However, extreme caution must be taken lest this exception - which allows the right to plead in the name of the public interest to be detracted from - will become a rule, and the right to plead will be violated in a sweeping manner, even when there is no need for the hearing of the request for a search warrant to be held ex parte. In this regard, the words of Deputy President E. Rivlin in Miscellaneous Criminal Motions 8823/07 Anonymous v. State of Israel, IsrSC 36(3) 500,532 (2010):
"The standards applied at the initial interrogation and detention stage differ in certain respects from those applied at other stages of the criminal proceeding, where, alongside a possible impairment of the suspect's or detainee's ability to defend himself, there are various defense mechanisms (for example, the short periods of time during which a person can be arrested during the investigation and close judicial supervision stage). However, any further violation of the rights of the suspect and detainee, especially when it is expressed in a limited ability to maintain judicial supervision, is liable to upset the balance and undermine the fairness of the proceeding. On the contrary, it is precisely in a proceeding in which there are increased restrictions on the ability of the suspect-detainee to defend himself and respond to the allegations raised against him, that additional difficulties must be exercised against imposing additional difficulties and from intensifying his exclusion from the proceeding."
- In our case, section 23A of the Search Ordinance does not relate at all to the manner in which the hearing of an application for a search warrant is held on a computer - and a mobile phone in particular.
In contrast to my colleague the President and the position expressed in the majority opinion in various criminal motions in Shimon, I am of the opinion that this "silence" of the legislature does not, as stated, indicate the absence of the right of a plea on the part of the interrogee - but rather it establishes its existence. This, as stated, is in light of the presumption that in the absence of an explicit provision in the matter and significant considerations that support the reduction of the right to a plea, the legislature did not intend to deny this right; and taking into account the principle according to which, as a rule, a basic right is not violated except by explicit authorization in the law.