Price; protecting public security alongside the obligation to eradicate the abuse of governmental power. The court examining whether the defendant has a defense of justice in a particular case, must consider this delicate and complex balance, the main points of which we discussed recently in the Borowitz case [7].
About the court "... to identify the defects that occurred in the proceedings taken in the defendant's case and to determine their intensity, regardless of the question of his guilt or innocence" (ibid. [7], at p. 807). He must examine whether the conduct of the criminal proceeding - despite the flaws in it - harms the sense of justice and fairness. The lens through which the justifications for applying the doctrine are examined, in the wake of the Borowitz case [7], is broader than in the past and is no longer limited to the narrow reasons of the Yefet rule [3], i.e., the "intolerable conduct of the authority" that is capable of shocking the conscience (ibid. [3], at p. 370). Instead, a purposeful-substantive examination of all the circumstances is conducted (Borowitz [7], ibid.).
- A claim of protection from justice can also be raised with respect to extradition proceedings, in view of the justifications used at its basis and the substantial proximity between an extradition proceeding and a "regular" criminal proceeding (see: S.Z. Feller Extradition Laws (hereinafter - Feller Extradition Law [125]), p. 24; Criminal Appeal 6914/04 Feinberg v. Attorney General (hereinafter - Parashat Feinberg [8]), p73). It seems, however, that it will usually find its place in the "internal" aspect that we are commanded by virtue of the extradition laws, which I will discuss later. My intention is to strike a proper balance between the provision of Basic Law: Human Dignity and Liberty, which enumerates the right not to be confined as a constitutional right (Section 5 of the Basic Law), and the provisions of the The Extradition Law himself, and to the demand - Also in the Extradition Law - Because the extradition will not contradict public policy. "... []Principles-Foundation, []Views-Depth and[]Higher Interests..." (In the words of my colleague Judge M. Cheshin In a Criminal Appeal 2521/03 Sirkis v. State of Israel [9], p. 346) embodied in the concept of this valve, include the principles of justice and legal fairness and the right to a fair trial. After all, these are the very same values that are protected by the protection of justice.
Whether you say that the doctrine of protection from justice stands for itself in extradition proceedings, or whether it is swallowed up in the "internal" defenses of extradition laws, the conclusion is the same: an extradition request that expresses a real concern of a violation of the principles of justice and legal fairness or the right to a fair trial may be refused for this reason alone. and where extradition proceedings have already begun, they can be suspended (cf. the words of my colleague Justice M. Cheshin in the Feinberg case [8], at pp. 59-60).
- However, I found it difficult to understand what the appellant was concerned with and all of this. As noted above, his petition relies on two things that he will be allowed to cover under the shadow of the defense of justice: one is that the extradition discriminates between him and other defendants, including in this case itself; The second part is that the prosecution officials acted contrary to the line of the law when they decided to transfer the state's witnesses, Baruch and Alan Dadosh, to the United States, and later relied on this in order to justify the necessity of extraditing the appellant there because the center of evidentiary gravity of the affair is in the United States. I don't find any substance in this either. The argument regarding the impropriety of the prosecution's deviation from their policy can no longer be heard. The Public Prosecution - Like any other public authority - may change its policy or the guidelines it has adopted, to the extent that there are appropriate reasons. No one has a vested right that a certain policy will remain in place even in circumstances in which it is justified to change it. Moreover, it is a rule that the implementation of a given policy, and especially one that involves the exercise of discretion, is an individual application, taking into account the specific circumstances of each matter:
"There is nothing to prevent or improper for an authority, to which the legislature has entrusted the performance of a function related to discretion, to reach a conclusion regarding the need to change the practice, form, or consideration in the policy of performing the function - when this is necessitated as a result of past experience, a change in circumstances or due to other factors that have an impact or implication on the same subject. However, it is clear that a change in policy must be guided by a consideration of the implementation of the law and its spirit; For this reason, when it comes to exercising discretion vis-à-vis individual persons with different data and characteristics, there is no reason to adopt and establish a uniform and rigid policy, when the very purpose of the law is that discretion will be exercised specifically with respect to the particular person, taking into account his special circumstances" (HCJ 92/83 Nagar v. Director of the Occupational Injuries (Hostile Actions) Insurance Branch of the National Insurance Institute [10], at p. 353; my emphasis - A.A.L.).