At the same time, and as noted, "the demand for a fair trial extends its wings to the actions of the investigating authority as well"; While the interrogee does not have the right to voice his arguments before the search warrant is issued, "the rights of the interrogee should not be nullified by this. The violation of them must meet the tests of legality and proportionality. It can be said that in many cases, the rights of the interrogee are 'deferred' in a certain sense, from the interrogation stage to the trial stage. At the last stage, the interrogee can withdraw his claims in full, and if it turns out that they were unlawfully violated, the court will give it the appropriate weight and implications" (paragraph 7 of my opinion). This is the situation with respect to searches of computers and telephones, and this is also the situation in other contexts in the framework of an investigation - contexts that involve no less severe violations of constitutional rights, such as the possibility of issuing an arrest warrant ex parte. The necessity and need to protect the public and its rights sometimes requires taking various actions. Even then, of course, judicial review is required, but it is done ex parte, and the defendant's rights and claims are reserved for him for the next stage of the proceeding.
The second issue that was at the center of the Shimon case was the possibility of appealing a decision on a request for a search warrant - even before the search was carried out - by way of an appeal, an appeal or a request for reconsideration. In my opinion, it was explained that such appeals proceedings are not prescribed by law, contradict the course of the relevant legislative proceedings, are inconsistent with the rest of the criminal investigation laws, and are liable to impair the efficiency and speed of investigations. This is the case in Israel, and this is also the situation in the other democratic countries examined in the judgment.
- The second additional hearing in this proceeding is in the judgment in Miscellaneous Criminal Applications 1758/20 [published in Nevo] (the Urich case). In the same matter, the question of how the court should examine a request for a search warrant on a telephone was discussed, in circumstances in which an illegal search of the telephone was conducted prior to the filing of the application. When will the court have to reject a request for a search warrant only - or at least mainly - in light of the previous illegal search conducted on the device? In the Urich case and in this proceeding, a number of answers were presented. What they all have in common is that in the framework of an application for a search warrant, there is relevance to the fact that an illegal search was carried out in the past, and that the possibility that this fact - against the background of the other circumstances of the case - will determine the fate of the application for a search warrant should not be completely ruled out. The dispute relates to the question of what is the weight of this fact, in and of itself, and in what manner it should be examined alongside other considerations. Of the approaches presented in the first proceeding and in this proceeding, I agree with the approach of Justice G. Kara in its details, as presented in the first judgment and sharpened here - and in my view the approach of my colleague the President and my colleague Justice Y. Amit is close to this approach:
First, only in exceptional and rare cases will an illegal search that precedes the filing of the application be the sole consideration for its rejection. Second, this fact must be considered, when examining the application, in accordance with what was stated in additional criminal hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 363 (2012), and inter alia: taking into account that this is the stage of the investigation, that we are dealing with a request for a search warrant, with reference to the material to which the application relates, the "weight" of the evidentiary material in the framework of the investigation, the nature of the illegality, the circumstances of the investigation and other data that may be relevant in each and every case (paragraph 12 of Justice Kara's opinion in the Urich case; paragraphs 12-15 of his opinion in this proceeding). I also agree that it is difficult to give weight, in the framework of the ex parte hearing, to the question of the extent of the connection between the illegal search that was carried out and the request for a search warrant, in view of the difficulty in fully understanding the significance of this fact in view of the stage of the proceeding and the manner of the hearing (paragraph 14 of my colleague's opinion in this proceeding). I will add that questions of connection to such issues have a factual component but also a normative component - "legal causation" - in which the court must consider additional considerations beyond the factual connection between the illegal search and the request for a search warrant, which it is doubtful whether it can be fully examined in the framework of a request for a search warrant (compare, for example, criminal appeal 4988/08 Farhi v. State of Israel, IsrSC 65(1) 626, paragraph 21 of the opinion of Justice A. E. Levy (2011)).
