(e) The state's declaration in a hearing held on December 20, 2016 (two days before the beginning of the testimony of the state witness) according to which Machluf was never a state witness (In another appeal 47061-11-16, p. 9 of the transcript) provided the court (see the decision given at the end of the hearing on Fischer's request to review investigative materials). However, as the proceedings progressed, it became clear that this credit had no place either: in the hearing on May 4, 2017, the sweeping denial began to crack, and a representative of the Department for the Investigation of Police was forced to admit that "From a material point of view" Machluf "He received a benefit and is an accomplice to an offense and he meets the definition of a state witness" (p. 1731). However, he claimed that no signed state-witness agreement (1730-1731) was drawn up with Machluf. Still, I did not see the change in the Department for the Investigation of Police version as sufficient grounds for the loss of the presumption of propriety available to it (decision of February 18, 2018, paragraphs 5, 22, 24). Later on, it became clear that there was no room for the factual assumption on which this decision was based, while Makhlouf insisted firmly in his testimony from December 2018 and January 2019 that a state-witness agreement had been signed between him and Saada at the offices of the Department for the Investigation of Police, and that only afterwards did he give his statement.
(f) The denial given by a representative of the Department for the Investigation of Police in a hearing on March 19, 2017 regarding the presence of A request for seizure of Malka's property prior to the filing of the indictment was granted and led to the fact that Fischer did not receive the relief he petitioned in his request to review the investigation material relating to the matter (N5/2).
(g) On February 1, 2018, the demand for the production of the memorandum of understanding with Malka signed by Saada was raised again – following Malka's testimony that day that he had "started talking" in the second round of his interrogations After the indictment was filed Only after he saw the document did I instruct the prosecution to find out where the document was, despite its statements regarding a previous inquiry that she had conducted, in which the Department for the Investigation of Police stated that the document did not exist. However, I did not assume at the time (and I did not even receive an indication from the prosecution of such a concern) that this was not only a matter of the disappearance of a document (which is important and constitutes clear investigative material), but also of concealing the fact that Malka had received written consent regarding the confidentiality of use In all His messages, Including those he gave before the indictment was filed. - In complete contradiction to the manner in which the state witness agreement signed with him was presented on June 4, 2015. As a result, the proceeding continued for several more years along the same erroneous path that had been taken since the indictment was filed, and based on the working assumption (the expectation of which was only disappointed in 2023) which naturally gave credence to what was written in the state's witness agreement with Malka regarding the watershed, from which he began to make statements that could not be used against him.
- "The severity of the sanction is the size of the credit given to the state and was not repaid by itThis is what the Supreme Court taught. In light of the extensive credit granted to the state in the early years of the proceeding, which in the years that followed was further undermined to the point of a sweeping collapse of the presumption of propriety – the infringement that was attributed to Fischer's basic right to a fair trial, and which was corrected only in the advanced stages of the proceeding, it is imperative that it be given significant expression in a reduced sentence. The sanction expressed in the reduction of the sentence is not only due to a breach of the investigative body's duty to preserve the investigative material and disclose it to the defense (already on its own initiative, and certainly after it has been requested to do so by the defense and the court). The sanction is no less, and even more, because the misleading representations made by the Department for the Investigation of Police before the court (in writing and orally) led to judicial decisions based on the misleading information provided, and thus deprived the defense of the remedies it would have been entitled to have had it not been for the deception, and led to the failure of the proceeding, inter alia, by concealing evidence. This is while Fischer is now required to be held accountable, inter alia, for the offense of obstruction of justice (which was interpreted in the case law, on which the accuser relied in her arguments for punishment, as an offense that also includes a temporary denial of evidence) – Criminal Appeal 8721/04 Ohana v. State of Israel, paragraph 21 of Judge Procaccia's judgment (June 17, 2007); For the applicability of protection from justice in such a situation, compare Criminal Appeal 2910/94 Yefet v. State of Israel, IsrSC 50(2) 221, 368-370 (1996)).
Prolongation of the process and legal torture
- In general, the prolongation of the proceeding is taken into account as a circumstance unrelated to the commission of the offense, which affects the determination of the appropriate punishment within the compound. However, in the special circumstances of the present proceeding, in view of the significant contribution of the Department for the Investigation of Police to the prolongation of the proceeding for more than a decade and to the torture of the law caused to Fischer as a result, with all the harmful consequences described above, it is appropriate to attribute these abuses to the protection of justice and not to limit their impact to the appropriate punishment range.
In any event, this is a situation for a reduction in the sentence that stands on its own, even if it were not for the failures of the investigation and the gap between the original indictment and the amended indictment (Criminal Appeal 2103/07) Horowitz v. State of Israel, paragraph 336 (December 31, 2008); Criminal Appeal 4735/03 Sabari v. State of IsraelIsrSC 58(1) 681 (2003); Criminal Appeal Authority 1611/16 State of Israel v. Vardi, paragraph 108 (October 31, 2018); Criminal Appeal 3806/16 Balti v. State of Israel, paragraph 26 (May 23, 2019); Criminal Appeal 4762/22 Knafo v. State of Israel, paragraphs 20-21 (August 15, 2023)). Certainly, this is a place where, as in our case, the prolongation of the proceeding is rooted in flaws and omissions on the part of the enforcement authorities: