Up Next, In the section 91 to that judgment, It was ruled in this language:
"I believe that "The suggestive monologue" Amounts to a Wrong Interrogation Method. Through the interrogator's incessant repetition, A long period of time, On sentences with similar structure and content, the interrogator seeks to convince the interrogee that he has no other option but to make an incriminating confession and that there is no benefit for him in making use of his right not to incriminate himself. This suggestive mechanism works even more strongly when a mechanism of seduction and persuasion is added to it, as in the case at hand. Moreover, After a person is detained for a few days, being cut off from his natural environment and family, he is subjected to emotional pressure anyway (See and compare: Rinat Kitay Seng'Rho "The Question of the Legality of Detention For the purpose of investigation" Judgments 6 47, 49 (2007)] And even more so when his lawyer is denied the opportunity to meet with him and when he is not lawfully warned about his rights [See and compare: Hagit Larnau "Distinguishing Application - Theory and an act in the field of investigative powers and the rights of suspects" Judgments 6 105, 120-119, 128-125 (2007) (Below: Larnau)], Activating a suggestive mechanism for several hours may, as stated, unreasonably increase the mental stress in which the interrogee is in any case, to the point of breaking his soul and free will. The suggestive mechanism seeks to circumvent the right of the interrogee not to self-incriminate by "The stupidity of his senses".
- To complete the picture, I will note, Because the case law applied the established standard In the section 12 To the Ordinance The Evidence - Giving the confession freely and voluntarily - Not only for giving a version to a person of authority, but also for confessing to someone who is not a representative of the authority. Kerry - These words also have good power in relation to giving an incriminating version to the informant in this way, It does not matter if the words were heard in the ears of the authority person or in the ears of any other person. Anyway, It must be proven, Because their delivery was free and voluntary. (See - There in his book"To the Scholar Kedmi, pp' 11).
Needless to say,, Because before the application of the Issacharov rule, The accepted interpretation of Section 12 To the Ordinance The Evidence Held onCriminal Appeal 115/82 Moadi N' State of Israel, P"4:38(1) 197, 249 (1984), In the Judgment-The Judgment of 22' Justice Goldberg. In accordance with the same approach, The use of improper means of interrogation in the course of the interrogation of a defendant does not negate, per se, The admissibility of his confession. Each case must be examined on its own merits.; If the improper means of interrogation were intended to deprive the defendant of his freedom of will in the framework of his confession, In that case, the admissibility of the confession will be invalidated for fear of its truthfulness. However, In cases where the level of disqualification has reached the point of harm "B'Tselem of the Human Figure" of the defendant and in order to "A brutal and inhumane level of interrogation", Because then the admissibility of the confession according to section 12 Minya and Bea, Without examining the actual effect of the improper means of interrogation on the defendant's freedom of will.
- As for the classic disqualification factors (As I listed them above); In this context, I will turn again to the book of the scholar Yaakov Front (About the Evidence, Part Sunday, 2003 pp' 54 Up to 75) Name, This is how he details and explains the factors "The Classics" Leading to the disqualification of Hodaya;
- Violence and Threat of Violence - In principle, Violence is inherently unacceptable. The rule is, that violence or threats of violence should not be used in the course of an investigation. However, Not every use of force will be considered violence in this context. Due to the improper nature of the"Violence", There is no place to put it to the test of "Fairness and reasonableness", Thus this invalid father differs from the other invalid fathers. Alongside this traditional approach, There is another approach that holds that, Because even when it comes to resorting to violence, There is still room for examination whether according to a subjective test, was in the same violence in order to deprive the interrogee of his free will. Such a claim, It is appropriate to raise the argument at the first opportunity, and suppressing the argument until the petty trial may damage its credibility (The book of the scholar Kedmi, Name, pp' 55).
- Unfair interrogation method - The law makes a clear distinction between a fair and reasonable method of interrogation that is objectively oriented to the discovery of the truth, With all the suffering of the interrogee, there is no choice but to fulfill it, and an interrogation method aimed at breaking the interrogee's spirit., When it's the last - Invalid. In relation to this group, the author enumerates the following considerations (Name, pp' 56 -61):
- Investigation time - When it comes to interrogation at night in the absence of substantive justification, The court will tend to view this as an improper investigative proceeding aimed at extracting a confession in an unfair way.
- Duration of the investigation - An interrogation that lasts for long hours without substantive justification, And what is just as important, No proper breaks for rest, Smoking, Edible, For drinking and defecating, will appear on the face of it as an unfair interrogation aimed at breaking the spirit of the interrogee.
- Predatory interrogation - The way the questions are presented is also a criterion for a fair investigation. The interrogee should not be showered with questions and should not be required to answer each of them immediately upon presentation, And certainly this should not be done when two or more researchers, They stand over the interrogee and ask him questions one after the other at a pace that intimidates every person, And certainly about an interrogee. The same question should not be repeated constantly when the interrogee has already answered it, but his answer is not to the interrogator's liking.. The same is true when it comes to repeated interrogation without substantive justification, And especially when different investigators participate in the interrogation.
III. Creating unfair emotional stress – what differentiates this group from the previous one lies in the fact that the first group focused on means that threaten to break the spirit of the interrogee "from the outside", while the second group emphasizes means that threaten to break the spirit of the interrogee "from the inside". Among the considerations included in this group are: humiliation of the interrogee, insults, denial of medications, imprisonment in a single cell, etc., means that operate within the interrogee's psyche.
- Unfair ploy - The author wanted to distinguish between a trick "Lost" which constitutes an improper means and a subterfuge "Tolerable". The test by which the disqualification of a trick is determined, It is rooted in the question of whether it would negate the ability to choose. This is how it was noted, Because the limit of the permit regarding the use of subterfuge is delimited by two main qualifications: "The first, that a subterfuge that violates the suspect's right to refrain from self-incrimination should not be used; and the second, that investigative measures should not be taken whose use harms the course of justice" - See in this context - Criminal Appeal 2831/95 Alba N' State of Israel P"D.N.(5) 221, 283 (1996).
The. Seduction and Persuasion - Their meaning is to ensure a real and tangible benefit to the interrogee "In exchange" Relinquishing his right to immunity from self-incrimination. Such a promise is characterized by, Alongside the power of seduction inherent in it, that it also amounts to an abuse of the investigator's governmental powers. These are usually promises that refer to release from detention or actual relief of the trial.