Breach of Trust by Public and Elected Official Should it be a Criminal Offence?

By: Miriam Gur-Arye

Associate Professor, Faculty of Law, Hebrew University
Judge Basil Wunsh Chair in Criminal Law


 



The aim of this paper is to show that the offence of breach of trust, as defined in
section 284 of the Penal Code 1977, should not be a part of the Israeli criminal law. Three main arguments are elaborated to support this claim.
First the offence of breach of trust is broadly defined. Instead of narrowing the offence by way of interpretation, the courts gave broad meaning to its terms. Therefore, the offence, as interpreted in Israeli criminal law, contradicts the principle of legality, which requires fair warning.
Secondly applying the offence of breach of trust in the political arena as was suggested with regard the attempt to appoint Mr. Roni Baron as Attorney General might damage democratic processes, which include various political tools for breach of trust. It is up to the Knesset members and not the criminal law - to deal with breach of trust by government official including the Prime Minster; the public at large can express its lack of trust in political parties through elections; the State Ombudsman is authorized to bring to the attention of the public improper behavior of public institutions.
Thirdly abolishing the offence of breach of trust will not have a fundamental practical affect. In many cases breach of trust is included in the charge only as a secondary offence, attached to other offences such as fraud, bribery etc. Even in cases where breach of trust is the only offence which the accused is convicted of, the conviction can often rest on other offences.