Selective enforcement - It was argued that the filing of the indictment lacks selective enforcement against Fischer. This is in comparison to Malka regarding the money laundering offenses (which were removed from the indictment against Fisher only as part of the plea bargain) and the charge of "night meeting" (which remained in the amended indictment for which Fisher was convicted); and in comparison to the other interrogees in the case (Zohar Buchan, Limor Buchan, Yaron Be'eri and Ilanit Be'eri) who were not prosecuted, and some of them were not even interrogated with a warning, despite the fact that in their interrogations at the Department for the Investigation of Police, criminal content was leveled at them regarding offenses similar to those of which Fisher was charged.
Contradiction of the Presumption of Administrative Integrity - The series of deficiencies in the conduct of the investigation and the proceeding, the revelations of which intensified as the trial progressed, led to the court's decisions and determinations during the hearings according to which the presumption of administrative integrity was concealed and no longer stood to the right of the accuser in this case.
According to the defense, the cumulative mass of these arguments for protection from justice is unprecedented in its severity, and if it were not for the plea bargain, it would have justified the cancellation of the indictment in its entirety. Since the plea bargain does not allow for this, it is necessary to climb one step towards maximum consideration of the misconduct of the law enforcement authorities within the limits of the sentence that will be imposed on Fischer. The response to the profound harm of this behavior to the sense of justice and fairness must therefore be expressed in sufficiency with forward-looking punishment and the avoidance of any real punishment.
- Adv. Perry listed additional reasons that justify this punitive outcome. In his opinion, the extreme gap between the indictment in which Fisher was accused and the indictment for which he was convicted is joined by the prolongation of the proceedings over more than ten years for reasons rooted in the conduct of the investigating and prosecution authorities, and when the accuser confirmed in her arguments that the prolongation of the proceeding should not be attributed to the duty of defense. The pressure and fear with which Fischer and his family were subjected during all those years, while the sword of judgment was turned over his head, constitute a legal torture that in itself justifies, according to the ruling, a real reduction in the sentence. This is even before taking into account the fact that Fischer's life during these years was ruined, and he was left without the possibility of practicing the only two professions known to him: law and journalism, given that his lawyer's license had already been suspended in 2014 and that working as a journalist had no feasibility in the atmosphere that was created, as was also evident in the evidence for the sentence.
- Moreover, in the first years of the proceedings, Fischer suffered not only from the destruction of his reputation and the collapse of his life and the life of his family, but also from the restriction of his personal freedom. He was held behind bars (first for days and then for 72 days, from April 29, 2015, until the Supreme Court's decision on July 9, 2015, to transfer him to detention in electronic handcuffs. His detention in electronic handcuffs lasted for more than two years, from July 12, 2015, until August 9, 2017, which he first served at his mother-in-law's home and later at his own home. For all those 25 months, Fischer was prevented from leaving the house, and he was not allowed to go to work or to go to work, but only to go to the doctors, to court hearings and to meetings with his lawyers. The 'ventilation windows' were approved for the first time in the Supreme Court's decision of August 8, 2017, according to which he was released from detention under electronic supervision to full house arrest with the option of leaving the house between 10:00 and 14:00 on weekdays, and on Saturdays between 10:00 and 18:00. Over time, his hours of leaving the house were extended; On March 22, 2018, the house arrest was reduced to night hours only; And on April 26, 2018, the night house arrest was also lifted.
Attorney Peri argued that there is no known case in which a defendant accused of white-collar offenses was held in electronic handcuffs without "ventilation windows" for more than two years. He was puzzled that the accuser's arguments for the sentence did not mention Fischer's long period of detention at all and did not take this fact into account when presenting the punitive result that the accuser requested of 18 months in prison. In any case, he argues, such a significant period of detention under electronic supervision, which is combined with two and a half months of detention behind bars, constitutes according to the case law a significant consideration for reducing the sentence. All the more so in the present case, in which there is no proportion between the few offenses for which Fischer was eventually convicted and the multiple and serious offenses for which it was decided to detain him for an extended and unprecedented period of more than 27 months due to his indictment. In these circumstances, it was argued, the period of detention should be seen as a central part of the sentence that Fischer had already served, and accordingly the additional sentence that will be imposed on him should be reduced to a minimum in the manner of avoiding additional actual punishment.
- From here, Adv. Perry moved on to the circumstances related to the commission of the offenses of which Fisher was convicted. According to him, there are extenuating circumstances in the charge of the "Yair Biton affair" and the "Alon Hassan affair" charge, and not only in the charge of "the night meeting" as the accuser claimed.
- 'The Yair Biton Affair' - According to Malka's testimony, even before Fischer approached him with a request to help Biton, it was Malka who first contacted Fischer in order to find out whether Biton was being blackmailed by Yitzhak Abergil. The questions that were planned to make up Biton's future interrogation, which Malka passed on to Fischer, related to the investigation into construction offenses, which at the time was no longer relevant to the content of the current suspicion against Biton that was related to money laundering. Therefore, in practice, the transfer of the questions did not cause any damage to Biton's police investigation. The person who committed the crime of removing the classified materials was Malka and not Fisher, who did not know where Malka got them from. The disclosure of the date of the "breach" did not lead to the thwarting of the investigation and the arrests, but only to the postponement of the "breach" from May 7, 2014, to May 19, 2014.
It was further argued that Fischer's opinion that the cessation of accompanying the investigation by the specific attorney would harm the investigation had no basis in reality, since it is common knowledge that attorneys are replaced during the management of a criminal case (as happened in the case before us as well), and that in practice the same attorney did not manage the case of the "Ma'aseh Nissim" affair, but rather other attorneys from the Tel Aviv District Attorney's Office.
- "The Alon Hassan Affair" - Adv. Perry mentioned that while the original indictment attributed to Fisher in this case offenses of fraudulent receipt under aggravated circumstances, as well as fraud and breach of trust; Moreover, the matter of fraud against Hassan was included in the facts of the original indictment; These offenses and allegations were deleted from the amended indictment in which Fisher was convicted, so that today there is no allegation that Fisher cheated Hassan.
In addition, the indictment does not allege that Fischer initiated the receipt of information from Malka regarding the undercover investigation being conducted against Hassan. In the accuser's arguments for punishment in Malka's case, she claimed that Malka was the one who approached Fisher on his own initiative regarding Hassan. In addition, the indictment does not allege that the money that Fisher offered Hassan to hand over to him was intended to be transferred from Fisher to Malka. This is consistent with Malka's testimony that in Hassan's case he was not supposed to receive money. Therefore, there is no basis for the accuser's claim that the money that Fischer tried to broker was in favor of an action related to Malka's position.