Even if these two (erroneous) assumptions are made to Fischer's duty – the first, that he was given a duty to act that derives from the nature of any position in which he held, and the second, that section 244 of the body charged him with taking an action to prevent the disruption of the criminal investigation "in another way" that he had ceased to do – so that the failure expressed in the failure to prevent the commission of an offense would establish criminal liability towards "an employer who knows that his employee (or agent) is committing an offense in the course of his job", It is required that the employer fulfill "all these conditions – the control, the knowledge and the omission expressed in passive assistance" (Lev, supra, at p. 519; See also Criminal Appeal 44/81 Moyal v. State of Israel, IsrSC 36(1) 505, 530 (1982)). This is so long as it is not – and in our case the accuser did not even claim that it is a matter of "speaking" silence reserved for "very exceptional situations... When both the silent person and the actual perpetrator interpret the silence of the silent person as support, encouragement or instruction to carry out the action, and when the perpetrator does indeed act following that speaking silence" (Criminal Appeal 7704/13 Margolin v. State of Israel, paragraph 30 of the judgment of Justice Shoham (December 8, 2015)).
- Returning to the accuser's statement of March 21, 2018, and to the hearing of March 22, 2018: If the amendment of the indictment by way of deleting Malka as a defendant in the Night Meeting affair was done in accordance with the decision of the Director of the Department for the Investigation of Police (and below we will see why this argument cannot be accepted as well); and if the reason for that decision lay in the fact that the evidentiary basis that was placed before the prosecution at the time, and which was reflected in the indictment, taught us about substantive distinctions between Fischer's and Malka's part in that meeting; For then the only differences between the two that can enhance Fischer's part are that the meeting took place at his home and in his presence; While Malka, who did ask to come to the meeting, did not come to her in the end in accordance with the instructions he received on the phone from David during the meeting. On the other hand, the fact that David served as Fischer's attorney in the DIP investigation at the time, is likely to make an additional difference to Fischer's duty not because of the legal representation per se, but only if that legal representation derives Fischer's ability to control David's statements, to the extent that they are able to stop these statements as they occur.
In fact, a few years later, when the prosecution's affair ended and the accuser was required to respond to Fischer's claim of 'no reply to the accusation' raised by Fischer in connection with the indictment in the nightly meeting affair, it became clear in the hearing of December 17, 2024 that even the accuser no longer stands behind the argument she raised in 2018 regarding the basis of Fischer's responsibility for David's actions on the emissary relationship between them regarding the legal representation in the investigation (p. 24970, 25016-25015).
- Additional references by the accuser to the differences between Fischer and Malka were presented in the follow-up hearings on the request to dismiss the fourteenth indictment due to selective enforcement. These follow-up discussions took place in two rounds.
The first round followed my decision of May 31, 2018 to postpone the decision on the application until after Malka's cross-examination (see p. 4458 of the transcript, as well as the clarification of the decision in the minutes of June 11, 2018, p. 4738). When Malka's cross-examination with regard to Charge 14 was completed, the parties completed their arguments in a motion for protection from justice – Fischer on September 3, 2018, and the accuser on November 29, 2018.