(See also D. Barak-Erez, "Selective Enforcement and the Right to Equality in Criminal Procedure," Edna Arbel 119, 135-137 (2022)).
The intensity of the effect of the defense of justice on the degree of punishment and the rate of deviation from the appropriate punishment range depends on the circumstances and varies from case to case, in accordance with the essence, scope and intensity of the concrete flaws in the conduct of the enforcement authorities and the extent of the resulting harm to the sense of justice and fairness (ibid., paragraph 49). In Parashat Gottesdiener The degree of leniency of the sentence that matched the severity of the defects was moderate: "To the proper extent... But don't overdo it"; "To a certain extent, but not beyond that" (paragraphs 49, 52, 77). In other cases, however, protection from justice may have a dramatic impact on the amount of the sentence (as was the case recently in a criminal appeal). 4347/23 Anonymous v. State of Israel, paragraph 8 of the judgment of Judge Grosskopf (December 11, 2025); See also Criminal Appeal 4434/10 Yehezkel v. State of Israel, paragraphs 8-11 (March 16, 2011); Criminal Appeal 6922/08 Anonymous v. State of Israel, paragraph 45 (February 1, 2010)).
- As will be explained below, the effect of the defense of justice on the extent of Fischer's sentence is significant, in light of the scope and intensity of the wrongful acts and omissions that occurred in the conduct of the Department for the Investigation of Police in this case. These deficiencies, which did not end at the interrogation stage but continued afterwards during the conduct of the proceedings in court, harmed the proper course of the trial and the defendants' right to a fair trial. The infringement occurred in a number of aspects, each of which gave Fischer an independent ground for protection from justice. However, taking into account that at the current point in time, in which we are dealing with the sentencing and not with the determination of guilt, there is no need to dive into each of the events in which the conduct of the Department for the Investigation of Police was in material contradiction with the principles of justice and legal fairness, the discussion in this framework of the issue of the protection of justice will be done from a bird's eye view, while dwelling on key milestones along the timeline in which the failures and deficiencies that were particularly prominent occurred.
- A dominant aspect of the deficiencies on the part of the Department for the Investigation of Police, which led to a violation of the integrity of the proceedings, was expressed in the non-disclosure, and sometimes concealment, of critical events during the investigation stage, as well as investigative material relating to those events and claims of loss of materials, in a manner that later reflected on the entire course of the trial. These failures and omissions left their mark to a large extent in the early stages of the process, in which questions were raised in light of the perplexities that arose from the investigation file, and the Department for the Investigation of Police provided misleading answers on substantive issues. There were times when the frustrating answers caused the process to be channeled into channels that in retrospect turned out to be avoided if the truth had been revealed from day one. As a result, the conduct of the proceeding encountered barriers and twists and turns that delayed and greatly prolonged the discussion of the real questions that would have required a decision had the investigation been conducted properly and if the Department for the Investigation of Police had been careful to provide true answers to the defense and the court. All the while, Fischer had to deal with a huge indictment, with his property seized, his law license suspended, and for the first two years, his personal liberty was also taken away and he was under arrest.
As stated, given the procedural stage in which we find ourselves, there is no need or place for a comprehensive review of all the deficiencies that occurred in the investigation in the aforementioned aspect. I will therefore suffice with a very concise presentation – in a small way – of a number of prominent landmarks in this context. In this framework, I will discuss mainly the four main grounds for failure and invalidity that give rise to the defense from justice in our case: (a) concealment of material relating to the date of the state's witness agreement with Malka; (b) Oral promises of favors to the Queen that required the completion of an investigation towards the conclusion of the prosecution's case; (c) the 'dump' files that delayed the hearing of the case; (d) Selective enforcement and contradictory claims on the part of the prosecution in relation to the nightly meeting.
- Even earlier, and in order to assist the reader, we will place on the timeline a number of key events of the investigation and the legal process that are necessary for our case:
3.7.2014 - Fisher's arrest for the first time