זכויות אדם והמשפט הפלילי המהותי

Human rights discourse, as developed in Israeli law since the enactment of the Basic Law: Human Dignity and Liberty(1992), is barely noticeable in the context of substantive criminal law. The lack of human rights discourse in this context is not unique to the Israeli legal system. In other western legal systems, there is a significant gap between the willingness to exercise constitutional control over criminal proceedings and punishment on the one hand, and the reluctance to exercise such control over crimes, on the other.The article exposes both the reluctance to exercise constitutional control over crimes and the exceptions to this reluctance. The article further provides an explanation for such reluctance based on the dual nature of substantive criminal law. Criminal law aims at protecting either the victim’s basic rights - such as the right to life, to bodily integrity and to property - or vital public interests. By doing so, criminal law infringes upon the offender’s basic rights: the prohibition of the offense infringes upon the autonomy to act as one pleases, the stigma involved in criminal conviction infringes upon dignity, and the punishment infringes upon the right to free movement and additional rights. As a rule, modern criminal law balances the need to protect rights (of victims) with the infringement of rights (of offenders) by distinguishing between the criminal process and punishment on the one hand and criminalization on the other. Offenders’ rights are guaranteed by the presumption of innocence and by the constitutional rights to both a fair trial and a humane punishment. Once these rights are guaranteed, the need to protect victims’ rights prevails.The article’s conclusion is that in order to fully guarantee offender’s basic rights, substantive criminal law should be subject to constitutional constraints.