Human Dignity and Victims Rights in The

HUMAN DIGNITY AND VICTIMS’ RIGHTS IN THE
GERMAN AND ISRAELI CRIMINAL PROCESS
Anat Horovitz * and Thomas Weigend **

. .
Human dignity is constitutionally protected in both the German and the Israeli legal
system. This article examines to what extent respect for victims’ human dignity has
influenced the development of victims’ rights within the criminal process in Germany
and Israel, bearing in mind the differences between the two legal systems regarding the
definition of “human dignity” and the scope of constitutional protection. Following a
detailed examination of the role and rights of victims within each jurisdiction and a short
comparative analysis, this article concludes that, in both countries, the concept of human
dignity has played a relatively minor role in the context of victims’ procedural rights.
The main, albeit tentative, explanation for this conclusion is that, although their trial
rules differ considerably, both legal systems share common concerns and difficulties
regarding the participation of victims in legal proceedings.
I. INTRODUCTION
A. TAKING VICTIMS’ INTERESTS SERIOUSLY

The Basic Law: Human Dignity and Liberty carries a statutory, consti-
tutional message to every individual in society … and not only to of-
fenders. The victim, and the potential victim, and every innocent citizen,
are all entitled to dignity and liberty from fear, terror, and harm, no less
than the accused. The right of the woman not to be beaten and degraded
is no less than the right of her batterer-husband to his liberty. The right
of a young woman traveling innocently on the roads not to fall victim to
another rape, is no less than the right of an accused not to be detained.1
Israeli judges 2 and legal scholars 3 have frequently cited these words from former Chief
. .
Justice Shamgar’s opinion in the famous Ganimat case. This passage refers to the
* Senior Lecturer (adjunct track), Hebrew University of Jerusalem (Israel).

** Professor of Criminal Law, University of Cologne (Germany).
1 CrimFH 2316/95 Ganimat v. State of Israel 49(4) PD 589, 622 [1989].
2 See, e.g., CrimA 446/02 State of Israel v. Kobi 57(3) PD 769 [2002]; CrimA 5121/98 Yissas-
charov v. The Chief Military Prosecutor 61(1) PD 461 [2006].
3 See, e.g., Judith Karp, The Criminal Law—Janus of Human Rights: Constitutionalization in
Light of Basic Law: Human Dignity and Liberty, 42 HAPRAKLIT 64, 76 (1995) (in Hebrew); Emanuel
263
264 ISRAEL LAW REVIEW [Vol. 44:263
Basic Law: Human Dignity and Liberty. Justice Shamgar cites the Basic Law as a
source of the court’s duty to protect (potential) victims from physical and mental harm
as a consequence of their right to have their “human dignity and liberty” respected.
In recent years, a broad array of crime victims’ rights has been recognized not
only in Israel but also in many other legal systems. These rights reach far beyond the
basic protection of physical safety mentioned in the Ganimat case. One important
aspect of the worldwide recognition of the plight of crime victims has been a grow-
ing concern for the role that victims play in the criminal process. It is on this particu-
lar aspect that our article will focus.
At the outset, we wish to point out that our article centers on the “real” interests
of crime victims. It is undeniable that the interests of defendants and victims 4 in any .
given criminal process can be in conflict, especially when the suspect or defendant
wishes to exonerate himself at the victim’s expense. However, we are wary of any
approach that manipulates the concept of victims’ human dignity and uses it as a
rhetorical device for limiting the procedural rights of the defendant. Unfortunately,
one frequently encounters such abuse of the “victims’ rights” label, and the majority
opinion in the Ganimat case 5 cited above may serve as an example of this. In other
.
words, we do not endorse the use of the notion of victims’ human dignity for the
purpose of pursuing the hidden agenda of disrupting the delicate balance between
the prosecution and the defense in the criminal process.6 Rather, our starting point is
that the protection of victim’s rights, whatever their scope may be, should be re-
garded as an end in itself and not merely as a means to counter the movement in
favor of defendants’ rights. Anything else would be a violation of what is supposed
to be promoted, namely the human dignity of the victim.
Gross, The Constitutional Rights of the Victim: A Comparative Study, 17 BAR ILAN STUDIES IN
LAW 419, 420 (2002) (in Hebrew).
4 For a discussion of the use of the term “victim” in connection with the criminal process, see
infra section II.

5 It is interesting to take a closer look at Justice Shamgar’s argument in Ganimat. He starts out
by comparing the claim to dignity of the victim and the “accused,” which is a legitimate statement
as to the need of balancing the rights of these two parties in the criminal process. But he then loads
the scales by juxtaposing not the rights of (alleged) victims and suspects in the criminal process, but
the rights of victims and the “interests” of the “batterer-husband” and the “rapist.” Justice Shamgar
thus links a supposed “right” of the accused “not to be detained” and the risk that he, if released,
will commit a crime. Of course, this subtle shift is bound to backfire against the suspect: no one
will uphold a suspect’s right to freedom when that means that he will rape a woman. The concept of
victims’ human dignity (in the sense that the victim should be free from fear of being victimized
again) is thus turned into an argument for limiting procedural rights of suspects. See also the
analysis of the Ganimat decision by Justice Edna Arbel, The Constitutional Revolution in the
Criminal Law: The Balance Between the Defendant’s Rights and the Rights of His Victims, in 2
SHAMGAR BOOK 255, 283 (Aharon Barak ed., 2003) (in Hebrew).
6 For similar sentiments, see MARKUS D. DUBBER, VICTIMS IN THE WAR ON CRIME: THE USE
AND ABUSE OF VICTIM’S RIGHTS 7 (2002).
2011] HUMAN DIGNITY AND VICTIMS’ RIGHTS 265
It is necessary to emphasize the importance of a genuinely victim-oriented ap-

proach, because the banner of victims’ interests lends itself so well to furthering
other policy goals. The fact that most people tend to sympathize with a victim rather
than an offender (or even a criminal suspect) makes it highly inadvisable, from a
political point of view, to question measures ostensibly designed to promote the
rights of victims. Victims’ rights are a certain winner in any policy debate—even
when their proponents do not really have individual victims’ interests in mind but
are pursuing moralistic or repressive goals.7
The movement toward recognizing victims’ rights can be traced back to a variety
of policy considerations. In some instances, a paternalistic welfare ideology has
prompted legislatures to grant procedural rights to victims.8 One example is an
Israeli provision that allows children under the age of 14 who may be victims of sex
offenses and other specified crimes to give testimony outside the courtroom.9 The
concern underlying this provision was not the legislature’s recognition of the child-
victim’s human dignity, but rather a paternalistic view regarding the state’s obliga-
tion to shelter children.10 The attitude conveyed in this statute is that the victim is an
object in need of protection and not an autonomous subject of rights. It is therefore
not surprising that, until a recent amendment to the law,11 children were not asked
for their opinion about giving testimony in court, and relevant decisions were made
by the court on the sole basis of the child investigator’s professional opinion.
In other instances, purely consequential considerations have resulted in the intro-
duction of victims’ rights. It is a heavily researched observation that victims report
crimes and cooperate with the police and the courts if they are treated with respect
and that they refrain from interacting with the authorities if they feel exposed,
neglected, and subject to “secondary victimization.”12 Consequently, victims’ rights
7 This warning does not apply to the vast literature that promotes proceedings aimed at mediating
between victims and offenders with a view toward reconciliation. See, e.g., HOWARD ZEHR, CHANG-
ING LENSES: A NEW FOCUS FOR CRIME AND JUSTICE (1990); LINDA R. SINGER, SETTLING DISPUTES:
CONFLICT RESOLUTION IN BUSINESS, FAMILIES, AND THE LEGAL SYSTEM (1990). One may well
encourage restorative and reconciliatory models, but such models thrive best when they are taken out
of the shadow of the criminal law and are left to exist by themselves. Leslie Sebba, Will the “Victim
Revolution” Trigger a Reorientation of the Criminal Justice System?, 31 ISR. L. REV. 379 (1997).
8 Leslie Sebba, Victims’ Rights and Legal Strategies: Israel as a Case Study, 11 CRIM. L. F.
47, 56 (2000).
9 See Evidence Revision (Protection of Children) Law, 5715-1955 SH No. 187 p. 96, § 2.
10 David Libai, The Protection of the Child Victim of a Sexual Offence in the Criminal Justice
System, 15 WAYNE L. REV. 977, 997 (1969).

11 Amendment no. 10, 2004, SH No. 1957 p. 532.
12 See, e.g., Jan J.M. van Dijk, Regaining a Sense of Community and Order: General Report
and Conclusions of the Conference, in RESEARCH ON VICTIMIZATION: REPORTS PRESENTED TO

THE SIXTEENTH CRIMINOLOGICAL RESEARCH CONFERENCE 145 (European Committee on Crime
Problems ed., 1985); PETER DUFF, JOANNA SHAPLAND & JON WILLMORE, VICTIMS IN THE
CRIMINAL JUSTICE SYSTEM (1985).
are often protected in order to promote the enforcement of criminal law. Thus, for
example, when the Israeli Supreme Court analyzed section 68(b)(5) of the Courts
Law (1984), which allows the court to exclude the public in order to protect the
interests of a person who filed a complaint concerning a sexual offense, the main
reason given for the existence of this section was not the need to respect the dignity
of the victim, which was only mentioned in passing, but the fact that hearing the
case in open court would deter women from filing such complaints.13
In what follows, we start from the finding that the two legal systems that we
know best—Israel and Germany—both recognize certain rights of victims within the
criminal process. Given the interconnection of this issue with the concept of human
dignity, we will attempt to determine to what extent respect for victims’ human
dignity, as opposed to the other considerations discussed above, has influenced the
development of victims’ rights in the German and Israeli legal systems. The short—
and, to us, somewhat astonishing—answer to this question is that in both countries
human dignity plays a relatively minor role in the context of victims’ procedural
rights. Even where recognition of victims’ procedural rights was cloaked in terms of
human dignity, which is often the case in Israel, the acceptance of such rights was
often motivated by other considerations. The reasons for the relatively minor role of
human dignity differ in each legal system, but the outcome is similar. This conclu-
sion may appear surprising given the great differences between Israel and Germany
with respect to legal history and traditions, as well as the stark contrast between the
role of the victim in the German versus the Israeli criminal process. As will be seen,
however, the participation of the victim in the criminal process raises similar con-
cerns and difficulties in both countries, which may explain why the basic concept of
human dignity does not go far in shaping the legal arrangements in these countries.
B. A BRIEF PREVIEW
We begin our discussion by examining the legal definitions of the relevant concepts.
The question of who is a “victim” is more problematic than may appear at first
blush, especially when we compare the procedural “career” of the victim with that of
the suspect/defendant (section II). The protection of human dignity is undoubtedly
of great importance in the Israeli and German legal systems, but both the exact
definition of human dignity and the extent to which it is protected by law differ
(section III).
A large part of our article is dedicated to an analysis of victims’ active and pas-
sive rights in the criminal process (section IV). In that context, we also take a look at
the question to what extent the legal protection of victims is related to their (often
concomitant) role as prosecution witnesses. By way of a conclusion, we will try to
13 LCrimA 5877/99 Yanos and Others v. State of Israel 59(2) PD 97, 116 [2004].
determine what has motivated the Israeli and German legislatures and courts to
afford victims the rights that have been recognized in each legal system. We will
then return to the issue of human dignity and ask to what extent victims’ rights are
linked to the victim’s human dignity; in other words, whether respect for human
dignity has motivated the state to grant the victim certain procedural rights (section
V). As noted above, only a relatively small part of victims’ rights will prove to be
“dignity-induced” and thus especially protected from legislative or judicial interfer-
ence (section VI).
II. WHO IS A VICTIM?
A. VICTIMS AND SUBSTANTIVE CRIMINAL LAW

In both legal systems under consideration, there appears to be little doubt as to who
is a victim: the person harmed by a crime. This extremely narrow definition high-
lights the system’s preoccupation with the offense and the offender, which necessar-
ily comes at the expense of its commitment to the well-being and, perhaps, the
human dignity of other members of the public.
The roles in the criminal process are neatly divided: there is only offender and
victim, black and white, no shades of gray. This contrasts with moral judgment,
where two persons involved in a conflict can both be subject to blame as well as
sympathy. But in the legal sphere, the offender, although he may have suffered harm
as a result of the criminal event, is never considered a victim.
However, this rather straightforward ascription of procedural roles can lead to
difficulties. Take the example of an accused who raises a valid defense and is
thereupon acquitted. Should this fact affect the status of the victim? Can there still
be a victim when there is no offender? When we are referring to a person harmed by
a justified act—for example, a person injured by a shot fired in legitimate self-
defense—the answer to this question should probably be “no” (although one might
come to the conclusion that the person shot is still a “victim,” albeit a victim who
can be blamed for his own predicament). The issue becomes more complicated when
we consider a situation in which the actor has only been excused, for example,
because he acted under duress. In that situation, it may be the better solution, from
the perspective of the state’s possible duties toward victims, to recognize the person
harmed as a victim because he was affected by an unlawful act.14
14 German criminal law theory regards the distinction between justification and excuse as cru-
cial for this and other issues, whereas the Israeli legal system, like most common law systems, does
not attach much significance to this distinction. See, e.g., Miriam Gur-Arye, Should a Criminal
Code Distinguish Between Justification and Excuse?, 5 CAN. J. L. & JUR. 215, 219-20 (1992);
Tatjana Hörnle, Die Rolle des Opfers in der Straftheorie und im materiellen Strafrecht, 19 JURIS-
TENZEITUNG 950, 957 (2006). Albin Eser has claimed that “there seems no greater cleavage
Another difficulty stems from the fact that most procedural victims’ rights pre-
suppose that a person has been “directly” harmed by the offense. “Direct” harm is
evident when the offender has injured a person’s bodily integrity or when the vic-
tim’s property has been taken away or destroyed. The spouse or child of a person
killed by a criminal offense is also considered a “direct” victim.15 But there are other
cases where a person may feel victimized but is still regarded only as an “indirect”
victim. For example, the parents of a girl who has been hit by a fellow student
cannot be considered “victims” of the assault in a legal sense, although they may
suffer greatly through commiserating with their daughter.16 Sometimes, the question
whether or not one is a victim depends on the interest to be protected by the offense
in question. For example, if A bribes a public official and thereby obtains a lucrative
job as a public servant, can B be considered a victim of that offense if B was better
qualified for the job and would have obtained it save for A’s illegal intervention?
Should B have the rights of a victim in the criminal process conducted against A
and/or the public official? Since bribery is not an offense protecting individual
citizens, and since B’s harm does not stem directly from the bribe paid but from the
public official’s decision to prefer A over B, the answer would probably have to be
negative.
These questions, which have rarely been addressed in the Israeli and German le-
gal literature, demonstrate that the status of a person as a “victim” in the criminal
process is invariably linked to the attribution of a specific offense to a (potential)
offender. In other words, the legal systems we examine are willing to recognize the
rights of the victim only as a by-product of their claim to prosecute the defendant.
Victims’ rights thus do not exist independently of the criminal process against the
defendant.
between civil law and common law schools of criminal theory than that of whether there does or, if
not, should be a distinction between justification and excuse.” Albin Eser, Justification and Excuse:
A Key Issue in the Concept of Crime, in JUSTIFICATION AND EXCUSE, COMPARATIVE PERSPEC-
TIVES 19 (Albin Eser & George P. Fletcher eds., 1987).
15 See, e.g., Rights of Persons Harmed by Crime Law, 5762-2001, SH No. 1782 p. 183, § 2.
Family members of the direct victim, even if they were harmed by the offense, cannot claim
victim’s rights. See, e.g., CrimA 7609/06 Anonymous v. State of Israel (Nov. 13, 2008) Takdin
Legal Database (by subscription), 1818. See also STRAFPROZESSORDNUNG [STPO] [CODE OF
CRIMINAL PROCEDURE], Apr. 7, 1987, BUNDESGESETZBLATT, Teil I [BGBL. I] at 1074, § 395,
para. 2, no. 1, granting survivors of homicide victims the right to join a criminal prosecution.
16 MICHAEL C. BAURMANN & WOLFRAM SCHÄDLER, DAS OPFER NACH DER STRAFTAT—
SEINE ERWARTUNGEN UND PERSPEKTIVEN. EINE BEFRAGUNG VON BETROFFENEN ZU OPFER-

SCHUTZ UND OPFERUNTERSTÜTZUNG SOWIE EIN BERICHT ÜBER VERGLEICHBARE UNTER-
SUCHUNGEN 16 (1991); Michael Kilchling, Opferschutz und der Strafanspruch des Staates—Ein
Widerspruch?, 2002 NEUE ZEITSCHRIFT FÜR STRAFRECHT [NSTZ] 57, 58.
B. VICTIMS AND PROCEDURAL LAW

Matters get even more complicated when we consider the criminal process. It has
sometimes been asserted that as long as the defendant is presumed to be innocent,
we should not speak of a victim but only of an “alleged victim.”17 But the terminol-
ogy as to victims does not change in the course of the process. In Israel as well as in
Germany, we use exactly the same term for the person harmed (korban or nifga
avera in Hebrew, Verletzter in German) from the beginning to the end of the crimi-
nal process, whereas we use different terms to designate the alleged offender at
different stages of the proceedings (chashud, ne’esham, mursha, and nidon in
Hebrew, Beschuldigter, Angeschuldigter, Angeklagter, and Verurteilter in German).
One can argue that this difference is not just a matter of linguistic sensitivity but
demonstrates a lack of attention to the possibility that a person who claims to be
harmed by an offense is, in fact, not a victim of crime. One may well ask whether
the state infringes upon the presumption of innocence when it too quickly assumes
the truth of the victim’s version and grants him various rights before his status has
been validated by the court or even by the prosecution.18
At first blush, this criticism sounds convincing, but is it valid? By using the term
“victim,” we imply that a person has been the victim of a criminal offense commit-
ted by a culpable person. Presuming the defendant to be innocent may prevent us
from calling a person “his” victim. For example, if a woman claims to have been
raped by her boyfriend, and the boyfriend denies the charges, we are faced with an
“either/or” situation: either the man is a criminal offender and the woman is a
victim, or the man is innocent and the woman is not a crime victim but guilty of
making a false accusation. But there also exist situations where we may have to
withhold judgment about the defendant’s guilt and can still say, beyond any doubt,
that a person is the victim of a criminal offense, as when a man has been found dead
with multiple stab wounds in his back. The status of offender and victim are hence
not interrelated like connecting vessels, and we are able to maintain the presumption
of innocence and yet can consider a person to be a victim even before the trial has
started. Even the fact that the defendant has been acquitted does not necessarily
17 Cf. Jochen Bung, Zweites Opferrechtsreformgesetz: Vom Opferschutz zur Opferermächti-
gung, 2009 STRAFVERTEIDIGER (STV) 430; Kilchling, supra note 16, at 57.
18 For linguistic and philosophical explanations for this phenomenon, see, for example, 1
GEORGE FLETCHER, THE GRAMMAR OF CRIMINAL LAW: FOUNDATIONS 119-33 (2007). An

uncritical assumption of the status of victims can also be found in the substantive criminal law,
which tends to avoid attaching blameworthiness to victims of crimes. For a discussion of this
phenomenon, see, for example, Alon Harel, Efficiency and Fairness in Criminal Law: The Case for
a Criminal Law Doctrine of Comparative Fault, 82 CALIF. L. REV. 1181 (1994); 1 CLAUS ROXIN,
STRAFRECHT: ALLGEMEINER TEIL 605-10 (4th ed. 2006) (discussing failed attempts in German
doctrine to introduce “Viktimodogmatik” to reduce the offender’s criminal responsibility when the
victim could have avoided the harm).
imply that the person who had theretofore been regarded as his victim should lose
that status. It may well be that both the acquittal and the recognition as a victim are
justified. One example would be a case of mistaken identity where the victim was
harmed by a person other than the defendant.
Calling a victim a victim from the time he makes a complaint and affording him
a number of procedural rights may therefore be premature in some cases and per-
fectly legitimate in others. Since it is difficult to determine at the very beginning of
the process who is a true victim and who—maliciously or in good faith—has made a
false accusation, the law seems to have followed the rule of experience. And experi-
ence tells us that the majority of persons who go to the trouble of calling the police
to claim that they have become victims of crime are not making false claims but
have in fact been victimized.19 The legal system may thus have good reason to
presume the legitimacy of self-proclaimed victims, since it might be unfair to
withhold basic procedural rights from the great majority of legitimate victims just
because there are a few free riders who take advantage of the opportunities the
criminal process offers for harming others.
Moreover, the fact that someone can claim to be a “victim” does not determine
the crucial question of what rights he will enjoy in the criminal process against “his”
defendant. German courts, for example, have used slightly different definitions of
“victim” in connection with different procedural rights.20
We alert to these problems of definition in order to highlight the difficulties in-
herent in upholding and protecting victims’ rights within the criminal process. Since
this process has been created and designed to resolve the issue of the defendant’s
criminal liability and punishment, the procedure necessarily focuses on suspects’
and defendants’ rights to due process, including the presumption of innocence.
Therefore, the nature of the criminal process precludes granting full recognition and
protection to the interests of victims and often results in the marginalization of the
victims’ needs and interests.
19 References to numerous studies on reasons for (not) reporting crime to the police can be
found in ULRICH EISENBERG, KRIMINOLOGIE 250-56 (6th ed. 2005). Studies on sexual offenses
have shown between 6 and 10% of false complaints, id. at 680.
20 A unitary definition of the victim (Verletzter) does not exist in German criminal procedure
law. For example, “victims” are defined differently in the context of their right to appeal a prosecu-
tor’s decision not to bring charges (STPO § 172; see Kirsten Graalmann-Scheerer, in 5 DIE STRAF-
PROZESSORDNUNG UND DAS GERICHTSVERFASSUNGSGESETZ § 172, marginal notes 48-100
(Volker Erb et al. eds., 2008)), and in the context of claiming civil damages in the criminal process
(STPO § 403; see generally Hans Hilger, in 8 DIE STRAFPROZESSORDNUNG UND DAS GERICHTS-
VERFASSUNGSGESETZ § 374, marginal notes 15-20e (Volker Erb et al. eds., 2008)).
III. CONCEPTS OF HUMAN DIGNITY IN ISRAEL AND GERMANY
A. THE CONCEPT OF HUMAN DIGNITY IN ISRAELI LAW

Israeli courts recognized the concept of human dignity long before the Basic Law:
Human Dignity and Liberty was drafted in 1992,21 yet it was the Basic Law that
granted the concept of human dignity a central and unique status in Israeli law. Over
the years that have passed since its enactment, the Basic Law has become one of the
main legal sources for the development and protection of human rights in Israel.22
As a legal concept, human dignity reflects the idea that every individual should
be regarded as a free being, entitled to freedom of choice and freedom of action.23
Individual autonomy thus lies at the foundation of the concept.24 Moreover, Israeli
courts have generally understood the concept of human dignity to imply that every
person should be regarded as an end in himself, and not as a means for achieving
some public good or the aims of society or other individuals.25 It is important to
emphasize that, according to section 11 of the Basic Law: Human Dignity and
Liberty, “all governmental authorities are bound to respect the rights under this
Basic Law.” State agencies such as the police, the prosecution services and the
courts must therefore not infringe on any basic right derived from the concept of
human dignity.26
Since Israel has no constitutional bill of rights, the concept of human dignity has
been interpreted to include a broad cluster of rights.27 This extensive interpretation
was facilitated by the fact that human dignity under Israeli law is not an absolute but
a relative concept.28 Not only may Israel’s parliament, the Knesset, amend the Basic
Law and thus restrict any rights derived from the concept of human dignity by a
simple majority, but these rights can also be limited by any statute that satisfies the
requirements of the limitation clause, which reads:
21 See Ariel Bendor & Michael Sachs, The Constitutional Status of Human Dignity in Germany
and Israel, 44 ISR. L. REV. 25 (2011).

22 Aharon Barak, Human Rights in Israel, 39 ISR. L. REV. 12 (2006).
23 Aharon Barak, The Constitutionalization of the Legal System following the Basic Laws and
its Impact on the Criminal Law (Substantive and Procedural), 13 BAR ILAN STUDIES IN LAW 5
(1996).
24 HCJ 7357/95 Barki Feta Humphries (Israel) Inc. v. State of Israel 50(2) PD 769, 785 [1996].
25 See, e.g., HCJ 6427/02 The Movement for Quality of Government in Israel v. Knesset 61(1)
PD 619 [2005]; CrimA 5121/98 Issacharov v. Chief Military Prosecutor 61(1) PD 461 [2006].
26 CrimApp 3239/08 Shukron v. State of Israel (Apr. 16, 2008), Nevo Legal Database (by sub-
scription).
27 See, e.g., HCJ 366/03 Commitment to Peace and Social Justice Organization and Others v.
Minister of Finance and Others 60(3) PD 464 [2005].
28 See, e.g., HCJ 4593/05 The United Mizrachi Bank v. The Prime Minister and Others (Sep.
20, 2006), Nevo Legal Database (by subscription).

There shall be no violation of rights under this Basic Law except by a

law befitting the values of the State of Israel, enacted for a proper pur-
pose, and to an extent no greater than is required.29
The balancing required by the limitation clause has sometimes been termed “ex-
ternal balancing,” as opposed to “internal balancing,” which is employed when the
basic rights of different subjects clash.30 When a case requiring “internal balancing”
arises, a set of principled rules must be adopted by the legislature or the courts in
order to resolve the conflict.31 An example of such a rule, which is relevant to the
topic at hand, appears in section 1 of the Rights of Persons Harmed by Crime Law
(2001), which states: “The purpose of this law is to determine the rights of a person
harmed by an offence, and to protect his human dignity, without infringing upon the
legal rights of suspects, defendants and convicts.” (emphasis added)
B. THE CONCEPT OF HUMAN DIGNITY IN GERMAN LAW

The German constitution begins as follows: “The dignity of the person is inviolable.
All powers of the state are obliged to respect and protect it.” (art. 1(1) of the Basic
Law). The majority of courts and commentators interpret these sentences as afford-
ing human dignity “absolute” protection and oppose any “external” balancing of
dignity, even when important competing individual or social values are at stake.32
Article 1, in conjunction with article 79(3) of the Basic Law, precludes the German
legislature from ever passing a law that infringes upon human dignity, even if there
were unanimity in favor of such a law.33 In order to define human dignity, the
Federal Constitutional Court has adopted the “subject vs. object” formula, indicating
that human dignity is violated when the state uses a person only as a means to obtain
some other purpose and thus fails to treat the person with the respect that is due
every human being.34
29 Basic Law: Human Dignity and Liberty, 5752-1992, SH No. 1391 p. 150, § 8.
30 3 AHARON BARAK, INTERPRETATION IN LAW 377-82 (1995) (in Hebrew).
31 Aharon Barak, Protected Human Rights: Scope and Limitations, 1 LAW & GOVERNMENT IN
ISRAEL 253, 262-65 (1993).

32 75 ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] [DECISIONS OF
THE FEDERAL CONSTITUTIONAL COURT] 369 (380) (1987); Horst Dreier, in GRUNDGESETZ
KOMMENTAR art. 1, marginal note 44 (Horst Dreier ed., 2d ed. 2004); Michael Sachs, in GRUND-
GESETZ KOMMENTAR art. 1 § 1, marginal notes 10 & 17 (Michael Sachs ed., 5th ed. 2008);
Christian Starck, in 1 GRUNDGESETZ KOMMENTAR art. 1 § 1, marginal notes 15 & 33 (Hermann
von Mangoldt et al. eds., 6th ed. 2010).
33 Article 79(3) of the German Basic Law prohibits any amendment of the Basic Law that in-
terferes with the protection of human dignity as guaranteed in article 1 of the Basic Law. See
GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW],
May 23, 1949, BGBl. I.
34 See, e.g., 9 BVERFGE 89 (95) (1959); 27 BVERFGE 1 (5) (1969); 30 BVERFGE 1 (25)
(1970); 45 BVERFGE 187 (228) (1977); 84 BVERFGE 90 (120) (1991); 96 BVERFGE 375 (399)
Consequently, German courts submit to strict scrutiny any act of the state that
arguably interferes with human dignity. For example, the Federal Constitutional
Court has found audio-surveillance of homes through the use of hidden microphones
to be unconstitutional because this method infringes the “core” of privacy, which is
closely connected to human dignity.35 However, the “absolute” protection of human
dignity necessarily leads to a reduction of the concept of dignity to a small core.36 A
reasonable restriction on liberty does not turn the affected individual into a mere
“object.” Article 1 of the German Basic Law is violated only when the state arbitrar-
ily, without a proper purpose, infringes on human dignity.37 Because of the reduction
of human dignity to a small (and loosely defined) “core,” the Federal Constitutional
Court has rarely found that a statute violates article 1 of the Basic Law on its face,38
and there is a surprising paucity of cases where the court has stated that an act of
state violated human dignity.39
C. A COMPARATIVE NOTE
If we compare the situation in Israel and Germany, we observe that Israel’s “rela-
tive” concept contrasts with Germany’s proclaimed “absolute” protection of human
dignity. But on closer inspection, this theoretical difference does not produce very
different results in difficult cases. A more important difference between the Israeli
and German concepts relates to the substance of what “human dignity” signifies.
Although both legal systems refer to the “subject vs. object” formula, Israeli theory
draws a close connection between human dignity and autonomy, linking a general
“freedom of action” to human dignity.40 German doctrine, on the other hand, enter-
tains a more “passive” idea of human dignity, relating it to the notions of privacy
and bodily integrity, whereas the general freedom to act as one pleases is said to be
protected by the right to develop one’s personality guaranteed in article 2(1) of the
(1997); 109 BVERFGE 279 (311) (2004). The “subject vs. object” formula has been criticized as
vague and as permitting arbitrary decisions. See Dreier, supra note 32, marginal note 53, with
further references.
35 109 BVERFGE 279 (311-57) (2004).
36 Dreier, supra note 32, marginal notes 47-49, correctly warns of an “inflation” of human dig-
nity if that concept were used to correct any minor indignity a person is subjected to.
37 See Matthias Herdegen, in 1 GRUNDGESETZ KOMMENTAR art. 1, marginal note 46 (Theodor
Maunz & Günter Dürig eds., 2010).
38 For a controversial case where the Federal Constitutional Court found such a violation in
relation to the Air Security Law, see 115 BVERFGE 118 (2005).
39 Examples include a prisoner who had to live in a cell that was frequently flooded with feces,
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 16, 1993, NEUE JURIS-
TISCHE WOCHENSCHRIFT [NJW] 3190, 1993, and a case in which state agents had secretly installed
microphones in a suspect’s home and thereby kept him and his family under total surveillance, 109
BVERFGE 279 (315) (2004). For further case law, see Sachs, supra note 32, marginal notes 40-45.
40 See supra notes 22 & 23 and accompanying text.
German Basic Law.41 The latter right clearly is not granted without limits: article
2(1) of the Basic Law explicitly limits its exercise to situations where it does not
violate the rights of others, the constitutional order,42 or the moral law. The two legal
systems considered here thus seem to coalesce. They both recognize a general right
to autonomy, which is however limited by other concerns and can be restricted on
the basis of a proportionality analysis, and a “core” of human dignity, comprising
“passive” aspects of privacy and of being “left alone” by the state rather than being
treated as a mere object. In Israel, that “core” dignity is still subject to “external
balancing,” but it can be expected that the state and its agents can infringe upon the
“core” only under extreme circumstances.
D. A WORKING DEFINITION OF HUMAN DIGNITY

For the purpose of this article, we need not present a comprehensive definition of
human dignity that would be acceptable to Israeli as well as German courts. In the
context of the criminal process, a person’s autonomy to act as he pleases is of little
relevance; what we are concerned with here is the limits of the state’s authority to
interfere with a person’s bodily integrity and privacy, as well as a person’s right to
be treated as a subject, not as a mere piece of evidence. It seems that the concept of
human dignity covers both these aspects in Israel as well as in Germany. The dignity
of a person who has been drawn into a criminal process—be it as a suspect, a victim,
or a witness—requires that that person’s bodily integrity and privacy be respected
and perhaps that he be afforded a minimal right to be heard in court. The “core” of
these rights is protected absolutely (Germany) or nearly absolutely (Israel) by the
prohibition of treating persons as mere objects. In both countries, for example,
neither a suspect nor a witness can be tortured in order to obtain a statement, be-
cause the physical pain renders him incapable of making autonomous decisions and
thus turns him into a mere object.43 As we move away from that “core” of human
dignity, its protection becomes subject to balancing. For example, it may well be
permissible to invade the private home of a witness or victim in order to obtain a
crucial piece of evidence if that invasion of privacy is necessary to arrive at a fair
41 Article 2(1) of the Basic Law states: “Everyone has the right to unfold his personality, to the
extent that he does not violate the rights of others or offends against the constitutional order or the
moral law.” For a broad interpretation of the “right to develop one’s personality” as a general
freedom of action, see 6 BVERFGE 32 (1957); Otto Lagodny, STRAFRECHT VOR DEN SCHRANKEN
DER GRUNDRECHTE 116 et seq. (1996); Christian Starck, in 1 GRUNDGESETZ KOMMENTAR art. 2,
marginal notes 8-13 (Hermann von Mangoldt et al. eds., 6th ed. 2010).
42 The limit set by the “constitutional order” has been interpreted by the Federal Constitutional
Court to include any legislation passed in conformity with the Basic Law. See, e.g., 6 BVERFGE 32
(37-41) (1957); 103 BVERFGE 197 (215) (2001); 113 BVERFGE 88 (103) (2005).
43 HCJ 5100/94, 4054/95 Public Committee Against Torture in Israel v. Israel Government
53(4) PD 817 [1999]; STPO § 136a.

judgment and no other less intrusive means are available. Although Israeli and
German courts may draw the line between the inviolable and “balanceable” spheres
of human dignity differently, the general idea as described here is inherent in both
systems.
We will return to the question of what exactly the protection of human dignity
means for the victim’s position and to what extent the concept of human dignity may
play a role in the development of victims’ rights (see infra section V). Before we do
so, however, it is necessary to describe what rights the Israeli and German legal
systems actually confer upon victims in the criminal process.
IV. RIGHTS OF VICTIMS IN THE GERMAN AND ISRAELI CRIMINAL

PROCESS
A. HISTORICAL BACKGROUND
1. ISRAEL
The State of Israel was established in 1948. It inherited legislation that was mostly
enacted during the British Mandate in Palestine, while some was drafted even
earlier, when Palestine was under the rule of the Ottoman Empire.44 Thus, for
example, private prosecution, which is still allowed in Israel with respect to a very
short list of offenses, is a relic from the time of the Ottoman regime,45 while the
compensation of victims as part of a sentence has been part of the Criminal Code
since the time of the British Mandate.46 Owing to its predominantly British heritage,
Israeli criminal trials are based on the adversarial model, but juries have never been
part of the local administration of justice.47
In its early years, Israel embraced a social welfare ideology, which heavily influ-
enced the administration of criminal justice.48 This ideology has led, among other
44 See Yoram Shachar, History and Sources of Israeli Law, in INTRODUCTION TO THE LAW OF
ISRAEL 1 (Amos Shapira & Keren C. Dewitt-Arar eds., 1995).

45 For a short description of the history of private prosecution in Israel, see CrimApp 3503/91
Shubert v. Tzafrir 46(4) PD 136 [1992].

46 Section 43 of the Criminal Ordinance (1936) authorized judges to order the offender to pay
compensation to the victim as part of the sentencing decision. See LCrimA 2976/01 Assaf v. State
of Israel 56(3) PD 418, 469 [2002].
47 For this and other reasons, Israel deviates in several respects from the adversarial model. See
Emanuel Gross, The Adversarial Mode of Trial in the Criminal Process—Does it Allow Judicial
Activism?, 7 IYUNEI MISHPAT [TEL AVIV U. L. REV.] 867 (1993); John D. Jackson & Sean Doran,
Addressing the Adversarial Deficit in Non-Jury Criminal Trials, 31 ISR. L. REV. 645 (1997).
48 In the sphere of sentencing, for example, an agenda “bordering on penal abolitionism” was
adopted. See Leslie Sebba, Sanctioning Policy in Israel—An Historical Overview, 30 ISR. L. REV.
234, 237 (1996).
innovations, to legislation that sought to protect victims’ and witnesses’ rights.49 One
example is the Evidence Revision (Protection of Children) Law (1955), which
requires that a child under the age of 14 be questioned by a professional child
interrogator if the subject of the interrogation is a sex offense or an offense of
violence within the family.50 Another early innovation was the enactment of a clause
protecting witnesses from “humiliating, alarming, deceptive or shaming” examina-
tion in court, which is “irrelevant to the matter on hand and is unfair.”51
Explicit recognition of victims’ rights emerged in Israel in the 1980’s. It manifested
itself for the first time in 1987, in a special governmental report on the needs of victims
of crime.52 A year later, the State Prosecutor formally instructed Israel’s prosecution
services to extend information and assistance to victims and witnesses for the prosecu-
tion throughout the criminal process.53 At the same time, a new section 2A was intro-
duced in the Amendment of Procedure Law (1957) prohibiting the interrogation of a
victim about his sexual history unless a judge determined in a reasoned decision that to
refrain from questioning the victim might lead to a miscarriage of justice.54
It is clear that these new developments concerning the victim’s role in the criminal
process were heavily influenced by the victims’ rights movement, which gained
momentum in the United States and other Western countries during the second part of
the 20th century, in the aftermath of World War II.55 At international level, the vic-
tims’ rights movement led to the adoption in 1985 of the UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power.56 At national level, it
brought about major legal reforms in many countries, including Israel.57 During the
1990’s, the Israeli legislature began to afford victims of crime new forms of protection,
such as court-ordered reports on injuries sustained by victims of sex offenses. This
section, drafted in 1995, was later amended to include victims of violent crime.58 In
49 Leslie Sebba & Tali Gal, Rights of Persons Harmed by Offences in Israel, in 2 SHAMGAR
BOOK 157, 165 (Aharon Barak et al. eds., 1993) (in Hebrew).
50 For a description of the statute, see Eliahu Harnon, Children’s Evidence in the Israeli
Criminal Justice System with Special Emphasis on Sexual Offences, in CHILDREN’S EVIDENCE IN
LEGAL PROCEEDINGS: AN INTERNATIONAL PERSPECTIVE 81 (J. Spencer et al. eds., 1990).
51 Amendment of Procedure (Interrogation of Witnesses) Law, 5718-1957, SH No. 237, § 2.
52 JUDITH KARP, MINISTRY OF JUSTICE, VICTIMS OF CRIME (1987).
53 See Ministry of Justice, Directive 14.7―Assistance to Victims of Crime and Prosecution
Witnesses in Criminal Proceedings, http://www.justice.gov.il/NR/rdonlyres/37E738A8-5A79-4E3C-

9AE2-13632DA2CAC6/18096/147.pdf (last visited May 1, 2011) (in Hebrew).
54 Penal Law (Amendment no. 22), 5748-1988, SH No. 1246 p. 62, § 2.
55 See, e.g., ROBERT MAWBY & SANDRA WALKLATE, CRITICAL VICTIMOLOGY 69-94 (1994).
56 Cherif M. Bassiouni, International Recognition of Victims’ Rights, 6 HUM. RTS. L. REV. 203
(2006).
57 Sebba & Gal, supra note 49, at 157.
58 See Criminal Procedure Law, 5742-1982, SH No. 1043 p. 41, § 187(b). For a recent inter-
pretation of this section, see CrimA 7609/06 Anonymous v. State of Israel (Nov. 5, 2007), Nevo
Legal Database (by subscription).
2001, the Israeli legislature enacted the Rights of Persons Harmed by Crime Law,
2001,59 which is the main legislative effort regarding victims of crime.60
It is important to note that the Rights of Persons Harmed by Crime Law, while
influenced by the victims’ rights movement, was enacted as part of the constitutional
reform brought about by the Basic Law: Human Dignity and Liberty in 1992. From
the beginning, the concept of human dignity was thus linked not only to the suspect
and the accused, but also to the victim of crime, as evident from the Ganimat case
(see supra section I). Direct evidence of this link can be found in the first section of
the Rights of Persons Harmed by Crime Law, which declares that the “purpose of
this law is to determine the rights of a person harmed by a criminal offence, and to
protect his human dignity, without infringing upon the legal rights of suspects,
defendants and convicts.”
2. GERMANY
The German Code of Criminal Procedure, originally enacted in 1877, contains a
surprisingly broad array of legal rights for victims. With respect to some offenses,61
the victim determines whether a criminal prosecution can be started or continued.
Prosecution of these offenses requires an express request (Strafantrag),62 which the
victim is free to file, withhold, or withdraw at his discretion. In cases of criminal
trespass, simple assault, destruction of property, and several other less serious
offenses, the victim can himself appear as a prosecutor in criminal court.63 Where an
offense can be prosecuted only by the public prosecutor, the victim can challenge
the public prosecutor’s decision not to bring charges for lack of sufficient evidence
by filing a complaint with the court of appeals.64 A victim who has suffered material
or immaterial damage can request the criminal court to award him a judgment of
compensation for damages.65 Finally, victims of certain offenses against the person,
such as attempted murder, sexual offenses, intentional assault, and stalking, can join
59 For an overview of the statute and the case law relating to it, see DAVID BAR-OFIR, RIGHTS
OF PERSONS HARMED BY AN OFFENCE ACT AS REFLECTED IN THE CASE-LAW (2007) (in Hebrew).
60 For a recent discussion of the process underlying this legislation, see Uri Yanay & Tali Gal,
Lobbying for Rights: Crime Victims in Israel, in INTERNATIONAL HANDBOOK OF VICTIMOLOGY
373 (Shlomo Giora Shoham et al. eds., 2010).
61 This is true, for example, for criminal trespass (STRAFGESETZBUCH [STGB] [PENAL CODE],
Nov. 13, 1998, BGBL. I at 3322, § 123) and violation of private secrets (§ 205). With regard to
several other offenses, a victim’s application is normally necessary, but public prosecution can be
brought even against the victim’s wishes when there is a special public interest in prosecuting the
case. This applies, for example, to simple assault (§ 230), petty theft (§ 248a), stalking (§ 238, para.
4) and abduction of children (§ 235, para. 7).
62 Id. § 77.
63 STPO § 374 et seq.
64 Id. § 172.
65 Id. § 403 et seq.
the public prosecution as a subsidiary prosecutor (Nebenkläger).66 Of all these

procedural options, only subsidiary prosecution by victims plays a significant role in
criminal practice today. All other rights accorded to victims by the Code of Criminal
Procedure have, for various reasons, proved to be ineffective or irrelevant.
For a long time, the German legal system has largely ignored the true interests of
victims,67 for example their interest to be informed of the progress of the case, to
have legal representation, and to obtain compensation without having to sue the
offender in civil court.68 Victims’ organizations consequently complained that the
victim’s role in the criminal process was reduced to that of an uninformed bystander
used (and often abused) as a witness only when needed.69 In 1986, the legislature
reacted to these complaints by passing the (“First”) Act to Reform Victims’ Rights.70
This act amended the Code of Criminal Procedure and to some extent redefined the
role of the victim. For example, the Act granted every victim the right to be in-
formed of the outcome of the process against “his” defendant as well as of decisions
affecting the defendant’s freedom of movement.71 The victim can further hire a
lawyer, who can be present at any interrogation of the victim and can object to
questions posed to the victim.72 The victim’s lawyer can, under certain conditions,
inspect the prosecutor’s file even before trial.73 The legislature also strengthened the
victim’s right to obtain a judgment for monetary compensation in criminal court.74 In
sum, one can say that German procedural law today strives to accommodate the
66 Id. §§ 395 & 397. Victims of sexual offenses and of attempted homicide can demand the
court to assign them a lawyer even before trial (§§ 397a & 406g).
67 Helmut Kury & Michael Kaiser, The Victim´s Position within the Criminal Proceedings: An
Empirical Study, in VICTIMS AND CRIMINAL JUSTICE, LEGAL PROTECTION, RESTITUTION AND
SUPPORT 579, 581 (Günther Kaiser et al. eds., 1991); Peter Rieß, Entwicklungstendenzen in der
deutschen Strafprozessgesetzgebung seit 1950, 10 ZEITSCHRIFT FÜR INTERNATIONALE STRAF-
RECHTSDOGMATIK (ZIS) 466, 476 (2009); Heinz Schöch, Die Rechtsstellung des Verletzten im
Strafverfahren, 1984 NSTZ 385, 386.
68 MICHAEL KILCHLING, OPFERINTERESSEN UND STRAFVERFOLGUNG 30-33, 311-14 (1995);
see also LYANE SAUTNER, OPFERINTERESSEN UND STRAFRECHTSTHEORIEN 215 et seq. (2010).
69 MICHAEL C. BAURMANN & WOLFRAM SCHÄDLER, DAS OPFER NACH DER STRAFTAT—
SEINE ERWARTUNGEN UND PERSPEKTIVEN 29 (1.2.2.1.) (1991); GÜNTHER KAISER, KRIMINOLOGIE

563-64 (3d ed. 1996).
70 Erstes Gesetz zur Verbesserung der Stellung des Verletzten im Strafverfahren [OpferSchG]
[First Act to Reform Victims‘ Rights], Dec. 18, 1986, BGBL. I at 2496.
71 STPO § 406d. This information right was introduced only in 2009 by the Second Act to Re-
form Victims’ Rights (Gesetz zur Stärkung der Rechte von Verletzten und Zeugen im Strafver-
fahren [2. OpferRRG] [Second Act to Reform Victims’ Rights], July 29, 2009, BGBL. I at 2280).
72 Id. § 406f.
73 Id. § 406e.
74 According to STPO § 406, para. 1, the criminal court can decline to decide on the victim’s
civil claim only when the claim is not suited for a decision in criminal court because it would cause
significant delay. In fact, however, the court retains broad discretion in this matter, and neither
judges nor lawyers encourage victims to join their civil claims to the criminal case.
interests of crime victims, although the practical application of their rights still
leaves much to be desired.
B. VICTIMS AND WITNESSES

It is impossible to address the rights of victims in the criminal process without first
considering a parallel issue, namely the rights of witnesses. Like victims, witnesses
in the criminal process have in recent years received increased consideration. While
witnesses were traditionally regarded as mere instruments in the court’s search for
the truth, or as pawns in the trial battle between the parties, their contribution—
which is often rendered involuntarily—and their vulnerable position have increas-
ingly been recognized. Policy makers have realized that witnesses provide a public
service and that they deserve to be treated with respect and with concern for their
privacy interests. In Germany, witnesses who have been threatened or are at per-
sonal risk have therefore been permitted to withhold their name and address when
they testify in court,75 and a somewhat similar provision exists in Israel with respect
to victims of sexual or serious violence offenses.76 In Germany, the public can be
excluded from the trial whenever facts from a witness’s private sphere are discussed
at the trial.77 In Israel, this possibility exists only in respect of victims of sexual
offenses,78 whereas other witnesses are protected only if giving their testimony in
open court would “deter a witness from freely testifying or testifying at all.” More-
over, “sensitive” witnesses in both countries have been permitted to testify via video
link from a secret location outside the courtroom or through other means that allow
them to avoid confrontation with the defendant.79
75 STPO § 68(3).
76 See Rights of Persons Harmed by Crime Law, 5762-2001, SH No. 1782 p. 183, § 7. A re-
cent innovation in Israeli law has been the establishment of the Protection of Witnesses Authority,
which provides various forms of protection to threatened witnesses and their families (see Protec-
tion of Witnesses Law, 5769-2008, SH No. 2192 p. 98).
77 Gerichtsverfassungsgesetz [GVG] [Code on Court Organisation], May 9, 1975, BGBL. I at
1077, § 171b.
78 See Courts Law, 5744-1984, SH No. 1123 p. 198, § 68(b)(5). The Israeli Supreme Court has
interpreted this provision as purporting to encourage women to file criminal complaints (Yanos,
supra note 13).
79 Section 247a of the German Code of Criminal Procedure, supra note 15, provides that a wit-
ness can be interrogated by video link if there exists an urgent risk of a serious harm to his well-
being, or if he cannot appear in court due to illness or due to a long distance from his place of
residence. In Israel this possibility is more restricted and only exists in respect to children (see
Evidence Revision (Protection of Children) Law, supra note 9, § 2), mentally disabled persons (see
Interrogation and Testimony Procedures Law (Adapted to Mentally Disabled Persons), 5766-2005,
SH No. 2038 p. 42, § 22), and in cases where the witness is an alleged victim of a sexual offense or
human trafficking (see Amendment of Procedure (Interrogation of Witnesses) Law, 5718-1957, SH
No. 237 p. 16, § 2b).
Although these new relaxations of a witness’s traditional duties to appear, to

provide information on his personal circumstances, and to testify in open court
extend to all “vulnerable” witnesses, it is mostly victims who benefit from these
provisions. This is due to the fact that the victim of the crime is the typical sensitive
and/or endangered witness. Since the victim is often selected by the offender be-
cause of his vulnerability, for example his youth or old age, physical weakness, or
reduced mental capacity,80 the protections offered to vulnerable witnesses mostly
apply to victims. For the victim, reliving the criminal incident through giving testi-
mony in court can re-open old wounds, especially when confrontational questioning
by the defense, as well as the presence of the defendant and the public, makes the
victim’s court appearance a traumatic experience that causes emotional distress.81
This is the case especially when the offense has touched upon the victim’s intimate
sphere (as in most sexual offenses) or if the victim is particularly vulnerable (such as
children or traumatized persons). In other situations, a victim testifying as a witness
may be put under pressure by the defendant, his friends, or the defendant’s family,
who may threaten to harm the victim if he contributes to the defendant’s conviction
and punishment by giving truthful testimony.82
We should therefore bear in mind that legislation aimed at better protecting the
interests of “sensitive” witnesses mostly benefits victims. Conversely, many of the
rights that are labeled “victims’ rights” are actually derived from the victim’s status
as a prosecution witness.
C. RIGHT TO PHYSICAL SAFETY AND PRIVACY
1. ISRAEL
The Rights of Persons Harmed by Crime Law (2001) grants victims various rights
designed to protect their physical safety and shield them from the suspect, the
defendant, and members of the suspect’s family. These rights include physical
protection during the proceedings 83 and restrictions on the information the offender
.
receives regarding the personal details of the victim.84 Needless to say, when the
offender poses a continuous threat to the bodily integrity of the victim, the court is
80 Many victimological studies support this observation. See, e.g., Jessica Snowden & Arthur J.
Lurigio, The Mentally Ill as Victims of Crime, in VICTIMS OF CRIME 189 (Robert C. Davis et al.
eds., 3rd ed. 2007).
81 See DETLEF BUSSE, MAX STELLER & RENATE VOLBERT, BELASTUNGSERLEBEN VON KIN-
DERN IN HAUPTVERHANDLUNGEN 185-97 (1996); GABRIELE KETT-STRAUB, DIE PFLICHTEN
MINDERJÄHRIGER ZEUGEN IN DER HAUPTVERHANDLUNG DES STRAFVERFAHRENS 57-65 (2003);
TINO KLEINERT, PERSÖNLICHE BETROFFENHEIT UND MITWIRKUNG 31-37 (2008).
82 KLAUS ZACHARIAS, DER GEFÄHRDETE ZEUGE IM STRAFVERFAHREN 87-101 (1997).
83 Rights of Persons Harmed by Crime Law, supra note 15, § 6.
84 Id. § 7.
authorized to arrest the offender both during the investigation 85 and at the beginning
.
of the trial.86 Other laws, such as the Return of the Sex Offender to the Surroundings
of the Victim Law (2004), afford the victim protection at the termination of criminal
proceedings if the court has reason to fear that the offender still poses a threat to the
well-being of the victim.87 In addition, victims who have been threatened by the
offender and/or others because of their past or anticipated testimony in court can
receive various forms of assistance, including new identities, from the relatively new
Israeli Witness Protection Authority.88
To protect the victim’s right to privacy, section 13 of the Rights of Persons
Harmed by Crime Law prohibits the investigating authority from interrogating a
victim of a violent or sexual offense about his sexual past, unless the information is
required “in order to establish the truth.” A similar, though not identical, protection
is afforded to victims of sexual offenses during trial.89 In addition, the court may
allow complainants of sexual offenses or human trafficking offenses, who are
usually the victims of these crimes, to give their testimony in the absence of the
offender.90 Similar protection is afforded to children testifying in court.91
As mentioned earlier, the court can also exclude the public from certain criminal
proceedings in order to protect the privacy of victims and witnesses. Judges can
order a closed hearing when they deem closure necessary in order to protect the
interests of complainants of sex offenses, specified categories of vulnerable wit-
nesses, or witnesses in general who would otherwise be inhibited from giving
evidence.92 Under similar circumstances, the court may also bar the media from
reporting on court proceedings.93
Despite the various mechanisms that Israeli law has developed in order to protect
witnesses’ privacy in general, and victims’ privacy in particular, criminal proceed-
ings continue to impose on victims what has come to be known as “secondary
victimization.”94 Since victims usually provide the most important testimony in the
case, they are not only subject to lengthy interrogation but must also give up a
considerable part of their privacy. Much litigation in Israel in recent years has
centered on the inescapable clash between the defendant’s right to full disclosure of
85 Criminal Procedure (Enforcement Powers—Arrests) Law, 5756-1996, SH No. 1592 p. 338,
§ 13(a)(2).
86 Id. § 21(a)(1)(b).
87 For an analysis of this law, see, for example, CrimApp 962/10 Anonymous v. State of Israel
(Jan. 17, 2010), Nevo Legal Database (by subscription).

88 See Protection of Witnesses Law, supra note 76.
89 Amendment of Procedure (Interrogation of Witnesses) Law, supra note 51, § 2A.
90 Id. § 2B.
91 Id. § 2C.
92 Courts Law, supra note 78, § 68(b)(4), (5) & (7).
93 Id. § 70.
94 See, e.g., WILLIAM D. DOERNER & STEVEN T. LAB, VICTIMOLOGY 47-48 (1995).
the investigative materials at the beginning of the criminal trial 95 and the right of
.
victims and witnesses to privacy.96 Although some concessions in favor of the right
of privacy have been made,97 the general approach of the courts continues to be that
the basic right of the defendant to a fair trial must prevail over the victims’ and
witnesses’ right to privacy.98
To sum up, Israeli law protects the victim’s right to physical safety and, to a
lesser degree, his right to privacy. It extends this protection, to more or less the same
extent, to witnesses in general and to vulnerable witnesses in particular. Special
protection that goes beyond concern for their physical safety is granted to victims of
sex offenses.
2. GERMANY
The German legislature, encouraged by victims’ rights advocates, has in recent years
sought to reduce the burden that (forced) participation in the criminal process can
place on a victim.99 Victims can be subpoenaed as witnesses and are then obliged to
testify―even in intimate detail―when that is necessary to determine the truth.100
When a victim’s or witness’s life or health is at serious risk if he testifies, the court
will relieve him of the duty to testify. In less dramatic cases, the victim can be
95Criminal Procedure Law, supra note 58, § 74.

96Alaa Masrawa & Noga Shmueli-Mayer, Disclosure of Investigative Materials and the Right
to Privacy—Is the Supreme Court Developing a New Approach?, 39 THE DEFENSE ATTORNEY 3
(2000) (in Hebrew).
97 See, e.g., CrimApp 6022/96 The State of Israel v. Mazor 50(3) PD 686 [1996].
98 See, e.g., HCJ 9264/04 The State of Israel v. The Jerusalem Magistrates’ Court and Others
60(1) PD 360, 389 [2005]. The legal basis for the court’s approach is section 1 of the Rights of
Persons Harmed by Crime Law, supra note 15, which unequivocally states that victims’ rights are
secondary to the legal rights of suspects, defendants, and convicts.
99 Reinhard Böttcher, Wieviel Opferschutz verträgt der rechtsstaatliche Strafprozess?, in VER-
BRECHEN—STRAFE—RESOZIALISIERUNG. FESTSCHRIFT FÜR HEINZ SCHÖCH ZUM 70. GEBURTS-

TAG 929 (Dieter Dölling et al. eds., 2010); Dieter Dölling, Zur Stellung des Verletzen im Strafver-
fahren, in FESTSCHRIFT FÜR HEIKE JUNG 77 (Heinz Müller-Dietz et al. eds., 2007); Martin Heger,
Die Rolle des Opfers im Strafverfahren, 2007 JURISTISCHE ARBEITSBLÄTTER [JA] 244.
100 STPO § 68a, para. 1, provides that a witness should not be asked questions affecting his
honor or concerning his private sphere unless that question is indispensable for the determination of
the truth. The courts tend to give prevalence to the determination of the truth when there is a
conflict between privacy and truth-finding interests, even if the criminal process concerns only a
less serious offense and the question is relevant only for the witness’s credibility. See 13
ENTSCHEIDUNGEN DES BUNDESGERICHTSHOFES IN STRAFSACHEN [BGHST] [DECISIONS OF THE
FEDERAL COURT OF APPEALS] 252 (254); Klaus Rogall, in SYSTEMATISCHER KOMMENTAR ZUR
STRAFPROZESSORDNUNG UND ZUM GERICHTSVERFASSUNGSGESETZ § 68a, marginal note 32, with
further references (Hans-Joachim Rudolphi & Jürgen Wolter eds., 2005). A trial judge’s decision to
allow a question that touches on the intimate sphere cannot be appealed. See LUTZ MEYER-
GOßNER, STRAFPROZESSORDNUNG MIT GVG UND NEBENGESETZEN. KOMMENTAR § 68a, note 9
(53d ed. 2010).
permitted not to disclose his address or even his identity.101 This information will
also be kept separate from the file that is subject to inspection by the defense, and
even the indictment need not identify the victim if this is deemed necessary to avert
harm to his health, freedom, or life.102 Witness protection programs are available for
victims and witnesses who have been threatened with retaliation for truthful testi-
mony by the defendant or others on his behalf.103 These programs cannot provide a
guarantee of safety (and create various other problems 104), but they can resolve a
.
conflict between the interests of justice and those of the witness by providing special
protection, relocation, or—in extreme cases—a new identity.105
Victims, like other witnesses, are subject to questioning by the defendant and his
counsel.106 According to article 6(3)(d) of the European Convention on Human
Rights, the defendant has a fair trial right to confront witnesses against him (includ-
ing the victim). However, the presiding judge can—and should—reject questions
that are inadmissible, for example because they pry into the private sphere of the
witness without being relevant to the issues at trial.107
In order to spare victims the ordeal of having to testify again and again at various
stages of the proceedings, their testimony can be recorded on videotape.108 If the
victim is later unavailable, or if all parties consent, the tape can be replayed at the
trial and be used as evidence.109 In practice, defendants in cases with vulnerable
victims are often offered a sentence discount in exchange for making a full confes-
sion in court, thus rendering unnecessary the victim’s appearance at the trial.
To protect the victim’s privacy, the public can be excluded from any interroga-
tion when private matters of the victim are discussed.110 It is also possible to exclude
101 STPO § 68, paras. 2 & 3.

