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Basic Law Proposal: Improvements During Criminal Proceedings

Photo: Yulia Binyamin, Shatil-Stock

Prior to the Constitution Committee’s discussions regarding the Basic Law Proposal: Rights During Interrogation and in Criminal Proceedings, we sent comments to the committee regarding the proposal. The proposal seeks to enshrine in legislation human rights in criminal proceedings, including the right to a fair trial; legal representation; rights during arrest and interrogation; the presumption of innocence, and more. We welcomed the intent to codify human rights in criminal proceedings through the Basic Law; the time has come to recognize the constitutional status of these rights directly, explicitly, and entirely, so as to improve the defense of human rights throughout criminal proceedings and strengthen deterrence against the violation of suspects’, defendants’, and prisoners’ rights and to increase judicial review in cases where rights are violated.

With that, we are of the opinion that the articulation of the law is incomplete and does not entirely recognize the totality of one's rights throughout criminal proceedings. Many suspects’ and defendants’ basic rights during criminal proceedings, which have already been recognized in case law as having a supra-constitutional status, are omitted from the law, and prisoners’ rights are not noted whatsoever. In the position paper, attorneys Anne Suciu, Dan Yakir, and Debbie Gild-Hayo detailed the primary changes that should be made to the bill in order to best protect the rights of suspects, defendants, and prisoners. Among other things, we proposed:

  • Apply the clauses relating to due process, legality, legal representation, double jeopardy, etc. (with required modifications) to other non-criminal proceedings to which the State is a party, as well, including legal proceedings to revoke parental custody, deny parental guardianship, and hearings before the Prisoner Release Committee.

  • Apply rights throughout criminal proceedings, including the stages of enforcement and imprisonment, and not merely during those of the investigation, detention, and trial.

  • It enshrined prisoners’ and detainees’ rights to be held in suitable conditions and their rights relating to the proceedings conducted regarding their case.

  • Add a defendant’s right to review investigative material; conclude criminal proceedings within a reasonable time; and suspects’ and defendants’ rights to be physically present in the legal proceedings regarding their cases to the list of rights that will be explicitly legally enshrined.

  • Refine the definition of the right to legal representation to ensure a viable opportunity to exercise the right.

  • It should enshrine the principle that detention is a last resort that should neither be exercised nor proceeded with if its objectives may be achieved through any other means.

  • Explicitly enshrine the prohibition of torture during an investigation in a designated clause.

We attend the meetings of the Constitution, Law, and Justice Committee that address the bill, and submit detailed comments to the committee in accordance with the clauses discussed at each meeting.

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