The prosecution, for its part, invested considerable efforts during the hearing of the evidence, and even before that, also in connection with the affair of the night meeting. In a hearing on July 14, 2016, in Fischer's preliminary arguments, the prosecution sought to justify section 8 of the general part of the original indictment (under the description of the 'method' by which Malka and Fischer operated), by stating that this section constitutes a relevant circumstance to the charge of 'the night meeting' (pp. 120-121). The relevant prosecution witnesses were also questioned at length regarding this charge, including the witness Yaron Zemer, who was brought by the accuser only for this purpose, and the witness Prof. Yoram Barak, who was testified by the prosecution from his residence in New Zealand, also for the benefit of this charge. Fischer's requests from the prosecution to treat him in the same way as he had done with Malka, and to remove him from the charge of the "night meeting," were rejected by the prosecution more than once, and led to several court hearings on his request to dismiss the charge on the grounds of protection from justice.
In light of my conclusion that the strength of Fischer's claim for protection from justice due to selective enforcement taken against him on the charge of 'night meeting' and reaches the level of a remedy of avoiding actual punishment for this charge; Also, since it is not possible to go over the contradictory claims and inconsistencies of the prosecution in relation to this charge during the years of litigation, I thought it necessary to elaborate on it and discuss in detail the arguments that arose (and changed) during the hearings.
- The motion for protection from justice due to selective enforcement in the Night Meeting affair was filed on March 15, 2018, less than a month after I (on February 18, 2018) issued a decision in which a claim for selective enforcement was made by Fischer regarding his indictment for the offense of obstruction of justice in the second part of the eleventh indictment (the "Buchan Affair"). Fisher's accusation of this offense was dismissed for the reason he was able to "To prove that Malka's failure to prosecute Malka in the 'disruption' part of the eleventh indictment created a violation of the sense of justice and fairness, in a manner that justifies the defense of the defendant and his comparison to Malka, so that the defendant will not be charged in this part as well" (paragraph 22 of the decision). In this context, I questioned the correctness of the explanations provided by the accuser for the distinction between Fisher and Malka, in view of the inconsistency of the reasoning, and given that "At first (in response to the preliminary argument) the accuser argued that the reason for the matter lies in an 'evidentiary matter'. However, after the defendant showed that Malka had confessed to the obstruction before the indictment was filed, the accuser's explanation changed, and it was claimed that this was a mistake that occurred unintentionally" (ibid., para. 25).
- Also in the framework of the fourteenth indictment, which is the subject of the current hearing, the offense for which Fischer was prosecuted is obstruction of justice. With regard to this charge, the gap between Fischer and Malka is even more striking than the gap for which Fischer's argument for protection from justice was accepted in connection with the eleventh charge: while the relevant part of the eleventh indictment (part A.2 – 'Disruptionwas added for the first time in the second amended indictment on July 16, 2015, more than a month After Malka confessed and was convicted according to his confession in an amended indictment on June 10, 2015, after all, with regard to the indictment of Fourteen, Malka was charged from the outset, along with Fischer and David, with the offense of obstruction of justice (pp. 27-29 of the original indictment of May 14, 2015, in which the affair of the night meeting was counted as the twelfth charge). This is therefore not a passive move of refraining from prosecuting Malka for an offense for which his guilt ostensibly arises from the facts included in the indictment that was added after the verdict in his case, as was the case in the Buchan case, but rather an active move in which, after the filing of the indictment accusing Malka of being ill for an offense of which he was initially charged in the framework of the indictment relating to the night meeting affair, until she saw that his name should be deleted from the amended indictment in which he confessed and was convicted on June 10, 2015, as one of the defendants in this charge. without changing the facts of the indictment in the slightest.
- The accuser's first reference to this issue was given at a hearing held on March 19, 2018. Counsel for the accuser referred there to the minutes of the hearing of June 10, 2015, in which the amended indictment was filed, while the accuser noted (on pp. 1-2) that the significant amendment is in the twelfth indictment, which relates to the affair of the night meeting.In which defendant 1 was removed from the charge. Defendants 2 and 3 remain in the indictment" When "Regarding Defendant 1, we reached a plea bargain according to which he will admit the facts of the amended indictment". Therefore, counsel for the accuser further argued in the hearing of March 19, 2018, that not only was Malka's removal from this charge known to the defense from the first day and that it was not only clear to her during the preparation of Malka's cross-examination as alleged in paragraph 1 of the motion, but that "This is not a mistake, it is a decision made by the competent authorities as part of the plea bargain that Eran Malka will not be charged with this charge" (p. 3292). As to the reasons underlying that decision, the accuser's counsel asked for a stay of several days in order to examine the matter.With the parties that made the decisions... I want to contact the Director of Claims by virtue of various laws, he is already retired, it is necessary to check his email" (p. 3293).
Subsequently, on March 21, 2018, counsel for the accuser filed a statement according to which her statement in the minutes of June 10, 2015 regarding the filing of the amended indictment and the plea bargain reached in respect of it was: