Abstract
Although Jewish law has its own ancient roots, modern Israel has been heavily influenced by the English Common Law and its approach to the exclusion of unlawfully gathered evidence has very definitely been cautious, as is the case in England and Wales and many other countries in the English Commonwealth, such as Australia and New Zealand. In fact, courts had refused to suppress illegally gathered evidence which was relevant to guilt until the landmark decision of the Israeli Supreme Court in the case of Isaacharov in 2006. This Chapter discusses that case, where the evidence of guilt was based a confession of guilt by a soldier in violation of the right to counsel, in great detail and discusses the weaknesses and strengths of the Israeli Supreme Court decision and the prospects for development of the Israeli approach to exclusion of illegally gathered evidence in the future.
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Notes
- 1.
X v. The Rabbinical District Court (May 14, 2006; not published).
- 2.
Military Court of Appeal v. Va’aknin (1988) 42(iii) P.D. 837. See also Harnon (1999, 709).
- 3.
See, for example, Military Court of Appeal v. Va’aknin, Ibid.
- 4.
E.g., The Criminal Procedure (Powers of Enforcement – Body Search and Methods of Identification) Law, 1996 (setting limits on the power to search the body of a suspect).
- 5.
§ 7 Basic Law: Human Dignity and Liberty (1992)
- 6.
Chief Military Prosecutor v. Issacharov, 61(1) P.D. 461 (2006), §§ 45–46.
- 7.
It should be noted that Issacharov’s appeal before the Supreme Court was filed in 1998, and the Court handed down its decision only in 2006, allowing the legislature more than enough time to act on the matter.
- 8.
Issacharov, 61(1) P.D. 461 (2006), §§ 46–47.
- 9.
Ibid.
- 10.
Ibid.
- 11.
Ibid, §60.
- 12.
Ibid, §60.
- 13.
Ibid, §§ 56, 60.
- 14.
Ibid.
- 15.
Ibid, § 60. cf.: R. v. Collins [1987] 1S.CR. 265, 275, 280–281.
- 16.
Isacharov, 61(1) P.D. 461 (2006), § 55.
- 17.
Ibid.
- 18.
Ibid, § 67.
- 19.
See Collins, [1987] 1S.CR. 265.
- 20.
Issacharov, 61(1) P.D. 461 (2006), § 70.
- 21.
Ibid.
- 22.
Ibid. The Court clarified that in circumstances where the defect that occurred in the manner of obtaining the evidence was serious and involved a substantial violation of the protected rights of the person under investigation, then the mere fact that the authority acted in good faith will not prevent the evidence being excluded.
- 23.
This is the case, for example, when the illegality committed by the investigation authorities was intended to prevent the disappearance or destruction of essential evidence by the accused, when the accused contributed to the illegality in conducting the investigation, by abusing his rights, or when the illegality was the result of an urgent need to protect public security. Ibid.
- 24.
If obtaining the evidence in permitted ways was possible and easy, then the violation of the rules of proper investigation should be considered more serious, in such a way that it will support the conclusion that admitting the evidence in the trial will create a serious and disproportionate violation of the right of the accused to a fair trial. Ibid. In this context, in Canada it has been ruled that when the police had no legal option for gathering the evidence – this does not mitigate the seriousness of the violation; under such circumstances and lacking alternative investigative means that do not violate the Charter, the police must leave the suspect alone. See: R. v. Kokesch [1990] 3S.C.R. 3, 29.
- 25.
Issacharov, 61(1) P.D. 461 (2006), § 70.
- 26.
Ibid, § 71.
- 27.
Ibid.
- 28.
Ibid.
- 29.
Ibid, § 48.
- 30.
Military Court of Appeal v. Va’aknin (1988) 42(iii) P.D. 837.
- 31.
In Issacharov, 61(1) P.D. 461 (2006), § 48, the Court ruled that when evidence has a separate and independent existence from the unlawfulness, “the unlawful means of investigation do not impact on the content of the evidence”. Therefore, it appears that the Court interpreted the concept of “separate and independent” to mean that the evidence existed prior to the violation and with no connection to it, even if it would not have been discovered or obtained without the violation. We believe that it would have been proper to rule that there may be circumstances under which tangible evidence does not have a “separate and independent existence”. Thus, for example, wherever the evidence would not have been obtained without the violation, and thus could not have been admitted in court, then it should not be viewed as having and independent existence.
- 32.
Issacharov, 61(1) P.D. 461 (2006), § 72.
- 33.
Ibid.
- 34.
Ibid.
- 35.
As the Court noted, taking into account the aforesaid considerations may lead to a situation in which precisely in investigations of serious felonies in which the constitutional right of the accused to dignity and liberty deserves substantial protection, the compliance with the rules of conducting a fair and proper investigation will decrease. Ibid, § 73.
- 36.
Ibid.
- 37.
Ibid, § 81.
- 38.
Ibid.
- 39.
Ibid.
- 40.
Ibid, § 74.
- 41.
For general critique of leaving wide discretion in the hands of the courts regarding the admissibility of evidence, Stein (2005, 11).
