"The decision on the question of whether the prosecution of some of those involved in the commission of an offense is partial permissible enforcement or whether it is selective and improper enforcement will usually depend ... Clarifying the question of whether the authority distinguished between those involved on the basis of relevant considerations or whether it acted ...in order to achieve an improper goal, either on the basis of extraneous consideration or out of sheer arbitrariness... This rule is based on logic: as we have already noted, the court's decision‑to cancel an ‑indictment for reasons of protection from justice is contingent on the fact that the decision to file it severely harms the court's sense of justice and fairness. When the reason for the discrimination lies in the deliberate and malicious conduct of the authority, the existence of a severe violation of the sense of justice and fairness is prima facie and clear, while the existence of such an infringement is less self-evident where the authority acted in good faith."
However, the court did not completely close the door on cases in which an indictment on this basis would be canceled even when the motives of the prosecution were not proven, in its ruling (ibid.):
"However, we do not see room to rule out the possibility – which by its nature will be extremely rare – that the decision on the question of the existence of selective improper enforcement will be derived from other special circumstances, and not necessarily from the determination that the prosecution's decision was based on a malicious motive or on clearly improper considerations... The court may cancel an indictment that was filed – for reasons of protection from justice – if it is indeed convinced that in the circumstances of the given case, the decision to indict a certain person and not to charge an anonymous person clearly exceeds the realm of reasonableness."
This determination differs from the precedent in the United States, where improper motives and discriminatory intent of the prosecution must be proven (for a review of the law in the United States in this context, see: R.H. Lenhardt, "Understanding the Mark: Race Stigma and Equality in Context", 79 N.Y.U. L. Rev. 803 (2004); Yoav Sapir, "Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. Blackletter L.J. 127, 136-143 (2003). See also: Michal Tamir, "On Negligence and Intent to Discriminate: Unique Aspects of Enforcement", 26 Law Studies 217 (2010) and in: Sefer Bach, 619, 624 (edited by David Hahn, Dana Cohen-Lekach and Michael Bach (2011, hereinafter: Tamir, Intention to Discriminate (reference to page numbers is to the article as it is). appears in the book Bach)).