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The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

Published online by Cambridge University Press:  04 July 2014

Eliahu Harnon
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Extract

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.

It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?

More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

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Articles
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Israel Law Review , Volume 33 , Issue 3 , Summer 1999 , pp. 678 - 719
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1999

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References

1 A translation of the Basic Law appears in the Annex to this article.

2 Known as the “1950 Harary Resolution”. See, e.g., Kretzmer, D., “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?”, Zamir, I. and Zysblat, A., eds., Public Law in Israel (Clarendon Press, Oxford, 1996) 141Google Scholar.

3 Kol Ha'am (1953) 17 P.D. 871.

4 See, e.g., Attorney General v. Preliminary Investigating Judge (1959) 13 P.D. 5, at 23; Malka v. Attorney General (1950) 4 P.D. 429, at 436.

5 The Katalan case (1980) 34(iii) P.D. 294.

6 Kaufman v. Minister of the Interior (1953) 7 P.D. 534, at 536, per Zilberg J.

7 The Yassin case (1963) 17 P.D. 1541, at 1570.

8 See United Mizrahi Bank Ltd. v. Migdal Co-operative Village, (1995) 49(iv) P.D. 221, at 308-312.

9 Section 2.

10 Section 3.

11 Section 4.

12 Section 5.

13 Section 6(a).

14 Section 6 (b).

15 Section 7(a)-(b).

16 Section 7(c).

17 Section 7(d).

18 See Barak, A., Interpretation in Law, “Constitutional Interpretation” (vol. III, 1994) 414Google Scholar.

19 The Sofian case (1991) 47(ii) P.D. 843, at 847, 850-851.

20 The Azazmi case (1992) 46(v) P.D. 72, at 78-85.

21 See A. Barak, Interpretation in Law, “Constitutional Interpretation” (vol. III, 1994), supra n. 18, at 432-433.

22 See Section 1A of the Basic Law.

23 Karp, J., “Criminal Legislation in the Light of the Basic Laws”, (1996) 13 Mehkarei Mishpat 275, at 276Google Scholar.

24 United Mizrachi Bank Ltd. v. Migdal Co-operative Village (1995) 49(iv) P.D. 221, supra n. 8.

25 See also Basic Law: Freedom of Occupation, which was enacted at the same time.

26 The judgment extends to about 340 pages (!), and reveals differences in approach concerning the theoretical basis for the power of the Knesset to pass constitutional laws that have a superior status to “regular” legislation.

27 The GSS case (September 1999), not yet reported.

28 Not yet reported.

29 The Ganimat case (1995) 49(iii) P.D. 355.

30 The Ganimat case (1995) 49(iv) P.D. 589.

31 Justice Cheshin dissented from this interpretation of Section 10 of the Basic Law (see his comments in the Further Hearing, 49(iv) P.D., at 639-643). In his opinion, when it is stated that the Basic Law shall not affect the validity of any prior law, “validity” also means existence, meaning, interpretation and scope. The language of a constitution and Basic Laws is the language of people. However, he added, “it is desirable that the Basic Law gives us interpretative inspiration. The legislature sowed a bed of roses in the garden of law and their scent rises in our nostrils. When interpreting past laws we shall be engulfed by the perfume of the Basic Law” (at 643).

32 See, e.g., the Rahal case (1995) 49(ii) P.D. 221, at 225-226.

33 The Zada case (1995) 50(ii) P.D. 133.

34 Humphries (Israel) Ltd. v. State of Israel and the Tel-Aviv - Jaffa Magistrate's Court — Judge Beckenstein, (1996) 50(ii) P.D. 769.

35 Ibid., at 775.

36 Ibid., at 779.

37 See also the opinion of Justice Dorner, at 777.

38 See the Sabach case (1990) 44(i) P.D. 653.

39 See the Badin case (1989) 43(ii) P.D. 204, at 207-208.

40 See Sabach, supra n. 38, at 658.

41 The Reish case (1997) 51(i) P.D. 481, at 491-492.

42 Ibid., at 499-500.

43 See, e.g., the Ganimat case, both the appeal and the further hearing, supra nn. 29 and 30.

44 Not yet reported.

45 (1999) 99 Takdin-Elyon (iii) 775.

46 Nonetheless, the Court agreed that there could be exceptional cases where even defendants who had been granted an absolute acquittal, would not be entitled to payment of costs and compensation (or would only receive reduced amounts); for example, when it became clear that the defendant had given false testimony or that the conduct of the defendant had misled the prosecution in another way).

In the Reish case too (supra, n. 41), the Court engaged in a comprehensive examination of the significance of the second ground in Section 80(a) “other circumstances” which justify ordering the State Treasury to pay to the accused his costs and compensation. According to the opinion of the majority (Justices Zamir and Or) it would be wrong to establish a rule whereby a clear and absolute acquittal justifies, in every case, payment of costs and compensation under Section 80(a):

“It is not for nothing that the legislature chose, in this issue, a vague expression, which has no form and no measure, such as ‘other circumstances’. The expression was born vague in order that it remain vague. It belongs to the family of vague expressions, such as justice, morality, public good, reasonableness, discipline, calumny and more. There are those who call them valve concepts. The vagueness of these expressions is their spice of life. They are meant to float, undefined, above the rules. It would be wrong to clip their wings and imprison them within the cage of an unbending rule.

Such a rule might kill them.

At the same time, a vague expression is not necessarily an obscure one. A vague expression too may become clear over the course of time … repeated use of any expression … vests it with meaning, and meaning is gradually made clearer and more detailed”. 51(i) P.D., at 496-497, 498 per Zamir J.

In consequence of the case law dealing with Section 80, the Court referred to eight factors which may assist in reaching a decision whether “other circumstances” prevail which justify payment of costs and compensation. The last in the list is whether the Court acquitted the accused by reason of doubt, because of the absence of sufficient evidence or because of a procedural defect in the conduct of the case, or whether the Court held in an unequivocal manner that the defendant had not committed an offence. The Court is the body which must draw a balance between the various considerations, and in particular the Court at first instance (id., at 498-499). In any event, a rule which states that a clear and absolute acquittal of guilt justifies, in every case, payment of costs and compensation under Section 80, will contravene the spirit of the section (id. at 497).

47 Villenchik v. The District Psychiatrist, T-A, (1998) 52(i) P.D. 697.

48 Ibid., at 707.

49 The Court relies on a variety of sources, inter alia, Principle No. 9(1) of the Principles for the Protection of the Mentally Ill and Improvement of Medical Treatment, adopted by the General Assembly of the UN in Decision 46/119 dated 17.12.1991.

50 Villenchik, supra, n. 47, at 713.

51 Evidence Ordinance [New Version], 1971, Section 12(a).

52 Secret Monitoring Law, 1979, Section 13.

53 Protection of Privacy Law, 1981, Section 32.

54 Military Court of Appeal v. Va'aknin (1988) 42(iii) P.D. 837.

55 See, e.g., State of Israel v. Eluz (1991) 45(iv) P.D. 289, at 304.

56 (1997) Takdin-Mehozi (iv) 493.

57 Appeal 139/97 Chief Military Prosecutor v. Issacharov, delivered on May 13, 1998.

58 Barak, A., “Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law”, 31 Is. L.R. 3CrossRefGoogle Scholar.

59 Ibid., at 19 (emphasis added: E.H.).

60 See supra, text accompanying nn. 29 and 30.

61 People v. Cahan, 44 Cal. 2d. 434, 282 P. 2d. 905 (1955) per Traynor J.

62 See Ashworth, A., “Excluding Evidence as Protecting Rights”, (1977) Crim. L.R. 723Google Scholar.

63 See Zuckerman, A.A.S., “Illegally Obtained Evidence – Discretion as a Guardian of Legitimacy”, (1987) Current Legal Problems 55Google Scholar; Dennis, I.H., “Reconstructing the Law of Criminal Evidence”, (1989) Current Legal Problems 21Google Scholar.

64 For a more elaborate discussion on the pros and cons of the exclusionary rule, see, e.g., Harnon, , “Improperly Obtained Evidence: A Comparative Perspective”, Essays in Honour of Justice Moshe Landau (emeritus) (vol. II, Jerusalem, 1995) 983Google Scholar.

65 Supra, text accompanying n. 28.

66 Supra, text accompanying n. 27.

67 Supra, text accompanying nn. 29 and 30.

68 See supra, Part 4B.

69 See supra, Part 4C.

70 See supra, Part 4D.

71 See supra, Part 4E.

72 See supra, Part 5.

73 See, e.g., Shachar, Y., “Criminal Procedure”, in Rosen-Tzwi, A., ed., Yearbook on Israeli Law 1992-1993 375, at 416–420Google Scholar; Harnon, E., “Illegally Obtained Evidence – Has the Law Been Affected by the Basic Law on Human Dignity and Freedom?”, (1996) 13 Mehkarei Mishpat 139Google Scholar; Gross, E., “Exclusionary Rule in Israel – Does it Exist?”, (1999) 30 Mishpatim 145Google Scholar.

74 See supra, Part 2.

75 Ibid.

76 It seems that the Supreme Court has not yet been required to take a direct stand on the question whether the right to cross-examine is a constitutional right of the accused, which ensues from the Basic Law. In obiter dicta, opinions are divided, see the Hadj Yichya case (1993) 47(iii) P.D. 661, 680, 694, 698.

77 The question whether the privilege against self-incrimination and the right to keep silent are constitutional rights, ensuing from the Basic Law, is another matter on which judges and scholars do not agree. See, for example, the Hachmi case (1997) 51(iii) P.D. 750, 755; Kalkuda v. The Authority of Agricultural Supervision (1998) 52(ii) P.D. 749, 760-763; A. Barak, Interpretation in Law, supra n. 18, at 433.

78 See, e.g., Bein, D., “Constitutional Protection of the Presumption of Innocence”, (1999) 22 Iyunei Mishpat 11Google Scholar.

79 A draft Bill for this purpose was already prepared by the Ministry of Justice a few years ago.