It was further ruled that the examination of a claim of investigation failures is generally done in two stages: "First, it must be examined whether it is a failure of investigation at all. Only if the answer to the first question is in the affirmative, the question of whether the defendant's ability to properly deal with the evidence against him has been impaired due to the alleged investigative failures, to the extent that there is a real concern that his defense has been deprived, as well as his right to a fair trial... The fact that a more in-depth investigation could have been conducted does not mean that there were failures in the investigation. And even if we assume that these are omissions, the rule is that it is necessary to examine whether an injustice has been done to the appellant and his defense has been deprived. An investigation that is not optimal does not mean an omission, and not every failure means an acquittal" (Criminal Appeal 8515/13 Zakariev v. State of Israel , at paragraph 112 of the judgment of the Honorable Justice (as he was then called) v. Sohlberg and the references there (December 9, 2015)). Even when it is found that we are dealing with an investigative failure, the question is whether this deprives the defendant's defense or casts reasonable doubt as to his guilt in light of the fabric of evidence for his duty (Waked case, at paragraph 43 above; Criminal Appeal 7141/07 State of Israel v. Trabin at paragraph 53 of the judgment of the Honorable Justice Y. Danziger (November 3, 2008); Criminal Appeal 1969/22 Ben David v. State of Israel at paragraph 6 of the judgment of the Honorable Justice D. Mintz, with respect to the investigation that was found to be very detailed and comprehensive (8 August 2023)).
- An examination of the defense's arguments against the background of these criteria leads to the conclusion that even if it is assumed that the alleged investigative failures are indeed omissions, they do not deprive the defendants of their defense or cast reasonable doubt on their guilt on the charges for which they were convicted above, in view of the evidentiary fabric that was presented.
- At the outset, and before we address the defense's claims of investigative failures, it should be noted that the investigating authority conducted an enormous investigation into our case. At the beginning of the investigation, evidence of certain coordination was found, mainly coordination emails with seized computer materials. Subsequently, the investigating authority carried out many hundreds of investigative actions, if not more, (see only for the sake of the example the concentration of records in P/581). As part of the investigation, search warrants and penetration of computer material were issued. Many dozens of interrogees were interrogated, including the defendants, other suspects and other employees of the defendants' companies, holders of various positions in the procurement bodies and on the technical side of IAI, ELTA and Maman, and officials in Mapi and Elop; Officials in manufacturing companies, IBM, NetApp and VMware, and much more. Collect many dozens, if not more, of messages. Orders for the production of documents were issued. These were invented for civil appeal and other parties. The Authority's investigators contacted and arrived at the premises of the commissioning parties, including the Civil Appeal and its various factories, and met with their representatives, who were required to search and locate relevant documents according to the direction of the Authority's investigators in relation to the procurement proceedings that are the subject of suspicions (for example, the documents in the framework of P/562). As can be seen from this ruling, in the course of the investigation and the completion of the investigation, documents and evidence were seized and collected on a huge scale.
- After the indictment was filed, a number of requests submitted by the defendants regarding investigative materials were filed and clarified. The defendants' motions were essentially rejected (see, for example, a decision of July 17, 2017 rejecting a motion under section 74(b) of the Criminal Procedure Law and determining that the defendants would be able to act in the matter in the manner set out in section 108 of the law; a hearing of August 6, 2018; a decision of November 20, 2018, in which the court ordered that certain correspondence be forwarded to the court, inter alia; a decision of June 3, 2019; decisions of April 23, 2020 and January 24, 2021 to reject requests for reconsideration; and a decision of July 30, 2021 on motions filed during and after the testimonies were heard regarding investigative materials; the argument in the margins of section 581 Wei's conclusion that no decision was given following the motions that arose at the evidentiary stage is incorrect, and indeed Wei's retracted it, p. 6985, paras. 19-22).
With regard to all the materials from the procurement files in the civil appeal, the accuser presented in detail the actions taken to collect and receive the materials relating to the proceedings of the Special Operations Committee that is the subject of the indictment (see paragraphs 79-119 of the reply of 9 July 2008, relevant documents were also included in P/581). These included orders issued against the Civil Appeal and its subsidiaries for the delivery of the relevant documents and other actions taken to locate and receive documents in connection with each charge. At the hearing on August 6, 2018, the accuser agreed to act to ensure that all the material in the procurement files relating to the indictment, if any, was in her possession and would be transferred to the defense (p. 24, paras. 28-31). As a result, the accuser took additional actions. This included a demand for a civil appeal for the delivery of all the relevant procurement materials for the full contents of the procurement files relating to our case, from all procurement systems, including the electronic systems, and with reference to the procurement proceedings that are the subject of the indictment, while bringing the relevant details (e.g., N/433). It was Koffler from the civil appeal who coordinated the locating of the materials (see N/434-N/437) and even testified in this regard at trial. Following this complementary move, additional documents were transferred to the defense (see also paragraph 3 for the completion of the argument on behalf of Wei and Oshri of December 6, 2018).