The Procedural Aspect
- As a rule, the customary practice is that a request for a search (penetration of computer material) is requested and discussed ex parte. It is therefore not surprising that the examples presented to us on behalf of the Applicant in the additional criminal hearing Shimon (Appendix 15 to the Applicant's response to complete the argument on behalf of the State in additional criminal hearing 4072/21), some of which were brought in paragraph 34 of the judgment of President Hayut, as an example of exceptional cases in which the hearing of the application was held in the presence of both parties, were almost all given after the decision in various applications Criminal Appeals 7917/19 Urich v. State of Israel [published in Nevo] (December 25,2019) (hereinafter: the First Urich case)). This is also the case with all the examples cited by the Public Defender's Office in paragraph 9 (footnote 1) of its position in an additional criminal hearing in Shimon v. Urich (Search Warrant / Entry Order (Shalom Tel Aviv) 51782-10-19 [published in Nevo] of October 29,2019)). In my opinion, even if decisions were made in the past after hearing both sides, in the absence of the state's objection to this (as appears from paragraph 9 of the judgment of the judge (as he was then called) v. Hendel in various criminal motions 5105/20 Shimon v. the State of Israel [published in Nevo] (May 25,2021) (hereinafter: the Shimon case)), this does not attest to a change or erosion of the practice, which is sweeping, which is to hold the hearing in the presence of only one party.
- As to the normative basis of the customary practice, I accept the reasons supporting this practice and the substantive justifications for it, as detailed at length in the judgment of President Hayut and as also detailed in the judgment of my colleague Vice-President N. Hendel in the Shimon case.
- These reasons are strong and exist, in my opinion, even in those cases that were cited in paragraph 79 of President Hayut's judgment as an example of exceptions that justify a deviation from the rule and the holding of the hearing in the presence of both parties.
Thus, the fact that the legislature has found a distinction between the set of rights of the suspect and the rights granted to the accused due to the unique characteristics of the interrogation process, and in particular the need to maintain secrecy and speed (paragraphs 55-51 of the President's judgment; see also: paragraphs 6-8 of the judgment of Justice (as he was then called) Hendel in the Shimon case); the implications of holding a hearing in the presence of both parties in relation to the extension of the investigation proceedings and allowing the suspect, and perhaps even third parties, to intervene in the pace of the investigation, thus harming its effectiveness and raising the risk of disrupting the investigation. To this, it should be added that the very possibility of holding a hearing on the application in the presence of both parties will lead to discussions on the question of whether this is an exceptional case that justifies it, even if at the end of the day the court does not grant the request to hold the hearing in the presence of both parties, in a manner that will impair the pace of conduct of the investigation (paragraph 9 of the judgment of Justice (as he was then called) Hendel in the Shimon case). The lack of the right of appeal to a decision in such a search request also supports this position. It is reasonable to assume that the same rule will also apply to such applications that will be heard - by virtue of the proposed exceptions - in the presence of both parties. This matter raises a difficulty, since, on the face of it, in circumstances where an exception is found that justifies a hearing in the presence of both parties, there is room to hold appeals proceedings even against the decision given at the end of the hearing, in a manner that contradicts the rule that there are no appeals proceedings against decisions of this kind.