Human Dignity in Criminal Procedure: A Comparative Overview of Israeli and German Law (original) (raw)
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Human Dignity and Victims' Rights in the German and Israeli Criminal Process
Israel Law Review, 2011
Human dignity is constitutionally protected in both the German and the Israeli legal system. This article examines to what extent respect for victims' human dignity has influenced the development of victims' rights within the criminal process in Germany and Israel, bearing in mind the differences between the two legal systems regarding the definition of "human dignity" and the scope of constitutional protection. Following a detailed examination of the role and rights of victims within each jurisdiction and a short comparative analysis, this article concludes that, in both countries, the concept of human dignity has played a relatively minor role in the context of victims' procedural rights. The main, albeit tentative, explanation for this conclusion is that, although their trial rules differ considerably, both legal systems share common concerns and difficulties regarding the participation of victims in legal proceedings.
The Constitutional Status of Human Dignity in Germany and Israel
Israel Law Review, 2011
This article applies comparative law tools to portray eight significant aspects of the constitutional right to human dignity in Germany and Israel. The elements considered are: the constitutional status of human dignity; the nature of the right; its effect on other constitutional rights; its scope and definition; waiver of human dignity; human dignity after death; negative and positive aspects of the right; and the right to asylum. The textual foundations of the respective constitutional guarantees are as different as human dignity's core meaning. In Germany, such guarantees are held to be absolute, immune to restriction, and therefore quite narrow in scope. In Israel, the scope of the right is much broader, but it is subject to limitations when placed against the public interest. Still, based on the findings of our comprehensive comparison, similar dynamics can be identified in Germany and Israel. The constitutional coverage of both absolute and relative principles is broad, as are the constitutional lacunas, which are those dimensions of constitutional law neglected by the written constitution.
Human Dignity as a Constitutional Concept in Germany and in Israel
The article applies comparative law tools in order to portray eight significant aspects of the constitutional right for human dignity in Germany and in Israel. The aspects which are considered are: the constitutional status of human dignity; the nature of the right; its effect on other constitutional rights; its scope and definition; waiver of human dignity; human dignity after death; negative and positive aspects of the right; and the right to asylum. The textual basis of the constitutional guarantees is as different as its principal meaning. While in Germany, the guarantee is held to be absolute, not subject to any restrictions, and therefore given a quite narrow scope, in Israel the scope of the right is much broader, but can be limited in the public interest. Still, from the comprehensive comparison a similar dynamics may be identified in Germany and in Israel. On the one hand, the constitutional coverage of relative principles is widened. On the other hand, the constitutional c...
Differences Between Traditional Criminal Justice and a Human Dignity Based Approach
2017
In their comparative analysis of “Human Dignity and Victims’ Rights in the German and Israeli Criminal Process”, Anat Horovitz and Thomas Weigend observe that in both countries “human dignity plays a relatively minor role in the context of victims’ procedural rights” (2011, p. 266). The authors comment that “the participation of the victim in the criminal process raises similar concerns and difficulties in both countries, which may explain why the basic concept of human dignity does not go far in shaping the legal arrangements in these countries” (2011, p. 266). While they acknowledge that “a claim can be made for the victim’s legal option to play a more active role”, Horovitz and Weigend conclude (2011, pp. 297–298):
Respecting the Right to Silence in Criminal Matters
Scholars International Journal of Law, Crime and Justice, 2020
The European Convention on Human Rights plays a key role in ensuring the protection of human rights, whereas, in accordance with the principle of subsidiarity, the guarantee of the rights enshrined in the Convention implies, on the one hand, their observance by national authorities and, on the other, the removal by each signatory State of the Convention of all negative consequences caused in the event of their violation. The provisions of the Convention and its Additional Protocols have direct applicability in domestic law, and their correct applicability and interpretation is made by reference to the jurisprudence of the European Court of Human Rights, jurisprudence having super-legislative force in the national law of the signatory states and interpreted working authority. The existing situations in practice show numerous abuses of the authorities by which the rights of the accused persons were limited, harming their interests. In the administration of the evidences in criminal proceedings, the observance of the presumption of innocence has a special role in ensuring the protection of the rights of accused persons, while contributing to reducing the risk of possible abuse. Therefore, it is necessary at the level of the judicial system to promote the observance of the presumption of innocence and, implicitly, of the right to silence and not to incriminate oneself. Keywords: the right to silence, the right not to incriminate oneself, the presumption of innocence, the European Convention on Human Rights, the European Court of Human Rights.
