"This result is formally possible if we define the decision in the application for an extension of time as an interim decision or as a judgment on appeal, within the meaning of section 26 of the Courts Law. Indeed, this result is ostensibly inconsistent with the determination in the Khilaf case that it is a judgment. However, as I have noted, the Hilaf rule addressed only the question of the existence of the right to file an appeal within the meaning of section 41 of the Courts Law, and was based on weighty reasons that justified the interpretive effort made in that matter. In our case, these considerations do not exist. There is no need to define the decision as a judgment. An appeal has already been opened. Now the question is only whether the appeal should be heard before a panel of three or before a single judge" (Criminal Appeal 2525/05 Zeinlov v. State of Israel, para. 17 [published in Nevo] (June 9,2005).
Subsequently, the matter was anchored in a judgment given in the Talta panel in the Fahmawi case, in which my colleague Deputy President N. Hendel reiterated his clarification:
"In the matter of Criminal Appeal Authority 8274/99 Hilaf v. the State of Israel [published in Nevo] (February 2,2000), the way was paved for the existence of an appeal in favor of a decision regarding the extension of the time for filing an appeal. At the same time, this appeal should be heard before a single judge. This is evident from the structure of criminal procedure, which, as a rule, recognizes an appeal to the authority only in a third incarnation, but is willing to recognize the right to appeal in a second incarnation as well in appropriate cases, in order to preserve the rights of the parties in criminal proceedings" (Criminal Appeal 2983/19 Fahmawi v. State of Israel [published in Nevo] (June 11,2019; emphasis added - Y. A).
Accordingly, although in my opinion it is correct to classify a decision in an application for a search warrant on a computer as a "judgment" with respect to section 52 of the Courts Law - and therefore it can be appealed - there is nothing to prevent section 37(c) of this Law from applying to it, and the hearing before the District Court in an appeal against the Magistrate's Court's decision will be held before one judge.
- Turning to the practical aspects of the right of appeal, I will add that a question may arise as to whether the process of appealing a decision in an application for a search warrant should be classified as a civil appeal or as a criminal appeal (on the significance of the classification of the proceeding on the appellant's rights, see, for example, Miscellaneous Civil Applications 10092/17 Cernik v. State of Israel, at paragraphs 8-9 [published in Nevo] (February 1,2018). See also Matter of 381 Search Warrants Directed to Facebook, Inc., 29 N.Y.3d 231 (2017), where there was a dispute, inter alia, on the question of whether a decision to issue a search warrant in a commercial company's databases, for the purpose of obtaining details about suspects using its services, should be classified as a decision in a criminal matter or in a civil matter).
As I have also emphasized in various criminal motions in Shimon, the fact that the search warrant was issued in the framework of a criminal investigation does not necessarily indicate that its nature and essence are criminal (see, for example, the Shukri case, at pp. 737-738). However, there are various considerations that support the fact that an appeal against a decision in a request for a search of a computer and a smartphone will be made in a criminal proceeding - the search warrant is issued in the framework of a criminal investigation; the search is usually carried out by a police officer; and as a rule, a decision on the matter even casts aspersions on the owner of the computer and mobile phone, or the person who held it, as someone who is suspected of being involved in illegal activity that justifies the issuance of the warrant (see also Bank Leumi, at p. 247).
- Finally, it should be added and clarified that there may well be cases in which the right to appeal a decision in an application for a search warrant on a computer will not be practical. This is when the same conditions that I discussed above are met, which require that the hearing of the application be held ex parte. In these cases, the owner of the computer or its holder will not be aware of the existence of the decision at all - and for this reason he will not even be able to appeal it.
However, if the parties concerned are subsequently informed that a search warrant has been issued ex parte, and the search has not yet been carried out, I see no impediment to submitting to the court that issued the search warrant an application to cancel its decision on the matter, and that the hearing of this request will take place in the presence of the parties. This is provided that there is no other reasonable basis for concern that the search will be thwarted or that the investigation proceedings will be disrupted.