According to the details that were allowed to be published, on October 7 the accused posed as an officer with the rank of captain and, using various representations, obtained confidential information at a high classification level, which he shared with those who were not allowed to receive it. The state charges him with serious espionage, passing on secret information, obtaining something fraudulently under aggravating circumstances and entering a military location. The indictment was published when it includes the blacking out of the defendant’s name and some of the details of the acts attributed to him. Right-wing people used the case to make allegations against the IDF against the background of the failure that preceded the war.
Elron stands by the principle of public discussion, but emphasizes that sometimes he backs down in the face of equally important principles or interests. “The choice is not between conducting the procedure “in the dark” and conducting the procedure in such a way that every detail is exposed to the public eye. Many times there is a middle way that makes it possible to balance the multitude of principles, interests and considerations. It is possible, for example, to publish some of the details and prohibit the publication of the other part; to agree on Publication of a carefully worded paraphrase; it is even possible and required to examine, from time to time, whether, in accordance with such and other developments, there is room to change from the existing balance and to narrow the scope of the existing ban on publication,” he says.
According to Elron, “the clarification of the affair that is the subject of the blacked-out indictment is of great importance in several aspects. The manner, not to mention the ease, in which respondent 2 succeeded [הנאשם] To enter during a war a military complex whose importance is needless to add and to gain access to this type of secret information, while doing so every day for a significant period of time – extremely disturbing, to say the least. The time may come to reveal more details, if only to ensure that all the necessary conclusions and lessons are drawn. However, I was under the impression that at this time, when Israel is at war, there is no real public interest in revealing the name of respondent 2 and the names of the parties with whom he was in contact.
“Furthermore, I am convinced, especially after hearing the explanations of the appropriate security officials on one side, that there is a real fear that the disclosure of the details of the 2nd respondent and the parties he met with, could give tools to the enemies of the State of Israel. This concern stems from the nature and extent of the information that the 2nd respondent was exposed to during The days he was in the military compound (Southern Command Headquarters). To this must be added the personal characteristics of the 2nd respondent, especially in view of his complex mental state, as shown by psychiatric reports that were recently compiled and presented to Eion.”
Elron emphasizes: “If, as a general rule, the consideration of the security of the state must be given a very considerable weight, then in the seventies of war the weight of this consideration increases even more. The confidential material that was presented to me as well as the details that came from the professionals in the security bodies show that the reduction of the gag order, as requested, may cause a real harm to the security of the state. This is not the time to take unnecessary risks; this time, at this time, the hand of the principle of public discussion is on the bottom.”
Alron also refers to Cohen’s claim that the accused’s name has already been published on the internet and social networks: “As in many cases, there is a gap between what is allowed to be published by law and what is done in the online space, and this should be narrowed down. In my opinion, violations of this type should not be treated as complete. Not in the way of self-incrimination, violation of gag orders and ‘establishing facts on the ground’ will be shaped by the delicate balance between the principle of public hearing and other principles and considerations, if only by law and court decisions.
“Giving weight to the argument that the order was violated in any case and therefore is no longer needed, means providing an incentive to disobey the court’s orders in the first place, and perhaps even awarding a ‘reward’ to the voters retrospectively in this way. As part of the hearing of the appeal, the state maintained that it is acting with the means available to it in order to to remove publications that are contrary to the publication prohibition order. This should be congratulated and hoped that you will also act to bring those responsible to justice.” Cohen was represented by attorney Ephraim Demari, the state was represented by attorney Efrat Goldstein-Rozen, the defendant was represented by attorney Adi Ritigstein-Eisner, and Yedioth Ahronoth (which asked in my district to allow publication) by attorney Yaron Hanin.
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