In light of the aforesaid, there is no place at this stage to determine that the admission of the organs against the granting of immunity, and the attribution of their actions to Siemens Israel, as well as the presentation of documents they produced, would prima facie lead to a violation of the fairness of the proceedings in the case of Siemens Israel. These questions will be examined, as stated, in light of the principles on which I have discussed, at the end of the proceeding, and to the extent that at the end of the proceeding, the defendant will continue to argue in this matter.
5.2. Protection from Justice
The defense of justice, which deals with ensuring the fairness of the criminal proceeding, allows the defendant to make a preliminary argument after the beginning of the trial, according to which "the filing of the indictment or the conduct of the criminal proceeding is in material contradiction to the principles of justice and legal fairness" (section 149(10) of the Code of Criminal Procedure). This argument, which is called "protection from justice", was initially established in case law (for an extensive and in-depth review of the case law prior to the amendment, see: Segal and Zamir, Protection from Justice in the Law, beginning at p. 236). I discussed above a series of issues included in this defense in the discussion of the right to due process. The defense of justice is a kind of mirror image, which includes typical situations in which the proceeding is unfair, in which case the defense from justice will be available to the defendant. These typical situations include cases in which the authority has approved or turned a blind eye to the commission of the offense; breach of an undertaking not to prosecute; Putting him at double risk (cases in which the prosecution repeats and prosecutes a person for the same tract for which he was brought in a criminal case in the past); Safeguarding the investigative materials and transferring them to defense and prosecution on foreign grounds. This is not a closed list except in cases in which the defendant's right to a fair trial is violated (on the development of this defense, see: Rinat Kitay Sanjaro, "Protection from Justice vs. Jury Nullification Authority – Acquittal of a Person Who Committed an Offense Based on Considerations External to Guilt", Mishpat 14 513 (2011, hereinafter: Kitay-Sanjiro: Defense from Justice). In the judgment in which this defense was admitted to our law (Criminal Appeal 2910/94 Yefet v. State of Israel, IsrSC 50 (2) 221, hereinafter: the Yefet Case), a strict test was set for the application of the law. It was held that a defense from justice would arise for the defendant only in the case of "scandalous behavior" by the authority. Later, and in light of academic writing on the subject, in Criminal Appeal 4855/02 State of Israel v. Dr. Itamar Borowitz, IsrSC 59(6) 776 (2005, hereinafter: the Borowitz case), a more flexible test of "real harm to the sense of justice and fairness" was determined. It was held there (p. 806, paragraph 21):