Joseph Benkel, Shmuel Galinka, Eli Cohen, and Maayan Gabai represented former Shin Bet Director Nadav Argaman and other senior officials in a petition to the High Court of Justice (HCJ 6509/23), filed following the decision of the Minister of Justice and the Government of Israel to establish a commission of inquiry into the use of spyware and to grant it broad investigative powers.
The central legal question concerned the legality of the broad mandate granted to the commission, which allowed it to delve into numerous pending criminal cases without any coordination mechanisms, raising a substantial fear of disrupting legal proceedings and harming the independence of the judiciary. The Attorney General joined this position.
In its ruling, the Supreme Court noted that the petition had exposed a serious flaw in the commission’s letter of appointment – the lack of coordination and control mechanisms regarding pending criminal proceedings. Following the resignation of the commission’s members, the Court ordered the petition’s dismissal, stating that there was no longer any “practical utility” in continuing the discussion, thereby effectively accepting the petitioners’ position that a governmental commission of inquiry is not permitted to act in relation to pending criminal proceedings without establishing coordination and control mechanisms that ensure the independence of the judiciary and the separation of powers. Additionally, the Court awarded legal costs in favor of the petitioners, emphasizing the essential nature of the petition and its public contribution.
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