The gaps in the information that have not been infected to date also led the accusing attorney to agree that the flaws and omissions in the investigation flawed the evidentiary foundation."And sometimes they led the prosecution to the point where it is difficult to say what happened here, and this is not a minor event, and it is not a trivial event" (p. 25682; See also her words at pp. 21586, 25588-25587).
Such conduct by the law enforcement authorities leads to operative consequences in the criminal proceedings against the defendant. As Justice Stein explained in various criminal applications 1378/20 Zagori v. State of Israel, paragraph 58 (April 7, 2020):
"The presumption of propriety – which the state also sought to use in the case before me – does not provide a satisfactory answer to the question 'What will happen if this or that attorney commits an exceptional and improper act of breach of the duty of disclosure?' For this reason, I believe that alongside the enormous credit given to the state in matters of the disclosure of the investigative materials to the defendants, there should be a severe sanction that will be applied by us if and when it is found that the state did not meet the credit given to it and deprived the defendant of his basic right to a fair trial."
And in Parashat Elmalah He added that the legal outcome does not change even when the wrongful act was committed by the investigating authority, as in our case:
"These things apply, of course, not only to the criminal prosecution, but also to the police as the long arm of the state as the accuser... The severity of the sanction is the size of the credit given to the state and not repaid by it. The state cannot, on the one hand, enjoy the presumption of propriety when it comes to disclosing the evidence in its possession to the defendant, and thereby be considered to have upheld his right to review; and on the other hand, to wash hands cleanly when it becomes clear that evidence that might have been of benefit to the defendant's defense was not disclosed to him" (ibid., paragraphs 10-11).
- The credit that the state received from the court in the first years of conducting the proceeding was high; And time after time, the Department for the Investigation of Police enjoyed the presumption of propriety, until it became clear that its statements should not be relied upon in court.
(a) It was inconceivable to doubt what was stated in the request submitted by the state for Malka and Fischer's detention until the end of the proceedings, according to which part of the evidentiary fabric against them was Malka's confession to the main offenses attributed to him and Fischer. A scenario whereby Malka's confessions in the interrogation, as they were transferred to the defense upon the filing of the indictment (which are the ones that were supposed to be submitted to the court for the purpose of proving the charges accordingly To Article 77 For Kindness"P), and which served as one of the most prominent anchors for the request for detention until the end of the proceedings, are documents that lack evidentiary force due to the confidentiality given to the Queen about making use of those confessions – it would have been predicted to be taken from the realms of imagination. Reality, as it became clear at an advanced stage of the trial, exceeded all imagination. It turned out that the Department for the Investigation of Police had made a combined move of concealment here, both vis-à-vis the court and Fischer's lawyers, and against the State Attorney, who prohibited entry into negotiations with Malka prior to the filing of the indictment (see N. 194/2, paraphrases of update meetings held with the State Attorney on May 3, 2015, May 5, 2015, and May 7, 2015). Malka's lawyers were not overly bothered by the Kafkaesque situation that had arisen, since as far as they were concerned, the verbal promise of senior officials in the Department for the Investigation of Police to sign a state witness agreement with them after the indictment was filed was valid (as testified by Adv. Bartal at the Competition Authority of November 3, 2022, paras. 10-21, 56-59; and in court at pp. 21769-21763, 21779). Apparently, the decision makers in the Department for the Investigation of Police also saw this move (contrary to the order of the State Attorney) as a calculated risk. However, all these considerations are not the concern of the court or Fischer. The Department for the Investigation of Police was not permitted to submit an indictment to the court and a request for detention until the end of the proceedings, based on a false representation that Malka's interrogation (in the matters that are the subject of the indictment) had ended and that statements that could be used in the trial had been taken from him. At the time of the filing of the indictment, the privilege of using a document signed by Saada ten days earlier granted to the Queen was in effect; The signing of a state witness agreement with him at the time was something that had not yet come into the world, and which might not have happened if the negotiations, which continued even after the indictment was filed, had reached an impasse. Even when the signing incident occurred, three weeks after the indictment was filed, this was not to turn back the clock and retroactively authorize the statements that were given under the privilege of use, but rather the Department for the Investigation of Police should have been honored and backed up by the Kingdom in his new status as a state witness, as was done in any other case, and given that the notices he gave prior to the indictment were in the form of cleanliness testimony that is required of a candidate to be a state witness, As Adv. Bartal testified (e.g., at pp. 21773-21764) in his testimony, she believed me.