It seems that even according to the objective test, the fairness of the proceeding is not violated, if it turns out that there was no choice but to grant immunity to the organs. However, this matter will be decided only at the end of the main proceeding, when the court will be exposed to the statements and testimonies of the organs, and to the rest of the evidence in the case and the manner in which it was obtained, and only then will it be possible to determine whether the prosecution's considerations in this matter were relevant. At this stage, when we rely on the indictment, it is not possible to determine that this is discrimination in prosecution. Therefore, at this stage, it is not possible to determine that the second test of the defense of justice exists, according to which conducting the proceeding against the defendant despite the defect will harm the sense of justice and fairness.
5.2.2.c. The fairness of the proceeding in the test of all the circumstances
After examining the argument of selective enforcement, we still have to examine whether the second condition is met in examining the question of whether the defense from justice should be applied to the case, which is the test of all the circumstances. In the Gottesdiener case , a claim of protection from justice was also made, based on the factual claim of selective enforcement. In the same case, it was determined that the state, in prosecuting the defendants, acted for proper reasons. However, the Honorable Justice Hendel went on to rule (in paragraph 47 of his judgment) that despite this determination, and in light of the changes and expansion in the defense of justice, the fairness of the proceeding must be examined from a broad perspective of examining all the circumstances:
"In the first stage, the severity of the failures that occurred in the management of the process must be assessed. However, in accordance with the doctrinal change that has taken place in the defense of justice and its expansion, it is necessary to examine whether, in the circumstances in which the indictment was filed, the sense of justice and fairness was impaired."