Additional Criminal Hearing 1062/21 Jonathan Urich v. State of Israel - part 15

"Insofar as the court is involved in any way in the criminal proceeding prior to the commencement of the trial (such as in arrest and search proceedings or in judicial review of the decisions of the prosecuting authorities regarding prosecution), it must exercise its judicial discretion in a manner that is appropriate to the stage at which the criminal proceeding is at the time and to the nature of the means that are requested to be used" (ibid., at p.  386).

With this in mind, it was held that "a decision on the question of the admissibility of evidence, in accordance with the doctrine of judicial inadmissibility, as a rule, should not be made in a preliminary legal proceeding at the stage when an investigation is being conducted by the police [...]" (ibid., at p.  396).

102. The main reason underlying the conclusion that there is no reason to use the tests of the Issacharov rule to examine the admissibility of evidence in the framework of the investigation stage is the significant difficulty in maintaining at that stage the complex balance required by these tests. This is because at the investigation stage, the picture before the court is, naturally, very partial, and this makes it difficult to examine the damage versus the benefit involved in the disqualification of the evidence - which are weighed, inter alia, against the background of the severity of the offense attributed to the defendant.  An erroneous decision regarding the admissibility of the evidence at the interrogation stage is liable to decide the fate of the entire criminal proceeding (see: Shemesh, at p.  394; the Urich II case, at paragraph 48 of the opinion of Justice Sohlberg and paragraph 14 of the opinion of Justice Kara), and this delicate balance should be made after the conclusion of the investigation, when the factual and legal picture is more complete.  First, by the prosecution, which is obligated to take into account illegality, to the extent that such has occurred, in collecting evidence that it wishes to present, when it makes the decision to prosecute a person (see paragraph 89 for the completion of the argument on behalf of the state in an additional hearing in Urich; see also in this context: the Shemesh case, at p.  392); and second, by the court hearing the main proceeding, and before it is presented with the full picture that enables it to examine all the aspects relating to the matter in an exhaustive and complete manner.
103. Accordingly, it is necessary to conclude that a distinction must be made between a decision regarding the possibility of collecting evidence le-khatila - to which the court is required at the investigative stage, for example, in requests for a search warrant or an order to produce documents - and a retrospective decision with respect to the admissibility of evidence collected, which is submitted at the main stage of the proceeding, to the extent that an indictment has been filed. There is in fact no dispute between the parties regarding this distinction in the additional hearing before us (in paragraphs 9-10 to complete the Applicants' argument in an additional hearing, Urich; at p.  2 for the completion of the argument on behalf of the State in an additional hearing, Urich; in paragraph 35 of the defense counsel's position in another hearing, Urich).  The judicial decision required at this stage therefore focuses on the question of whether or not to allow the investigating authorities to carry out a future investigative action, i.e., whether or not to issue a search warrant as requested despite the illegal search that preceded the filing of that request.  This is in contrast to deciding the question of the admissibility of the evidence that was collected in the framework of the illegal search or that will be collected later in the investigation (see: Urich I, at paragraph 15).  In any event, the tests of the Issacharov rule, which are intended to examine the admissibility of evidence at the main stage of the proceeding, are not suitable - by their very nature and nature - for the investigation stage.
104. The approach according to which the admissibility of the evidence submitted by means of a search of computer material is not examined at the interrogation stage is also customary and accepted in other legal systems to which the parties referred in the proceedings at hand. In summary, it should be said that as a rule, as my colleague Justice Hendel demonstrated in the framework of a comprehensive review of the comparative law in the Shimon case, in the United States, England and Canada, these questions are examined in the framework of the main proceeding or in a designated preliminary proceeding that takes place after the prosecution (ibid., at paragraph 17 of his opinion; see also: Shemesh case, at pp.  397-398), and anything that adds is detracting.
105. As a result of the foregoing, I am of the opinion that the argument raised in another hearing should be rejected, according to which the possibility that an indictment will not be filed against an interrogee serves as a justification for bringing forward the date for examining the admissibility of evidence in accordance with the Issacharov Rule. The model according to which this rule was formulated is the "preventive model" - according to which the invalidation of evidence is intended to prevent harm to a protected value upon the receipt of evidence at trial - while the "corrective model", according to which the invalidation of evidence constitutes a remedy for the infringement of rights resulting from the acquisition of the evidence, was rejected in the Issacharov case.  In this framework, it was also noted that "alternative remedies can be pointed out - criminal, disciplinary, tort and possibly also constitutional - for the initial violation of the protected right of the interrogee when the evidence is obtained" (ibid., at p.  554; and see paragraph 56 above).  This approach is acceptable to me and I did not see fit to deviate from it.
106. In this context, it should be reiterated that the hearing of a request for a search warrant concerns a judicial decision on a specific application, which is based on the limited perspective that the court has in the midst of the investigation. This specific decision is not intended to serve as the "final word" in relation to the conduct of the investigating authority and in relation to its possible offerings.  Therefore, the mere granting of a search warrant does not legitimize illegal actions carried out by the investigating authorities prior to its issuance, and it does not affect a future hearing to be held on the question of the admissibility of the evidence obtained as a result of or in connection with an illegal search, nor on the question of the entitlement of the interrogee to other remedies as a result of the illegal action (Urich II, at paragraph 51 of the opinion of Justice Sohlberg; Harduf, at p.  74).  In this sense, I am of the opinion that it cannot be said that the mere issuance of a search warrant during the investigation in circumstances in which an illegal search was previously carried out, makes the court an "accomplice" to the violation of individual rights (for a different position, see: Assaf Harel and Hemda Gur Aryeh, "Between the Issacharov Rule and the Poisoned Tree Fruit Doctrine, " Key Sentence 43,52 (2021); Elkana Leist, "On Rules of Conduct, Rules of Jurisdiction, and on the Conduct of a Minor Trial for Examining the Admissibility of Objective Evidence - A New Reading in Additional Criminal Hearing 5852/10 State of Israel v.  Shemesh, " Yoram Danziger 461,474 (Limor Zer-Gutman and Ido Baum eds., 2019)).

In any event, the determination that in the realm of admissibility, the evidentiary implications of an illegal search of a computer will not be examined in the framework of the search request, does not preclude an examination of the illegality of the conduct of the investigating authority in the framework of the hearing of the application, in a manner that anticipates future investigative actions.

1. Previous illegal search of the computer - a consideration in the framework of the decision to request a search warrant
2. The possibility of considering the illegality that occurred in the conduct of the investigating authority in the framework of the decision on the application was discussed in the Shemesh case, but it was allowed to be examined:

"A question that may arise in this context is what is the law regarding evidence (such as a confession) that was created in the first place in clear and clear violation of the law, and whether the violation of the law that was involved in the creation of the evidence is a consideration that the court is required to use when granting an order according to Error! Hyperlink reference not valid.  [...] I do not see the need to decide this question in the case before us and it can be left to the future.  This is because in the present case everyone agrees that there was no flaw in the very collection of the testimonies of the employees by the internal committees of inquiry of the railways, and the claim of a violation of the right to a fair trial is directed towards the delivery of these testimonies to the police and not to the collection of them themselves" (ibid., at p.  389).

108. Without further ado, with regard to other requests submitted at the investigation stage, I am of the opinion that in the framework of requests to search computer material, there is justification for examining the effect of the investigative authority's conduct prior to the submission of the application, particularly where a previous search of the same computer was carried out illegally. In my view, the reasons for this are twofold: the general reason, which is relevant to all the requests submitted at the investigation stage, stems from the requirement that the state act fairly in the framework of its applications to the court at the investigation stage; the second reason, which is unique to the search for computer material, stems from the court's role in ensuring the proportionality of the violation of privacy, as determined by the legislature in section 23A of the Search Ordinance.
109. The importance of the demand for fairness in the conduct of the enforcement authorities in the criminal proceedings cannot be overstated. This is especially so in view of the power gaps that already exist between the state and the interrogees, and given the powerful powers and tools placed in the hands of these bodies (see: the Urich II case, at paragraph 41 of Justice Sohlberg's opinion).  Failure to take into account a flaw in the conduct of the investigative bodies prior to the submission of the request to search the computer - even though there are circumstances in which the defect led to the filing of the application - is tantamount to ignoring the duties imposed on the state in a criminal proceeding (Criminal Appeal 10960/03 Hasson v.  State of Israel, paragraph 1 of the opinion of Judge (as he was then called) Rubinstein [published in Nevo] (June 6,2005)).  Let us not forget that "victory in the criminal proceeding is not the pillar of fire that goes before the law enforcement authorities, but the search for truth, fairness, honesty and integrity, and of course the law in all its forms.  It is not the result in a particular case that is the main thing, but the realization and respect of these principles" (ibid.).
110. This general reason - which relates to all requests submitted by the State at the investigative stage - is joined in our case by another reason that the legislature emphasized in Amendment No. 12 to the Ordinance, in which it assigned to the court an important role in search proceedings of computer material: to ensure that the search does not infringe on a person's privacy beyond what is required. Since this is one of the main criteria that should guide the court in its decision on a request for a search warrant, I am of the opinion that the fact that a computer has already been penetrated in a manner that is not in accordance with the provisions of the law, is likely to have an impact on the proportionality of the violation of privacy, inter alia, given the cumulative effect deriving from the overall exposure of the investigative authorities to the information on the computer in which the search is requested.
