The mechanism for appealing a decision regarding the delivery of seized items was established in the framework of the Criminal Procedure Ordinance Amendment (Arrest and Search) (Amendment No. 10), 5757-1997. This follows the judgment of this Court in the case of Scotch Whiskey Association, which determined, as stated, for the first time, that a decision on a request for the delivery of seized possession can be appealed by virtue of the general provisions of the Courts Law. Section 38A of the Search Ordinance, which was enacted a few years later, adopted this ruling and anchored it through the appeal mechanism set forth in the section.
There is great difficulty in concluding from the very fact that this Court's ruling is anchored in the existence of a right to appeal a decision in a request for delivery of seizure, that there is a negative arrangement with respect to the possibility of appealing decisions given in relation to the other issues regulated in the Search Ordinance.
In fact, it seems that the opposite is true: the legislature adopted the leading logic established by this court, according to which decisions that accompany proceedings that take place in the course of the criminal investigation, which conclude the litigation between the parties, can be appealed. Therefore, this logic should also lead us with regard to other issues regulated in the Ordinance.
The application of what was determined in that case law to our case shows that an interrogee who was injured as a result of a search warrant on his computer - and on his smartphone in particular - should be allowed to appeal the decision to grant the order. If the legislature had wished to limit this right of appeal, I am of the opinion that it should have at least explicitly established it in the law. And as noted above, at the very least, an interpretation that grants the right of appeal should be preferred to an interpretation that denies it.
- My colleagues in the majority opinion in various motions, Criminal Shimon sought to point out a practical difficulty in determining the right to appeal a decision on a request for a search warrant on a computer, and in the case of a smart mobile phone in particular, which stems from the fact that, on the face of it, this means that the appeal will be heard before three judges - and not before one, as in an appeal. However, I do not believe that there is any real difficulty in this difficulty.
As has been clarified more than once in the rulings of this Court, the very classification of a decision in a "judgment" regarding the existence of a right of appeal does not indicate that it should be classified as a "judgment" even for the purpose of determining the panel that will hear it. Therefore, it was held, for example, in the Zeinlov case, that a decision on a request for an extension of the time for filing an appeal will be classified as a "judgment" in the sense that there is a right to appeal against it; however, it should not be regarded as a "judgment" with regard to the determination of the panel to hear the appeal: