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Published online by Cambridge University Press: 30 January 2013
German constitutional law proclaims to grant human dignity “absolute” protection, whereas Israeli law permits a weighing of human dignity against other important interests. In spite of this difference in principle, German and Israeli law arrive at remarkably similar results with respect to the regulation of “dignity-sensitive” areas of criminal procedure, such as the privilege against self-incrimination, the search of the body and the home of suspects, and secret surveillance of private communications. With regard to privileged conversations, Israeli law provides for even stronger safeguards against state intrusion than German law. The protection against forced self-incrimination, by contrast, goes further under German law. In order to optimize the protection of human dignity in the criminal process, the authors suggest a strict distinction between measures designed to investigate past offenses and those aimed at preventing crime.
1 Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391 p. 90, § 8: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
2 Cf. Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, Bundesgesetzblatt, Teil 1 [BGBl. I], art. 1 § 1: “The dignity of man is inviolable. All state power is obliged to respect and protect it.”
3 27 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (6) (1969)Google Scholar; 49 BVerfGE 89 (142) (1978)Google Scholar; 115 BVerfGE 118 (152) (2006)Google Scholar.
4 See 27 BVerfGE 1 (6) (1969)Google Scholar; 38 BVerfGE 105 (114) (1974)Google Scholar (granting a witness in a criminal trial the right to an attorney).
5 Critics have argued that the court treats human dignity as a rubber ball into which holes can be poked as needed. See Amelung, Knut & Wirth, Stefan, Die Rechtsprechung des Bundesverfassungsgerichts seit 1990, 2002 Strafverteidiger 161, 166Google Scholar; see also Herdegen, Matthias, Die Menschenwürde im Fluß des bioethischen Diskurses, 2001 Juristenzeitung 773, 775Google Scholar.
6 109 BVerfGE 279 (312–13) (2004)Google Scholar.
7 30 BVerfGE 1 (26) (1970)Google Scholar.
8 Several writers have criticized the Federal Constitutional Court's approach of smuggling limitations into a “situational” definition of dignity and would rather permit a balancing of interests even if human dignity is implicated. See, e.g., Herdegen, Matthias, in Grundgesetz Kommentar art. 1, nn. 46–49 (Maunz, Theodor & Dürig, Günter eds., 2009)Google Scholar; Herzberg, Rolf Dietrich, Folter und Menschenwürde, 2005 Juristenzeitung 321, 323–24Google Scholar; Lüderssen, Klaus, Die Folter bleibt tabu – kein Paradigmenwechsel ist geboten, in Festschrift Für Hans-Joachim Rudolphi zum 70. Geburtstag 691, 702 (Rogall, K. et al. eds., 2004)Google Scholar; Schlehofer, Horst, Die Menschenwürdegarantie des Grundgesetzes, 1999 Goltdammer's archiv für Strafrecht 357, 362–63Google Scholar.
9 115 BVerfGE 118 (2006)Google Scholar.
10 Gesetz zur Neuregelung von Luftsicherheitsaufgaben [Act on the Regulation of Aviation Security Functions], Jan. 11, 2005, BGBl. I at 78.
11 The Court also found that the Federation lacked legislative competence to pass the law. This aspect of the case will not be discussed here.
12 115 BVerfGE 118 (152–53) (2006)Google Scholar.
13 Id. at 154-55.
14 According to the Court, the passengers did not consent to their (possible) fate by entering the plane, nor could they be regarded as mere parts of the instrument that is to be used for killing others. Id. at 157. The Court also rejected the argument that the passengers' life expectation was extremely short: human life and human dignity, the Court maintained, deserve constitutional protection regardless of the individual's foreseeable life span. Finally, the Court denied the existence of the state's right to kill citizens in order to protect the lives of others. Id. at 159-60.
15 It is different with the aggressors themselves. The Court pointed out that it is permissible, in the defense of others, to shoot down an airplane when all passengers and crew take part in an assassination attempt. Id. at 160-61.
16 Id. at 157.
17 See HCJ 2605/05 The Human Rights Division, The Academic Center for Law and Business v. Minister of Finance (Nov. 19, 2009) (unpublished), para. 3 of the opinion of Justice Arbel [hereinafter Private Prison case].
