This was also discussed by the Honorable Justice v. Hendel inCriminal Appeals Authority 1201/12 Yosef Kati'i v. State of Israel, [published in Nevo], paragraph 10 of his judgment (2014, hereinafter: the Kati'i case):
"A decision on a claim of protection from justice is up to the court. His vision is broad and observes all the circumstances surrounding the stages of the proceeding. The standard is a fundamental contradiction to the principles of justice and fairness in the light of criminal law." Accordingly, a defense from justice is no longer merely a preliminary argument that allows the court to dismiss the indictment. The use of the defense has become elastic and flexible, and it is likely to be reflected in all parts of the law: not only at the preliminary stage, but also at the sentencing stage; Not only at the sentencing stage, but also at the sentencing stage."
We were a flexible test that examines all the circumstances of the proceeding, and enables the defense to be anchored at each stage.
An extensive discussion of the defense of justice in general, and selective enforcement in particular, was conducted inCriminal Appeal 7621/14 Aharon Gottesdiener v. the State of Israel [published in Nevo] (hereinafter: the Gottesdiener case, March 1, 2017). In the Gottesdiener case, the Honorable Justice N. Hendel discussed at length the evolution of the "defense from justice" from the jurisprudential defense through the enactment of section 149 (10) of the Judicial Code and after it (paragraphs 41-46 of his judgment), and ruled (ibid., at paragraph 44):
"Over the years, the doctrine of protection from justice has softened and has become , in addition to being a means of supervising the discretion of the prosecuting authorities over the very filing of an indictment, into a tool in the hands of the court that enables the process to be balanced with the values of justice and fairness of criminal law. The defense, in its new nature, expands the lens through which the court examines the offense and the legal process, and allows the court – even in cases where all the elements of the offense have been proven – to look at the moment before the offense was committed and even to the conduct of the criminal proceeding that is in the future of the offense. According to the new nature of the doctrine, sometimes the intensity of the circumstances surrounding the moment of the offense is so significant that they must be taken into account even at the stage of examining the guilt and sentencing, and not only as a lenient consideration at the sentencing stage. While according to the core of criminal law, the examination of the elements of the offense focuses only on the scene of the offense – protection from justice allows the court to expand the boundaries of the offense and examine "what precedes it and what follows."