Additional Defects in the Investigation, Safeguarding and Disclosure of Investigative Materials
- As noted, these three chapters in the history of the proceeding illustrate in a sharp manner how flaws in the investigation process conducted by the Department for the Investigation of Police had a wide impact on the conduct of the entire trial, prolonged and complicated it, and violated Fischer's right to a fair trial. As already stated, these are only examples, an examination of details that indicate the general rule, and not an exhaustive presentation of the totality of the improper actions and omissions that were discovered throughout the trial with regard to the conduct of the investigation.
The defense listed many other flaws in the manner in which the investigation was conducted and documented, the investigation materials were preserved, transferred to the defense, and the state's witnesses were recruited. As noted, I will not be able to give expression in this framework to all the additional arguments. In order not to go beyond what I have already elaborated, and because I do not believe that this will advance the decision on the question of Fischer's sentence beyond the legal conclusion on the issue of the defense from justice that arises from the demonstration of the three most prominent flaws, I will suffice to refer to Adv. Perry's arguments in the framework of the arguments for punishment, and say that at least I found in some of these arguments the flaws and other failures of the investigation.
- The remedies that the defense of justice establishes for a defendant whose rights have been deprived due to defects of this type span a wide range, from the disqualification or reduction of the weight of improperly obtained evidence, through a reduction in the sentence, the conversion of the offense attributed to the defendant, the dismissal of a specific indictment, and up to the cancellation of the entire indictment (for example: Criminal Appeal 4855/02 State of Israel v. Borowitz, IsrSC 59(6) 776, 808 (2005); Criminal Appeal 6144/10 Getzau v. State of Israel, paragraph 37 of the judgment of Judge Jubran (April 10, 2013); Criminal Appeal 10715/08 Wells v. State of Israel, paragraph 3 of the judgment of Justice Melcer (September 1, 2009)).
- Among the many precedents on the subject, it is worth dwelling on the Supreme Court's ruling in a criminal appeal 7218/22 Elmaleh v. State of Israel (January 29, 2025). This judgment marks another stage in raising the prestige of the doctrine of the defense of justice in situations where the flaws in the conduct of the enforcement authorities have violated the defendant's right to a fair trial. The majority justices in that case (Justices Elron and Stein) decided to acquit a man who was convicted in the District Court of two counts of rape following an incident in which he had sex with two complainants in a hotel in Eilat. The majority justices reached this result through two independent tracks."which in fact is sufficient for each of them to lead to the acceptance of the appeal" - The evidentiary track, which showed that the evidence does not substantiate the conviction to the extent required in a criminal proceeding; and the path of protection from justice, in view of "Very serious defect" that fell into the proceeding as a result of a relevant test performed in a laboratory in Italy to locate the remains of a rape drug, was revealed about two years after it was carried out and very close to the date set for the verdict. Following this discovery, additional investigative material was transferred to the defense, an opinion was submitted on behalf of the defense, and the complainants testified again. Despite this, Judge Elron ruled that the failure to transfer the material to the defense for two years "He left his mark on the proceeding from beginning to end and severely and significantly violated the appellant's right to a fair trial" (ibid., paragraph 2). He further said (in paragraph 46):
"The appellant was deprived of the core right to a fair trial. Just like that. The intolerable failure that occurred, including the failure to pass on the results of the rape drug test to the defense, whoever was responsible for it, led to dramatic consequences for the appellant. In fact, he was denied the opportunity to confront all the evidence against him and to formulate a line of defense; cross-examination of the complainant (for the first time); and to try to confront them with facts that, on the face of it, do not agree with their version. Thus, his ability to establish a line of defense that focuses on the complainant's cognitive state and its cause was impaired.