Unlike the US Supreme Court, which has a full nine-judge panel, the Israeli Supreme Court usually has three of its 13 judges.
When decisions are made that do not preserve the rights of the suspects and defendants, it can be hoped that next time, in a different composition, the outcome will be different.
Not this time, in the ruling given on the subject of police searches on interrogees' smartphones.
The verdict was handed down in an expanded panel of nine judges and shows that hopes for liberal panels are slim.
The judgment deals with two cases with common questions. The most famous is the search of the phones of former Prime Minister Netanyahu's aides, who were questioned on suspicion of harassing witness Shlomo Pilber; And the other is a phone search of a drug import suspect. In the first case, police investigators violated the law, among other things by searching the telephones without a court order and not informing the interrogees that they did not have to agree. The Supreme Court has asked questions of principle, which concern us all: 1. Should the suspect be heard during the hearing of a police application for a search warrant? 2. Can the decision to issue a search warrant be appealed? 3. What are the consequences of an illegal search carried out by the police before requesting a search warrant from the court?
Before the Supreme Court's disappointing answers, a little background.
Police file tens of thousands of requests a year to search computers and phones.
This has a huge impact on interrogees and others unrelated to interrogation.
A smartphone treasures within it the entire personal, professional, business and family world of its owner, and sometimes also intimate information that is exposed to the eyes of investigators, and later may leak to the public.
It is therefore agreed that it should be carefully examined whether the invasive investigative action is necessary;
And how to minimize the violation of the rights of the interrogee and others.
The relevant section of the law does not specify the procedure and does not address the hearing of both parties and the possibility of appeal.
Another interesting fact: a 2018 report by the "senior review team examining the systemic aspects of the work interface between judges hearing pre-indictment applications and prosecutors" shows that a direct and personal connection is often established between a judge hearing criminal proceedings in a unilateral manner. And the police officers who claim in his face.This harms at least the appearance of justice, and sometimes also the correctness of the legal process.
Only Judge Yosef Elron, in an individual opinion, correctly ruled that the hearing on the search warrant application must take place in the presence of the detainee, except when there is a reasonable basis for fearing that this will frustrate the search or disrupt the investigation.
Elron correctly ruled that an appeal should be allowed and ruled correctly asked the court to legitimize an illegal search already conducted by the police, by accepting her late application for a search warrant.
Its first determination is warranted by the right to privacy, the right to argue, the right to a fair trial, and the significant contribution of the presence of the device owner to clarify the necessity of the order and its limitation.
His second determination is warranted by the "principles of natural justice," and his third determination is the only way to enforce the police to act in accordance with the law and not in the erroneous thought that the purpose of the investigation qualifies all means.
Eight of the nine judges contented themselves with criticizing the violation of the law by the police, preferring as to all three questions the effectiveness of police investigations over preserving the rights of suspects.
Judges sometimes seem to mistakenly perceive themselves as an integral part of law enforcement, along with the police and prosecution.
And who is the suspect?
The court enumerates among the considerations for deciding whether to grant a search warrant also the seriousness of the offense.
Is this a murder?
Rape?
In a robbery?
no and no.
In the counselors' case, there is talk of "harassment of a witness," which is not a serious offense, despite the fact that the enforcement authorities try to paint it as such.
If even for the purpose of investigating such an offense the judges are willing to train the police creep, this illustrates that the suspect is not necessarily a dangerous person, but may be any of us or our relatives.
Were we wrong?
Fixed!
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