"Allowing the defense to request the court ex parte, without the knowledge of the prosecution, to receive material by virtue of section 43 of the IPC is a recipe for mishaps, violation of privacy, confidentiality and other interests, and even disruption of investigation and trial proceedings, even if the matter is done in good faith" (ibid., at paragraph 10).
Orders According to Article 43 The order is given a routine act, ex parte, without the suspect being given the right to plead. It is difficult to shock that a suspect will steer his own interrogation, and in the normal state of affairs Don't suspect "Mouth opening" In an investigative proceeding, which is supposed to be done without his knowledge and without his involvement: "During the course of the interrogation, the suspect is not supposed to be exposed to the line of investigation or to the evidence that the investigators have collected or wish to collect" (paragraph 1 of my judgment on the matter Urich). Naturally, a suspect can point to his interrogators about evidence or information that can support his defense, but from here until he goes to court Article 43 to the Ordinance, there is a long way to go. Therefore, and in view of the above, and in contrast to what was said by the Judge A. Arbel IIMiscellaneous Criminal Applications 9305/08 Anonymous v. Al Mamuniyah School for Girls [Nevo] (December 3,2008) (hereinafter: the El Mamonia) - I believe that Article 43 The Ordinance is intended for use by the investigative and prosecution authorities Onlyand that Urich could not have asked to use it at all (see Yitzchak for more on this Privileges and Protected Interests Member - Discovery and review procedures in civil and criminal law 282-284 (2021) (hereinafter: Amit Privileges)).
- Right of Appeal: The question of whether and how decisions can be obtained according to Article 43 The Ordinance has not been explicitly decided to date, although in practice, in some cases, theThe possibility of appeal, and sometimes even in a "third incarnation" to this court (see, for example: Criminal Appeal Authority 8600/03 State of Israel v. Sharon, IsrSC 58(1) 748 (2003) (hereinafter: the Sharon); עניין מקור ראשון; For more on this, see: Dan Bein, "The Awakening of the Sleeping Beauty: An Order to Present an Object or a Document under Section 43 of the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969" Trends in Evidence Law and Criminal Procedure - Sefer Hernon 578-559,579 (Anat Horowitz and Mordechai Kremnitzer, 2009)). As stated above, Article 43 The Ordinance is used by the investigating authorities, and it is often used during the stage of the undercover investigation and without the suspect's knowledge, and therefore orders by virtue of Article 43 The ordinance is given by the magistrate's courts as a matter of routine without the matter being heard at all, and in any case there is no one who seeks to challenge them (Amit Privileges, at p. 285; see also Miscellaneous Criminal Applications 2529/15 Mazar v. Legal Aid Unit - Interpol and Operating Abroad Section, paragraph 12[Nevo] (6.5.2015)). The case before me raises the question of the right of a third party, who is not the suspect, to provide materials. Not only that, but that third party has strong reasons to claim that the information is confidential and that there is no reason to hand it over to the police. In these circumstances, I am of the opinion that there is a right to appeal the decision, and that the objection will be heard as an appeal before a single judge, as is customary in proceedings such as this - and all as will be explained now.
Indeed, the default in criminal proceedings, including at the interrogation stage, is that the litigants are not granted the right to appeal interim decisions unless an explicit provision has been established in the law that enshrines the right to appeal or appeal (Criminal Appeal 426/87 Shukri v. State of Israel, IsrSC 42(1) 732,735 and the references therein (1988); Matter Urich, in paragraph 81 of the President's judgment Animals). At the same time, in exceptional cases, this court was willing to recognize the existence of a right of objection even though it is not enshrined in a statutory provision (see, for example: Miscellaneous Criminal Applications 501/09 Attorney General v. Mayo [Nevo] (10.5.2009)). Moreover, in the applications Criminal Miscellaneous 658/88 Hassan v. State of Israel, IsrSC 55(1) 670 (1991) held that an appeal may be filed against decisions that constitute a "judgment" even without a right as stated in the law, and as noted by the President Animals In the matter UrichIn doing so, the court sought to provide a solution "to the unique scenario in which a final decision was made in a criminal proceeding that took place between the state and the Defendant, as a result of which the rights of Third Party who was involved in the proceeding and became an 'actual litigant' in it." Urich, paragraph 84 of the President's judgment Animals).