- 42.
Attorney General v. Keynan, 7 P.D. 619, 637–649 (1952).
- 43.
§ 161 Criminal Procedure Law [Consolidated Version] (1982).
- 44.
Ibid, § 162.
- 45.
State of Israel v. Sharon, 58(1) P.D. 748 (2003).
- 46.
§ 3(b) Criminal Procedure (Powers of Enforcement – Body Search and Methods of Identification) Law (1996).
- 47.
Ibid.
- 48.
Ibid, § 11.
- 49.
Ibid, § 12.
- 50.
Khoury v. State of Israel, 36(2) P.D. 85 (1981).
- 51.
Kedmi (1999, 42).
- 52.
The Public Committee against Torture v. State of Israel, P.D. 43(4) 817 (1999).
- 53.
J. Doe v. the Public Attorney, P.D. 13 1205, 1213–1214 (1959).
- 54.
Bitter v. State of Israel, P.D. 41(1) 52, 56 (1987).
- 55.
Twaig v. Attorney General, P.D. 10 1083, 1089 (1956).
- 56.
Abu Midjam v. State of Israel, P.D. 34(4) 533, 546 (1980) (Justice Chaim Cohen).
- 57.
Muadi v. State of Israel, 38(1) P.D. 197, 222–224 (1982).
- 58.
Ibid.
- 59.
Ibid, 225.
- 60.
Issacharov, 61(1) P.D. 461 (2006), § 33.
- 61.
Ibid.
- 62.
Ibid.
- 63.
Abed Alhadi v. Attorney General, P.D. 3, 13, 33–34 (1950); 747/86 Eisenman v. State of Israel, P.D. 42(3) 447, 454 (1988).
- 64.
Issacharov, 61(1) P.D. 461 (2006), § 35.
- 65.
Ibid.
- 66.
Ibid.
- 67.
Ibid.
- 68.
Ibid, § 34.
- 69.
Ibid, §§ 32, 34.
- 70.
Ibid, § 32.
- 71.
Ibid.
- 72.
Ibid.
- 73.
Ibid, § 37. The Court reasoned that not only had the suspect been informed of the right to remain silent, but he had also chosen to respond to the interrogator’s questions when his second statement was taken, after having been informed of his right to consult with an attorney.
- 74.
Ibid, § 23.
- 75.
Miranda v. Arizona, 384 U.S. 436, 457 (1966). See also Dickerson v. United States, 530 U.S. 428 (2000) (Confirming the Miranda rule).
- 76.
Tao v. Attorney General, P.D. 20(2) 539, 545–546 (1966); Muadi v. State of Israel, 38(1) P.D. 197, 231 (1982); Sufian v. Commander of IDF Forces in the Gaza Strip, P.D. 47(2) 843, 847 (1993); Issacharov, 61(1) P.D. 461 (2006), section 14.
- 77.
§ 34(a) Detention Law.
- 78.
Zakai v. State of Israel, 38(3) P.D. 57 (1982); Hason v. State of Israel, 56(3) P.D. 274 (1998).
- 79.
§ 34(d) Detention Law.
- 80.
§ 34(e) Detention Law.
- 81.
§ 34(f) Detention Law. Nevertheless, according to the last part of this section, the postponement of the meeting does not derogate from the right of a detainee, who has requested it, to be given a reasonable opportunity to meet with an attorney before being brought to court in regard to the arrest.
- 82.
§ 35(a) Detention Law. An officer in charge may postpone the meeting by 10 days: §35(c) Detention Law. The President of the district court may postpone it for 21 days: § 35(d) Detention Law.
- 83.
Jarjura (1984, 95).
- 84.
See the findings of a field study conducted by the Public Defense Office presented to the Supreme Court in Issacharov, 61(1) P.D. 461 (2006), § 11.
- 85.
Rumchia v. Israeli Police, 47(1) P.D. 209 (1992).
- 86.
Osama Ali Sharitakh v. General Security Services (2001) (not published).
- 87.
Ibid.
- 88.
Smirk v. State of Israel, 56(3) P.D. 529, 545–46 (1999) (dealing with the appeal of a German citizen, who, after converting to Islam and joining the ranks of the Hezbollah (Party of God) terrorist organization in Lebanon, came to Israel on behalf of the organization to photograph potential targets for suicide attacks).
- 89.
Estate of the late Alzam v. State of Israel (delivered on June 22, 2009 and not yet published).
- 90.
Ibid, §§ 5, 9.
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Jarjura, R. 1984. The excessive rights of the Israel police regarding detainment of suspects and meetings with attorneys. Hapraklit 36: 92–96.
Kedmi, J. 1999. On evidence, vol. 1. Tel Aviv: Dyunon Publishing.
Stein, A. 2005. Foundations of evidence law. Oxford/New York: Oxford University Press.
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Sangero, R.K., Merin, Y. (2013). Israel: The Supreme Court’s New, Cautious Exclusionary Rule. In: Thaman, S. (eds) Exclusionary Rules in Comparative Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5348-8_4
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