This section was introduced, in 2007, as part of Amendment No. 51 to the Code of Criminal Procedure, and its purpose is to anchor the doctrine established in case law, in a statutory provision in the statute book.
It should be noted that the argument was raised by defendants 1, 3 and 4 in the first instance in the summaries, and therefore the accuser's counsel, Adv. Noam Uziel, was not given the opportunity to comment on the matter, since his summaries were naturally submitted before the defendants' summaries. As for defendant 5, from the very beginning a claim of protection from justice was raised, which was discussed and rejected by me in a decision given on October 22, 2008. I will note at this point that the application before me on behalf of defendant 5 is not substantially different from that presented by his counsel, Adv. Ehud Dagan, at the end of 2008.
Before I proceed to examine the arguments on their merits, I will reintroduce the legal principles regarding the claim of "protection from justice":
"Protection from justice" is a halakhic doctrine that recognizes the inherent authority of the court to delay or annul a criminal proceeding whose filing or investigation contradicts the principles of justice and legal fairness.
In the seminal judgment, Criminal Appeal 2910/94 Yefet v. State of Israel, IsrSC 50(2) 221 (hereinafter, "the Yefet Rule"), it was held that the court will recognize the existence of a "defense from justice" only in "exceptional and exceptional circumstances, when the conduct of the public authority constitutes 'scandalous conduct that constitutes persecution, oppression and abuse of the accused.'" This is a test of "the intolerable behavior of the authority", "cases in which conscience is shocked and the universal sense of justice is harmed, something that the court stands open in front of and cannot tolerate. It is clear that such a claim will be raised and accepted in very rare cases." In the judgment, the Honorable Justice Dov Levin argued that the interest underlying the recognition of the applicability of the "protection from justice" is the public's interest in maintaining the integrity of the legal process. On the other hand, there are other important public and private interests, such as the interest of the general public in prosecuting criminals and bringing the truth to light. Therefore, it was emphasized that extreme caution must be exercised in the application of the doctrine, since the application of the "protection from justice" has the power to prevent the conviction of a person whose guilt has been proven, as well as to prevent the imposition of a severe punishment on someone whose offense he committed ostensibly justifies, a severe punishment.