- I will add that a central emphasis in my view is the authority, role, and advantage of the court hearing the criminal proceeding, when examining the significance of the illegal search according to the tests of the Issacharov rule, over the court hearing the request for a search warrant. The criminal procedure court has a much broader perspective, in terms of the evidence that can be laid out and the arguments that can be raised. It is not for nothing that there is a "division of labor" between the criminal proceeding itself and "ancillary" proceedings, such as search or arrest proceedings. Thus, for example, in the framework of the arrest or search proceedings, the decision can also be based on evidence that cannot be presented in the framework of the main proceeding, such as the defendant's criminal record, or inadmissible evidence that establishes a request for a search warrant. This expresses the difference in relation to the role of the court in the two proceedings. Instance and its role, the procedure and its purpose. A district court that hears a criminal proceeding against a defendant of sexual offenses, for example, sits in the Telta Circuit, while the defendant's arrest in the same proceeding is heard before a single judge. Each panel and its field of occupation. It deals with arrest and release, and it deals with the conduct of the trial and the determination of guilt or innocence.
This division is desirable, and is rooted in enacted and detailed procedures. For example, the judge hearing the detention until the end of the proceedings will be from the same court as the panel hearing the guilt. In the case of detention for the purposes of investigation and requests for a search warrant, on the other hand, a magistrate judge will adjudicate, regardless of which court has jurisdiction to hear the indictment that may be filed - whether it is a simple theft offense or a murder offense. This is the relevant division for our case. The magistrate's court judge discusses a request for a search warrant, while the panel hearing the indictment is supposed to hear the claims by virtue of the Issacharov rule. The application of this rule requires a complex balance, and in order to carry it out properly, this must be done by the court that hears the case and decides the law. On the other hand, the role of the court hearing a request for search warrants is to decide whether it is justified to carry out the search. The considerations for this are different from the considerations that must be taken into account in the framework of the judgment. The areas of concern of the various courts and the distinction between the various proceedings and their role must be preserved. Just as the judge hearing the main proceeding is not supposed to discuss the question of whether there was justification for granting a search warrant in the first place, so the judge hearing a request for a search warrant is not supposed to assess the status of the search products in the framework of the judgment. His role is different - to discuss the relevant data at the stage of the request for a search warrant. Hence, he is entitled and even obligated to exercise his discretion in the matter of the search. Of course, in this framework, considerations of legality are also relevant. Therefore, if it is a matter of clear and clear illegality, the court may consider the matter and give it exclusive weight in exceptional and rare cases. Thus, not with regard to the disqualification of evidence in a trial, but with respect to the question of whether or not to issue a search warrant. It is not its role to look at it from a broad perspective like the court of inquiry.
- As stated, I agree with key parts of my colleague the President's opinion. I consider special and principled importance in her rulings regarding the construction of judicial discretion and the conduct of the investigating authorities, which are intended to ensure the proportionality of the infringement of the rights of the interrogee already at the stage of the issuance of the search warrant and its execution, even before the protection of his rights in the framework of the main proceeding. Thus, for example, clarifying the manner in which a request for a search warrant should be submitted - with as much detail as possible and delimiting the request in advance; clarifying the considerations that the court must consider in the framework of its decision; and the manner in which the search itself should be carried out and documented. There is no denying that there is a difficulty in the fact that a request for a search warrant is discussed ex parte, and is decided on the basis of material that a representative of the investigating authority submits to the judge without review by another party. As stated, this is a practical necessity, and hence its justification. Search warrants are a legitimate and necessary tool in the framework of the investigation of crimes. However, holding a hearing ex parte imposes a duty on the authority and the court to strictly adhere to the provisions of the law. It is therefore of great importance that the court, even if it is limited in its "technological" knowledge, should not serve as a "rubber stamp" for requests for a search warrant by telephone and computer. My colleague's important determinations on this issue govern order in an area that requires order, are integrated into the law's requirement for judicial supervision of the proportionality of the warrant, and are in line with the guidelines and procedures of the investigating authorities.