18 ADA 10/94 Anonymous v. Ministry of Defence 53(1) PD 97 [1999].
19 Quoted from CrimA 7048/97 John Does v. Ministry of Defence 54(1) PD 721, 732, para. 3 [2000]. A n English translation of the decision is available at: http://elyonl.court.gov.il/files_eng/97/480/070/a09/97070480.a09.htm.
20 Six justices—including Justice Barak, who had belonged to the majority in the first decision—versus three justices.
21 See John Does v. Ministry of Defence, supra note 19.
22 On the issue of “game of roulette,” see Harel, Alon, The Regulation of Speech: Normative Investigation of Criminal Law Prohibitions of Speech, 30 Mishpatim 69 (1999) (in Hebrew)Google Scholar.
23 Even before the Basic Law: Human Dignity and Liberty entered into force, Justice Elon wrote a dissenting opinion stating that deterrence cannot be a sole ground for detention and that the seriousness of an offense alone therefore does not justify detention.
24 See the opinion of Justice Bach in the Molcho case: “Over the past few years, the courts have recognized an additional public interest, namely, that in the framework of the legal system's battle against crime in the State, and to ensure the deterrent effect of these methods, it is important that the public be aware that a defendant charged with a particularly serious crime, and regarding which there is substantive evidence supporting the accusation, will not be free to continue his daily routine as though nothing bad happened.” M.App. 1044/82 Molcho v. Molcho 37(1) PD 78, 82-83 [1983].
25 See M.App. 290/76 Yadlin v. State of Israel 37(1) PD 671, 672 [1976].
26 CrimA 2092/95 Telkar v. State of Israel 49(1) PD 641, 646; see also CrimFH 2316/95 Ganimat v. State of Israel 49(4) PD 589 [1989].
27 See Private Prison case, supra note 17.
28 CA 294/91 Kadisha Corp. Community of Jerusalem v. Kastenbaum 46(2) PD 404, 530 [1992].
29 Id. at 539.
30 On the issue of privatization of prisons, see Raday, Francis, Privatization of Human Rights and Abuse of Power, 23 Mishpatim 21 (1994)Google Scholar; see also articles in 5 Law & Ethics of Human Rights: Private Power and Human Rights (2011), http://www.bepress.com/lehr.
31 38 BVerfGE 105 (114–15) (1974)Google Scholar; 56 BVerfGE 37 (43) (1981)Google Scholar; 38 Entscheidungen des Bundesgerichtshofes in Strafsachen [BGHSt] 302 (305) (1992)Google Scholar.
32 Strafprozessordnung [StPO ] [Code of Criminal Procedure], Apr. 7, 1987, BGBl. I at 1074, § 136, para. 1.
33 In this situation, there exists an unwritten exception to the general duty to produce documents in one's possession in response to a judicial order (§ 95, para. 1 StPO); Cf. Meyer-Goßner, Lutz, in Strafprozessordnung mit GVG und Nebengesetzen Kommentar § 95, n. 5 (53rd ed. 2010)Google Scholar.
34 Some defendants remain totally silent in court so as to make it impossible for the victim or witnesses to compare their voice to a voice heard at the time of the offense. For a case in which the police successfully got around this tactic, see 40 BGHSt 66 (1994). See also 34 BGHSt 39 (1986) (in which a jail warden secretly recorded an interview with a pretrial detainee suspected of having committed extortion; the tape was offered as evidence of the sound o f the detainee's voice, but the Federal Court of Appeals held it to be inadmissible).
35 Since a search of the home does not require any activity on the part of the person searched, handwritten notes can be seized from a person's home.
36 Werner Beulke, Strafprozessrecht at n. 241 (11th ed. 2010).
37 45 BGHSt 363 (364) (1999); 49 BGHSt 56 (58) (2004).
38 If a suspect initially makes a statement and subsequently refuses to talk, his “partial silence” can be used in evaluating his credibility. See 32 BGHST 140 (145) (1983); Miebach, Klaus, Der teilschweigende Angeklagte, 2000 Neue Zeitschrjft für Strafrecht [NStZ] 235Google Scholar.
39 See 20 BGHSt 281 (1965).
40 22 BGHSt 113 (1968).
41 38 BGHSt 214 (1992); Oberlandesgericht Celle [OLG Celle] [Higher Regional Court Celle], 2002 NStZ 386.