102 Id. § 200, para. 1.
103 The legal basis of witness protection programs is the Gesetz zur Harmonisierung des
Schutzes gefährdeter Zeugen [ZSHG] [Law for the Harmonization of the Protection of Witnesses at
Risk], Dec. 11, 2001, BGBL. I at 3510. See Michael Soiné & Hans-Georg Engelke, Das Gesetz zur
Harmonisierung des Schutzes gefährdeter Zeugen, 2002 NJW 470.
104 For example, care must be taken that civil claims of and against the witness can still be en-
forced. See ZSHG §§ 7 & 9. For other problems (e.g. testimonial privilege of witness in protection
program), see 50 BGHST 318 (2005).
105 According to section 5 of the ZSHG, public and private agencies can be obliged to provide
identity papers for the witness under a different name.

106 STPO § 240, para. 2.
107 See Bundesgerichtshof [BGH] [Federal Court of Justice] Jan. 11, 2005, NJW 1519 (1520),
2005 (emphasizing that the task of a social state built on the rule of law (sozialer Rechtsstaat) is not
only to make sure that criminal offenses are being investigated but also to safeguard the interests of
victims).
108 STPO § 58a.
109 Id. § 255a. For a thorough analysis of this provision, see SUSANNE WOLLMANN, MEHR
OPFERSCHUTZ OHNE ABBAU LIBERALER STRUKTUREN IM VERSTÄNDNIS DER PRINZIPIEN DER
STRAFPROZESSORDNUNG 106 et seq. (2009).
110 GVG § 171b.
the defendant from the courtroom if his presence would prevent the victim or any
other witness from testifying truthfully or if it would negatively affect the victim’s
or witness’s health.111 When there is a risk of serious harm to a witness if he testifies
in open court, he can be permitted to testify by video link from a location outside the
courtroom.112
Although these procedural options apply to all witnesses, it will often be the vic-
tim who benefits from them. Germany has made some progress toward reducing the
burden on victims who have been drawn into a criminal process. It still remains true,
however, that the criminal process against the offender sometimes leads to “secon-
dary victimization” of the victim, especially in cases of sexual offenses. To some
extent, however, the cooperation of the victim is necessary if the criminal process is
to reach its goal of determining the truth.
D. COMPENSATION OF VICTIMS
1. ISRAEL
Much has been written about the question whether the state is required to provide
assistance to persons who were harmed by crime.113 This question is, of course,
connected with the more fundamental issue regarding the state’s duty to grant social
welfare rights to individuals.114 In respect to victims of crime, such social welfare
rights might include (but are not necessarily limited to) monetary compensation,
psychological counseling, and other forms of assistance, such as legal advice.
Victims’ rights advocates in Israel have indeed called for the introduction of a
general compensation scheme for crime victims,115 but so far the legislature has not
reacted. Recently, the Israeli Supreme Court rendered a decision regarding the duty
of the state to provide minimal living conditions, which may lend support to the
demand for victim compensation by the state.116 However, advocates have yet to
explain why victims of crime should be entitled to special benefits, regardless of the
extent of their injuries, while persons harmed by accidents or other occurrences are
not afforded similar assistance by the state.117 One might argue that the difference
111STPO § 247.
112Id. § 247a.
113 See, e.g., DAVID MIERS, STATE COMPENSATION FOR CRIMINAL INJURIES (1997).
114 See, e.g., Joseph Edray, Human Rights and Social Rights, in 2 BERENSON BOOK 45
(Aharon Barak & Haim Berenson eds., 2000) (in Hebrew).

115 See, e.g., Uri Yanay, Support and Compensation Provided to Victims of Violent Crimes in
Israel, in ALLOCATING RESOURCES TO SOCIAL SERVICES 227-50 (Jacob Kop ed., 2000) (in
Hebrew). In recent years, various Knesset members have proposed to adopt some form of state
compensation for victims of violent crimes. However, the fate of these proposals is yet unclear.
116 See Commitment to Peace and Social Justice Organization and Others, supra note 27.
117 It is interesting to note that Israel compensates victims of terror for their losses and injuries.
See Persons Harmed by Hostile Operations Law, 5730-1970, SH No. 600 p. 126.
between victims of crime and other persons who have sustained losses lies in the
victim’s entitlement to be protected from harm by the state through the application
of criminal law. The existence of such a right would, however, primarily affect
substantive criminal law, which is designed to protect potential victims by defining
crimes and sentences to be imposed if these prohibitions are disregarded. Modern
Israeli legislation lends some support to this notion of victim-oriented criminal
laws.118 If one recognizes a citizen’s claim against the state to safeguard him from
being victimized, an implication of such a right might be a claim for compensation
against the state for failing to adequately protect a person from victimization.119 To
date, the extent to which such claims can be brought against the state has not been
determined by the Israeli Supreme Court.120
As regards compensation of the victim by the offender, section 77 of the Penal
Law (1977) authorizes courts to include in their sentencing decisions a compensation
order for damages or pain and suffering of the victim, in the amount of up to NIS
228,000 for each offense of which the court finds the defendant guilty.121 Although the
courts’ authority to award compensation has been described as reflecting the victim’s
right to restitution, it is important to note that the court is under no duty to issue such
an order and that the maximum compensation usually covers only a fraction of the
victim’s actual loss.122 However, recent years have seen a steady growth in compensa-
tion orders, which courts often justify by referring to their responsibility to protect the
victim’s dignity and welfare.123 This trend was dramatically manifested in 2008 when
the Jerusalem District Court doubled the amount of compensation agreed upon in a
highly publicized plea bargain, criticizing the prosecution for not adequately protecting
the financial interests of the victims through the terms of the plea bargain.124
Do compensation orders in Israel actually reflect the view that they are a means
for “society to express, in a single, relatively short and unified process, both its
118 See Prevention of Sexual Harassment Law, 5768-1998, SH No. 1661 p. 166, § 1: “The pur-
pose of this Act is to prohibit sexual harassment in order to protect human dignity, liberty and
privacy and to advance equality between the genders.”
119 Sebba & Gal, supra note 49, 204-5.
120 Under certain conditions, a victim can file a tort case against the police for negligence, but the
Supreme Court has emphasized that the duty of the police is not to prevent harm but only to take
reasonable precautions to avoid harm. See CA 429/82 State of Israel v. Sohan 42(3) PD 733 [1988].
121 The maximum compensation amount is increased periodically to reflect the changing value
of the Israeli shekel.
122 See, e.g., Osnat Eliram, Compensation for Crime Victims: A Suggestion for a New Model,
19(1) BAR ILAN STUDIES IN LAW 205 (2002).

123 See, e.g., LCrimA 228/05 Yagudayov v. State of Israel 59(4) PD 518 [2005]; LCrimA
9727/05 Gliksman v. State of Israel (Aug. 8, 2007), Nevo Legal Database (by subscription); CrimA
70914/06 State of Israel v. Kaplan (Aug. 29, 2007), Nevo Legal Database (by subscription).
124 CrimC (Jer) 209/08 State of Israel v. Yonah (Nov. 19, 2008), Nevo Legal Database (by
subscription). A decision on the appeal filed by the defendant (Yonah) to the Supreme Court is
pending (CrimA 11141/08 Yonah v. State of Israel).
conviction of the offender’s blame, his responsibility to make good his wrong, its
concern for the victim’s fate and needs and its obligation to ensure that these needs
will be met”?125 An interesting body of case law has emerged in recent years regard-
ing the legal nature of these orders. While most judges participating in the debate
paid homage to the protection afforded to the victim under the Basic Law: Human
Dignity and Liberty, the majority concluded that a compensation order should not be
regarded as part of the criminal sanction but rather as a civil order annexed to the
criminal judgment.126 In other words, the courts do not view the compensation order
as reflecting a role granted to the victim within the criminal process, but rather as a
fragment of the victim’s traditional status as a potential claimant in a civil case.127
Moreover, it is interesting to note that the Supreme Court recently issued a compen-
sation order in a case where the victim explicitly expressed her desire not to be
compensated.128 It thus remains unclear whether compensation orders in Israel
reflect an actual concern for victims’ dignity in the context of the criminal process or
whether they only provide some form of civil damages, relieving the victim of the
immediate necessity to file a civil suit against the offender.129
2. GERMANY
In the German system, the state has assumed a limited obligation to compensate crime
victims in the context of the social security system. A 1976 law provides that victims
of certain intentional acts of violence can claim the same compensation as war victims
for medical expenses and loss of income.130 Persons who come to a crime victim’s aid
125 See Judith Karp, Restitution of Victims by the Offenders, 30 ISR. L. REV 331, 332 (1996).
126 See, e.g., Assaf, supra note 46; LCrimA 8884/09 Masoudin v. State of Israel (Nov. 29,
2009), Nevo Legal Database (by subscription).
127 See, e.g., CrimA 5761/05 Magdalawi v. State of Israel and Others (July 24, 2006), Nevo
Legal Database (by subscription). In some decisions, the court adopted a modified version of this
approach, claiming that the compensation order, although basically being a civil award, possesses
certain criminal characteristics that should not be overlooked (Gliksman v. State of Israel, supra
note 123). In recent years, however, the former approach was reaffirmed, see CrimA 1281/06
Borstein v. State of Israel (Apr. 16, 2008), Nevo Legal Database (by subscription), and the court
emphasized that, if the defendant challenges the compensation award before the appellate court, the
victim must be party to the appeal, see CrimA 3314/06 Eisencott v. State of Israel (Jan. 11, 2010),
Nevo Legal Database (by subscription).
128 See CrimA 11178/04 Anonymous and Others v. State of Israel (Jan. 9, 2005), Nevo Legal
Database (by subscription).; BAR-OFIR, supra note 59.
129 It is important to note that, according to section 77 of the Courts Law, supra note 78, fol-
lowing the conclusion of the criminal case a civil claim can be filed by the victim of offense, and
the same judge who tried the criminal case is authorized to hear the civil case if the offender is the
sole party sued by the victim.
130 Gesetz über die Entschädigung für Opfer von Gewalttaten [OEG] [Law on the Compensa-
tion of Victims of Acts of Violence], Jan. 7, 1985, BGBL. I at 1. Victim compensation was origi-
nally limited to German citizens and has only hesitantly been extended to non-citizens. See OEG
§ 1, paras. 4-7.
and are injured when acting in defense of the original victim are also covered by the
compensation law.131 Compensation can be denied when the victim has himself caused
the injury, when he is involved in organized crime, or when he has not done every-
thing in his power to contribute to the prosecution of the offender.132
In addition to this comparatively narrow area of state compensation, there are sev-
eral ways in which the law encourages the offender to pay restitution. Victims can join
their civil claim for damages with the criminal process against the offender and have a
payment awarded by the criminal court.133 The Code of Criminal Procedure provides
that victim-offender mediation, which often includes restitution payments, should be
facilitated by criminal justice agencies.134 In many cities, there exist public or private
mediation services that specialize in this branch of mediation.135 Another means of
promoting restitution is the public prosecutor’s option to make dismissal of prosecu-
tion dependent on the suspect’s willingness to reach an agreement with the victim or to
compensate the victim for his loss.136 When the offender has been convicted and a
sentence of imprisonment has been suspended, the court can order the offender to
make an effort to redress the harm caused to the victim,137 and the same applies when
the offender is to be released from prison on parole.138 German law does not, however,
provide for a “compensation order” as a free-standing form of punishment. In the
context of criminal justice, making restitution to the victim should remain a voluntary
act on the part of the defendant or convicted offender.139
E. ACTIVE PARTICIPATION IN THE CRIMINAL PROCESS
1. ISRAEL
Under Israeli law, every person has the right to file a criminal complaint.140 If a
police officer decides not to investigate 141 or the prosecution refrains from indicting
.
131Id. § 1, para. 1.
132Id. § 2, paras. 1 & 2.
133 STPO § 403 et seq.
134 Id. § 155a.
135 See, e.g., MANON JANKE, DER TÄTER-OPFER-AUSGLEICH IM STRAFVERFAHREN (2005);
CHRISTA PELIKAN, JAHRBUCH FÜR RECHTS- UND KRIMINALSOZIOLOGIE 1999: MEDIATIONSVER-

