(Mar. 1, 2010) On February 11, 2010, Israel's Supreme Court, in an extended bench of nine justices, repealed a statutory provision that had authorized a court to permit a hearing on the extension of detention of a security suspect in his absence, if the court determined that real harm to the investigation would result from the hearing's interruption. The Court held that section 5 of the Criminal Procedure (Detention of Suspects in Security Offenses) (Temporary Provision) Law, 5766-2006) (hereafter authorization provision), which provided such authorization, was void because of its disproportionate harm to the constitutional right of the detainee to be present during the arrest proceedings, an integral component of the right to due process.
The Court held that the right to due process derives its constitutional status from Basic Law: Human Dignity and Freedom. The right of a defendant to be present at his trial has been recognized in the past as an important condition to guarantee fair and proper criminal procedure. The Court held that this right is not only the right of the individual, but also an expression of the general public interest in guaranteeing that the criminal legal system will determine the fate of a person in the framework of a proper proceeding in which the defendant is afforded full opportunity to present his defense. As a rule, the right to a fair criminal proceeding extends to all stages of the criminal procedure process, including the investigation. This is particularly true regarding the arrest stage, which the Court recognized as the harshest form of harm to individual liberty.
Rights guaranteed under Basic Law: Human Dignity and Freedom, however, are not absolute, the Court stated; they may be limited only 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”(Basic Law: Human Dignity and Freedom, § 8). The Court recognized that the authorization provision was enacted for the proper purpose of improving the effectiveness of investigation of defense offenses. Such offenses have special characteristics, including the difficulty of gathering information and the need to frustrate terrorist acts, which require that a speedy, continuous, and effective investigation be conducted. Although the purpose of the authorization provision was found by the Court to be proper, the Court was not convinced that this purpose could not be achieved by other means that cause less harm to the detainee. (Request 8823/07Anonymous v. State of Israel [decision rendered on Nov. 2, 2010, in Hebrew], the State of Israel: The Judicial Authority website, http://elyon1.court.gov.il/files/07/230/088/p25/07088230.p25.pdf; Basic Law: Human Dignity and Liberty [in English], the Knesset website, http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm (both last visited Feb. 25, 2010).)