To the question of the relationship between the provisions of the law cited above, and the right to remain silent and the right to self-incrimination, the court was required to consider an expanded panel (Vice-President T. Or and the Honorable Justices A. Matza, M. Cheshin, D. Beinisch and A. A. Levy) with the permission to file a criminal appeal8600/03 State of Israel v. Gilad Sharon, 58(1) 748 (2003, hereinafter: the Gilad Sharon case).
For interrogees in general, and for the suspect and the defendant in the criminal proceeding in particular, there is immunity from self-incrimination, which includes non-submission of incriminating documents. In the Gilad Sharon case, the question was discussed as to whether the right to remain silent granted to the defendant and the suspect also applies to documents or only to the submission of testimony. This is in light of the precedent according to which the immunity from self-incrimination applies to documents, but it is limited to documents that there is a concern that, if provided by the interrogee, will lead to his incrimination (see, among many, the words of the Honorable President Shamgar inCriminal Appeal 663/81 Avraham Khoury v. State of Israel, IsrSC 36 (2) 85, 91 (1982), as well as the words of the Honorable Justice M. Cheshin B.Criminal Appeal 725/97 Herman Kalkuda v. Agricultural Supervision Authority, IsrSC 52 (1) 749, 757 (1998)).
It was held that the right to remain silent does not extend at all to documents that a court has instructed a suspect to have provided, otherwise interrogees would constitute a "city of refuge" for the documents even when they do not incriminate him, which has no justification (the words of the Honorable Vice-President Justice T. Or in the case of Gilad Sharon, at p. 761, at paragraph 13 of his judgment). It was also determined, as to the immunity against self-incrimination, the manner in which the claim, insofar as it relates to the documents, is examined by the court.
In the Gilad Sharon case, the Honorable Vice-President, Justice T. Or, discussed the conceptual basis for the right to remain silent and ruled that this conceptual basis does not apply where we are dealing with the delivery of documents by virtue of the right not to self-incriminate (paragraphs 9-12 of his judgment, beginning at p. 759):