FAHREN—HORIZONTE, GRENZEN, INNENSICHTEN (1999); STEFANIE TRÄNKLE, IM SCHATTEN DES
STRAFRECHTS (2007).
136 STPO § 153a, para. 1, nos. 1 & 5.
137 STGB § 56b, para. 2, no. 1.
138 Id. § 57, para. 3.
139 The victim can of course enforce any civil claim for damages through the civil courts.
140 See Criminal Procedure Law, supra note 58, § 58.
141 A police officer can decide to refrain from investigating a complaint if the offense is not a
felony and the police officer is of the opinion that there is no public interest in investigating the
complaint. Id. § 59.
the suspect, the person who filed the complaint is entitled to be notified 142 and may
.
appeal the decision.143 In most cases, the complainant is the victim, but the law does
not limit the right to file a complaint to the victim.
Another right commonly attributed to the victim but actually granted to “every
person” is the right to initiate criminal proceedings with respect to a specified list of
offenses.144 The offenses subject to private prosecution include minor personal
harms but are not limited to cases in which a specific person has been harmed. The
list also extends to election offenses and offenses against the environment. Yet,
those who bring private prosecutions are usually victims of crimes that have not
been prosecuted by state authorities. The main purpose of private prosecution is to
get such cases before the courts.145 With few exceptions, a private prosecution leads
to a regular criminal trial.146 The private prosecutor is consequently deemed to
represent not only his private interest but also society’s interest.147 If the prosecution
services have misgivings regarding the private prosecutor’s ability to represent the
public interest, they can, within 15 days of receiving notice of the proceedings,
decide to take over the case and continue the trial in accordance with the regular
mode of criminal proceedings.148 The Attorney General can also decide to stay the
proceedings,149 although this rarely occurs in practice.150
Private prosecutions aside, Israeli law does not regard the victim as a party to
criminal proceedings.151 The victim has the right to be informed of the proceedings and
to attend the hearings,152 but he is not allowed to interrogate witnesses or to offer an
opinion regarding conviction or sentencing. At the sentencing hearing, the court can
request the preparation of a report on the injuries sustained by the victim of a violent
crime or a sex offense.153 In addition, since 2005, victims of all crimes punishable by
142 Id. § 63.

143 Id. § 64.
144 Id. § 68.
145 See, e.g., Shubert v. Tzafrir, supra note 45.
146 Criminal Procedure Law, supra note 58, § 70.
147 CrimA 2124/91 Ron v. Cur Industries Ltd. and Others 47(5) PD 289 [1993].
148 Criminal Procedure Law, supra note 58, § 71.
149 Id. §§ 231-32.
150 A famous example is HCJ 156/56 Shor v. The Attorney General 11 PD 285 [1957]. It is
difficult, however, to find many other examples. See RUTH GAVISON, DISCRETION IN ENFORCE-
MENT OF THE CRIMINAL LAW: THE POWER TO STAY AND RENEW PROCEEDINGS 498 (1991).
151 See, e.g., LCrimA 2401/07 Altchuler v. State of Israel and Others (July 16, 2008), Takdin
Legal Database (by subscription).

152 Rights of Persons Harmed by Crime Law, supra note 15, §§ 8-11.
153 See Criminal Procedure Law, supra note 58, § 187(b). For an evaluation of this practice,
see Uri Yanay, Innovation in Criminal Law: Filing a Report Regarding a Victim of a Sex Offence
by the Probation Services, in TRENDS IN CRIMINOLOGY: THEORY, POLICY AND PRACTICE 235
(Meir Hovav et al. eds., 2003) (in Hebrew). For a discussion of the value of victim impact reports
in general, see Paul G. Cassel, In Defense of Victim Impact Statements, 6 OHIO ST. J. CRIM. L. 611,
619-25 (2009).
more than three months’ imprisonment 154 can file with the prosecution an impact
.
statement detailing their harms and injuries. The prosecution is obliged to present such
statements to the court at the sentencing hearing.155 Although section 18 of the Rights
of Persons Harmed by Crime Law (2001) expressly limits the victim’s impact state-
ment to “any injury and harm caused by the offense, including bodily harm, mental
harm and harm to property,” the Supreme Court has at least on one occasion construed
this section to allow the victim to also express his opinion regarding the offender’s
punishment.156 Of course, victims can—and in practice often do—appear as witnesses
for the prosecution, both during the first part of the criminal trial, when the court
determines the defendant’s criminal responsibility, and at the sentencing hearing.157
Although victims are not normally a party to criminal court proceedings,158 vic-
tims of sexual and serious violence offenses are entitled to receive notice 159 and .
express their opinion before representatives of the prosecution service before the
prosecutor decides to stay the proceedings 160 or enters into a plea bargain with the
.
defendant.161 The prosecution is not obliged to adopt the victim’s position but must
take it into account when making its final decision.162 Victims of sexual and violence
offenses are also entitled to receive notice and express their opinion regarding the
convict’s early release from prison 163 and the possibility of receiving a pardon from
.
the President of Israel.164
154 Excluding traffic offenses and private prosecutions. See Rights of Persons Harmed by
Crime Law, supra note 15, § 2.

155 Id. § 18.
156 HCJ 1141/08 G.N.N. Diamonds Ltd. and Others v. Adv. Ruth David, Chief Prosecutor for
the Tel-Aviv District and Others (Sep. 4, 2008), Nevo Legal Database (by subscription).
157 For a discussion of the various forms of victim participation at sentencing, see CrimA 9150/08
State of Israel v. Biton (July 13, 2009), Nevo Legal Database (by subscription) 1404. In her opinion,
Justice Arbel commented that judges ought to allow victims to speak in court during sentencing
proceedings and that one of the functions of the court is to serve as the victim’s protector.
158 In certain cases, when their interests are directly affected, victims may enter the proceed-
ings. as a party. This can happen, for example, when the offender files an appeal against a compen-
sation order included in the sentencing decision. See Gliksman v. State of Israel, supra note 123.
160 Id. § 16.
161 Id. § 17. Courts, however, have approved plea bargains even when the prosecution did not
consult the victim prior to signing the plea bargain. See, e.g., CrimA 3193/07 Tabaga v. State of Israel
(Feb. 4, 2009), Takdin Legal Database (by subscription). For a general discussion of the victims’ role
in plea bargaining under Israeli law, see Eliahu Harnon, Plea Bargaining in Israel—The Proper
Functions of the Prosecution and the Court and the Role of the Victim, 31 ISR. L. REV. 245 (1997).
162 See, e.g., HCJ 2477/07 Anonymous v. State Attorney and Others (May 27, 2007), Nevo
Legal Database (by subscription); HCJ 2511/09 Soydan and Others v. Haifa District Attorney and
Others (May 31, 2009), Nevo Legal Database (by subscription); HCJ 1801/10 The Estate of the
Late Manhal Fahum v. Attorney General (Mar. 4, 2010), Nevo Legal Database (by subscription).
164 Id. § 20. According to the interpretation of this section by the courts, see HCJ 9631/07 Katz
and Others v. The President and Others (Apr. 14, 2008), Nevo Legal Database (by subscription),
With the exception of victims of misdemeanors and traffic offenses,165 all victims
of crime are entitled to receive information regarding the criminal proceedings
relevant to their alleged injuries.166 Victims also have the right to be informed about
services and aid programs from which they can benefit,167 and they can request
further information in accordance with the status of their victimization.168
2. GERMANY
German law provides for several forms of active victim participation in the criminal
process. Every victim has the right to obtain basic information about the process, but
information is limited to the fact that the victim’s case has been dismissed or any
other “outcome” of the process.169 On request, the victim will also be informed of
any court order that the suspect or defendant not make contact with him, as well as a
decision to release the suspect or convicted offender from custody.170 This latter
option was introduced in 2004 in order to protect victims from unexpected and
possibly traumatic confrontations with offenders in the public domain. The victim
can also hire an attorney who is allowed to be present at the trial and may, under
certain conditions, inspect the prosecution file.171
Beyond these rights, which are granted to every victim with respect to “his” of-
fender’s criminal process, victims can prosecute some offenses privately,172 file a
request for prosecution in cases foreseen by law,173 challenge the dismissal of “their”
case by the public prosecutor,174 and, with respect to some offenses, join the prose-
cution as a subsidiary prosecutor.175
the victim’s opinion should be filed in writing, and he does not have the right to appear and present
his opinion orally before the committee. In LCrimA 10349/08 State of Israel v. Ganama (July 20,
2009), Nevo Legal Database (by subscription), the Supreme Court clarified that despite the lan-
guage of the section, in certain cases the committee may decide, on the basis of the broad discretion
granted to it under the relevant statute, to allow victims to appear before the committee in person
and voice their concerns.
166 Id. § 8.
167 Id. § 11.
168 The Rights of Persons Harmed by Crime Law (2001) grants victims of violent and sexual
offenses a wider array of rights than other victims of crime. This also finds expression in the
amount of information that victims of these crimes may receive as compared to other victims.
169 STPO § 406d, para. 1. The right to information thus does not apply to intermediate proce-
dural steps that may also be of interest to the victim.

170 Id. § 406d, para. 2.
171 Id. §§ 406e & 406f.
172 Id. §§ 374 et seq.
173 STGB §§ 77-77d.
174 STPO §§ 172-177.
175 Id. § 395 et seq.
But in spite of this long list of rights, most victims do not get actively involved in
the criminal process beyond reporting the offense and testifying as a witness at
trial.176 Some of the rights mentioned above are not effective. For example, challeng-
ing a prosecutorial dismissal requires high procedural skills and is almost never
successful because of the courts’ deference to the prosecutor’s assessment of the
evidence.177 Bringing a private prosecution can be costly 178 and is subject to discre-
.
tionary dismissal by the court if it deems the defendant’s guilt to be insignificant.179

Acting as a subsidiary prosecutor is probably the only effective option for a victim
who wishes to be heard in court. The Code of Criminal Procedure accords an uncon-
ditional right to act as a subsidiary prosecutor to the victims of certain crimes against
the person, such as sexual offenses, intentionally causing bodily harm, and stalking.
The court can also admit other crime victims, provided that there exist special
reasons, especially grave harm, to justify their participation in the process.180 In a
trial, subsidiary prosecutors hold a legal position very similar to that of the public
prosecutor: they can ask questions of witnesses and experts, make motions for the
admission of additional evidence, and make declarations in court at any time.181
They can even independently appeal an acquittal when the public prosecutor has
decided to accept the judgment.182
F. ANALYSIS: SIMILARITIES AND DIFFERENCES

