In addition to the assumption and peace of mind of removing the risk that a different decision will be made, where the fraudster received the win in the competitive proceeding, this also amounts to fraudulent receipt.
As mentioned, receiving something fraudulently is a consequential offense. It is required that the matter be accepted as a result of the fraud (Criminal Appeal 1242/06 Tzur v. State of Israel , at para. 33 (June 13, 2007); the Shimshon case, at para. 32). In accordance with the provision of section 438 of the Penal Law, this can be accepted both for the defendant who does the act and for another, and it is not necessary that it be accepted for the defendant.
The accuser's argument in our case is that the 'thing' received by the defendants (each according to what is attributed to him) includes both the assumption of the bidders regarding the validity of the bids and that the proceeding is conducted under conditions of competition and without coordination, as well as the winning and receipt of funds as a result.
- Causal connection - It is required that the existence of a causal connection between the fraud and the receipt of the thing - which is the result. It was held that the causal connection can be deduced "from the proven facts", and that there are "situations in which it arises from the circumstances of the matter and the conduct of the parties" (the Tzur case at paragraph 33). The offense of fraudulent receipt may be crystallized even if there is doubt as to whether the defendant's misrepresentation was the sole cause of the fraudulent action, and it is sufficient that the misrepresentations played a significant role in this (ibid., paragraph 37). Similarly, it was held that "in examining the existence of a causal connection within the scope of the offense, it is not required that the misrepresentation be the only reason that led to the receipt of the matter, but it is sufficient that it be a factor that has a real effect on it" (Criminal Appeal 4190/13 Samuel v. State of Israel, at para. 79 (November 18, 2014); See also: Criminal Appeal 1784/08 Perry v. State of Israel, at paragraph 41 (February 5, 2009), where it was held that the fraud should be the "effective reason" for accepting the matter and that it was sufficient that the representations had a "significant role in assessing the situation of the fraud"; Criminal Appeal 2455/21 State of Israel v. Bramly (July 6, 2023) In paragraph 46 of the judgment of the Honorable Justice E. Stein, it was required that the representation was "... effective, efficient, and not necessarily for no other reason... to harm the free will of the deceived", as well as paragraph 2 of the judgment of the Honorable Justice Y. Elron; However, see the opinion of the Honorable Justice Y. Kasher in paragraphs 9 and 15-18 of his judgment). In examining the causal connection, the court also takes into account the testimony of the deceiver, even though it has been ruled that the existence of a causal connection does not require proof by verbal testimony, and that it may also be implied by the circumstances (ibid.).
- With regard to the aggravating circumstances, it was held that there may be relevance to the manner in which the fraud is carried out, including the method, planning, sophistication and scope of the fraud, and it was determined that weight will be given to the fact that the fraud was "the result of a planned, systematic and prolonged effort" or "since the fraud involves the commission of another offense" (Mercado at paragraph 78). In this context, it was held that the fact that the acts of fraud are based on another offense by a party to a restrictive arrangement may in itself constitute an aggravating circumstance (the case of Blaa (District) at paragraph 292; and in relation to other offenses, see Criminal Appeal 446/01 Rodman v. State of Israel, at paragraph 15 (27 June 2002)). Methodism and persistence in the fraudulent acts over time, as well as the planning in advance and the submission of backup proposals that were coordinated in advance, were recognized as aggravating circumstances (Bilwa (District) case there; Criminal Appeal 5102/03 State of Israel v. Klein at paragraph 33 (4 September 2007)). In this context, weight is also given to the financial scope of the fraud and the fact that it is a matter of "substantial sums" (Criminal Appeal 2597/04 Roitman v. State of Israel, para. 41 (20 November 2006)). It was also found that the very infringement of the competitive process of a public body, with the impairment it entails with the purpose of the competitive proceeding for the optimal allocation of resources, has weight in determining the existence of aggravating circumstances (the Cohen (District) case at paragraph 51, with reference to the Ben Dror case).
- The mental element - the offense of receiving something fraudulently is an offense of criminal thought. As clarified, "the criminal thought required for the purpose of formulating the offense is ordinary criminal thought of awareness of the existence of the factual foundations of the offense - the fact that the representation is false, the possibility that the prohibited result will occur, and the element of causation between the false representation and the result" (Mercado at paragraph 71). Awareness is required that the claim is false or that there is a lack of confidence in the truth of the claim, as well as awareness of the possibility that the result of accepting the matter will occur as a result (ibid.). It was noted that "intention in the sense of the will of the controllers of occurrence is not required for the purpose of the perfect offense of receiving something by fraud" (ibid., and see also the Iron case at paragraph 51). Similarly, it was held that "an intention is required to realize the result of accepting the matter, at least at the level of criminal intent of recklessness" (the Klein case at paragraph 32). Where there are aggravating circumstances, awareness of the existence of aggravating circumstances is required (ibid.). Active acts of fraud, including filling out offers of backing or agreeing to do so, making an arrangement with a number of bidders, and fear of exposing the representation, were found to be circumstances that in themselves attest to the awareness required for the consolidation of the offense ( a matter of exception (district) in paragraph 293).
- We discussed above in general the normative framework of the offenses in question. These lines do not encompass all the legal issues that will be discussed in the judgment. Additional issues that arose in connection with one indictment or another will be discussed later as part of the hearing of the relevant charges.
The indictment, the defendants and the proceedings - general
- The indictment concerns procurement transactions of hardware and software in the field of computing. The amended indictment included 19 charges, 18 of which were relevant to the defendants whose case remained to be decided. Defendants 3, 7, 10 and 16 (hereinafter: Wee, Harel, Triple C and Matrix) are companies that dealt with the relevant dates in the field of computer infrastructure. The rest of the defendants are those who served as officials in the defendants' companies. The defendants are accused of coordinating prices between 2009 and 2012 and determining who would be the winning company in requests for quotes and other competitive proceedings referred to them by various parties.
- The bulk of the charges relate to coordination with Israel Aerospace Industries (IAI) in a tax appeal. According to the general part of the indictment, a civil appeal is a government company that engages in the development, production, marketing and operation of a wide range of advanced systems in the military field, by itself and through its subsidiaries. The coordination that is the subject of the charges also relate to requests for quotes from Elta Systems (ELTA), which is a subsidiary of the Civil Appeal responsible for the procurement of electronics in a civil appeal, and of the Maman (Maman) factory, which is a computer center that coordinated computer procurement for the civil appeal. The defendant companies were, inter alia, authorized suppliers of IBM (IBM) products to IAI. Additional charges relate to coordination in relation to a request for quotations by Elbit Industries Electro-Optic Systems in a tax appeal (Elaop, the twelfth indictment) and coordination regarding a tender published by the Israel Mapping Center (Mappi, the thirteenth indictment). The indictment also included an indictment attributed to Defendant 2, Shahar Sharon of the Wii company, the offense of destruction of evidence. This defendant's case ended in a plea bargain and this indictment is no longer on the agenda.
- In the indictment, Levy and Harel are accused of coordinating many important projects that were carried out over a long period of time, and the winnings of which yielded significant sums of hundreds of thousands of dollars. Triple C has a smaller number of assists (within the scope of seven charges). The Matrix is charged with coordination, but only within the framework of one charge (the eleventh charge).
- At the outset, we will present the picture of the defendants in general:
Wee, Harel and Triple C, all three of them dealt in the field of computer infrastructures and were the authorized providers of civil appeal with respect to IBM products relating to our case (p. 2627, s. 18 - p. 2628, s. 4 of the minutes; p. 65, s. 6). These companies were competing (p. 202, paras. 23-27; p. 66, paras. 13-17).