amounts do not always cover the full amount of damage, but sometimes it is extremely high amounts that can reach millions of shekels.
The most famous case.
Amos Burns (Photo: Reuven Castro)
The case of the late
Amos Burns
is one of the famous cases that happened in Israel. Amos Burns was convicted of murdering the late soldier Rachel Heller in 1974 and was sentenced to life imprisonment.
After his conviction, he filed an appeal to the Supreme Court, which adopted the rulings of the district court.
His request for further discussion of his case was rejected.
Two years later, he submitted a request for a retrial, claiming that his confession was forced on him by non-kosher means and there is no truth in it.
This request of his was rejected as well as other requests he submitted afterwards.
His fourth request for a retrial was accepted and in 2002, due to the decision of the prosecutor's office not to file a retrial, he was acquitted.
In a tort claim he filed against the investigators and against the State of Israel, he was awarded damages in the amount of approximately 5 million shekels for his lengthy imprisonment (8.5 years), the criminal mark stamped on him, loss of earning capacity and court costs.
The case of
Salem Abdelkader
Less well known, but no less heartbreaking.
An indictment was filed against him for committing an indecent act.
He was in prison for 185 days, under house arrest for 5.5 years and was finally convicted and served a six-month prison sentence.
After several years, new evidence was discovered, which led to a retrial.
In the retrial, Abdelkader was acquitted. After about a decade had passed since he was first arrested, after his acquittal, damages in the amount of approximately 600,000 shekels were awarded in his favor.
Another case, also known, the Harari case or by its other name:
the
M.A.T. The four, that their testimonies were extracted using force and falsifying evidence. The prosecution retracted the charges and following the aforementioned, the four sued the state for serving their sentence unnecessarily. After acquittals, the four were awarded compensation in the total amount of approximately NIS 12 million.
Michael Chernoi and Gad Zaevi
were prosecuted in 2004 for the offenses of receiving something fraudulently under aggravating circumstances and offenses under the Law on the Prohibition of Money Laundering.
The case was conducted for about 12 years, in which the district court's verdict was given, in which the two were acquitted of any guilt.
In 2016, they submitted requests to award them expenses for managing the procedure.
Although the two estimated their expenses to be about NIS 20 million, each of them was awarded compensation in the amount of NIS 308,000.
minimal compensation.
Michael Chernoy (Photo: Uri Lentz)
Adv. Elisher Feingrish (Photo: Yachats)
Our office handled the tort claim filed against the state after the resounding acquittal of Chen Eilat, who was acquitted of the murder of his mother, in which he received compensation of about half a million shekels for the period of detention in which he was held for about 11 months.
Moshe Sheetrit was acquitted beyond reasonable doubt of the crime of indecent act, after the court found various contradictions in the testimonies.
Moshe filed a tort claim for negligence, which was rejected.
In addition to the aforementioned, the court accepted his claim and according to which he should be awarded damages according to section 80 of the Penal Code, by virtue of the general ground - compensation due to reasons of justice, for a part of his detention period, and awarded him NIS 430 for each day of detention.
Of all these, it can be said that in Zadorov's case it seems that the last word has not been said.
The legal proceedings in his case have been going on for many years, of which he spent a long period of time in detention, he was in prison for about 15 years and was kept under house arrest for the last year and a half.
Therefore, if he chooses to file a compensation claim, it is not impossible that he will receive compensation in a considerable and significant amount.
But it must be remembered that a short time ago he was acquitted of the charge due to doubt.
As of this writing, it is difficult to predict whether this is a final determination since the prosecution may file an appeal to the Supreme Court against his acquittal.
One way or another, if the acquittal decision is upheld, Zadorov may file a claim for compensation, and if it is determined that he meets the legal conditions listed above, he will be entitled to a considerable and significant amount of compensation.
The author is an attorney in the field of torts at the law firm Markman Tomshin & Co. The article was written with the assistance of specialist Hadar Morton Boazi.
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Roman Zdorov