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The Eichmann Trial: Towards a Jurisprudence of Eyewitness Testimony of Atrocities
Journal of International Criminal Justice, 2014
For many years, the Eichmann Judgment has been overshadowed by the Nuremberg proceedings, considered as the more important precedent for international criminal law. In this article, I question this understanding by positioning the Eichmann trial at the head of the series of international criminal trials, which have become more familiar over the past two decades. The main part of this article addresses the role of witnesses in light of the framework of 'jurisprudence of atrocity'. It departs from previous literature, which has sharply distinguished the legal from the historical or didactic role of testimony given by victims during the Eichmann trial. In contrast, adopting a framework based on collective crimes, this article investigates the changing role of the victim as witness and thereby illuminates such distinctive crimes, which are characterized by mass murder and the separation ç both physical and psychological ç of the victimizer from his victims. The District Court of Jerusalem in the Eichmann case granted witnesses this new role by juxtaposing the dry Nazi documents discussing effective methods and numbers with horrifying stories conveyed by victims and survivors. In this manner, the encounter that could not have taken place during actual events was recreated in the courtroom. * Full Professor, Faculty of Law, Tel Aviv University. I would like to thank Ziv Bohrer, Shachar Eldar, Amit Pundik, Galia Schneebaum, and the two anonymous reviewers for commenting on previous drafts. I also thank the participants of the international conference entitled, 'The Trial of Adolf Eichmann: Retrospect and Prospect', held at the University of Toronto, 8^10 September 2012 as well as Miriam Gur-Arye, the participants of the criminal law workshop held at the Hebrew University, and members of the Israel Democracy Institute for comments. I thank Rachel Klagsbrun for outstanding research assistance and commentary at all stages. I am grateful to Natalie Davidson and Shani Shisha for their research assistance. The Israel Science Foundation supported this research under Grant No. 795/11.
In 1992, the Knesset (Israeli parliament) enacted two basic laws, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of the two laws was hailed as the first step in establishing an Israeli bill of rights and was referred to by jurists as marking the beginning of a "constitutional revolution" in Israeli law. Two main issues needed to be resolved by the courts after the enactment of the two Basic Laws. The first was the scope of the Basic Laws. The second was their status within Israeli law and in particular their implications for judicial review of primary Knesset legislation. The second question was resolved relatively shortly after the Laws' enactment. In the 1995 decision of United Mizrahi Bank Ltd., the Supreme Court determined that the Basic Laws had supra-legislative, constitutional status and, accordingly, that the Court had the power to declare void primary legislation that contradicted the Basic Laws. While the decision was initially criticized by many, it has since been reaffirmed on numerous occasions. The dispute with regard to the scope of the Basic Laws, however, and in particular the scope of Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law"), is ongoing. The Basic Law explicitly protects the right to life, body and dignity of the person (Articles 2 and 4), the right to property (Article 3), the right to personal liberty (Article 5), the right of all Israeli nationals to enter the country and the right of all people to leave it (Article 6), and the right to privacy (Article 7). All of these rights had already been recognized by the Court prior to the enactment of the Basic Laws. With the Basic Law’s enactment, however, and following the United Mizrahi Bank decision, these rights were elevated to the status of constitutional rights. The enactment of the Basic Laws raised questions regarding the status of other rights previously recognized in case law but not explicitly named in either of the Basic Laws. These included rights as important and central as the right to equality, freedom of religion and freedom of expression. Such rights were referred to as the "unnamed" or "unenumerated" rights. The dispute centered on the question whether the Court could interpret the Basic Laws as awarding constitutional protection to such unenumerated rights. The present article examines the manner by which the Court determines which unnamed rights fall within the scope of the Basic Law. It examines the models of interpretation applied by the Court when recognizing certain unnamed rights while refusing to recognize others. The article argues that different approaches with regard to recognition of particular rights are rooted in different value-based worldviews regarding the essence of human dignity, and argues that the lack of a clear test for the recognition of unnamed rights results from the absence of a robust, well-developed notion of human dignity in Israeli constitutional law. The article purports to demonstrate the importance of developing a concept of human dignity that encompasses the different values and world-views that exist in Israeli society.