The Right to Appeal a Decision on a Request for a Search Order on Computer Material
- Throughout the entire criminal proceeding - including at the interrogation stage - the parties are not generally granted the right to appeal or appeal interim decisions, except in those cases where the law expressly provides for the right to appeal or appeal (Miscellaneous Criminal Applications 4804/17 Bramly v. State of Israel, para. 10 [published in Nevo] (August 9,2017); Miscellaneous Criminal Applications 3403/98 Suissa v. State of Israel, IsrSC 52(2) 620,624 (1998); Miscellaneous Applications Criminal 501/09 Attorney General v. Mayo, Paragraph 4 of the opinion of Judge E. E. Levy and paragraphs 2-3 of my opinion [published in Nevo] (May 10,2009); Miscellaneous Criminal Applications 8922/20 Anonymous v. State of Israel, paragraph 3 [published in Nevo] (January 13,2021); and compare with the appeal and appeal mechanisms that were established, for example, in section 147 of the Criminal Procedure Law, section 53 of the Arrests Law, and section 38A of the Search Ordinance). The Search Ordinance does not enshrine the right to appeal or appeal a decision in an application for a search warrant on a computer (not even in relation to other types of search warrants), and thus it would have been possible to conclude the discussion of the question of the right of objection. However, over the years there has been a certain erosion of the point of departure that I discussed above, and in a number of cases case law has recognized the right to appeal a decision in a criminal proceeding, even though it has not been explicitly anchored in legislation. Against this background, there was a lack of uniformity in the trial courts with regard to the possibility of obtaining a search warrant on a computer: some of the courts recognized the existence of such a right of objection, whether explicitly or implicitly, i.e., by discussing the proceeding on its merits without addressing the question of substantive jurisdiction (see, for example: High Court of Justice 8183/17 Kahane v. State of Israel, para. 1 [published in Nevo] (October 24,2017); Return of Possession (Shalom Tel Aviv) 749-06-18 Yekutiel v. Israel Police / Tel Aviv District Attorney's Office, Paragraphs 10-14 [published in Nevo] (July 2,2018)), while other courts refused to hear the objections brought before them at the investigation stage, and determined that the appropriate stage to discuss them is in the main proceeding (see, for example: Miscellaneous Criminal Applications 4705/20 Anonymous v. State of Israel [published in Nevo] (July 8,2020); Search Order / Entry Order (Shalom Rishon LeZion) 29950-05-20 Kadosh v. State of Israel (June 28,2020) (hereinafter: Kadosh Case); Other Appeal (Mer District) 74156-06-20 Kadosh v. State of Israel [published in Nevo] (July 6,2020); Return of a Seized Item (Shalom Acre) 39875-08-10 Sorotsky v. Israel Police - Karmiel Station, Paragraph 7 [published in Nevo] (April 3,2011)) - and the issue requires clarification.
- At the outset, I will note that for the reasons detailed in the majority opinion in the Shimon case, as well as for other reasons that I will detail below, I accept the position of my colleagues Justice (as he was then called) Hendel and Justice Baron, according to which there is no reason to recognize the right to appeal or appeal against a decision in an application for a search warrant on a computer. In addition, like my colleague Justice (as he was then called) Hendel, I do not believe that it is possible to make use of an application for the return of a seized item or an appeal relating to the return of a seized item (according to sections 34 and 38A of the Ordinance) as an indirect objection to the search warrant. Finally, in my view, there is also no reason to allow the submission of an application to cancel the decision to the court that issued the order.
- In my opinion, the rule that opens the door to objection proceedings in this context is inconsistent with the subjective and objective purpose of section 23A of the Ordinance. The substantive justifications for the rule according to which the hearing of a request for a search warrant on a computer must be held ex parte - including the need to maintain the speed and efficiency of the investigation; the fear of acts of disruption; and the possibility of raising objections to the order in the framework of the main proceeding - all of these are also relevant when we come to examine whether the right of objection should be granted to a search warrant that has not yet been executed. Granting the right to conduct an objection proceeding "in real time" to the owner or owner of the computer, and all the more so to any other party that considers itself harmed by the issuance of the search warrant, is liable to lead to significant delays in the execution of the search warrant that was granted, slow down the investigation and provide fertile ground for disruptive actions.
