In these circumstances, in my opinion, it is more correct to order the defendant's complete acquittal on the grounds that no offense was committed, and not necessarily because his rights were revoked by the investigating authorities, a reason that could have led to the cancellation of the indictment.
Implications of the Defendant's Interrogation on the Reliability of His Version
- As may be recalled, the defendant shared with Investigator Biton the transfer of NIS 500,000 to Ben-Eliezer, even before they entered the interrogation room. This fact, together with the fact that the other parts of his version were given in an "open" interrogation and after the interrogation officials neutralized his defense mechanisms, and instilled in him a feeling that he could "open his heart," supports the conclusion that his version is true.
Both in the interrogation and in court, it was clear that the defendant was going through a difficult and shocking experience, which was a result of his prosecution. The defendant's cry of innocence, as well as his honesty, were reflected in the interrogation, and were also reflected in the way he conducted himself in court. This impression grew stronger as the legal proceedings progressed. His testimony in court, just as it can be said about his interrogation by the police, was authentic, and it was able to provide proper and fact-based explanations for the accusations leveled against him.
This conclusion is based not only on the aforesaid, and on my unmediated impression, but also on the comparison of the data provided by the defendant with other testimonies, with various documents, with the logic of things, and in fact – without presenting any evidence of weight that would contradict his version, all as will be detailed below.
The Various Arenas of Dispute - Discussion and Decision
The Strength of the Friendship between Ben-Eliezer and the Defendant
- An examination of all the data and testimonies leads to an unequivocal conclusion that the relationship that was forged between Ben-Eliezer and the defendant over more than three decades was a deep, rare, and very significant friendship that can be compared to the existing relationship between members of a nuclear family.
- The relationship began in the 1980s, when the defendant lived in the United States. In his testimony, the defendant described how Ben-Eliezer told him about his escape from Iraq, and how this story also connected to his own story, as someone who was smuggled out of that country as a child. It was argued, and so did the testimony, that the family stories of the two escaped from the same country led them to a sense of shared fate, and the fact that the defendant lost his father at a young age, added another dimension to his relationship with Ben-Eliezer, as a kind of father.
- A large number of testimonies were heard, from which it emerged that Ben-Eliezer referred to the defendant as his younger brother or even as his son (see the testimony of the defendant at p. 1412, para. 9; the testimony of Yehuda Tzadik at p. 193, para. 16; the testimony of Mordechai Harel at p. 1399, para. 19). The various testimonies showed a relationship that lasted for decades, accompanied by many meetings (including during the period when the defendant lived in the United States), intensive phone calls, while each being present in the life of the other.
An incident that illustrates the nature of the relationship occurred in 2009, when, according to the defendant's testimony, Ben-Eliezer felt unwell on a flight from Miami to New York and urgently needed pills. The defendant left his business, flew to New York, and obtained the pills for him (Prov. p. 1412, para. 26).
- Throughout his testimony, it was clear that the defendant spoke of Ben-Eliezer as a family member, as a soul mate, and as someone who was in tears of pain over his death. The defendant described how he begged Ben-Eliezer to take care of his health and leave public service, and how he was angry with Ben-Eliezer when he presented his candidacy for the presidency of the state.
- The testimony of Ayelet Azoulay, who accompanied Ben-Eliezer for many years, illustrates the strength of the friendship and the extraordinary nature of the relationship, and it was noted as follows:
"Q. What was the relationship between Defendant 3 and the late Fouad?
- Everyday conversationsRoy also accompanied him in the hospitalizations, even in the last hospitalization, we were in daily contact through me directly. They saw each other several times a week, attended all of each other's family events. I really thought they were family until the investigation..." (Prov. p. 1141, s. 27).
See the testimony of the witness Shimon Topor: