In the Issacharov case, as is well known, the Supreme Court discussed a situation in which the suspect (later the defendant) was interrogated with a warning, but he was denied the right to counsel.
- The situation that was to be examined in the Issacharov affair is "softened" in comparison to the situation I am currently examining, because according to the claim, the police investigators did not only rule out One of the rights granted to the suspect before his interrogation (as happened in the Issacharov case), but rather obscured, to the point of concealing him, the problematic nature of the defendant's words in his interrogation. According to the defense, the conduct of the police investigators "neutralized" all the legitimate defense mechanisms that should have been given to the defendant before his interrogation, and in practice, Led to the complete denial of all basic rights He is entitled to them as a suspect who is about to be interrogated.
Such a situation was discussed by the Supreme Court in a criminal appeal 4415/16 State of Israel v. Anonymous [Published in Nevo] (15.10.2017) stating the following:
"However, there are tricks, and even this has already been ruled, that are unfair and illegitimate, and therefore if they are used, they are liable to lead to the invalidation of a confession given by a suspect. Thus, for example, one should not use a trick that violates the suspect's right to refrain from self-incrimination (see: Criminal Appeal 2831/95 Alba v. State of Israel, IsrSC 50(5) 221, 291 (1996); see also: Yaakov Kedmi on the Evidence, Part 1 78 (2009)). However, the use of such a trick does not in any case lead to the invalidation of the confession that was given in its wake. However, a violation of the right to remain silent and the right to immunity from self-incrimination is a significant consideration when examining the admissibility of such a confession, and to the extent that the court reaches the conclusion that a suspect's ability to choose whether to confess to the offenses attributed to him has been significantly and severely impaired, it will order the invalidation of the confession (see: in Criminal Appeal 5121/98 Issacharov v. Chief Military Prosecutor, IsrSC 61(1) 461; 520-522 (2006) (hereinafter: the Issacharov case); See also: Criminal Appeal 6613/99 Samirak v. State of Israel, IsrSC 56(3) 529, 541 (2002)).
- In the Issacharov case, it was held that a defect in the warning that did not seriously impaired the suspect's ability to choose whether to confess to what was attributed to him would not lead to the invalidation of his confession (ibid., at p. 522; the Onn case, at paragraph 7 of my judgment). However, the case before us is different from the purpose of the change and is much more serious than the case in which there was a flaw in the warning. This creates a misleading impression as to the legal situation, which can neutralize the protections that the warning is intended to provide. Indeed, it can be seen that from the moment the respondent believed, following the interrogators' statements, that it was sufficient for him to claim that the relationship was consensual in order to dispel the criminal charge and that the complainant's age had no significance in this context, he was willing to agree to the assessment that the relationship lasted about two years prior to the interrogation and not only a year as he initially claimed. It was his words that constituted another basis for the trial court's determination that the respondent had had prohibited sexual relations with the complainant before she turned 16. Given the circumstances that led the respondent to approve this assessment, it is highly doubtful whether any factual finding can be relied upon, due to the actual harm caused in these circumstances to the right of the respondent as a suspect to refrain from self-incrimination...".
From the general to the individual
- An examination of the relevant data against the background of the Supreme Court's rulings regarding the importance of safeguarding the rights of interrogees leads to the conclusion that the conduct of the investigative bodies was serious, and the fact that it was backed, in real time, by the State Attorney's Office, which continued to hold the same position both during the conduct of the trial and in its summaries, but intensifies this severity.
- The basic data that the investigators had, as a reason for which the defendant was summoned for questioning, were such that they justified an investigation with a warning from the very first stage. On the face of it, this is a sum of about a quarter of a million shekels, which was allegedly given as a benefit to an incumbent public figure. Almost identical opening data led the same investigators and the State Attorney's Office to interrogate Defendant 2 with a warning, and therefore their conscious choice to refrain from interrogating with the defendant's warning is far from satisfactory.
Moreover, and since the defendant's interrogation took place about two weeks after the interrogation of Ben-Eliezer and Defendant 2, it was already clear that the intensity of the personal suspicion regarding Ben-Eliezer was not negligible, and it appears that he was – according to the suspicion – a public servant who received large sums of money from others.