The investigative unit should have known that, at the very least, the American authorities had an interest in digital currencies, a matter that could spill over beyond purely "evidentiary purposes."
- In examining the desired situation, in such cases, the awareness that a particular material being transferred is a dual material requires special or different treatment, such as a demand by the Israel Police for an American undertaking to return subject to the results of a local proceeding in Israel (see section 20(b) of the Legal Aid Law), or the execution of the action by the Israel Police (the transfer of the Bitcoin to an address associated with a private key in the possession of the Israel Police and the transfer of the recovery kernels to the United States in the first stage when they have no proprietary value) and at the same time the management of the seizure process in Israel. Or, alternatively, an appropriate application to the Israeli court for instructions (section 19(d) of the Legal Aid Law).
On a side note, it seems that it is appropriate for the Public Prosecution to devote itself to the matter of thought, with a view to the future, and that it can be assumed that similar cases will occur in the future.
- Back to our topic. The aforementioned can establish the existence of a defect as to the correct route that the investigative unit should have taken after it had its hands on the reconstruction nuclei. The conclusion is that there was a flaw, stemming from the Israeli investigator's action that transferred the materials to the United States without considering the meaning of some of the material, and especially the proprietary aspects of the operation.
- However, in the Israeli legal system, the mere existence of a difficulty or even a defect in the action of the authorities does not necessarily lead to the remedy of canceling the action. According to the theory of relative nullity (or relative result), the court must identify the defect, determine its intensity, put it against the public interest, and determine accordingly whether there is a moderate remedy other than the severe and extreme result of declaring nullity.
- The case before me is reminiscent of the case of Elovitch et al., which was heard in Criminal Appeal 4526/18 Elovitch v. State of Israel [published in Nevo] (2018), where the question of the implications of illegally seizing an object or property was discussed. There are two types of objects: art objects and jewelry.
The Honorable Judge Y. Amit, as he was then called, ruled that there was a defect of the type of illegality in the seizure of the suspects' property, when it was held: