He added (in paragraph 48 of his judgment in the Gottesdiener case):
"Thus, an examination of the harm to the sense of justice, as distinct from the existence of selective enforcement by the prosecution, clarifies the picture. These are two separate planes that are protected under the pretext of protection from justice."
The Honorable Justice Y. Amit had reservations about this ruling, and noted, in the Gottesdiener case, in paragraph 59 of his judgment that:
I do not see fit to address the question of whether there is room to accept a defense of justice claim on the basis of a vague violation of the sense of justice and fairness, which does not stem from defects in the proceedings taken in the case of a defendant. As may be recalled, in the first stage of the test set in the Borowitz case, the court was required to "identify the defects that occurred in the proceedings taken in the defendant's case and to determine their intensity, regardless of the question of his guilt or innocence." To the extent that it is found that such defects occurred, it is necessary to continue to examine in the second stage whether "the existence of the criminal proceeding despite the defects constitutes a severe blow to the sense of justice and fairness" (Borowitz, at p. 87). It is my opinion that care must be taken against an uncontrolled expansion of the doctrine of the defense of justice. This is what I noted in the Agbaria case with regard to the claim of discrimination in prosecution, and in particular an argument based on consequential discrimination, as establishing a defense of justice in criminal law. As a rule, I am of the opinion that it is not correct to correct 'mistake by mistake and injustice by injustice' (ibid., verse 65)."
There is no need to take a position because, even if the broader test of all the circumstances discussed by the Honorable Justice N. Hendel had been adopted, there would have been no room to determine at this stage of the proceeding that the sense of justice had been impaired. In our case, the argument is that prosecuting a company by virtue of the actions of its managers, while granting immunity to managers who testify against it, objectively violates the fairness of the proceeding. I don't think so. As I explained above, the purpose of the pine theory is to attribute criminal responsibility to society for the actions of the organist. It is true that both the organs and the corporation should be prosecuted, but if the prosecution was indeed required to grant immunity to the organs, a matter that will be clarified only in the main proceeding, then the conceptual basis for prosecuting the corporation stands. Otherwise, a corporation that enabled the execution of acts of bribery on a large scale, a "bribery factory" in the words of Justice Sagi, would be exempt from doing nothing.