In any event, as we saw above – and this is important – the evidence showed that the people of the civil appeal sought to hold a competition in order to receive genuine offers, in an attempt to obtain the best offers, and not for the purpose of receiving seemingly idle offers, while coordinating prices that were made behind their backs and without their knowledge (see above at length, for example, paragraphs 598 and 603 ff.). In addition, and as already noted above, no evidentiary basis was laid for the claim that the manufacturer (IBM or another) was the one who initiated, directed or created the coordination arrangements between the suppliers or that was involved in the coordination that is the subject of the indictment (see also the testimony of Orshitzer, who rejected the claim that IBM was repaid from an unprioritized supplier that decided to submit a competitive offer, p. 2451, paras. 2-6; Harel's arguments in this context in paragraph 75 of its summaries were raised without support). The defense referred to general statements made by Lapid in his testimony that there were cases in which a civil appeal asked for more proposals because of its procedures and not necessarily because it wanted to purchase from another supplier, for example, pp. 6449, paras. 1-3, p. 6451, paras. 4-6, paras. 19-23, p. 6467, paras. 5-8; See also paragraphs 8, 66 of the Wii summaries, paragraphs 93-97 of Harel's summaries, and the references there also to statements made by Noy Mantap). However, these general statements, regardless of the fact that they did not address the charges in question, do not indicate, even remotely, any involvement of any of the manufacturers in coordinating bid prices and in submitting idle coordinated bids to IAI. In any case, they do not change them.
- In summary: the defense's arguments against the background of the manufacturers' involvement, including the claims of the lack of feasibility of competition due to IBM's special mechanism, should be rejected.
Allegations of Investigation Failures
- The defense argued that the Competition Authority's investigation was biased and flawed, that it contained flaws and unprecedented investigative failures that impaired the defendants' ability to defend themselves, and that these establish a defense from justice and justify, at the very least, the dismissal of the charges. This includes the claim that the accuser did not act to seize the entire procurement files in a civil appeal, and in particular the internal correspondence between the technical director of the project and the procurement bodies; that the testimonies of IAI personnel, including the testimony of Koffler, that he coordinated the collection of materials as part of the completion of the investigation, indicate that there are significant deficiencies; that the accuser should have located the documents and the investigative materials herself and not deposited, according to the claim, "privatize" the conduct of the investigation by the civil appeal in such a way that a civil appeal – which has an interest in concealing its wrongdoing and the offenses it committed – "filtered" the investigation materials; It was further alleged that there were flaws in the fact that the members of the civil appeal were not interrogated with a warning, even though there was a reasonable suspicion that criminal offenses had been committed in their case; and that IBM representatives were also not interrogated under caution despite their involvement in the conduct (see paragraphs 564-605 of the Wee summaries, paragraphs 12-13 of the Harel summaries, in addition to Wee's claims, alongside concrete allegations in relation to the specific charges discussed above; such claims also arose in Shohat's summaries).
- As ruled, failure to carry out certain investigative actions does not necessarily amount to an investigation failure. "A distinction must first be made between investigative failures and failure to exhaust investigative procedures... HaMoked is not concerned with whether additional investigative steps could have been taken, but whether there is sufficient evidence to prove the charge beyond a reasonable doubt... 'A criminal investigation is not a 'plan as you requested' and the defendant has no vested right as to how the police finance its measures and allocate its investigative resources'... The investigating authorities are not obligated to bring 'maximum evidence' for the purpose of conviction, but rather the existence of 'sufficient evidence' that has the power to prove the guilt of the accused beyond a reasonable doubt...(e.g., Criminal Appeal 2076/21 Waked v. State of Israel, at paragraph 43 of the judgment of the Honorable Justice Y. Elron and the references therein (July 30, 2023); See also Criminal Appeal 8957/21 Kara v. State of Israel, at paragraph 48 of the judgment of the Honorable Justice Y. Elron (May 21, 2023), where it was noted: "A distinction must also be made between investigative failures and non-exhaustion of investigative proceedings. We should not focus only on the question of whether additional investigative steps could and should have been taken, but on the question of whether there is sufficient evidence to prove the charge beyond a reasonable doubt.")
The very existence of additional investigative directions that were not examined or of additional investigative actions that were not carried out does not necessarily lead to a conclusion regarding investigative failures. In any event, the defendant is entitled to build on this only when we are dealing with "serious omissions, the essence of which is the failure to take necessary investigative action in a manner that casts serious doubt on the evidence that would incriminate the defendant" (Criminal Appeal 9306/20 Bargot v. State of Israel , at paragraph 16 of the judgment of the Honorable Justice E. Stein (April 29, 2021); Criminal Appeal 6199/20 Ben Abu v. State of Israel , at paragraphs 78-79 of the judgment of the Honorable Justice A. Stein (March 8, 2022); and see also Criminal Appeal 2177/13 Anonymous v. State of Israel , at paragraph 56 of the judgment of the Honorable Justice A. Shoham in relation to the failure to collect certain testimonies (July 9, 2015)).