111. This insight that unlawful conduct by the investigative authorities may affect the proportionality of the violation of individual rights has long been expressed in decisions relating to arrests, in which it was determined that a defect in the conduct of the authorities with regard to the arrest of a person - for example, if his right to consult a lawyer was violated, or if a previous unlawful detention was made - may affect the legitimacy of continued detention (Miscellaneous Criminal Applications 9220/12 Peretz v. State of Israel, para.  9 [published in Nevo] (December 26,2012) (hereinafter: the Peretz case); Miscellaneous Criminal Applications 7721/95 Cohen v.  State of Israel, IsrSC 49(4) 166,171 (1995)).  Therefore, it was ruled that defects of this kind will constitute one of the considerations that the court will consider when deciding on the continuation of the detention of that person (ibid.; the Peretz case, at para.  13; miscellaneous criminal applications 9113/12 Anonymous v.  Israel Security Agency, para.  5 [published in Nevo] (December 21,2012) (hereinafter: Miscellaneous Criminal Applications 9113/12)).  Similarly, it was held that the seizure of an object or property in an illegal manner will constitute a consideration in examining the possibility of continuing to hold it as a seized object (Criminal Appeals Authority 4526/18 Elovitch v.  State of Israel, para.  24 [published in Nevo] (August 5,2018)).  With regard to requests to search computer material, my colleague Justice Elron noted that: "The granting of a search warrant in such circumstances will not lead to the same 'ordinary' violation of the interrogee's privacy that would have been caused if the search warrant had the search warrant been issued in advance - but rather to an ongoing violation of his privacy, which is severe and profound in relation to the normal state of affairs" (paragraph 29 of his decision in the Urich I case).  Such a severe and ongoing violation deserves, in my view, to be taken into account when deciding on a request for a search warrant.
112. The combination of the general reason relating to the state's obligations when filing motions at the interrogation stage, and the specific reason relating to the proportionality of the violation of privacy in the framework of the computer search, leads to the conclusion that the judge hearing a request for a search warrant on a computer was required to examine the implications of a previous illegal search that was carried out on that computer as part of his decision on the application. In this context, it should be emphasized that with respect to this conclusion, there is in fact full agreement between all the judges of this court who heard the various proceedings in the Urich case, and even the lower courts that heard this matter examined the effect of the illegal search in the framework of their decision (the Urich II case, at paragraph 17 of Justice Kara's opinion).  The parties to the proceeding also did not dispute that a previous unlawful search is a consideration that should be taken into account in the framework of deciding the search request (see, inter alia, paragraph 4 for the completion of the argument on behalf of the state in an additional hearing in Urich; paragraph 27 of the defense position, in another hearing in Urich).  The definition of the dispute, which we will now address, is the manner in which this consideration should be included in the list of considerations that the court must examine when deciding on a request for a search of computer material.
113. Weight to be given to a previous unlawful search in the context of the hearing of the search warrant application
114. The entirety of the considerations that the judge hearing a request for a search warrant on a computer must consider when deciding the application was presented above in paragraphs 71-76, and in view of the complexity of the investigation stage, I do not believe that it is possible to determine in advance a precise balancing formula between all the considerations - including the consideration relating to a previous illegal search. The tests set out in the Issacharov rule relate, as stated, to the admissibility of the evidence and are not relevant at the investigation stage; Thus, in my view, the doctrine of "protection from justice", which Deputy President Melcer proposed to use, and which, as a rule, applies from the stage of filing the indictment onwards and not before (section 149(10) of the Criminal Procedure Law; see also: Proposed Criminal Procedure Law (Amendment No. 51) (Protection from Justice), 5767-2007, H.H.  Knesset 138, in which it was clarified that the defense from justice claim is a preliminary argument that is likely to be "available to a criminal defendant at the beginning of his trial hearing").

However, and even without setting a detailed outline for striking the balance between the illegality that preceded the search request and the other considerations that must be considered in the course of the hearing of the application, I saw reason to insist on a number of principles on the basis of which such a balance should be maintained, taking into account the issues that raised controversy in the proceedings in the Urich case.