42 See Barak, Aharon, The Constitutionalization of Israeli Law: The Basic Laws on Human Rights and Criminal Law, 13 Bar-Ilan L. Stud. 5, 23 (1996)Google Scholar.
43 HCJ 6319/95 Hachmi v. Justice of the Magistrate Court of Tel Aviv 51(3) PD 750, 765 [1997]; see also Libai, David, Interrogation of Suspects and the Right Against Self-incrimination, 29 Hapraklit 92, 96 (1974)Google Scholar.
44 See LCA 5381/91 Hogla Trade (1982) Ltd. v. Ariel 46(3) PD 378, 381 [1992]; CA 533/82 Zakai v. State of Israel 38(3) PD 57, 69 [1984].
45 CA 663/81 Chori v. State of Israel 36(2) PD 85, 91 [1982]; see also CA 2910/94 Yapat v. State of Israel 50(2) 221, 304 [1996].
46 LCrimA 8600/03 State of Israel v. Gilad Sharon 58(1) PD 748 [2003]. For a critique of this judgment, see Rothkopf, G., The Scope of Privilege Against Self-incrimination and the Right to Silence, 11 Hamishpat 293 (2007)Google Scholar.
47 This is the view of Gross, Eyal, The New Constitutional Rights of the Defendant in Israel, 13 Bar-Ilan L. Stud. 155, 179 (1996)Google Scholar.
48 See CA 725/97 Kalkoda v. The Authority for Agricultural Control 52(1) PD 749 [1998].
49 State of Israel v. Gilad Sharon, supra n. 46, at 763.
50 See MCrimApp 8638/96 Korman v. State of Israel 50(5) PD 200, 206 [1996]; Barak, Aharon, Human Dignity as a Constitutional Right, 41 Hapraklit 271, 285 (1993)Google Scholar; see also Seidmann, Daniel & Stein, Alex, The Right to Silence Helps the Innocent: A Game Theoretic Analyses of the Fifth Amendment Privilege, 114 Harv. L. Rev 430 (2001)CrossRefGoogle Scholar. According to Israeli law, the police can sometimes use force to conduct a search, while in other cases they are not permitted to do so. In the latter situation, the individual's refusal to consent to a search can be introduced into evidence in order to strengthen the probative value of the evidence against him.
51 See Williams, Glanville, The Proof of Guilt 53 (3d ed., 1963)Google Scholar; Harnon, Eliyahu, The Right of Silence, 1 Mishpatim 95 (1968)Google Scholar.
52 Art. 2 § 1 GG: “Every person shall have the right to freely develop his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.” See 27 BVerfGE 1 (6) (1969)Google Scholar; 101 BVerfGE 361 (382–83) (1999)Google Scholar.
53 Art. 13 GG: “(1) The home is inviolable. (2) Searches may be authorized only by a judge or, if there is danger in delay, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed.”
54 See the specific restrictions on searches foreseen in art. 13 GG:
(3) If particular facts justify the suspicion that a person has committed an especially serious crime specifically defined by law, technical means of acoustic surveillance of a home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offense, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive. The authorization shall be for a limited time. The order shall be issued by a panel composed of three judges. When there is danger in delay, it may also be issued by a single judge.
(4) To avert acute dangers to public safety, especially dangers to life or to the public at large, technical means of surveillance of the home may be employed only pursuant to judicial order. When there is danger in delay, such measures may also be ordered by other authorities designated by law; a judicial decision shall subsequently be obtained without delay.
(5) If technical means are contemplated solely for the protection of persons officially deployed in a home, the measure may be ordered by an authority designated by law. The information thereby obtained may be otherwise used only for purposes of criminal prosecution or to avert danger and only if the legality of the measure has been previously determined by a judge; when there was danger in delay, a judicial decision shall subsequently be obtained without delay.
55 7 BVerfGE 198 (208–09) (1957)Google Scholar; 67 BVerfGE 157 (172–73) (1984)Google Scholar; 107 BVerfGE 299 (315) (2003)Google Scholar.
