The case of Shahar, Gilad, Wischnitzer and EMET ended, as stated above, in plea bargains. Shahar and Gilad were convicted of offenses of being a party to a restrictive arrangement and of fraudulent receipt (without attributing aggravating circumstances) in relation to the arrangements in both parts of the indictment. Vischnitzer and A.M.T. were convicted of the offense of a party to a restrictive arrangement in relation to the arrangement for submitting proposals to the Oranim Police Department, which is the first part of the indictment (without being charged with the offense of fraudulent receipt). As stated above, the aforesaid does not rule out the possibility of convicting any of the remaining defendants of the offenses attributed to them, to the extent that guilt is proven at the required level (see the discussion at paragraphs 201-214 above).
The remaining defendants in this indictment: Oshri, Wei, Harel, Shochat and Matrix are charged with the offense of being a party to a restrictive arrangement under Section 47(a)(1) of the Law as drafted at the relevant time, together with Sections 2(a), 2(b)(1), 2(b)(3), 4 and 55A(b) of the Competition Law (Wei, Harel, Shochat and Matrix – two offenses; Oshri – one offense). The aforementioned defendants are also charged with the offense of fraudulent receipt under aggravated circumstances, according to section 415 of the Penal Law. In relation to the defendants, the indictment refers to section 23(a)(2) of the Penal Law. Oshri was also attributed in the indictment with the responsibility of officers by virtue of Section 48 of the Competition Law.
Discussion
Background
- The indictment in question revolved around the purchase of computer equipment manufactured by IBM for the Oranim project (also known as the "O" project or the Green Pine project, for example - P/125, P/126). This is a project of ELTA. It was the Maman factory that carried out the pricing procedures – both the request for quotations, the Oranim Police, and the online pricing that followed.
- Shohat, who was a salesman for Matrix and Matrix itself, was also charged in this indictment. This is the only charge attributed to the slaughterer and the Matrix in the indictment before me.
- The offenses that are the subject of the indictment in question relate to restrictive arrangements, coordination, made in relation to two different stages of the procurement proceedings for the Oranim project. The first was the Oranim Naval Operations Unit, in which bids were requested in early September 2011. The bids were allegedly submitted after improper coordination, on September 13, 2011 and September 14, 2011, so that Wee's bid was the cheapest. The second is the online pricing process that was conducted via the Internet on the morning of September 15, 2011, in which the participants allegedly coordinated the bids they would submit and the winner – Wi.
- On the part of IAI, a relevant figure in this indictment is Shkanevsky, a buyer who purchased from Maman. It was Shekanevsky who approached the various suppliers for quotes and it was he who conducted the online pricing. Peretz, Shaknevsky's manager and head of the server procurement and communications department at Maman, also referred in his testimony to the facts relating to this indictment. Oshri, Shachar and Shochat also testified in relation to the indictment in question. With regard to Shohat, it should be noted that due to a previous health event, various adjustments were made, both in terms of hearing his testimony and in order to allow him to be present (sometimes in a visual conference) during the testimonies of other witnesses (see, among many, a request of October 4, 2021, a hearing of October 7, 2021). As part of the evidence relating to this charge, the accuser also presented phone call outputs received from Cellcom and data outputs in relation to the online pricing received from the civil appeal and the company that provided the civil appeal with the system used to conduct the online pricing. The accuser sought that these outputs be constructed mainly for the purpose of proving the alleged arrangement that was made at the online pricing stage, although she also referred to the output of the telephone calls in connection with the alleged arrangement made at the stage of the IPO.
- A note regarding the admissibility of the call outputs from Cellcom – the accuser presented the outputs of telephone calls she received from Cellcom. This is the output of outgoing and incoming calls to Shachar's subscriber (P/587, N/319) and the output of outgoing and incoming calls to Gilad's subscriber (P/588, N/320). Both outputs refer to the days between 6 September 2011 and 15 September 2011. The accuser submitted a certificate in this regard regarding an institutional record (P/584) and a representative of Cellcom, Pini Elbaz (Elbaz), testified on the matter on behalf of the accuser (due to the duplication of the numbering of the pages of the minutes, attention is drawn to the fact that the testimony was given on March 31, 2022, and the references are to the minutes from that date). Shohat objected to the submission of the outputs, arguing that they were inadmissible as evidence of the veracity of their content. In this context, he claimed, inter alia, that Elbaz had no personal knowledge of the outputs; that no evidence was presented regarding the working method of the Cellcom system from which the outputs were produced; that Elbaz was not involved in the production of the outputs, the collection of the data or their transfer to the Authority, and that it was not clear who edited the "blackened" output that was made available to the defense and which was "manually manipulated" (paragraphs 52-56 of Shohat's summaries).
The claims must be rejected. In the certificate signed by Elbaz (P/584), it was noted that the information was extracted from Cellcom's computerized databases, that the output included, inter alia, calls to the aforementioned subscribers, that Cellcom maintains an ongoing computerized record of the data in the output close to the call and for the purpose of charging customers, that the record is kept in order to enable clarification of the account, and that Cellcom regularly takes reasonable protective measures against penetration into computer material and against disruption in the computer's work (ibid.). In fact, this is sufficient to prove the existence of the requirements for the admissibility of an institutional record as evidence of the authenticity of its content in accordance with the provisions of sections 35-36 of the Evidence Ordinance. Moreover, in his testimony, Elbaz explained the manner in which calls were recorded in Cellcom's systems in real time (p. 4144, paras. 6-11); Elbaz testified that in the past he was also the Director of Information Security at Cellcom and testified that the security measures taken by Cellcom to protect and protect the data are 'far beyond reasonable' (p. 4144, paras. 15-19; see also p. 4145, paras. 9-11 regarding the training he underwent, inter alia, in information security); Elbaz explained how the information is extracted from Cellcom's systems by means of a report generator to which the details of the information required by the order are entered (p. 4138, paras. 12-19, p. 4144, paras. 2-3). In addition, he testified that the files of the original reports that were produced pursuant to the order given at the investigation stage (P/582) are stored in Cellcom's systems, that he personally reviewed the files, and that they correspond to the outputs given to the accuser (P. 4143, S. 26-28, P. 4147, S. 22 - P. 4148, S. 8, P. 4149, S. 17; P. 4157, S. 24; see also P/586 where he confirmed that the certificate he signed was based on the information produced by Cellcom on the dates he stated, p. 4141, paras. 1-3; See also the list of files produced and transferred to the accuser – P/585). This is sufficient to provide a response to all the claims that Elbaz did not know how to testify personally in relation to the emissions of the conversations or that he was not involved in the production of the information. Beyond the aforesaid, as it was ruled, for the purpose of submitting an institutional record, it is not necessary that the specific employees who prepared the report be the ones who will testify (e.g., Criminal Appeal 10049/08 Abu Issa v. State of Israel at paragraph 64 of the judgment of the Honorable Justice Y. Danziger (August 23, 2012); see also: Criminal Case (Tel Aviv District) 40406/01 State of Israel v. Amer at p. 23 of the judgment (September 5, 2002); There it was noted that it was necessary to prove the admissibility conditions in a structural or typical manner, without the requirement that someone who has personal knowledge of its content necessarily testify on behalf of the institution). In any event, it is also not true that the certificate was signed by another representative of Cellcom (P/318) who could not appear for testimony due to a health issue (p. 4137, paras. 1-3) and that Elbaz testified instead in order to change it.