As I have also noted in various criminal motions by Shimon, as part of the team's work, it was found that there was more than once a direct and personal connection between the judge who hears criminal proceedings in requests for ex parte orders in the framework of an undercover investigation, and the police and other investigative and enforcement authorities who argue before him (the investigation team's report, pp. 6-14).
The Supreme Court President's Procedure 1-18 "The Interface of Work between Judges and Prosecution and Investigation of Motions Before Filing an Indictment" (amended August 29,2018), which was established by my colleague the President, sought to eradicate this phenomenon in order to "maintain the integrity of the judicial process, in order to maintain equality between the parties and in order to prevent harm to the appearance of justice and the public's trust in the court system" (ibid., in section 3; and see also paragraph 76 of the President's opinion).
However, the main purpose of these provisions is only to reduce the fear of irregularities that may occur as a result of holding the hearing ex parte - and it is clear that when this can be avoided, it is preferable to hold the hearing in the presence of the parties. This will enable the judge hearing the proceeding to ensure "transparency and visibility vis-à-vis all parties", as required by the procedure (ibid., at section 18).
This, too, supports the conclusion that the right to privacy of an interrogee and suspect should be avoided as much as possible before he is given a proper opportunity to voice his claims.
- Indeed, like any other right, the interrogee's right to plead may be overridden by other public interests. Thus, for example, when there is a reasonable basis for concern that holding a hearing in the presence of the interrogee or suspect regarding a request for a search warrant on his computer - including his smartphone - will thwart the search or disrupt the investigation (see also Abramov, ibid.; Criminal Appeal 1761/04 Sharon v. State of Israel, IsrSC 58(4) 9,21 (2004); Criminal Appeal Authority 1230/18 Maliniak v. Israel Police Unit, para. 11 [published in Nevo] (May 28,2018) (hereinafter: the Maliniak case)).
Accordingly, the courts routinely grant requests for a search warrant ex parte, since this "necessitates the need to ensure the effectiveness of the search; and this is rooted, in principle, in the element of surprise" (Yaakov Kedmi on Criminal Procedure: Part One - Pre-Trial Proceedings 683 (2008) (hereinafter: Kedmi); Moshe Shalgi and Zvi Cohen Criminal Procedure 61 (Second Edition, 2000)).