Shaked introduces major changes to confessions law to protect defendants

Many security cases involving Arab-Israelis and even some involving Jewish security suspects could be heavily impacted by the change.

August 18, 2015 21:03
2 minute read.
Ayelet Shaked, nouvelle ministre de la Justice

Ayelet Shaked, nouvelle ministre de la Justice. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Justice Minister Ayelet Shaked on Tuesday announced major proposed changes to the law dealing with confessions to better protect defendants who confess under pressure, addressing rising doubts about innocent persons being convicted based on coerced confessions and reaffirming Israel’s commitment to related conventions under international law to which it is a party.

“Acquitting the innocent” is a central purpose of criminal proceedings along with “convicting the guilty,” said Shaked’s statement, alluding to Maimonides’ principle that “It is better... to free 1,000 sinners than to put to death one innocent person.”

The changes were introduced by Shaked with the slogan, “Evidence that is taken illegally will not be part of the legal proceedings.”

They frame confessions that were obtained by the police or Shin Bet (Israel Security Agency) in an improper manner as one of the “worst injustices the state can bring upon its citizens.”

Many security cases involving Arab Israelis (and potentially Palestinians if adopted by the IDF’s West Bank courts), and even some involving Jewish security suspects could be heavily impacted by the changes, which are based on the recommendations of a committee led by former Supreme Court justice Edna Arbel.

The three main changes to the law clarify and adopt as permanent law various judicial principles that many courts have employed in recent years to protect defendants against coerced confessions but that had never been fully codified.

The first change codifies that evidence obtained by torture is illegal, in addition to prior court rulings that torture itself is illegal.

The second endorses principles that courts can choose to, but are not obligated to, throw out a confession obtained improperly by law enforcement, even if the improper actions did not involve torture.

Finally, in cases where pressure short of torture was applied to obtain confessions from defendants, especially minors or persons who are emotionally or mentally unstable, courts will require significant additional evidence to confirm the confession to use it for a conviction.

Shaked said the changes would save the judicial system from the “absurd” result in which innocent persons could be convicted because of law enforcement being overly aggressive in its tactics of searching suspects’ property or in interrogations.

They also would erase any current doubt about using improperly obtained confessions in court, she said.

Human rights lawyer Gabi Lasky called the changes a potentially important advance toward guarding the rights of defendants to a fair trial.

“Until now, police and the Shin Bet knew that even when they grossly violated the law” there would be no legal consequence, Lasky said, but warned that, in parallel to the changes, law enforcement might try to “limit the definition of torture to prevent the disqualification of confessions.”

The Attorney-General’s Office, which often has distributed new proposed legislation especially involving more technical aspects of the law, was not cited in Shaked’s press release.

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