May 18 2011 Use of employees' testimony in internal proceedings in criminal proceedings S Horowitz & Co | Employment & Immigration - Israel Employment & Immigration Eight people were killed and a number of others injured in two train accidents. Both the police and the train authority initiated an investigation. For this purpose, the train authority formed an internal investigative committee to uncover the reasons for the accidents and to take measures to prevent any future recurrence. The train authority required its employees to testify before the investigative committee. Refusal to do so was regarded as a disciplinary breach. The train authority promised the employees that their testimonies would be kept confidential. It did not warn them that their testimonies may be used against them in criminal proceedings and did not inform them of their right to legal representation.The employees testified. The police requested discovery of the transcripts of the internal proceedings for investigative purposes, and to assist in reaching a decision on whether to recommend the filing of indictments. The train authority objected. The police filed a motion to the court to oblige the train authority to discover the transcripts, evoking a statutory provision authorising the police to take various measures for the purpose of its investigations and its decision on whether to recommend filing an indictment. Three judicial instances deliberated the question of whether to order the court authority to discover the transcripts.In the meantime, without having first reviewed the transcripts, the public prosecution decided to file indictments against the train authority and several of the employees. The Supreme Court decided against discovery of the transcripts. The court balanced the following competing legitimate interests: the interests of the employees who testified before the internal investigative committee after having been required to do so by the train authority, who had promised that their testimonies would be kept confidential, and who are now facing criminal proceedings; the interests of the train authority; and the public interest in: upholding the promise to the employees; uncovering the reasons for the accidents and taking measures to prevent recurrence; punishing those responsible; and compensating those injured. These interests reflect principles and rights which in some cases are constitutional.In its decision against ordering discovery of the transcripts, the Supreme Court gave precedence to the employees' constitutional right to due criminal process and to the principle of purity and fairness of the criminal proceedings, which would be injured should discovery be ordered. The court also gave weight to the importance of conducting internal investigative proceedings and to the probability that disclosing the transcripts would deter employees from cooperating with internal investigative proceedings.As the police and public prosecution were able decide on whether to file the indictments without having first reviewed the transcripts, the court reasoned that non-disclosure of transcripts was not essential to the criminal proceedings in this case. Interestingly, the decision was not based on the right against self-incrimination, which did not apply in this case because: such right is a personal right, whereas the discovery order was directed against the train authority, which waived its own right against self-incrimination; such right does not necessarily extend to an internal investigation which is not part of an official investigation; and the public prosecution declared that the testimonies would be used only for the investigation and not as evidence in the criminal trial. However, the court emphasised that the right to due criminal process and the principle of purity and fairness of the criminal proceedings have broader application, and that they warranted barring discovery in the specific circumstances of the case, even in the absence of any injury to the concrete right against self-incrimination. The court also emphasised that the ruling in this case was the result of a balancing of interests, which must be made in each case according to its specific circumstances.(1)For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email ([email protected]).Endnotes(1) Shemesh Meir v The State of Israel, Criminal Appeal Permission 851/09.