Conditional dismissal as an alternative to the traditional criminal proceedings in Israel
| Author | Efrat Shoham,Eitan Nicotra |
| DOI | http://doi.org/10.1177/17488958211004670 |
| Published date | 01 November 2022 |
| Date | 01 November 2022 |
| Subject Matter | Articles |
https://doi.org/10.1177/17488958211004670
Criminology & Criminal Justice
2022, Vol. 22(5) 694 –713
© The Author(s) 2021
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DOI: 10.1177/17488958211004670
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Conditional dismissal
as an alternative to the
traditional criminal
proceedings in Israel
Efrat Shoham and Eitan Nicotra
Ashkelon Academic College, Israel
Abstract
The overloaded court system, along with the increasing recognition of the harm inflicted upon
offenders by the criminal court procedure, led, in 2013, to the enactment of a new criminal-
administrative procedure, termed “conditional dismissals,” which diverts minor offenses from
the courts to be settled by prosecution authorities. This preliminary study examines the profile
of 1750 cases of conditional dismissals concluded by district attorneys and police prosecution
division between 2016 and 2018 and whether some notions of the “restorative justice” model
were implemented. The findings indicate that both district attorneys and police prosecution
division had initial difficulties in implementing the notion of diverting cases from the criminal
court process. Over half of the cases in both agencies were for bodily injury and property
offenses. There is a significant difference regarding the majority of the dismissal terms between
the district attorneys and the police prosecution division. The results further indicate that
4.5% of all dismissals contained only restorative stipulations (especially in sex offenses), and
one-third contained restorative stipulations along with punitive stipulations. The findings also
show that the district attorneys are more inclined to use restorative terms, while the police
prosecution division is more inclined to use punitive terms. The article discusses the possible
explanations for these findings and the significant differences in the application of restorative
practice between the police prosecution division and the district attorneys.
Keywords
Conditional dismissal, crimes of poverty, diversionary programs, minor offenses, restorative
justice
Corresponding author:
Eitan Nicotra, Department of Criminology, Forensic Laboratory, Ashkelon Academic College, 12 Yitzhak
Ben Tzvi Street, Ashkelon, 78211, Israel.
Email: enicotra@gmail.com
1004670CRJ0010.1177/17488958211004670Criminology & Criminal JusticeShoham and Nicotra
research-article2021
Article
Shoham and Nicotra 695
Introduction
On June 2013, Amendment No. 66 to the Criminal Procedure Law came into effect
(Criminal Procedure Act (Amendment 61), 2008), which included a new legal procedure
known as a “conditional dismissal” (the wording in the law is “Closing a Case by
Dismissal”). The primary purpose of the amendment is to enrich the “toolbox” available to
the prosecution by adding a new procedure, which fills the legal gap between filing crimi-
nal charges and closing a case for lack of public interest. This new procedure was intended
to be both a proportional and an appropriate alternative in cases of minor offenses by which
the offender will have legal liability without having a criminal conviction and the stigma it
brings. Since 2013, several amendments and supplements have been added to the statute
relating to conditional dismissals.
The conditional dismissal procedure follows the principle of parsimony in criminal
law. According to this principle, criminal proceedings are intended to be the last resort
of society for treating criminal offenses because it involves a significant violation of
the constitutional rights of suspects and defendants and creates a ripple effect that
harms them, their families, and their communities of origin (Public Defender, 2019).
Conditional dismissals are currently used in Israel in cases of minor offenses, that is,
infractions and misdemeanors in which the penalty does not exceed 3 years’ imprison-
ment, committed under mitigating circumstances. There are three prerequisites for a
conditional dismissal: the appropriate punishment for the offense is not imprisonment;
the suspect has no criminal investigation, conviction, or record (in the previous 5 years);
and there is sufficient evidence to convict. Additional requirements are the consent of
the suspect to take responsibility for his or her wrongdoing and fulfilling punitive obli-
gations such as compensation to the victim and the state, refraining from offending,
community service (CS), a probationary period, as well as non-punitive conditions,
such as participation in a therapy program, reform and rehabilitation, compensating the
damage, restoring the situation (e.g., a letter of apology, forfeiture or destruction of an
object, return or repair of an object, the return of profits), and avoiding repeating the
offenses named in the dismissal. Other stipulations can include revoking a driver’s
license, depositing firearms, undertaking a commitment to avoid a particular place or
associate with a specific person, a commitment to resign or not to serve in a specific
position, or consent to indictment and punishment in a disciplinary proceeding, and all
of these for a period not to exceed 1 year (Gazal-Ayal, 2016a).
Prosecution authorities will use a conditional dismissal for offenses where the cir-
cumstances as a whole (personal circumstances, the circumstances concerning the
offense, the outcome of the offense, the conduct of the suspect afterward, and other miti-
gating circumstances) “qualify for non-prosecution in light of having a dismissal agree-
ment and fulfilling its conditions” (Directive of the Attorney-General, 2019).
If the suspect complies with all the terms of the dismissal agreed upon, the criminal
case will be closed without indictment. This outcome gives rise to the term “conditional
dismissal.” The suspect will not have a criminal record of conviction, but it will be noted
that the case was closed due to “closure by dismissal.” In the event that the suspect does
not consent to the terms offered or does not comply with these terms, the prosecution
authorities must file charges.
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