5.2.2.a. Is it an equality group?
In the case before me, the question arises whether we are dealing with an egalitarian group, and in fact, whether this protection of selective enforcement exists at all when it comes to a corporation on the one hand and organs of that corporation on the other. As we have seen, according to the theory of organs, the actions of the organ are attributed to the corporation, and in this case, according to the facts of the indictment, the actions of the organs are attributed to the defendant. Therefore, we are not dealing with different people who committed the same offense in the same circumstances, but rather a single criminal conduct, of the organs, which is attributed to the corporation. However, as appears from the case law that criticized plea bargains in such cases, and insisted on the need to prosecute both the organs and the corporation, it can be said that although this is a single criminal conduct, since it is attributed to a different legal personality (the organ on the one hand and the corporation on the other), it is an equal group since both the directors who were dismissed by virtue of immunity are the defendant, the company, are accused of committing the same offense.
5.2.2.b. Is this selective enforcement?
The defendant claims that this is selective enforcement, since the defendant herself, Siemens Israel, was prosecuted, while its organs, senior managers who worked for the company in the past, were granted immunity from prosecution. The accuser's argument is that this is a substantive distinction, since the immunity agreement or the state's witness agreements were signed with the organs for investigative considerations, and mainly the lack of sufficient evidence for the purpose of bringing the bribe recipients to justice.
Admittedly, the court in the Borowitz case ruled (ibid., at p. 820, para. 32): "There are times when the desire to prosecute all those involved is not practical in light of the concrete circumstances of the incident." However, the court further ruled that: "The need to recruit prosecution witnesses from among the senior officials in the various companies..... This need also seems to us to be a legitimate consideration." It is possible that, as the accuser claims, without reaching immunity arrangements or state witness agreements with the organs, neither the recipients of the bribe nor the defendant could have been prosecuted. In other words, the prosecution's argument that granting immunity to organs stemmed from the needs of the investigation and from considerations of the need to prosecute the recipients of the bribe, if proven, could indeed constitute a proper consideration that would negate a claim of selective enforcement.