The Essential Aspect
- Even with regard to the question of the consequences of an early illegal search on a decision in an application for a search warrant (penetration of computer material), I did not change my position in my judgment in the case of Urich II. In that matter, I held that "arguments regarding illegality in the collection of evidence should be clarified as a rule in the main proceeding, and that only in exceptional and rare cases can these claims serve as an exclusive consideration for rejecting a request for a search warrant", a position accepted by President Hayut (paragraphs 32 and 117 of her judgment). I further held that the set of considerations and rationales that underpinned the judgment in the Shemesh case are also relevant to the question before us and constitute an appropriate framework of considerations for its examination (the Urich II case, paragraph 12 of my judgment). Within the framework of these considerations, the stage of the legal process - the investigation stage - is important; the nature of the request; the nature of the requested material and the degree of the substantive connection between it and the investigation and the degree of its relevance; the nature of the illegality; and the totality of the circumstances.
- Moreover, as I noted in the same matter, the Magistrate's Court in its first decision in the Urich case, and later the District Court, did not ignore the existence of the illegality that stemmed from the existence of a search without a warrant on the mobile phones, and there was no flaw in the set of considerations that the courts had taken into account in these decisions in the first incarnation of the case. Within the framework of these considerations, the Magistrate's Court examined the nature of the illegality (the nature and circumstances of the defect), the existence of a reasonable suspicion that the offense was committed by the suspects, the necessity of the search warrants, the existence of an evidentiary basis, and expressed its opinion that it would have granted requests for search warrants (penetration of computer material) even if they had been brought before it before the unlawful search was carried out, since the evidentiary basis that was formed at that stage would have been sufficient. The court noted the need to strike a balance between the public interest in exhausting the investigation, the severity attributed to the offense of harassing a witness and the investigation of the truth in relation to other persons involved, on the one hand, and strict adherence to the rights of the suspect on the other. The court also took into account the fact that at this stage, no arguments regarding the admissibility of the evidence are being clarified. In addition, the court considered the outline of the search proposed by the investigating authority and found that it could minimize the additional harm to the suspects.
- With regard to the principles proposed in the President's judgment in this context, I will note that taking into account the stage at which such a proceeding takes place and the nature of the hearing, which takes place ex parte without evidentiary inquiry, I do not believe that there is a real possibility to determine the degree and nature of the connection between the illegal search and the application for a search warrant (penetration of computer material), which was filed afterwards. And as I noted, "the fact that at the current stage of the proceedings, the judge hearing the application is faced with a picture of limited scope and which has not yet been fully clarified and clarified, further limits the ability to reach a decision that reflects the correct balance between the range of interests and considerations that should be taken into account. In my opinion, this is a serious and even fatal blow to the ability to conduct the investigation and to the public interest in investigating the truth" (Urich II case, paragraph 14). Moreover, this is even contrary to the customary legal policy that has not found a way to adopt the doctrine of the poisoned tree fruit (Shemesh, paragraphs 11 and 12 of the judgment of President D. Beinisch).
- Therefore, and against the background of the procedural and substantive rules that are customary in case law with respect to the invalidation of evidence, a severe sanction of rejecting the application for a search warrant (penetration of computer material) and preventing the collection of evidence should be reserved for exceptional and rare cases only. In my opinion, the attempt to fence these cases, characterize them and give them signs in advance is difficult. Inevitably, this is left to judicial discretion in light of a certain set of circumstances, the deviation of which is precisely what prevents a fundamental and general definition. I am also of the opinion that the Urich case, in all its incarnations, shows the extent to which the attempt to establish a principled outline for guiding judicial discretion in such cases does not clarify matters and does not simplify the judicial decision.
Notes Before Ending
- From a closer perspective, the two issues before us complement each other, as they raise both procedural aspects in relation to the application for a search warrant (penetration of computer material) and substantive aspects involved in examining the application on its merits. Thus, while another criminal hearing in Urich raised a substantive question, namely, how should the court consider the existence of an illegal search carried out on a mobile phone, that is: on a computer, when it comes to deciding on the request of the investigating authority to grant a search warrant on a mobile phone, which was filed after the illegal search, another criminal hearing Shimon raises the procedural aspect that is expressed both in the question of whether a hearing on the application for a search warrant (penetration of computer material) should be held in the presence of both parties and on the question of whether there is a right to appeal the court's decision in such an application. As I noted in the Urich II case, these aspects are intertwined, when the procedural arrangement implements the substantive law, in a manner that also justifies, in my opinion, the position presented in the judgment of President Hayut and to which I also participate, subject to the reservations detailed above. In other words, the legislature did not seek to hold the hearing of the application for a search warrant (intrusion into computer material) in the presence of both parties, nor did it grant the right of appeal to the person against whom this search warrant was issued, and that these procedural rules reflect and implement the substantive law itself, which leaves the investigation of claims of illegality in the collection of evidence for the main proceeding.
- Moreover, as the dispute that occurred here, as well as in the previous proceedings in the matters before us, the decision on the questions that arose in both cases is likely to fundamentally change the practice that prevails in both the procedural and substantive aspects of the law. Against this background, it is not impossible to address the fact that each of the two proceedings before us dealt with an exceptional proceeding in a manner that created a real "procedural anomaly". Thus, in the Urich case, a matter that went through all the judicial instances twice, back and forth, and is now being heard for the third time in this court, when the procedural aspect was not discussed on its merits at all in a substantive manner at the beginning of the proceedings that took place in the "first round", and especially without the question of whether the applicants have the right to appeal the first decision of the Magistrate's Court was not discussed at all (for the sequence of proceedings in that matter, see: paragraph 3 of my judgment in the Urich II case). Thus, in the Shimon case (see: paragraph 123 of the President's judgment; paragraphs 1-2 of the judgment of Justice (as he was then called) Hendel in the Shimon case), a proceeding that was allowed, to a large extent, against the background of Justice Elron's decision in the Urich I case, a decision that constitutes a turning point in the practice of practice, when until then, as a rule, with a few exceptions, did not allow a hearing of a request for a search warrant (penetration of computer material) in the presence of both parties and did not allow an objection to the decisions in such motions, while after that quite a few decisions were given that allowed arguments in the presence of both parties, and in some cases the right of appeal was even granted. In my opinion, this indicates the essential importance of the procedures in criminal law and the need to act with caution and meticulousness in their implementation, and to illustrate how deviation from the rules of procedure will lead to proceedings within which the practice, and even the substantive law, may fundamentally change.
This matter is not a trivial matter, and it testifies to how significant the decision is in these matters, the extent of its implications, and the extent to which the legislature's word is required, after an orderly legislative process, in which all the positions of the relevant parties, the customary practices, and the existing and future technological developments will be considered.
- In light of the above, I too am of the opinion that the operative results in the case of Shimon and in the case of Urich II should be left in place.
Judge