15.7.2014 - Release of Fischer from his first detention
29.4.2015 - Arrest of Fischer for the second time (together with Eran Malka, State Committee)
29.4.2015 - Signing of the agreement with the State Witness
4.5.2015 - Malka's incriminating messages begin to be delivered
6.5.2015 - Arrest of Ruth David
11.5.2015 - David released from detention
14.5.2015 - Filing of the indictment
19.5.2015 - Malka's first interrogation after the indictment was filed
4.6.2015 - Signing of a State Witness Agreement / Plea Bargain with Malka
10.6.2015 - Reading of the indictment and conviction of Malka as part of a plea bargain
12.7.2015 - Fisher transferred to detention in electronic handcuffs
20.11.2016 - Decision on the preliminary arguments
22.12.2016 - Beginning of the testimony of the state witness
13.2.2017 - Discovery of the Dump Files (testimony of Alon Spitzer)
20.2.2017 - Beginning of Malka's testimony (main investigation)
009.8.2017 - Fisher released to house arrest
027.8.2017 - Supreme Court Decision - Outline for Examining Digital Products
4.12.2017 - Another decision of the Supreme Court - Updating the outline of the review
29.1.2018 - Continuation of Malka's testimony (cross-examination)
26.4.2018 - Cancellation of Fischer's house arrest
June 18, 2020 - Beginning of Dubi Scherzer's testimony
13.12.2021 - Malka's testimony at the Israel Bar Association's Disciplinary Court
7.9.2022 - Beginning of Malka's supplementary cross-examination
September 15, 2022 - The prosecution's decision to complete another investigation
21.11.2022 - Addition of 7 prosecution witnesses after completion of the investigation
12.12.2022 - Conclusion of Malka's supplementary cross-examination
January 15, 2023 - Beginning of Moshe Saada's testimony
14.2.2024 - Declaration of the prosecution "These are my witnesses"
28.10.2024 - Beginning of Fischer's testimony
28.8.2025 - Fisher's conviction as part of a plea bargain
State Witness Agreement with Malka
- Malka's status in the original indictment was very central. The introductory chapter of the original indictment bound Malka and Fisher together, describing them as having joined them together, from "Unbridled Greed" jointly, for a sophisticated and manipulative method of operation. According to what is described there, as part of the same method, Malka and Fischer conspired to transfer sensitive police intelligence information from investigations conducted against a number of targets. Malka passed the information to Fischer, who made use of the same information, and as a result, investigations by the police and other enforcement units were damaged. In some cases, Fischer and Malka made a false representation to potential interrogees regarding investigations being conducted against them, in order to receive large sums of money that would be used by the two to allegedly assist those interrogees. Malka was not only described as Fisher's main accomplice in the commission of the offenses attributed to both of them in the original indictment, but he also served as a key witness on whom a significant part of the evidentiary basis against Fisher was based. So much so that some of the facts attributed to Fischer in the amended indictment were based exclusively on Malka's statements. The prosecution also clarified that it intends to rely on the Article 296 to the Penal Law, which allows a conviction for the offense of bribery on the basis of the testimony of a single accomplice.
In these circumstances, it is not surprising that Malka's testimony was of great significance for the purpose of proving the charges against Fischer, and that in the framework of assessing the weight and credibility of the testimony, the question of when Malka became a state witness in relation to the dates on which he made his incriminating statements was of great importance. There is a clear difference between a person involved in offenses who confesses to his part and incriminates his accomplices out of remorse and with the intention of helping investigators reach the truth, and someone who incriminates his friends after he has been promised compensation for his testimony. And as we will detail below, the Department for the Investigation of Police created an ongoing presentation to the defense and the court, as if Malka had given his incriminating statements willingly and without compensation. Only after many years in which the case was conducted, under this pretense, did it become discovered that in fact the agreement in principle regarding Malka's status as a state witness was drawn up prior to the delivery of his statements, mixing the provision of intelligence information – while he was still a prime suspect! - And between giving open notices - and worst of all, while concealing the matter and creating misleading representations.
