- Moreover, even though the cases that have been enumerated as exceptional and rare appear to be cases that impose difficulty and complexity that exceeds the usual level to the extent that justifies hearing both parties, in my opinion this is not the case. After all, where the court is aware that this is a person who is immune from the law or of the existence of a defect in the authority's conduct - it is clear that the matter will constitute a consideration in its decision on the application. The same is true where the court is of the opinion that the information presented to it is partial or inaccurate, and it is not obligated to grant the request, and to the extent that it believes that the information before it is insufficient or that the information presented to it is misleading, it will not order the granting of the order.
- Therefore, the interest and justifications for holding the hearing ex parte exist even in those exceptional cases, and judicial supervision, which takes place ex parte, is also effective in relation to them, and there is no justification for deviating from the procedural rule that is customary for holding a hearing in a request to penetrate computer material ex parte in relation to them or in relation to other exceptional cases. The words of my colleague Justice Hendel (as he was then called) in the Shimon case are relevant and relevant here.
- In summary, I am of the opinion that there is no room to make exceptions to the rule whereby a hearing on a request for a search warrant (intrusion into computer material) will take place ex parte.
- As to the question of the right to appeal, I also hold President Hayut's position, according to which the law does not grant the right to appeal a decision regarding the issuance of a search warrant (penetration of computer material). As I noted in the case of Urich II, the Criminal Procedure Ordinance (Arrest and Search) [New Version], 5729-1969 does not provide any anchoring for the right to appeal the decision, and according to the basic concepts of our legal system, such a right may be determined only in primary legislation. Moreover, even the proposed Criminal Procedure Law (Powers of Enforcement, Search and Seizure), 5774-2014 (Government Bill 867) did not seek to grant this right to the suspect (ibid., paragraphs 4-6 of my judgment in the case of Urich II).
I further held in the case of Urich II that it is not possible to appeal the decision in an application for a search warrant (intrusion into computer material) indirectly in the framework of seizure proceedings, since a suspect has the right to appeal the seizure of a computer, and a mobile phone, including a mobile phone, by virtue of the provision of section 38A of the Ordinance does not allow him to raise arguments in relation to an order for penetration of computer material (the Urich II case, paragraph 18 of my judgment). Therefore, also, and for the reasons detailed in paragraph 97 of President Hayut's judgment, I am of the opinion that there is no room to allow an indirect way of obtaining an objection in the form of a request to cancel a decision regarding the granting of a search warrant (penetration of computer material).
- At the same time, I have considered it doubtful whether we should learn from the existing case law about the erosion of the rule regarding the lack of a right of objection to such a decision and the lack of uniformity in the rulings of the trial courts on this question (see in this regard paragraph 81 of the President's judgment).
Although it is possible to locate individual decisions in which the situation is different (High Court of Justice 8183/17 Kahane v. State of Israel [published in Nevo] (October 24,2017); Return of Possession (Shalom Tel Aviv) 749-06-18 Yekutiel v. Israel Police/Civil Case [published in Nevo] (July 2,2018)), these are a few decisions, which were given without any reference or reasoning with respect to the procedural aspect and the question of authority, and they do not attest to erosion or erosion of the customary practice. It is true that the actual erosion of this practice began after the decision of Justice Y. Elron in the Urich I case and as a result thereof was rendered.