In general, these are cases in which the conduct of the criminal proceeding substantially impairs the sense of justice, due to improper conduct on the part of the investigating or prosecution authorities, and it is not necessarily contingent on the existence of an improper motive or malicious intent (Criminal Appeals Authority 1611/16 State of Israel v. Vardi, in paragraph 58 of the opinion of the Honorable Judge Hanan Melcer and in paragraph 2 of the opinion of the Honorable Judge Uri Shoham, and compare paragraphs 3-5 of the opinion of the Honorable Justice Dafna Barak-Erez [Nevo] (October 31, 2018)).
- In order to determine whether the defendant has a defense from justice, the claim must be examined in three stages: first, the defects and their intensity must be examined; Then, it must be examined whether the conduct of the proceeding, despite the aforementioned defects, severely harms the sense of justice and fairness, while taking into account all the relevant considerations, including the severity of the offenses, the strength of the evidence, personal circumstances, the extent of the impairment of the ability to defend oneself, and the extent of the violation of rights. the circumstances that led to the injury and the degree of the authority's fault; Finally, it is necessary to clarify what is the appropriate remedy and to examine whether there are more proportionate measures than the cancellation of the indictment, which have the power to cure the defect (the Elmelah case, supra, at paragraph 163 of the opinion of the Honorable Justice Yosef Elron; The Verdi case, supra, in paragraph 60 of the opinion of the Honorable Justice Hanan Meltzer; Criminal Appeal 6144/10 Getzau v. State of Israel, at paragraph 32 of the opinion of the Honorable Judge Uri Shoham [Nevo] (April 10, 2013); Borowitz, supra, at pp. 807-808, 816).
- One of the defects that may establish a defense against justice for the defendant is selective enforcement, i.e., the investigation or prosecution of a defendant while discriminating against him without justified reason (the Elmaleh case, supra, at paragraph 164 of the opinion of the Honorable Justice Yosef Elron). A claim for selective enforcement may include the prosecution of only some of those involved in a particular incident or prosecution in a particular case, while in other similar cases those involved were not prosecuted, provided that there is no reason that justifies this distinction (Vardi, supra, at paragraph 65, of the opinion of the Honorable Justice Hanan Meltzer; Criminal Appeal 7659/15 Harush v. State of Israel, at paragraph 35 of the opinion of the Honorable Judge Uri Shoham [Nevo] (April 20, 2016); Criminal Appeal 6328/12 State of Israel v. Peretz, at paragraph 23 of the opinion of the Honorable Judge Uzi Fogelman [Nevo] (September 10, 2013)).
- It should be emphasized that not every distinction between those involved when deciding whether to prosecute will constitute selective enforcement, and the prosecution has extensive discretion in this context. The person who makes the claim of selective enforcement must lay the groundwork for the fact that there is discrimination between the members of the equality group (Criminal Appeal Authority 21/19 Avison in Tax Appeal v. State of Israel, at paragraph 12 [Nevo] (April 14, 2019); Criminal Appeal 8551/11 Selchgi v. State of Israel, at paragraphs 14 and 16 [Nevo] (August 12, 2012)).
In this context, it was ruled that for practical considerations, the prosecution may suffice with prosecuting only some of those involved, "in exceptional cases and on the basis of defined, clear and equal criteria". In making such a decision, the prosecution must take into account all the relevant considerations, including the offense and the circumstances of its commission, the number of perpetrators and the share of each involved, the degree of public interest in full enforcement, the advantages of partial prosecution, the need to focus enforcement and considerations for the allocation of resources (Vardi case, supra, in paragraphs 65, 74-79, 86-88, 99-100 of the opinion of the Honorable Justice Hanan Meltzer; Criminal Appeal 8057/16 Stirmer v. State of Israel, at para. 24 [Nevo] (September 8, 2017); The Harush case, supra, in paragraph 35 of the opinion of the Honorable Justice Uri Shoham; The Peretz case, supra, in paragraphs 23 and 29 of the opinion of the Honorable Justice Uzi Fogelman; The Selgegi case, supra, in paragraphs 14 and 19; Borowitz, supra, at pp. 813-815, 820-821; see also: Criminal Case (District, Central) 34706-06-18 State of Israel v. Por, at paragraph 72 [Nevo] (April 12, 2021)).
- In order to examine whether the prosecution was indeed conducted in a manner that amounts to selective enforcement with respect to the defendants as a whole, or in relation to some of them, it is necessary to relate to the various stages, which are relevant to the case at hand: in other words, was there a flaw in the prosecution's decision to prosecute the defendants while others involved were not prosecuted? If it is a defect, it means improper discrimination - what is its intensity? And finally, if there is a defect, what is the appropriate remedy?
- Was there a flaw in the prosecution's judgment in the decision to prosecute only the defendants from the group involved?
There is no dispute that in the case at hand all those involved were not prosecuted. During the investigation stage, suspicions were discovered of coordination of about 160 tenders by about 100 suspects, and after focusing the investigation, it became clear that there was sufficient evidence against about 50 people involved (who were not companies). Finally, it was decided to file an indictment against 17 people involved and the companies associated with them, out of all those involved.