114. First, I share the position of my colleague Justice Sohlberg that a condition for clarifying the validity of a previous unlawful search in the framework of the hearing of the search request is that "the illegality and its connection to the request for an intrusion order are clear in law, and do not require additional in-depth evidentiary clarification, including interrogations of witnesses and those involved" (paragraph 50 of his opinion in the case of Urich II). This is in view of the characteristics of the investigation stage that I discussed above, which do not allow for a complex factual and legal clarification in this context, especially given the determination that in the vast majority of cases the hearing of the application for a search order must be held ex parte.  It should be emphasized that even if the court believes that the presence of a particular party is necessary and therefore it is necessary to act in accordance with the exception to the rule and to hold the hearing in the presence of the parties, the hearing on the matter of illegality must be limited in order to prevent it from prolonging excessively, in a manner that is liable to thwart the continuation of the investigation.
115. Second, the closer the connection between the illegal search and the filing of the search application, and the more serious the circumstances of the defect, the more weight the court must give to the illegal search that preceded the filing of the application, when it comes to balancing this consideration with the other considerations relevant to the decision on the application.

In this context, I accept the defense counsel's argument that the question of the connection between the illegality and the search request is a complex one, and in the framework of which the qualitative aspect of the illegal search affected the factual basis that was the basis of the search request, as well as the decision of the investigating authority to file the request (paragraph 50 of the defense attorney's position in another hearing in Urich).  Thus, for example, if the court finds that the entire purpose of the request is to "whitewash" materials that have already been obtained in the framework of the illegal search, it is clear that the connection in this context is very close (see and compare: Harduf, at p.  76).  As to the severity of the defect, insofar as the illegal search was done deliberately (as opposed to a good faith mistake); repeated itself a large number of times, or as part of a systematic policy; or was carried out under coercion, threats or violence - there will be a growing tendency to determine that this is a serious flaw in the conduct of the investigating authority (see: Urich I, at paragraph 34; and see also: paragraph 28 for the completion of the State's argument in another Urich hearing).

116. Third, I do not believe that the applicants' position should be accepted in a further hearing that if an illegal search was carried out, the default would be to reject the request (words of Adv. Haddad at p. 22 of the minutes of the hearing of July 27,2021).  In this context, it has already been ruled that "it is not appropriate that an improper action taken against a suspect, even a criminal act, should create immunity for him or his computer from any future investigative action" (Harduf, at p.  76; and compare with the decisions in which it was determined that a previous unlawful arrest would not constitute a decisive consideration for rejecting the request for detention: Miscellaneous Criminal Applications 1219/12 Elkiritz v.  State of Israel, para.  6 [published in Nevo] (February 14,2012); Miscellaneous Criminal Applications 9113/12, [published in Nevo] at paragraph 5).  However, there may be cases in which the very occurrence of the illegal search may constitute a decisive consideration that alone justifies the rejection of the application (see the Urich II case, paragraph 1 of Justice Kara's opinion).  However, such a result should be limited, in my view, to extreme situations and extremely exceptional circumstances in which the conduct of the investigative authorities constitutes a particularly fatal violation of the principle of the rule of law and the right to privacy.
117. Interim summary: The court hearing the application should be allowed to examine the (partial) picture before it at the interrogation stage, and in each case to balance the flaw in the conduct of the investigating authority and other considerations such as the purpose for which the order is required, the severity of the offenses being investigated, and the status of the computer owner or holder in relation to the investigation (the first Urich case, at paragraphs 32-33).
118. Ostensibly, it would have been possible to conclude here the discussion in principle on the issue of the illegality of a previous search of a computer in respect of which a search warrant is requested. However, the issue of the illegality may sometimes recur in the framework of the main proceeding, to the extent that it is decided to file an indictment.  This is especially true in situations where the court ruled that despite a previous illegal search, it is appropriate to issue the requested search warrant on the computer, as well as in situations where the consequences of the illegality were not discussed at the investigation stage, whether because its nature was not sufficiently clear at the time or because its very existence was not known.

With regard to the question of how the implications of illegality should be examined in the framework of the main proceeding, a dispute arose among the judges of the panel in the Urich II case.  Justice Kara was of the opinion that the doctrine of judicial invalidation that was anchored in the Issacharov case should be applied (paragraph 17 of his opinion); Deputy President Melcer was of the opinion that the criteria of the doctrine of protection from justice should be applied (although in his view the appropriate date for this should be at the investigative stage and not at the stage of the main proceeding; see paragraphs 18 and 25 of his opinion); And Justice Sohlberg was of the opinion that insofar as there is justification for holding the hearing of the consequences of the illegality in the main proceeding, the panel hearing the main proceeding must step into the "shoes" of the judge who heard the request for a search warrant, and re-examine "whether, in light of the defect that was discovered, it was correct to grant the order in the first place" (paragraph 52 of his opinion).