(Par. p. 442, paras. 21-22,26-28)
Shahar's testimony: Shachar explained that at this stage they were waiting for the legal counsel "that they are examining and need guidance, and we are waiting" (par. p. 288, paras. 19-20). According to her:
"At that time, we were waiting for a directive from the Military Advocate General's Corps on how to publish the materials, in what way. It may be impossible to publish all the materials, but only some of them, only parts or paraphrases."
(Par. p. 288, paras. 12-15)
- Barkai explained that the instruction was not to publish the materials produced from the devices, but no instruction was given not to review them. Thus, he said: "I do not recall a specific instruction to store or not to review, that is, I think that there was a legal distinction at the time between reviewing and publishing" (par. 257, paras. 13-14). Canetti also confirmed that at the end of this meeting, no instruction was given not to review the contents of the materials (par. p. 448, paras. 19-22). In her testimony, Adv. Danino confirmed Barkai and Canti's version and explained that "we have nothing to do with the material that a journalist receives from his sources, we do not usually take the raw materials to us. At the meeting there was talk of publishing an investigation, my understanding was that someone else was supposed to do something with the material, beyond that it was clear that the officials at the station had no interest in the information being transferred to other parties, it was their exposure..." (Par. p. 377, paras. 10-13). Attorney Danino later explained that no instruction was given regarding the continuation of the study of the materials because "we could not give any guidance regarding something that we did not know was going to happen. When I was in the office of the commander of the Galatz station, the question was whether it was possible to put the investigation on the air and publish it. This implied to my understanding that a review of the material had already been done and I was not told that further examination was on the agenda. The instruction I gave at that meeting was to stop. To freeze the situation" (Par. p. 380, paras. 27-30). And also: "They were told to stop, there are issues that need to be examined. There was no going into detail about what is permitted and what is forbidden" (par. p. 386, paras. 35-36).
- Under these circumstances, the members of the Hasamba Group scheduled to meet at Barkai's home on December 27,2018, in order to analyze the material from a journalistic point of view. According to Barkai, since "we received the green light from our editor-in-chief, who was called the commander of Army Radio, to continue the discussions between the five of us, and therefore we gathered at my house" (par. p. 257, paras. 18-19). According to him, the purpose of the meeting was: "As I said earlier, there were disturbing materials. It was absolutely clear that we were not interested in gossip, not personal slander in these materials, we were mainly interested in topics that had public implications, we thought that they were a concern of criminal offenses" (par. p. 257, paras. 23-25).
- Similar statements emerged from the testimonies of Steif, Canetti and Shahar. Thus, Shteif explained, "This is the procedure. We receive materials and as I said, no one told us not to touch them or to put them aside. We schedule a work meeting to prepare our debriefing" (par. p. 166, paras. 20-22). Shahar, who was not present at the meeting held on December 24,2018 because she was abroad, explained: "When the affair begins, I'm not in Israel, I'm abroad, when I came back on December 25, I think they were already adding to Hasamba's WhatsApp group, I don't know what it's about. When I arrive at the station in the morning, Nurit updates me on the details that there was a meeting the day before at Shimon in the office with a representative of the Military Advocate General's Corps named Ravit... And Nurit tells me that Hadas has very strong materials that are suspected of corruption and that there was a meeting and they are waiting for legal advice on what can be done and how they can publish the materials and that they want to talk to me and show me what is in the materials. That day Hadas is at the station, they come to me to a room that is very small with a sliding door that can't be locked, I tell them that it's not so good to talk about it here and here it's like a train station where you ask questions all the time so let's schedule a meeting, if I'm not mistaken it was on Tuesday morning and we looked for a date and set it for Thursday afternoon and we wanted to do it outside the station. Razi volunteered his house and we came to him on Thursday afternoon" (par. p. 287, paras. 24-36).
- Canetti explained that "as far as we were concerned, we were supposed to receive approval from the legal advisor at any moment. In other words, we didn't understand that it would take a long time... It was clear to us that within two or three days we would receive the approval to publish. So we met with Razi in order to... think about ... how to publish" (par. p. 442, paras. 31-35).
- During the meeting held at Barkai's home, Barkai, Canetti and Shahar were exposed to the materials that Shteif had printed, as follows: Shahar explained that "the meeting at Razi's house was set for 5:00 p.m. ... They started and I joined. When I arrive, Nurit and Hadas actually show me three correspondences with Etti Kreif, with the same lawyer that Razi mentioned, the wife of a judge, and with Justice Minister Ayelet Shaked. I see these correspondences in the binders, they open the binder for me on the relevant page, I read it and I am very, very shuddering. I see that there is a suspicion of something criminal. I asked them who the Military Advocate General's Corps handles this, and they told me that they should instruct them what to do, how to publish and in what manner" (para. p. 288, paras. 1-8). And yes: "I didn't see the USB drive, when I arrived at Razi's house we were sitting in the dining area, there was a round table on which two binders were spread out, as far as I can remember, at least two binders and they told me look, this is a correspondence we want you to read, they opened the relevant page for me and so on during the three correspondences" (Par. p. 289, paras. 3-6). Shahar even confirmed that she knew that the materials were produced from devices transferred by Hani (par. p. 289, paras. 14-15).
