Abuse of Process – When the Proceeding Itself Is Not Fair
The abuse-of-process defense, now enshrined in Section 149(10) of the Criminal Procedure Law, allows the court to dismiss an indictment or remedy procedural defects when the prosecution or conduct of the proceedings fundamentally conflicts with principles of justice and legal fairness.
What is the doctrine of defense of justice?
Defense of justice, now anchored in Section 149(10) of the Criminal Procedure Law, allows the court to dismiss an indictment or cure defects in the proceeding when the prosecution or the conduct of the proceeding stands in substantial contradiction to principles of justice and legal fairness. This is the court's tool of review over the conduct of the enforcement authorities themselves.
When is the argument accepted?
The test established in the case law is three-stage: identifying the defects in the proceeding and their severity; examining whether conducting the proceeding despite the defects causes severe harm to the sense of justice; and balancing the interests, the gravity of the offense against the gravity of the defect, where the remedy may be dismissal of the charge, exclusion of evidence, or mitigation of the punishment. The recognized grounds are: selective enforcement (prosecution of one person while ignoring others in an identical situation); extreme delay in handling the case; a governmental promise that was breached; improper investigative conduct; and improper involvement of authorities in the commission of the offense.
A strong argument that requires a foundation
Defense of justice is not a slogan: the courts accept it sparingly, and only when it is supported by a solid factual foundation, comparative data for selective enforcement, a documented timeline for delay, and documentation of the promises and conduct. Building the foundation begins already at the investigation stage: preserving documents, documented requests, and demands for materials. A defense attorney who considers the argument from day one comes equipped with it; one who remembers it only in summations is too late.
Legal representation
Israel Arama, a former member of the Tel Aviv District Attorney's Office, identifies from the inside the patterns of conduct of the prosecuting authorities and knows when they cross the line that gives rise to a defense of justice. Contact us for an initial consultation without obligation.
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