In this sense, I will allow myself to say that I see the President's decision as a kind of "handbookor a "guide for the perplexed" for requesting search warrants and deciding on the requests. Despite the large number of requests for search warrants and the sense of "routineness" that can characterize them, the court hearing the matter must carefully consider it in its concrete circumstances. There are two aspects to this determination. First, it must exercise its discretion. The relevant test is the criteria for granting a search warrant. This matter is not measured by the percentage of requests received for a search warrant, but rather by the manner in which the requests are discussed. The court must engage in the work and consider the matter. Second, the dialogue between the police and the court is of great importance. If the request for a search warrant is missing, it should be rejected and it should be made clear to the police that it should be resubmitted, if such a completion might help. The importance of the dialogue between the court and the authority lies in the judicial supervision it creates over the concrete case - supervision that no body can do better, given the impossibility of obtaining a search warrant and the fact that the defense attorney is not exposed to the picture in any case and cannot argue the matter. Go ahead and learn that the court must consider the matter when requesting a search warrant, including rejecting requests that are not as clear as required, or that do not include all the material. As stated, I see the President's decision as an important step that will serve as an aid to the court in conducting a hearing in accordance with the requirements of the law.
- A point on which my position differs from that of my colleague the President is the existence of exceptional cases, in which it will be possible to discuss an application for a search warrant - prior to a decision on it - in the presence of both parties. In the Shimon case, I expressed reservations about the creation of exceptions to the rule of ex parte hearing, but I did not rule on this question, since we did not hear arguments in the matter and it was not necessary to decide it (paragraph 9 of my opinion). Now, in the framework of another hearing, this issue was also at the center of the stage. I will therefore clarify my position, according to which there is no room to establish exceptions to the rule of ex parte hearing.
At the outset, it should be noted, as my colleague, Justice Kara also held (paragraph 4 of his opinion in this proceeding), that contrary to what has been claimed, there is no "custom" or "custom" to sometimes hear requests for a search warrant in the presence of both parties. We have been presented with a few exceptions to the rule of ex parte hearing, and these cases are also from the last two years, which have not taken root. We are therefore dealing with an attempt at change, and not a practice. Second, and to the substance of the matter, I clarified above that the hearing of a request for a search warrant is supposed to be held ex parte, in accordance with the words of legislation and laws dealing with decisions at the investigation stage, as well as the purposes of the law and the weight given to it to the interest in conducting speedy and efficient investigations. These and other considerations, which will now be detailed, lead, in my opinion, to the conclusion that there is no room for making exceptions to the rule of ex parte hearing. My reservations are on two levels - on the general level, and on the individual level with respect to the examples brought in the opinion of my colleague the President.
- On the general level, I will relate to two points - the difficulty that arises from the recognition of exceptional cases, and the manner in which it is appropriate to shape the order of discussion in such cases.
First, and as I noted in the Shimon case, in the context of interrogation proceedings, the rule must be preserved against the exception. I have brought the example of interrogation material at the stage of detention for days. The sweeping rule is that the interrogation material will be presented for the court's review only. Such an arrest certainly violates the suspect's liberty, and it can be assumed that there are cases in which the circumstances of the case make it possible to disclose the material to the defense attorney's review. Why, therefore, was it not determined that this possibility should be examined, and in exceptional cases where the provision of the material does not prejudice the interrogation to allow the defense attorney to review it? "The decision is that at the interrogation stage it is preferable to act in a certain procedural manner, not necessarily on the assumption that there are no cases in which it would have been possible to act differently, but rather out of recognition that there is no room to examine each case on its own merits. This will lead to hearings... Does a particular case belong to a rule or an exception" (paragraph 9 of my opinion). Even if in practice the number of exceptions will be small and they will be statistically rare, their very existence and the need to decide whether it is a rule or an exception may - in these circumstances of the need for an efficient and speedy investigation - harm the purposes of the law. Another illustration of this point is the absence of appeal proceedings against a decision regarding a search warrant. If there are exceptional cases in which a hearing will be held in the presence of both parties, why not recognize the existence of appeal proceedings in exceptional cases? My answer to the difficulty pointed out by my colleague Justice D. Barak-Erez is that just as the legislature did not create an exception with regard to the right of appeal (and I do not agree that this matter should be "circumvented" by easing the criteria for the intervention of the High Court of Justice in the matter), so there is no room for creating exceptions with regard to the manner of the hearing.