- Direct Objection by Appeal or Appeal
- As stated above, I concur with the majority opinion in the Shimon case that a decision in an application for a search warrant on a computer does not amount to a "judgment" that can be appealed in a right, for the reasons detailed by the majority justices. In various applications Criminal 658/88 Hassan v. State of Israel, IsrSC 45(1) 670 (1991) (hereinafter: the Hassan Rule), it was held that it is indeed possible to file an appeal in right against decisions that constitute a "judgment", as understood in sections 41(a) and 52(a) of the Courts Law [Consolidated Version], 5744-1984, even if an explicit right of appeal is not enshrined in the law. However, the Hassan Rule - on which my colleague Justice Elron relied in his ruling that a decision on a request for a search warrant on a computer constitutes a "judgment" - sought to provide a solution to the unique scenario in which a final decision was made in a criminal proceeding conducted between the State and a defendant, as a result of which the rights of a third party who was involved in the proceeding and became an "de facto party" were infringed. In my view, there is no room to expand the application of this rule and apply it to our case. Indeed, the decision on a request for a search warrant on a computer naturally ends the litigation on the issue of the requested order, and it is liable to lead to a violation of the right to privacy of the computer owner and others related to the information contained therein. Similarly, innumerable judicial decisions, which are made from the beginning of the investigation stage and throughout the main proceeding, conclude the litigation of the specific issue brought before the panel and are likely to have a material impact on the rights of the suspect or defendant (Guy Shani, "Permission to Appeal the Request for Leave to Appeal (in 'Second Incarnation'): Common Law, Proposed Law, and Desirable Law on the Issue of Appealing 'Another Decision'" Iyunei Mishpat 300 71,120 (2006)). Nevertheless, considerations of the efficiency of the criminal proceeding, including the desire to "concentrate the matters under discussion in the framework of the criminal case into a single track, based on the fear of intolerable fragmentation of proceedings, prolongation of proceedings, cumbersome and prolongation of hearings, as well as additional torture of the criminal defendant" (Criminal Appeals Authority 6016/06 Cuban v. State of Israel VAT Tel Aviv, para. 5 [published in Nevo] (July 17,2007)) - led to the formulation of the rule according to which there is no reason to file an appeal on the right of interim decisions in criminal proceedings. Whether by the defendant or by the state, except in certain and defined cases (see Miscellaneous Criminal Applications 10220/16 Biton v. State of Israel, para. 5 [published in Nevo] (January 2,2017); Criminal Appeal 6907/19 Shem Tov v. State of Israel, para. 8 [published in Nevo] (November 11,2019); High Court of Justice 2029/07 Weinberg v. Vice President of the Acre Magistrate's Court [published in Nevo] (March 4,2007); High Court of Justice 3570/08 Anonymous v. State of Israel, Paragraphs 3-4 [published in Nevo] (April 17,2008); Criminal Appeal 4345/08 Olmert v. State of Israel, para. 7 [published in Nevo] (May 20,2008)). This is the case in the main proceeding, and this is all the more lenient at the interrogation stage, where the interest in advancing and ending the investigation quickly and efficiently has increased weight.
- Moreover, a criminal appeal is to a large extent alien to the stage of the criminal investigation - and it is evidence that in those cases in which the legislature chose to grant the right of appeal to a decision given at the stage of the investigation, the procedure chosen for this purpose is, as a rule, an appeal and not an appeal (see, for example: section 38A of the Search Ordinance and section 53 of the Arrests Law; see also paragraph 12 of the opinion of Justice (as he was then called) Hendel in the Shimon case). This is not a mere semantic difference. An appeal proceeding, as opposed to an appeal proceeding, is heard before a single judge and is more speedy and efficient, and therefore more suitable for the purposes of the investigation stage, than a criminal appeal that is heard, as a rule, before the Telta Tribunal.