- On June 4, 2015, "Agreement / plea bargain"Between the Department for the Investigation of Police and Malka (P/11). Attached to the agreement "Appendix to Procedural Understandings". The agreement and the appendix create a clear separation between the offenses included in the indictment filed three weeks earlier against Malka and the other defendants, and the information in Malka's possession regarding additional offenses that he said were committed by Fischer, David, a police commissioner, and others. In the agreement, Malka undertook to confess to the indictment filed against him; to testify against the other defendants in this indictment; and to provide truthful statements regarding the additional offenses. In return, the Department for the Investigation of Police undertook not to prosecute Malka for his part in the additional offenses; to refrain from taking economic forfeiture and enforcement measures against him in the framework of the current proceeding, including the enforcement of tax laws and the demand for a monetary penalty; to refrain from asking to harm his pension; and agree to release him to house arrest for two weeks after the sentence is handed down and before the start of serving his prison sentence. As for Malka's agreement to confess and be convicted in the indictment filed against him, it was agreed in paragraph 2 of Appendix "Because even before reaching this agreement, at the interrogation stage, the defendant gave a version that incriminated him and others, all without asking for compensation and without being promised anything". In paragraph 3 of the appendix, it was clarified that the aforementioned consideration was intended to assist Malka's family members and not to bring about any reduction in his sentence, and it was given to him in exchange for the full version that he gave "After the indictment was filed, as part of this agreement... About the involvement of various parties, some of them senior officials in the past, in criminal offenses". This clarification joins Malka's declaration in clause 6 of the agreement "that the information that he gave to the plaintiffs under various laws in the course of negotiations prior to this agreement is true information, and that the things about which he will give his notices are known to him personally". See also clause 8 of the agreement, which relates to "Messages he gave [Queen] In the Framework of the Implementation of this Agreement"; and paragraph 4 of the appendix regarding "The Depth of Cooperationof Malka, which is expressed in the messages he gave as of May 19, 2015. In other words, agreements and promises between the Department for the Investigation of Police and Malka were made only after the indictment was filed, and not before it; and the monetary benefits given to him in the present proceeding are in exchange for the versions he gave after the indictment was filed, in connection with the offenses that were added to the indictment against other defendants and not against him, and are not in exchange for his own confession and his incrimination of the other defendants prior to the filing of the indictment.
- The questions and question marks regarding the veracity of the statements and representations made by the Department for the Investigation of Police and Malka in the framework of the agreement sawed through the air and occupied the court and the litigants from the beginning of the proceeding and over a long period of time as it progressed. The first two perplexities were already evident from the indictment itself.
- First, despite the fact that at the time of the filing of the indictment on May 14, 2015, the Department for the Investigation of Police found five statements by Malka (dated May 4, 2015, May 5, 2015, May 6, 2015, May 10, 2015, and May 13, 2015) in which he confessed to committing a series of offenses and gave a version that incriminated him and the other defendants; and despite the fact that the other defendants denied almost all the suspicions attributed to them in their interrogations (some of the defendants even denied all the suspicions); Nevertheless, Malka's indictment was carried out in the same indictment together with the other, and as a result, Malka was not included in the list of prosecution witnesses against those six defendants in the first place. Only on July 22, 2015, did the accuser announce that after Malka was sentenced, he would be added as a prosecution witness, and on October 22, 2015, a decision was made to add him to the list of prosecution witnesses.
This move contradicts the basic concept that where the prosecution sees a vital need for one of the offenders to testify on its behalf against his accomplices, it must prosecute them in separate indictments, unless it is clear to it that the defendant-witness will come forward to testify in his defense as part of the joint indictment. Where there is a concern that the defendant will refrain from testifying as a defense witness – and in our case, prima facie, such a concern regarding Malka could not be ruled out (unless the Department for the Investigation of Police knew things that she did not disclose, as indeed became clear later), given his five extensive confessions prior to the filing of the indictment, which did not leave him with any real room for maneuver – the filing of a joint indictment means that the prosecution takes a clearly unreasonable risk of blocking the possibility of submitting his confessions against his accomplices. Not even within the framework Section 10A of the Evidence Ordinance [New Version], 5731-1971, which applies to a witness and not to a defendant who does not testify (Criminal Appeal 501/81 Abu Hasira v. State of IsraelIsrSC 36(4) 141, 149-152 (1982); Miscellaneous Criminal Applications 4169/95 Adziashvili v. State of Israel, paragraph 4 (July 11, 1995); Miscellaneous Criminal Applications 7625/95 State of Israel v. AttiaIsrSC 49(4) 184, 187 (1995); Miscellaneous Criminal Applications 2557/04 State of Israel v. Ben Zion, IsrSC 58(4) 83, 91-92 (2004); Y. and Aki, Law of Evidence (Vol. 2, 2020, pp. 696-697).