- Barkai also testified that in this meeting he was exposed to the materials from the devices, as follows: "I was exposed to the materials themselves in three and a half cases... in which it was quite clear that this was refined corruption" (Par. p. 257, paras. 27-28). Barkai added: "In a meeting at my house we discussed materials that we thought were of public interest to broadcasting, after which it became clear to us, and I don't know if it was on our initiative or at the initiative of the State Attorney's Office, the materials would be given to the police... I don't know if we were happy, but we did what was assigned to us and did not release anything for publication" (Par. p. 257, paras. 31-32,35-36). And also: "The study of the materials in my home was also not a study of cell phones, which I have never seen. Rather, things were given by the person who knew the materials best, and whom I trusted completely in this passage, was Hadas. In that meeting in which I was exposed to the materials without seeing them, that is, I did not see the materials of the phones themselves, what I saw were drawings from these materials" (Par. p. 258, paras. 7-11).
- A similar version arose from Canetti's testimony. She said: "I arrived at Razi's house. There were binders, there were two binders on the table. Hadas referred to the things that she thought we needed to see, and in fact we began to talk about how to turn what we see into an item" (par. p. 442, s. 35-36, p. 443, s. 1-2). And also: "In this meeting, it was the first time that I actually saw anything written because in the previous meeting I had only heard from Hadas. So she showed us the things, these three events that I mentioned earlier. You correspondence, as if papers. There were papers and there was correspondence on this subject" (par. p. 444, paras. 6-9). And later: "I don't remember much, but there was correspondence between Effi Naveh and Judge Krief, between Effi Naveh and the same lawyer that I don't know if I can say the name or not because it's in the end, I don't remember if it was something that was investigated. And Effi Naveh with Minister Shaked regarding the story of the functions. It also turned out that I saw another correspondence, I don't remember so much, but I flipped through the pages a little. I remember that I also saw a correspondence between Effi Naveh and a journalist" (par. p. 444, s. 24-36, p. 445, par. 1-3, par. 460, s. 19,26, par. 481, par. 10).
- Shteif, Barkai, Shahar and Kanti testified that no family photos were found in the materials found in the binders that Shteif printed, and were not found Correspondence concerning the attorney-client relationship (testimony of Steif: par. 163, paras. 26-28; testimony of Barkai: par. 259, paras. 30-34; testimony of Shahar: par. p. 289, paras. 11-12; testimony of Canetti: par. p. 445, paras. 4-11).
This version of the defendants is consistent with the memorandum dated January 1,2019 prepared by Assaf Walfish regarding the documentation of the seizure of the binders (black and white) in Steif's home. This memorandum contains a description given by Shteif regarding the contents of the binders, according to which the black binder contained correspondence between Naveh and the (then) judge Kareef, attesting to an intimate relationship and the promotion of her appointment as a judge. In addition, the black binder included intimate correspondence between Naveh and various lawyers, from which suspicions arose of "sex for appointment" and promises of promotion. These correspondences also dealt with issues related to the processes of appointing judges in the judicial system. The white binder included WhatsApp correspondence between Naveh and then-Justice Minister Ayelet Shaked, as well as a reference to the issue of membership in the HaBayit HaYehudi party. This memorandum strengthens the defendants' version that they were exposed to information of public interest and not of a personal nature or one that is protected under attorney-client confidentiality.
- The testimonies of Elkabetz, Barkai, Kanetti and Shahar indicate that they assumed that the materials were obtained through a legitimate journalistic source, and that they were explicitly told that the material originated from telephones received from Hani (Barkai's testimony: par. p. 258, s. 28-29, p. 265, s. 14, p. 273, s. 27-28; testimony of Shahar: par. p. 289, s. 14-22, p. 297, s. 5-6, p. 305, s. 10; testimony of Elkabetz: par. p. 396, s. 25, p. 406, s. 20-21, p. 411, s. 9-11; testimony of Kanti: par. p. 444, s. 19, p. 445, s. 31-36). In the evidence brought before me, there is no indication that the other defendants knew how Taif really received the materials in her possession.
In this context, and in general, I reject the special weight that Naveh sought to attribute to the issue of the deletion of the WhatsApp group "Hasamba" by the defendants. I was not under the impression that this was a deliberate act committed by the defendants in order to conceal evidence at trial, but rather that it was a routine process, which took place without connection to the lawsuit at hand. Beyond that, many detailed testimonies were heard before me, including by witnesses who are not part of the circle of litigants, so I do not believe that there is any lack of evidence as to the conduct of the defendants in this case. Therefore, I determine that the defendants did not know in real time that the information was obtained by Steif through unauthorized penetration into Naveh's telephones.
- On the basis of the evidence presented to me and the reasons I have stated, I determine as follows:
After printing the materials produced from Naveh's devices and dividing them into a black and white binder, and after holding an initial conversation with Elkabetz, Steif opened a WhatsApp group called "Hasamba". In addition, two meetings were held: