The Magna Carta of the Defendant According to the New Bill of Rights in Israel - A Comparative Study

Pace International Law Review Volume 8 Issue 1 Winter 1996 Article 2 January 1996 The Magna Carta of the Defendant According to the New Bill of Rights in Israel - A Comparative Study Emanuel Gross Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Emanuel Gross, The Magna Carta of the Defendant According to the New Bill of Rights in Israel A Comparative Study, 8 Pace Int'l L. Rev. 91 (1996) Available at: https://digitalcommons.pace.edu/pilr/vol8/iss1/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . THE MAGNA CARTA OF THE DEFENDANT ACCORDING TO THE NEW BILL OF RIGHTS IN ISRAEL - A COMPARATIVE STUDY Emanuel Grosst A. INTRODUCTION. The enactment of the Basic Law: Human Dignity and Liberty' has been defined as a "constitutional revolution." 2 The primary purpose of this article is to discuss the Basic Law's impact on criminal law and on defendants' rights, as well as address many questions that arise about the Basic Law's scope and its implications on various legal fields. Furthermore, this article will expose the problematic reality created when the new Basic Law interacts with the existing legislation and case law. Through a comparison to the Canadian legal system, it will point to possible new and progressive directions in the development of the Israeli legal system. Prior to the enactment of the Basic Law, a defendant's basic rights in criminal law were anchored in Israeli legislation and case law. Procedural criminal law is now subject to the Basic Law and filled with meaning by its principles. The Basic t Law Lecturer at Tel Aviv University and Haifa University located in Israel; Visiting Professor, Faculty of Law, Villanova Law School 1995; Visiting Scholar, Faculty of Law, Yale Law School 1990; Chief Judge for the District Military Court of Israel 1987 - 1993; J.S.D., LL.M, LL.B., Tel Aviv University. 1 Israel has no written constitution. It has a series of basic laws which were meant to be temporary substitutes for a formal Constitution [hereinafter Basic Law]. In 1950, the Knesset (the Parliament) passed a resolution by which the formal Constitution would be drawn by a series of Basic Laws. The Knesset has since enacted sporadic Basic Laws establishing state institutions and authorities. For example, the Basic Law: The Knesset; Basic Law: The Judiciary; Basic Law: The Government; and Basic Law: The State Comptroller. Shoshana Netanyahu, The Supreme Court Of Israel:A Safeguard Of The Rule Of Law, 5 PACE INT'L L. REV. 1, 13-14 (1993). 2 AHARON BARAK, INTERPRETATION IN LAw, PART III, CONSTITUTIONAL INTERPRETATION 313 (1994). 1 PACE INT'L L. REV. [Vol. 8:91 Law opened the way for interpretive changes of existing rules, thus, broadening defendant's rights in criminal law and allowing judicial review of future legislation. It is also very significant in shaping these rights in the future and to the establishment of minimal standards in order to prevent the limitation of the rights of the defendant. Moreover, today, it appears that the defendant can demand legislative involvement. According to section 4 of the Basic Law, when a defendant has a right unenforceable under a previous law, the defendant can petition the court for its recognition and special legislation for enforcement of that right. The constitutional purpose of criminal law is to guarantee basic conditions for social existence. The defendant's rights in criminal law stand for the principle of an individual's freedom and human dignity. These rights are anchored in principles of liberal democracy and are based on the assumption recognizing the individual as a rational being with personal autonomy. The draft law included the defendant's overall rights in criminal law which were not adopted in the Basic Law passed by the Knesset. This would seem to deny higher legislative status to these rights. However, the rights of the defendant stem from the rights to life, dignity and personal liberty. Once these rights have been incorporated into the Basic Law, it can be implied that the defendant's overall rights are also incorporated. Although this is the dominant view in legal literature, this issue has yet to be addressed by case law.3 The Basic Law was designed in large part according to the Canadian Charter. 4 In addition to the general rights to life, lib3 See Yehudit Karp, The CriminalLaw: Yanus of Human Rights, 42 HA'AKLIT 64 (1995). Sections 2,4,5 and section 1A (the Purpose) of the Basic Law may serve as a sufficient basis for anchoring procedural rights in criminal proceedings. See BARAK, supra note 2, at 282, 432. "Alongside the legislation of these rights, they will stand on their own as particularly right. As long as they have not been legislated, they are protected in the framework of the principle of human dignity." 4 Compare with § 2 of the Basic Law: Human Dignity and Liberty (1994) CAN. CONST. (Constitution Act, 1982) pt.I (Canadian Charter of Rights and Freedoms), § 7 (protecting life, body, and dignity) [hereinafter the Charter]. See also § 8 of the Basic Law: Human Dignity and Liberty (1994) with CAN. CONST. (Constitution Act, 1982) pt.I (Canadian Charter of Rights and Freedoms), § 1 (proscribing the reasonable limits of state violations of rights). https://digitalcommons.pace.edu/pilr/vol8/iss1/2 2 1996] THE MAGNA CARTA erty and personal security, 5 the Charter adopted specific rights which guarantee procedural justice for the defendant in criminal law. Therefore, this discussion will compare, examine and analogize the Basic Law and the Charter as they pertain to defendants' rights. Based on the Charter's life and liberty section, Canadian courts have broadened the rights of defendants beyond those established in other sections. For example, section 7 of the Charter served as the basis for guaranteeing both the defendant's right to silence in investigative proceedings and the right to legal aid. Nonetheless, section 7 qualifies and limits such rights. For instance, infringement on the right to life, liberty and bodily integrity is limited by the principles of basic justice. 6 In section 8, the protection against the violation of privacy by way of search and seizure is extended only to unreasonable search and seizure. Moreover, section 9 only protects the defendant against arbitrarydetention or arrest. It should be noted that there are substantive differences between the Canadian and Israeli legal systems. First, the Israeli Basic Law, as opposed to the Charter, does not specify the protected rights of the criminal defendant. Rather, these protections are implied from the rights of dignity and liberty. However, it is clear that these rights, as any other basic right, are not absolute, but rather relative. The qualificatio (...truncated)