While these issues of protection from justice and the invalidation of illegally obtained evidence are generally discussed separately, an analysis of case law shows that the same policy considerations are considered, in one way or another, in both cases. Thus, in the Issacharov case, in which the rule of disqualification was determined, it was determined that the test is whether the use of evidence will lead to: " a material violation of the defendant's right to a fair trial", whereas section 149 (10) of the Criminal Code of Criminal Procedure, which deals with protection from justice, states that protection will be given when the filing of the indictment or the conduct of the criminal proceeding " stand in material contradiction to the principles of justice and legal fairness".
In both cases, the conceptual basis is to preserve the fairness of the proceeding, both in order to preserve the rights of the accused, and in order to preserve the process itself and the public's trust in the enforcement authorities. In both cases, relief is granted due to a material violation of the fairness of the proceeding, and in both cases, the violation of the fairness of the proceeding must be balanced against the basic principle of bringing criminals to justice, which is based on the desire to protect the values that society wants to preserve that were harmed in the commission of the offense. On this side of the equation are also the rights of the victim of the offense. In both cases, the court does not deal with the question of whether the charges were proven in the indictment, but rather with the actions and decisions of the law enforcement authorities. In both cases, accepting the allegations may lead to a situation in which a person who has committed an offense, or at least is suspected of having committed an offense, will be dismissed from the criminal proceedings due to an act or omission, conduct or decision of the enforcement authorities in his case.
As I will clarify below, the anchoring of the defense of justice in the Freedom Law, in section 149(10) of the Criminal Procedure Law, implies that the legislature included the principle of due process and the rights of defendants in criminal proceedings through this provision. Therefore, the examination that the legislature ordered us to carry out by virtue of section 149(10) of the Criminal Procedure Law is also applicable to the question of the invalidity of the evidence.