"... Look, Roy, let's tell you something, we're not just asking these questions, we live in the world... We live in a world where there are no free gifts. There are no free gifts between friends either. Especially when a friend gives... A loan, and we know that he knows that the loan of seven hundred and sixty thousand shekels will not be repaid to him in the best case. And we know about other things. But... Without him helping. Okay. That's why I told you this both down and now it's very important, OK, OK. That she would say exactly everything. It also says things that you think will be difficult for you to say because you have been friends with Fouad for thirty years. And I told you one more thing: the situation here is difficult, because we ask about a friend of yours who has been with you for thirty years, it's not easy. And you told me it wasn't easy. Now..." (P/6A, p. 44, s. 5).
- As part of the "motive for the transfer of the funds", and in order to extract additional details, Investigator Biton continued the same clear representation that the interrogation was not a warning and therefore the interrogee could "feel free" to provide all the details. Then, after the unequivocal statements of Investigator Biton detailed above, the defendant was asked whether it was possible that Ben-Eliezer had assisted him in connection with Egypt. At that time, the defendant recalled and described that there was an event that took place several years before the money transfers, in which Ben-Eliezer was approached in order to help obtain an entry visa to Egypt for B&E (P/6A, p. 44, Q. 26), but explained that there was no connection between the assistance in obtaining the visa and the loan he gave to Ben-Eliezer ("You would never have discovered it, I'm telling you the truth, I'm coming and telling the truth. There is no connection between the visa from seven years ago" - (P/6A, p. 51, s. 36).
- Even after the investigators had a collection of facts that showed a significant transfer of funds from the interrogee to a serving public figure, even after the interrogee confessed to actions taken by the public figure in his favor (even though he claimed from the first moment that there was no connection between the two things), the interrogation continued, with Investigator Biton asking for the relevant details of Ben-Eliezer's assistance in obtaining the visas (through whom the application was made; to whom the referral was made; what were the circumstances of the application to Ben-Eliezer; why B&E was required to assist in obtaining visas, and many more questions).
This stage of the interrogation, from the point in time at which the defendant recounted the assistance in obtaining the visas, extends over nine pages in the transcript of the interrogation, and only at the end of this part did Investigator Biton leave the interrogation room to consult, and immediately upon his return he warned the defendant and informed him of his rights as a suspect.
- In practice, the interrogation of the accused, with its most significant components (the transfers of funds by the defendant and the actions carried out by Ben-Eliezer on behalf of the accused) was carried out as a "witness" interrogation and not as a "suspect" interrogation, and in any case without the defendant being warned, and without being informed of his rights.
The Parties' Arguments in the Context of the Defendant's Interrogation
- According to the defense, the conduct of the investigative unit, as described above, fatally infringed on the rights of the defendant as an interrogee, and stood in clear contradiction to the consistent position of the Supreme Court in the context of the rights of interrogees. It was claimed that the unit's investigators "downplayed" the situation in the eyes of the defendant, with the clear knowledge that if the investigation moves to the stage of an "investigation with a warning", he may not cooperate, and may even seek to consult with a lawyer. Such conduct, it was argued, meets the parameters set out in case law for the application of the "defense from justice" claim, which can lead in the circumstances of the case to the point of dismissing the indictment. Moreover, in its summaries, the defense referred to the failures that occurred in the documentation of the various intersections in the interrogation, including: the lack of a memorandum regarding the conversation that took place between Investigator Biton and the defendant prior to the interrogation; the absence of a memorandum regarding consultation with the head of the Special Operations Unit and the accompanying State Attorney's Office regarding the continuation of the defendant's interrogation in open testimony; and the absence of additional memoranda (see details in paragraph 235 of the defense's summaries).
- The prosecution noted in its summaries that there was no flaw in the investigators' conduct, and even if it may be possible to say that "the investigative dynamic is imperfect," there is no doubt that this is not a "lost trick," but rather a "tolerable trick" (paragraph 159 of its summaries). The prosecution further noted that viewing the visual documentation of the interrogation shows that the interrogation was conducted calmly and pleasantly, taking into account the interrogee and his needs, and according to her, the defense did not point out, nor could it point to the existence of any of the invalid ancestors that could lead to the disqualification of a statement, since: "No unfair interrogation method was used"; "No unfair ploy was used to impede the defendant"; "The interrogators treated the defendant with respect and sensitivity"; "No means of pressure, threat, sophisticated interrogation method or promise were applied to the defendant" (paragraphs 150 and 151 of its summaries). The prosecution's summaries claim that the investigation began as an open investigation, since at first the investigators knew that only NIS 260,000 had been transferred, and later (even before entering the interrogation room) the defendant stated that he had transferred NIS 500,000 to Ben-Eliezer, but the investigators had no further indication of the same amount. It was noted that "In retrospect and in retrospect, it is possible that the defendant's warning could have been premature. However, the impression from watching during the interrogation is not that of a deliberate trash can, but that the interrogator took time to process the information – that in fact the cycle of bribery was completed in the words that the defendant gave" (paragraph 15 of the summaries of the claim). The prosecutor also referred to the defendant's fear of interrogation with a warning, as this fear was expressed after he was warned, at which time the defendant was in a storm of emotions.
The conduct of the defendant's interrogation – deliberate denial of rights, a minor fault or a "tolerable trick"?