5.2.2 Conditions for the Application of Protection
In the Borowitz case, the court discussed a three-stage test in the matter of protection from justice as a rule, according to which the court will act to identify the defects that existed in the defendant's case and their intensity, regardless of questions of guilt or innocence. Then, in the second stage, the court will examine whether conducting the proceedings against the defendant despite those flaws will harm the sense of justice and fairness. Finally, the court will grant an appropriate remedy that balances the defects discovered with additional interests that the criminal law protects (see the beginning of chapter 5 above). This was discussed by the Honorable Justice D. Barak-Erez inCriminal Appeal 5975/14 Ibrahim Darwish Agbaria v. State of Israel [published in Nevo] (2015, paragraph 16 of her judgment):
In examining the claim of protection from justice, a wide range of considerations must be taken into account, including the severity of the offense, the circumstances of the case, as well as considerations of retribution and deterrence. The public interest in holding trials, bringing criminals to justice, and safeguarding public safety and the rights of crime victims must also be balanced among all considerations. On the other hand, the rights of the accused, the purity of the criminal proceeding must also be taken into account, and the aspiration to bring about the disqualification of the prosecution's lost moves and to maintain the public's trust in the court."
Segal and Zamir in their article: Protection from Justice in the Law discussed the test that must be taken, according to which the test of essentiality concerns cases in which "the filing of an indictment or the conduct of the criminal proceedings stand in significant contradiction with the principles of justice and legal fairness, and that this contradiction substantially impairs the management of the defense, and that it does not impair the conduct of the defense that is technical in nature, and that it imposes an immaterial burden on the management of the defense. Only in the event that the infringement is classified as substantial in nature and not only as "technical" will a gate be opened to examine the possibility of implementing the claim in practice.".