56 A surreptitious gathering of evidence, for example by means of “bugs” or hidden cameras, is not regarded as a “search.” Wohlers, Wolfgang, in Systematischer Kommentar zur Strafprozessordnung und zum Gerichtsverfassungsgesetz § 102, n. 2 (Wolter, Jürgen et al. eds., 2008)Google Scholar. There are special rules on wiretaps (§§ 100a & 100b StPO) and on video and acoustic surveillance of premises (§§ 100c & 100f StPO).
57 This includes the search for objects an individual has hidden in a body orifice.
58 See 32 BVerfGE 54 (69) (1971)Google Scholar. A prison cell has, however, been held not to be a “home.” Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 30, 1996, Neue Juristische Wochenschrift [NJW] 2643.
59 See Meyer-Goßner, supra note 33, § 105, n. 13.
60 Searches require a much lesser degree of suspicion than pretrial detention. Any indication, based on criminalistic experience, that an individual may have committed an offense is sufficient for a search. See BVerfG, Mar. 23, 1994, in Strafverteidiger 353, 1994; Wohlers, supra note 56, § 102, n. 24. A search sometimes constitutes the first act of a criminal investigation, as when the police, based on a tip, search an apartment for illegal drugs.
61 According to section 33, para. 4 StPO, a prior hearing is not necessary when it would jeopardize the effectiveness of the search.
62 See 44 BVerfGE 353 (372) (1977)Google Scholar; BVerfG, Apr. 28, 2003, NJW 2669, 2003.
63 96 BVerfGE 44 (52–55) (1997)Google Scholar. The Federal Constitutional Court has developed this time limitation on judicial warrants for searches of the home from article 13 of the Basic Law, in connection with the constitutional principle of proportionality.
64 Police can (and often do) avoid the strictures of search law by obtaining the consent of the person to be searched or of the owner or tenant of the relevant premises. In order for his consent to be valid, the individual must first be informed of the purpose of the search and the right to withhold consent. Consent given on the basis of a misapprehension caused by the police officer (e.g., when the officer poses as a repairman) is invalid. See Hermes, Georg, in Grundgesetz Kommentar art. 13, n. 106 (Dreier, Horst ed., 2d ed. 2004)Google Scholar.
65 103 BVerfGE 142 (2001)Google Scholar.
66 See Krüpe-Gescher, Chrjstiane, Die Überwachung der TelekommunkatlOn nach den §§ 100A, 100B StPO in der Rechtspraxis 156–58 (2005)Google Scholar (empirical study showing that judges approved of more than 90% of applications for telephone surveillance); Kühne, Hans-Heiner, Strafprozessrecht, at n. 411 (8th ed. 2010)Google Scholar (citing numerous empirical studies showing very low rates of rejection).
67 BVerfG, Feb. 12, 2007, NJW 1345, 2007.
68 See 16 BVerfGE 194 (1963) (in which the taking of a sample of brain liquid for investigating a minor offense was held to be unconstitutional because it violated the principle of proportionality).
69 Jalloh v. Germany, 2006-IX Eur. Ct. H.R.
70 5 BGHSt 332 (335) (1954).
71 44 BGHSt 308 (315–19) (1998).
72 Id. at 319-28.
73 Note that the provision speaks of “an offense,” not specifically of an offense against the person.
74 See CrimC (Nz) 38/83 Refal Ben Kiki v. State of Israel, PM 5743(2) 185 (1983).
75 According to section 46 of the Ordinance, the search of a woman must be carried out by a woman.
76 It should be noted that, under section 64B(b) of the Traffic Ordinance (New Version) 1961: “A policeman may demand of a driver of a vehicle involved in a traffic accident, or of a driver that he reasonably suspects to be drunk, to undergo tests at such times and places as the policeman may direct, and the person so required shall undergo the tests as aforesaid.”
77 Basic Law: Freedom of Occupation, 5754-1994, SH No. 1454.
78 Some commentators think that a polygraph used in the course of an investigation falls within the scope of this subsection. See Bergman, P. et al. , On the Question of the Application of the Criminal Procedure Law (Powers of Enforcement—Body Searches and Obtaining Means of Identification) 1996 to Polygraph Examinations in the Course of Criminal Investigations, 43 Hasanigor: Professional Surveys 3 (2000)Google Scholar.
