There is no dispute that the police did not follow the route prescribed in section 30 of the law, but rather acted in accordance with sections 19(a) and 29 of the Legal Aid Law. Thus, there was a flaw in the way the police in Israel handled the transfer of the materials to the authorities in the United States.
- As stated, in order to assist in the work of classification, it is possible to use the test of dominance, in accordance with the proximity of the material - according to its nature and nature - to the evidentiary aspect on the one hand, or the property aspect on the other. Alongside this test, an additional rule of thumb or auxiliary test is proposed: since we are dealing with an action by the authorities against the individual, and in light of the latter's constitutional rights, the default is to guarantee the right of the potential victim to a plea (as part of the rules of natural justice), provided that the right to a plea does not impair the interrogation. On the other hand, if notifying the potential victim is likely to harm the investigation, including due to a fear of asset smuggling or damage to evidence, this should be avoided.
The Honorable President A. Barak added in a certain matter that:
"In principle, a request by an interested party - including a suspect - to review investigative material in a police file should be examined according to the circumstances of the case. This, it seems, is also the basic approach of the respondent. The main consideration that may justify the denial of the right to review is the concern that the review may interfere with the completion of the investigation. In addition, various public and private interests must be taken into account, for example, weight must be given to the rights of the suspect, the right to privacy of those involved in the investigation, the public interest in the proper conduct of the investigation, and the interests involved in the state's foreign relations."
Therefore, to the extent that granting the right to plead and being informed about it is likely to harm the investigation, it is necessary to proceed in the usual way of transferring evidence materials. On the other hand, to the extent that the right of a plea is not expected to sabotage the investigation, it is preferable to act according to the route of temporary seizure, an appeal to the court in Israel, while granting the right to a plea to the potential victim.
- In the case before us, there was no impediment to transferring the recovery kernels to a wallet belonging to the Israel Police or the Custodian General, in order to allow the victim a right to plead in the framework of a request to the Israeli court to approve the transfer of the recovery kernels to the authorities in the United States.
- According to the above analysis, another relevant question arises: was the police that seized the material aware of its property characteristics or did it transfer the material without giving it its knowledge?
The defense argued that in this matter there are various indications of the existence of knowledge and perhaps even more, i.e., cooperation between the police in Israel and the authorities in the United States, while deliberately circumventing the legal procedure prescribed by law.