Discussion and Decision
- The questions that need to be decided in the additional hearings before us are, as stated, interpretive questions relating to the provision of section 23A of the Ordinance. This section states that a search of a computer will only be carried out pursuant to a judicial order - as opposed to other searches, which can be carried out in certain circumstances without a warrant (see section 25 of the Ordinance). It should be noted in parentheses that opinions differ as to the possibility of sufficing with the "informed consent" of the interrogee for the purpose of conducting a search of his computer without a warrant (see: The First Urich case, at paragraph 17), but this question exceeds the scope of the discussion in our case, since there is no dispute that in both cases the subject matter of the hearing was not given "informed consent" as aforesaid.
- The proceedings before us deal with search warrants that were requested at the investigation stage, i.e., before it was decided whether to file an indictment in the affair that is the subject of the search warrant. The distinction between the investigation stage and the criminal proceeding that takes place after the indictment is filed is a deep-rooted distinction in our approach, and as will be detailed below, it carries great significance with regard to the proper balance between the various rights and interests at stake, including with regard to the interpretation of section 23A of the Ordinance. In the past, it was held that "the starting point of the investigation stage is the need to fill in the gaps [...] This situation has implications for the relative freedom of the police to investigate, to examine the material and sometimes to clarify out of nowhere what is the factual and criminal basis inherent in it" (Miscellaneous Criminal Applications 5796/14 State of Israel v. Mamet, para. 11 [published in Nevo] (November 6,2014) (hereinafter: the Mamet case)). The relative freedom of action granted to the police as an investigative body is intended to realize the public interest in preventing crime, investigating the truth, and bringing criminals to justice (see, inter alia: Criminal Appeal 6613/99 Smirak v. State of Israel, IsrSC 56(3) 529,555 (2002); Amikam Harpaz and Miriam Golan, Law and Policing: Human Rights and Police Powers 219 (2018) (hereinafter: Harpaz and Golan)). In summary, it should be said that the investigation phase is intended to gather evidence; it requires secrecy, agility, and efficiency; It is being conducted in the shadow of the increased fear of disruption of the investigation, until which it is impossible to know with certainty what will be revealed in the framework of it (on the uniqueness of the investigation stage in the criminal proceeding, see, inter alia: Additional Criminal Hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 377,386 (2012) (hereinafter: the Shemesh case); Yaakov Kedmi on Criminal Procedure: Part One - Pre-Trial Proceedings Vol. 2 679,683 (2008); David Libai "Interrogation of a Suspect and the Privilege from Self-Incrimination" Hapraklit 29 92,93 (1974); Assaf Harduf "Legitimizing the Breach: Request for an Order to Infiltrate Computer Material After Unlawful Penetration - Cleaning Order or Whitewashing Order?" Mishpat on Site 15 60,65 (2020) (hereinafter: Harduf); Yisgav Nakdimon Journalistic Confidentiality 274,281-280 (2013) (hereinafter: Nakdimon); Ron Shapira, Itay Bressler-Gonen and Ilanit Hillel Arrest Proceedings: Guide of the Perplexed 33,55-43 (2021) (hereinafter: Shapira, Bressler-Gonen and Hillel)).
Therefore, at the stage of conducting the investigation, there is a built-in tension between the interest in ensuring a quick and effective investigation in order to fight crime and protect public safety, and in order to reach the truth, and the need to ensure the rights of interrogees, suspects, and third parties. This stage, by its very nature, involves a certain violation of the rights of interrogees and of other parties related to the interrogation, including the right to privacy, the right to liberty and the right to property (Criminal Appeal 4855/02 State of Israel v. Borowitz, IsrSC 59(6) 776,833 (2005) (hereinafter: the Borowitz case); High Court of Justice 3809/08 The Association for Civil Rights in Israel v. Israel Police, IsrSC 65(2) 694,717 (2012) (hereinafter: the Media Data Matter); Amit, at pp. 309-310), but this does not mean that the goal qualifies all the means. The scope of action of the investigative authorities is always subject to limitations and restrictions designed to ensure a fair trial and the proportionality of the violation of the rights of interrogees (including suspects and witnesses) as well as third parties (see in this context also: section 7(c) of the Basic Law: Human Dignity and Liberty; Criminal Appeals Authority 10141/09 Ben Haim v. State of Israel, IsrSC 65(3) 305,334 (2012)).
- In this context, it is important to note that the equation of rights with regard to the investigation stage is not monolithic, and in fact, human rights are on both sides of the scale. This is because the interest in an accurate, efficient and fair investigation embodies both the right of interrogees and suspects to have the investigation of their case concluded as quickly as possible, with minimal infringement of their rights, and the right of the victims of the offense to proper protection against harm to their well-being, dignity and property (see and compare: Criminal Appeal 4988/08 Farhi v. State of Israel, IsrSC 65(1) 626,683-684 (2011) (hereinafter: the Farhi case); High Court of Justice 6972/96 The Movement for Quality Government v. The Attorney General, IsrSC 51(2) 757,771-772 (1997); Additional Criminal Hearing 3750/94 Anonymous v. State of Israel, IsrSC 48(4) 621,630 (1994); Additional Criminal Hearing 4390/91 State of Israel v. Yihya, IsrSC 47(3) 661,679 (1993); Criminal Appeal 5877/99 Janus v. State of Israel, IsrSC 59(2) 97,117-118 (2004); Judith Karp, "Criminal Law - The Janus of Human Rights: Constitutionalization in Light of the Basic Law: Human Dignity and Liberty, " Hapraklit 42,64,120-116 (1995) (hereinafter: Karp)). As President (ret.) M. Shamgar said in additional criminal hearing 2316/95 Gneimat v. State of Israel, IsrSC 49(4) 589,621 (1995):
"Basic Law: Human Dignity and Liberty carries with it a constitutional message that is enacted for every individual in society, but this message is intended for the entire society and not only for its criminals. The victim of the offense in practice and by force and every innocent citizen is entitled to the protection of their dignity and liberty from fear, terror and harm, no less than the accused. A woman's right not to be the object of beatings and humiliation again is no less than the right of her husband who beats him to his liberty. The right of a young woman who drives innocently in ways not to be a victim of another rape is no less than the right of the defendant not to be arrested. The aforesaid here does not in any way detract from the obligation to ensure that the rights of the defendant at the pre-judicial stage are protected and guaranteed, but this mere strictness does not exhaust the obligations that arise and arise from the Basic Law."