79 See CrimA 1888/02 State of Israel v. Makdad 56(5) PD 221 [2002].
80 See CrimA 1641/04 Leonid Levin v. State of Israel 59(3) PD 785, 796-98 [2005].
81 See Meyer-Goßner, supra note 33, § 100a, n. 6b.
82 Cf. BVerfG, June 16, 2009, NJW 2431, 2009. If there is reason to believe that information critical for a criminal investigation is stored in a computer, the police will normally, with judicial authorization, remove the hard drive and seize it for an examination of its contents.
83 The Federal Court of Appeals ruled that online computer searches are impermissible without specific statutory authorization. See 51 BGHSt 211 (2007).
84 Bundeskriminalamtsgesetz [BKAG] [Law on the Federal Office on Crime], July 7, 1997, BGBl. I at 1650, § 20k, last amended by Gesetz [G], June 6, 2009, BGBl. I at 1226, § 2. According to § 20k BKAG, officers can secretly invade a person's computer if that is necessary in order to avert a concrete risk to the life, health, or liberty of a person or in order to protect common interests that are important for the existence of the state or form the basis of human life.
85 80 BVerfGE 367 (374–76) (1989)Google Scholar. The Court emphasized that the absolute protection does not pertain to a diary as such but only to its “intimate” parts: the protection does not extend to writings about criminal offenses that the writer has committed or plans to commit.
86 See 50 BGHSt 206 (2005).
87 109 BVerfGE 279 (312,319) (2004)Google Scholar.
88 Cf. BVerfG, Oct. 15, 2009, NJW 287 (288), 2010: “Human dignity protects the core area of confidential communication and its special substrate, which consists mainly of the private home.”
89 109 BVerfGE 279 (319–20) (2004)Google Scholar.
90 The Federal Constitutional Court has rejected a challenge to this provision on the grounds that the exclusion of other groups (especially relatives of the suspect) violated the principle of equality. See BVerfG, Oct. 15, 2009, NJW 287, 2010.
91 See MApp (Jer) 1153/02 State of Israel v. Abergil, PM 5761(2) 728 (2002) (particularly in regard to the presence of witnesses to the search).
92 Secret Monitoring Law, 5739-1979, 33 LSI 141 (1978-1979).
93 Draft Bill Amending the Criminal Procedure Ordinance (Arrest and Searches) (No. 11), 2005. See Kozlovski, Nimrod, The Computer and the Legal Process: Digital Evidence and Court Proceedings (2000)Google Scholar.
94 See Deutsch, Miguel, Computer Legislation in Israel, 22 Iyunei Mishpat [Tel Aviv U. L. Rev.] 427, 455 (1999)Google Scholar.
95 The explanatory notes to the draft bill explain that this provision was specifically introduced in response to the practice of judges to issue warrants with standard wording, granting the police authority to search and seize any document or effects necessary for the investigation. The legislature therefore set out clear, explicit instructions.
96 See CrimC (TA) 40206/05 State of Israel v. Eliezer Philosof (Feb. 6, 2007) (not yet published), where the court criticized the fact that judges, despite the amendment, have not changed the way of issuing search warrants.
97 Id.
98 CrimC (Jer) 2077/06 State of Israel v. Eliyahu Arish (Mar. 6, 2007) (not yet published); MApp (TA) 3544/07 Erez v. Yahia (Sep. 18, 2007) (not yet published).
99 State of Israel v. Eliyahu Arish, supra note 98.
100 Erez v. Yahia, supra note 98.
101 CrimA 1302/92 State of Israel v. Mordechai Ben-Reymond Nahmias 49(2) PD 309, 325-26 [1995].
102 A judge will be receptive to a request for monitoring if the suspicion relates to a particularly heinous offense, for example murder or large-scale drug trafficking. In such cases, the invasion of privacy is less important than the need to save a life or to prevent harm to the security of the state or public welfare. But even in such a case the judge will have to consider the weight of the evidence available and the period of monitoring requested.
103 For example, if suspicion focuses on a minor clerk in a large enterprise and there is a fear that other people who are not involved in the criminal act may use the phone, the judge may decide not to issue a general permit to monitor that phone. He may instead limit the order—if he decides to grant it at all—to conversations of the suspect.
104 The German Federal Constitutional Court has recently recognized a basic right to the privacy and integrity of data stored on one's private computer. See 120 BVerfGE 274 (311 et seq.) (2008)Google Scholar.