It should be recalled that there may be cases in which there may be other alternatives to the issuance of the order, which infringe on the suspect's autonomy less, and if the suspect agrees to them, the court will have to,
As a rule, they should be preferred over the issuance of an order. Thus, for example, in cases where the requested items are documents relating to transactions in a person's bank accounts that the bank refuses to provide in the absence of the account holder's consent. If the account holder agrees to sign a consent for the bank to provide the information directly to the police, this method will be preferable to the way of issuing an order to hand over the documents.
We have mentioned above only some of the considerations that the court may give weight when it comes to considering whether to issue an order under section 43. In our own case, there was no dispute that the orders were issued lawfully, and that the exercise of discretion in granting the order to produce the documents under both orders was also correct. Let us therefore proceed to discuss the two questions that we have raised above, and first to the interpretation of "in his possession or possession" in section 43.
"In his possession or possession"
- Article 43 states that a person may be commanded to invent an object that According to the assumption, he was found "in his possession or possession". The question in dispute is whether a person – a witness or a suspect – is obligated to trace documents that are in his control – even if not in his immediate possession – and which he was ordered to hand over by order Article 43 and to produce them, or perhaps the obligation that applies to him is to hand over objects that are in his physical possession only, such as those found on his body or in his yards. This question does not relate to the issue of the acquired right of silence to a suspect required by a house order-A sentence to invent an object or to present it, including documents. On this issue, we decided in the-The First Law [1], in which we determined that the right to remain silent does not apply to the delivery or presentation of documents-The law commands a suspect to invent. What the suspect is about to suspect in such a case is confidentiality from self-incrimination. In our case, the appellant informed that the documents requested in the two orders do not incriminate him. The dispute that remains between the parties is only with respect to the scope of the duty imposed on a person, suspect or witness, when he is ordered to-Phi Article 43 to provide documents. This question must be examined on the basis of the assumption that an order by virtue of the section may be addressed to any person, whether he is a suspect or whose status is that of a mere witness. The one difference is that in the case of a suspect, the order will also include other provisions of the law that are intended to protect the rights of the suspect.
- My opinion is that the language of Article 43, its purpose and legislative history show that it should be seen in terms of "In his possession or possession" It also applies to objects that the recipient of the order has the power and control to invent them. This refers to objects to which he has access or which are in the hands of a person on his behalf, and in any event, that-According to his wishes, he can come to hold on to them.