Criminal Case (Jerusalem) 28759-05-15 State of Israel v. Eran Malka - part 112

Since the judgment in the Criminal Appeal Authority 1611/16 State of Israel v. Vardi (October 31, 2018), there is no doubt that improper discrimination in prosecution establishes a defense from justice, even if it is not intentional discrimination, but rather discrimination that was created due to negligence or error of judgment on the part of the enforcement authorities.  As it is said there: "The principle of protection from justice must be interpreted in a way that will lead to the realization of the values of equality before the law, and the full realization of the defendant's right to a fair trial, while the question of motive is of less importance in such a case" (paragraph 88 of the judgment of Deputy President Hendel).  This rule was ruled after my decision of February 18, 2018, mentioned above, in which I canceled, for reasons of protection from justice, the offense of obstruction of justice in which Fischer was charged in the second part of the indictment in the 'Buchan Affair', while Malka was not prosecuted in the first place for this offense.  As noted, with regard to the charge of the "night meeting," the sense of justice and fairness is even more revolting, since this is not a case of Malka not being prosecuted in the first place, but rather of omitting his name from the indictment After he had already appeared in it, and when the claim's explanations for this change from time to time, some of them contradict each other, and in the end none of them can be accepted.  Regarding the raising of inconsistent positions in a criminal proceeding by the prosecution, it was stated that, "The mind is uncomfortable with this conduct...  It can be expected that the prosecution's position regarding the considerations guiding the conduct of a given criminal proceeding will be uniform and consistent" (Criminal Appeal 1292/06) Turk v. State of Israel, paragraph 78 (July 20, 2009)).  The prosecution's choice over the years of litigation to provide four unsuccessful explanations for the puzzling process of removing Malka from the 'night meeting' charge, instead of acceding to Fischer's requests from the outset and acting in the same way towards him, should accept the maximum possible consequences at the sentencing stage, and be expressed in a forward-looking punishment only for the nightly meeting affair, with no real sanction for Fischer's conviction on this charge (compare to the judgment of Justice Barak-Erez in the case Vardi, paragraph 11).