- As stated, with respect to search requests, including a search of a computer, the right of appeal was not granted in the Search Ordinance, whereas on decisions on matters listed in Chapter Four of the Ordinance - and in particular on requests to return seizure - the legislature chose to grant an explicit right of appeal in the framework of Amendment No. 12 to the Ordinance (see section 38A of the Search Ordinance, and see also the explanatory notes to the proposed amendment No. 12, at p. 151). In my view, weight should be attributed to the legislature's choice to focus the right of appeal in this way, especially in view of the fact that Amendment No. 12 included amendments with regard to search proceedings as well. Therefore, it is difficult to argue that the issue of the search has gone unnoticed by the legislature (see in this context the holy case, at paragraph 16).
- In view of this choice of the legislature in relation to the search chapter of the Ordinance, I did not see room to accept Shimon's argument that an equal decree should be drawn in our case from the fact that the courts actually hear appeals proceedings against decisions made by virtue of section 43 of the Ordinance, which deal with an order to present an object or document, even though the Search Ordinance does not confer a right of appeal in respect of them (see, for example: the Shemesh case; Criminal Appeals Authority 3152/06 Zadok v. Ginat [published in Nevo] (November 27,2006); Criminal Appeal 1761/04 Sharon v. State of Israel, IsrSC 58(4) 9 (2004)). Moreover, the discussion of section 43 of the Ordinance does indeed deviate from our interests, but it should be added and emphasized that in those cases in which the courts agreed to hear proceedings of appeal against decisions under section 43 of the Ordinance, they refrained from discussing the question of substantive jurisdiction on its merits, and in some cases even raised doubts regarding its existence (see, for example: Miscellaneous Criminal Applications 296/18 Anonymous v. State of Israel, paragraph 3 [published in Nevo] (March 15,2018)). It was further noted that the normative basis for the existence of the right to appeal or appeal against a decision under section 43 of the Ordinance is at least questionable (for further discussion, see: Miscellaneous Criminal Applications 2529/15 Mazar v. Legal Aid Unit, paragraph 12 [published in Nevo] (May 6,2015); Dan Bein, "The Awakening of the Sleeping Beauty: An Order to Present an Object or Document in Accordance with Section 43 of the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969", Trends in the Law of Evidence and Criminal Procedure - Harnon Book 557,578-579 (Anat Horowitz and Mordechai Kremnitzer, eds., 2009); Amit, at p. 285).
- In summary: there is no room to allow a direct objection proceeding - in the form of a criminal appeal or an appeal - against a search warrant on a computer. In this context, it should be mentioned that even the state, which in the past used to file appeals against decisions in requests for search warrants on a computer, announced in the framework of the Shimon proceeding that it had ceased this problematic practice (see paragraph 16 of Justice Elron's opinion).
- Indirect objection in the framework of a seized return proceeding
- An alternative argument by Shimon and the defense attorney is that it is possible to allow an indirect objection to a search warrant on a computer that has not yet been executed - in the framework of seized return proceedings under sections 34 and 38A of the Search Ordinance. This question remained in dispute in the judgment in the Shimon case: while my colleague Justice Elron answered it in the affirmative, my colleague Justice (as he was then called) Hendel was of the opinion that there was no reason to use the mechanism of returning the seized possession for the purpose of objecting to a search warrant, while my colleague Justice Baron left the question to be examined. In the framework of the judgment in the Urich II case, two members of the panel addressed the issue more than necessary: Deputy President Melcer was of the opinion that it was possible to appeal a decision to issue a search warrant in the framework of the seized return proceedings (paragraph 12 of his opinion), while my colleague Justice Kara was of the opinion that it was not possible to appeal a decision to issue a search warrant on a computer prior to its execution (paragraphs 4 and 7 of his opinion).
- Section 34 of the Search Ordinance establishes, inter alia, the right of a person claiming a right to a seized object to submit to the court a request to receive it, and section 38A of the Ordinance grants the right to appeal against decisions made under Chapter IV of the Ordinance (which deals with seizure proceedings). This is their wording:
Delivery of the seized by order
- At the request of a police officer authorized to do so by a police officer with the rank of sub-inspector or at a higher rank than usual or for a specific matter (hereinafter - a qualified police officer), or at the request of a person claiming a right to an object, a magistrate's court may order that the object be delivered to the claimant of the right or to a certain person, or that it be treated differently as the court may order - all under the conditions to be determined in the order.
Appeal