It was further determined that, as a rule, the inquiry will be made by the trial court. In this regard, the words of the Honorable Justice A . Grunis in the Nir Am case (paragraph 5 of his judgment) are appropriate:
"Indeed, as usual and in the absence of special reasons, we are of the opinion that the king's way of raising arguments against the defects that occurred in the filing of an indictment (including at the investigation stage) is within the framework of the criminal proceeding itself. This determination is based on a number of reasons: First, in this way, the need to split the hearing and conduct two separate proceedings around related issues will be avoided. Such a split is not only undesirable for efficiency considerations and for reasons of saving judicial resources, but it may even cause unnecessary procrastination and unreasonable prolongation of the criminal proceeding.... Second, the question that arises as to the legality or reasonableness of the decision to file an indictment often involves various factual disputes. The trial court has the appropriate tools for clarifying factual questions, and in this respect it is preferable to the High Court of Justice. Third, it should be remembered that the trial court has at its disposal a variety of means to deal with the defects that occurred in the filing of the indictment. The court can make use of moderate and proportionate remedies that do not amount to the cancellation of the indictment."
In 2007, section 149 of the Code of Criminal Procedure was amended and a preliminary argument was added (section 149(10)), 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." In the bill – the Criminal Procedure Bill (Amendment No. 51) (Protection from Justice), 5767-2007 (H.H. 143, at p. 138, hereinafter: the Protection from Justice Bill), it was explicitly clarified that this is a bill that "came to anchor in legislation the claim of protection from justice, which was adopted in the legal system in Israel, by way of case law" (ibid., at p. 138). The bill states what is protection from justice (ibid.):