At the same time, immediately after the "bargaining" stage, when defendant 2 began to tell about the incident, and it can be seen that although he placed the blame on defendant 1, he connected himself in a certain way to the murder, both in his awareness of defendant 1's planning and in his involvement in towing the deceased into the car (ibid., at pp. 3-5); The investigators should have stopped the interrogation and warned defendant 2 on suspicion of murder, This was unfortunately not done, and no reasonable explanation was given for it. Moreover, even after these remarks, the investigators continued to question Defendant 2, the Commander of the Intelligence Unit continued to try to persuade him to give a version, and despite Defendant 2's vague version at this stage, in which he tried to distance himself from responsibility for the murder of the deceased (ibid., at pp. 6-12), the Commander of the Intelligence Unit himself told him that "according to what you tell me... You were a full partner" (pp. 11, paras. 19-20, and similar things were said later). Nevertheless, as noted, at no stage in the interrogation did the commander of the Intelligence Unit and Investigator Malichi warn Defendant 2 or make him aware of his rights.
As emphasized by counsel for defendant 2, his arguments for the inadmissibility of defendant 2's statements are based on the doctrine of judicial invalidity outlined in criminal appeal 5121/98 Issacharov v. Chief Military Prosecutor et al. [published in Nevo] (May 4, 2006) (hereinafter: the Issacharov ruling); when it was alleged that defendant 2's right to counsel was violated and that various tricks were used against him during the interrogation, including promises that he would be released from detention if he gave an incriminating version against defendant 1.
In the Issacharov ruling, a doctrine of relative inadmissibility was established, according to which the court will decide the question of the admissibility of evidence obtained illegally in accordance with the circumstances brought before it and at its discretion. It was held that the court may determine that evidence is inadmissible when two cumulative conditions are met: first, that the evidence was obtained unlawfully, i.e., by means of interrogation that are contrary to the law or binding procedure, by unfair means, or by means that unlawfully violate a protected fundamental right; The second is that the admission of evidence at trial will cause a real violation of the defendant's right to a fair trial, for an improper purpose, and to an extent that exceeds what is required. It was also held that in order to decide the second question, the court must examine the circumstances of the case according to a variety of considerations, which can be divided into three main groups: the nature and severity of the illegality or improper conduct of the enforcement authorities, which led to the obtainment of the evidence; the extent to which the improper means have an effect on the evidence obtained; and the harm versus the social benefit involved in the invalidation of the evidence.