The characteristics of the decision in question therefore clearly indicate that this is a "judgment" against which an appeal can be filed. In this regard, with the necessary changes, the words of Justice Y. Kedmi in the High Court of Justice case 2260/94 The Scotch Whisky Association v. Judge of the Tel Aviv-Jaffa District Court [published in Nevo] (October 25,1994) (hereinafter: the Scotch Whisky Association case), where he ruled for the first time that there is a right to appeal a decision on a request for the delivery of a seized item under section 36 of the Search Ordinance - despite the fact that this is a procedure that is often conducted even at the interrogation stage, and despite the fact that at that time an appeals mechanism for a decision on a request to hand over a seized item has not yet been established in this Ordinance:
"In light of the judgment given in the Hassan case... Once again, there can be no dispute that a decision given by virtue of the provisions of section 36 of the PDP [Search Ordinance - J.A.] - such as the decision that is the subject of the hearing before us - constitutes a 'judgment', insofar as it is an appeal against it. ... In view of its independent and separate status from the judgment relating to the indictment, parties may, therefore, appeal a decision as to what to do with the seized - just as a 'judgment' is challenged" (ibid., at paragraph 4).
Admittedly, if it is ultimately decided to prosecute the interrogee, he will have the opportunity to voice his objections to the legality of the search warrant in the main proceeding, and to argue that this should be taken into account in determining the weight of the search findings and in sentencing him (see, for example, Additional Criminal Hearing, at pp. 389-392). However, this does not negate the finality of the decision in granting the warrant, which in my opinion constitutes an independent procedural unit, since the violation of privacy occurs already at the time the search is carried out (see also the Hassan case, ibid.).
- I have not lost sight of the position that the determination of an appeal mechanism against a decision regarding the delivery of a seized property under section 38A only, and not on a decision on the issuance of a search warrant, indicates a kind of negative arrangement according to which such a decision cannot be appealed - not even according to the general arrangement set forth in the Courts Law. This was also explained in the President's opinion (paragraph 86 ibid.), as well as in the focus of the majority opinion in the various motions in the Shimon Criminal Appeals (ibid., in paragraph 12 of the judgment of Justice N. Hendel, as well as in paragraph 7 of the judgment of Justice A. Baron).
However, in my view, tracing the legislative history of this section teaches otherwise.