Therefore, in cases where the legislature sought to limit a person's right to plead and to allow an ex parte hearing on a matter that affects his rights, this was explicitly determined as a rule, while noting various provisions for balancing the infringement of his rights against the public interest - see, for example, section 6 of the Wiretapping Law, 5739-1979 (hereinafter: the Wiretapping Law), which allows the issuance of a wiretapping order after an ex parte hearing in criminal investigations of felony offenses only; Sections 12-15 of the Criminal Procedure Law (Enforcement Powers - Arrests), 5756-1996 (hereinafter: the Arrests Law), which prescribe various provisions regarding the possibility of holding an ex parte hearing regarding the arrest of a suspect.
- Against the background of the importance of the right to plead in order to ensure the purity and propriety of the criminal proceeding, it was emphasized that the right of a suspect - and not only that of a defendant - is also derived from the right to a fair trial, which extends over the various stages of the criminal proceeding (see, for example, Miscellaneous Criminal Applications 8823/07 Anonymous v. State of Israel, IsrSC 66(3) 500,532 (2010); Miscellaneous Criminal Motions 8015/09 Conyoff v. State of Israel, paragraphs 21-22,24-25 [published in Nevo] (October 20,2009); Miscellaneous Criminal Motions 8151/18 State of Israel v. Abramov, para. 9 [published in Nevo] (January 31,2019) (hereinafter: the Abramov case)).
The importance of the right of the interrogee and the suspect to plead derives, inter alia, from the inherent power disparity between the police officer and the citizen in general, and between the interrogee and his interrogators in particular. As I have emphasized in various criminal motions, Shimon:
"More often than not, a person who appears for a police interrogation meets for the first time with the investigative and enforcement authorities. His understanding of the nature and nature of the interrogation process is limited, and his ability to assert his rights may be limited. The police investigation, by its very nature and nature, puts the interrogee in distress and embarrassment, "penetrates the face and face of the bird of his soul and creates severe psychological pressures in him." Against the background of the power disparities between the police and the citizen and between the interrogee and his interrogators, and the concern that these gaps will lead to unnecessary infringement of rights, the legislature determined that certain investigative actions will be carried out under close judicial supervision. However, the court's ability to effectively supervise these investigative actions is impaired when the hearing of the request of the investigating authorities to carry out this or that action is held ex parte. In this situation, the judge is required to step into the shoes of a person whose rights are liable to be violated, and to raise his arguments on his behalf. This task is not at all simple - and this is especially in view of the great workload in which the courts find themselves" (ibid., at paragraph 22).
- Moreover, holding a hearing on a request for a search warrant on a computer ex parte - even when it does not prejudice the public interest - is liable to damage the appearance of justice and the public's trust in the courts.
The dangers that lurk in the fair process as a result of holding ex parte hearings on requests for orders in the framework of a criminal investigation can be learned from the report of the Examination Team for Examining the Systemic Aspects of the Work Interface between Judges Hearing Motions Before an Indictment and Prosecution Officials, which I headed, and whose members also included the President of the Beersheba District Court, Judge R. Yaffe-Katz, and the President of the Magistrate's Courts in the Central District, Judge A. Ron (the Examination Team for Examining the Systemic Aspects of the Work Interface between Judges Hearing Motions Before an Indictment and Prosecution Parties "Summary and Recommendations" (April 2018) (hereinafter: the Investigation Team Report).