When we examine the manner in which the Israeli and German systems of criminal
procedure treat victims, the similarities appear greater than the differences. This
applies in particular to the “passive” rights of victims, that is, to their protection
from undue invasions of their privacy and risks to their personal safety. Both sys-
tems have, in that respect, adopted key demands of victims’ rights advocates. They
also provide various means for protecting the victim, in his capacity as a witness,
176 In 2007, victims participated as subsidiary prosecutors in only 2% of local court trials. In
district court—where the most serious cases are tried—the participation rate was 21%, due mostly
to the high percentage of victims of sexual offenses taking part as subsidiary prosecutors. See data
collected in STEPHAN BARTON & CHRISTIAN FLOTHO, OPFERANWÄLTE IM STRAFVERFAHREN 60-
67 (2010).
177 See Georg Bischoff, Die Praxis des Klageerzwingungsverfahrens, 1988 NSTZ 63; Graal-
mann-Scheerer, supra note 20; Karin Werner, Die Rechtsstellung des Verletzten im Strafverfahren
bei staatsanwaltlichen Verfahrenseinstellungen aus Opportunitätsgründen, 1984 NSTZ 401.
Michael Kilchling found in a victimization survey that many victims wished to have greater influ-
ence on the criminal process. See KILCHLING, supra note 68, at 377.
178 The victim can be ordered to pay court costs when the defendant has been acquitted or when
the court, in its discretion, has dismissed the case. See STPO § 383, para. 2 & § 471, paras. 2 & 3.
179 Id. § 383, para. 2.
180 Id. § 395.
181 Id. § 397.
182 Id. § 400.
from unnecessary publicity and psychological harm, especially when the victim
belongs to a particularly vulnerable category of witnesses. Moreover, both systems
sometimes make use of modern technology in order to spare the victim the experi-
ence of appearing in the courtroom. Neither in Israel nor in Germany, however, does
the protection of the victim’s privacy interest prevail when there is an overriding
public interest in obtaining the victim’s testimony or when disclosure of private
information pertaining to the victim is necessary in order to enable the court to
discover the truth or guarantee the defendant a fair trial. By the same token, the
victim must—within certain limits—submit to questioning by the defense, in order
to satisfy the defendant’s right to confront adverse witnesses. One significant differ-
ence between the two systems in this respect concerns testimony about sexual
behavior: while victims of sexual offenses in Israel can normally withhold such
information, German victims enjoy no such privilege.
With respect to compensation, both legal systems refrain from fully integrating
the victim’s claim for damages into the criminal process, although they both encour-
age some form of “making good” by the offender. In the German system, the option
of awarding civil damages in the criminal judgment is hardly ever used in practice,
but “voluntary” restitution payments by the offender are sometimes made a condi-
tion of lenient sentencing decisions (dismissal, probation, or parole). In Israel, the
judge can issue a compensation order as part of the criminal sentence, but the order
does not aim at full compensation, which is left to the civil courts. In recent years,
compensation orders have gradually become a more prominent feature of Israeli
criminal sentences, suggesting the possibility of the emergence of a new approach
regarding the purpose of punishment in general and the purpose of compensation
orders in particular. Currently, however, it seems that both the Israeli and the Ger-
man systems still shy away from fully integrating victim compensation into the
criminal process.
The Israeli and German systems seem to differ with respect to “active” or par-
ticipatory rights of victims. Since 1877, the German system has granted victims
various options for taking an active role in the criminal process—most prominently
through Nebenklage, the option to join in the trial as a subsidiary prosecutor—
whereas the Israeli system has traditionally regarded the victim as not much more
than a bystander in the criminal process. One might be tempted to explain this
difference by the fact that Germany’s procedural system is rooted in the inquisitorial
system, whereas Israel, through the influence of English law, has close ties to the
common law family.183 Thus, Israel could be expected to deny access to the criminal
process to parties other than the prosecutor and the defendant, because the active
involvement of third parties—such as the victim—could threaten the delicate proce-
183 See section IV.1.a.

dural balance in an adversarial system.184 Due to its inquisitorial heritage, Germany

might be less concerned with the balance of powers at the trial stage and might
therefore be more inclined to grant (some) victims the right to participate actively at
the trial.185
Yet, the thesis that the inquisitorial German system is abundantly victim-friendly is
not really supported by the evidence. It is true that German law grants significant
participatory rights to victims of certain crimes against the person. But Israeli law,
although reluctant to involve victims at the guilt-determining stage of the trial, pro-
vides for significant victim input when it comes to sentencing.186 Victims of a crime
punishable by more than three months’ imprisonment have the right to prepare an
impact statement and have it presented to the court, and victims of sexual and serious
violence offenses can, inter alia, submit their opinion to the prosecutorial authorities
before they make decisions regarding a stay of proceedings and plea bargaining.187 By
contrast, a new provision in the German Code of Criminal Procedure that purports to
regulate the German version of plea bargaining 188 foresees no role whatsoever for the
.
victim, and a general right of victims to make an “impact statement” to the court and
voice their opinion as to sentencing has been discussed 189 but not enacted.
.
184 On the other hand, it is possible that the reason Israel, like many other Anglo-American legal
systems, has embraced victims’ rights in recent years, despite its common law heritage, is that victims
officiated as prosecutors in English adversarial criminal trials up until the middle of the 19th century.
See DAVID TAYLOR, CRIME, POLICING AND PUNISHMENT IN ENGLAND 1750-1914 (1998).
185 William Pizzi has observed that in a civil law system—such as Germany—“it is easier to
accommodate the interests of victims at trial without disturbing the adversarial balance.” See
William T. Pizzi, Crime Victims in German Courtrooms: A Comparative Perspective on American
Problems, 32 STAN. J. INT’L L. 37, 41 (1991). See also Erin C. Blondel, Victims Rights in an
Adversarial System, 58 DUKE L. J. 237 (2008).
186 Since the sentencing stage in Israel, like in other Anglo-American legal systems, somewhat
resembles the inquisitorial model, the victim’s input is considered to be less of a deviation from the
regular mode of the proceeding. It is therefore not surprising that the Israeli legislature has found it
easier to accommodate the victim during the sentencing stage rather than during the first part of the
criminal trial.
187 The Israeli legal system’s decision to accommodate victims’ interest in active participation
at the sentencing stage may be based on the recognition that many victims are interested in having
the offender punished for the injury he caused. Victims’ advocates in Israel push for an even
stronger involvement of victims in sentencing hearings. See, e.g., Dana Pogatch, The “Victims
Revolution”—The Day After—Towards a Model that Acknowledges Private Penal Considera-
tions?, 4 ONO ACADEMIC COLLEGE L. REV. 268 (2004) (in Hebrew). For similar developments in
the American Federal system, see, for example, Julie Kaster, Note: The Voices of Victims: Debating
the Appropriate Role of Fraud Victim Allocution Under the Crime Victims’ Rights Act, 94 MINN. L.
REV. 1682 (2010).
188 STPO § 257c. On this law, see Thomas Weigend, Plea Bargaining in Germany, in CUR-
RENT TRENDS IN CRIMINAL PROCEDURE AND EVIDENCE: A COLLECTION OF ESSAYS IN HONOR OF

PROFESSOR ELIAHU HARNON 265 (Anat Horovitz & Mordechai Kremnitzer eds., 2009).
189 Stephan Barton, Die Reform der Nebenklage: Opferschutz als Herausforderung für das
Strafverfahren, 2009 JA 753, 757.

The evidence on “victim friendliness” is therefore mixed in both systems. This

does not really come as a surprise, however. It is plausible that the victim should
have an opportunity to tell and defend his story in court because he is the person
most directly and acutely affected by the crime;190 but neither the adversarial nor the
inquisitorial paradigm easily accommodate the victim as a party in a criminal case.
In the adversarial system, affording the victim independent party rights would—as
we have seen—disturb the “equality of arms” between the prosecution and the
defense, because the victim is regarded as a natural ally of the prosecution. Although
the inquisitorial structure, where the “parties” have comparatively little influence at
the trial stage, does not emphasize the balance of power between the parties, inquisi-
torial systems may still be reluctant to grant the victim the right to participate ac-
tively in the trial because it might interfere with the dominant position of the
presiding judge. The victim, in spite of his strong interest in the outcome of the case,
is thus unlikely to be recognized as a full party in either procedural system.
The fact that Israeli and German criminal procedure laws increasingly treat vic-
tims in similar ways may lend further support to the thesis that modern criminal
procedure law tends to bridge the adversarial-inquisitorial divide that has informed
comparative theory for many decades.191 It may no longer be the historical roots that
determine a legal system’s approach to the practical and theoretical problems of
victim participation, but its quest for a viable compromise among conflicting inter-
ests—in our context, the public interest in arriving at a judgment based on credible
facts, the defendant’s interest in challenging any evidence against him, and the
victim’s interest, which oscillates between a desire to be left alone and the urge to
co-determine the process and actively contribute to the conviction and sentencing of
the offender. When such compromise solutions are designed, there is general agree-
ment that victims’ rights shall not infringe upon the legal rights of suspects, defen-
dants, and convicts.192
190 For a first hand analysis of a victim’s desire to make himself heard in court, see WINFRIED
HASSEMER & JAN-PHILIPP REEMTSMA, VERBRECHENSOPFER. GESETZ UND GERECHTIGKEIT 112 et
seq. (2002). The co-author Jan-Philipp Reemtsma, heir to a large German tobacco firm and a social
scientist and philosopher, had been abducted and kept in a dark basement for several weeks.
191 See, e.g., CRAIG M. BRADLEY, CRIMINAL PROCEDURE: A WORLDWIDE STUDY (2d ed.
2006); Mireille Delmas-Marty, Reflections on the “Hybridisation” of Criminal Procedure, in

CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT 251
(John Jackson et al. eds., 2008); Elisabetta Grande, Dances of Criminal Justice: Thoughts on
Systemic Differences and the Search for the Truth, in CRIME, PROCEDURE AND EVIDENCE IN A
COMPARATIVE AND INTERNATIONAL CONTEXT 145 (John Jackson et al. eds., 2008); Nico Joerg et
al., Are Inquisitorial and Adversarial Systems Converging?, in CRIMINAL JUSTICE IN EUROPE: A
COMPARATIVE STUDY (Phil Fennell et al. eds., 1995).
192 For Israel, see, for example, Rights of Persons Harmed by Crime Law, supra note 15, § 1.
V. VICTIMS’ RIGHTS AND HUMAN DIGNITY
We started out with the premise that victims’ dignity and autonomy must be re-
spected. We found that in Germany human dignity is regarded as an “absolute”
concept, whereas in Israel other concerns can override human dignity when a pro-
portionality analysis prompts that result (see supra section III). Yet, since the invio-
lable “core” of human dignity in the German view is rather small, the two systems
are not far apart with respect to the actual scope of protection they grant human
dignity. We have also seen that the gist of human dignity, in both legal systems, is
respect for the bodily integrity and privacy of every person and a prohibition on
humiliating a person by treating him as a mere object (see supra section III.C).
To what extent are the procedural rights of victims, as discussed above in section
IV, based on respect for the victim’s human dignity and therefore necessary ele-
ments of the criminal process? It is to this question that we will devote the final
chapter of our article.
A. RIGHT TO BODILY INTEGRITY AND PRIVACY

One aspect of human dignity in both the legal systems under consideration is the
right to have one’s bodily integrity and privacy respected by the state. When a
victim is involved in a criminal process, his health and privacy are at risk in various
ways: the victim may suffer trauma as a result of reliving the crime when he has to
testify about the details and undergo questioning by the defense; the victim may be
subject to threats and pressure from the defendant or persons acting on his behalf;
and the victim’s privacy can be violated when he is forced to disclose, during police
interrogation, discovery procedures or under questioning in court, facts that belong
to the “core” sphere of intimacy, such as sexual behavior or medical history. These
possible invasions of spheres that are closely related to human dignity can occur
even when the victim has not filed a criminal complaint; the victim is expected to
“function” as a witness even in cases where the victim himself has no interest in
bringing the defendant before the court.
Israeli law and German law offer some protection to the victim’s mental and
physical health and only to a lesser extent to the victim’s privacy. Even in cases
where the public can be excluded from the victim’s testimony and the defendant can
be removed from the courtroom during the victim’s testimony,193 the fact remains
that the victim can be required to disclose intimate details before a group of lawyers.
Both systems show some sensitivity to the protection of victims’ privacy, especially
193 See GVG § 171b; STPO § 247, second sentence; Courts Law, supra note 78, § 68(b)(4), (5),
and (7).
with respect to sexual behavior, but if these facts appear to be critical to the question
of guilt or innocence the interest in the determination of the truth prevails.194
It is questionable whether this state of the law adequately reflects the eminent
value of human dignity in both countries’ constitutional legal instruments. If Ger-
man law took seriously the proclaimed “absolute” protection of human dignity it
might have to grant crime victims (and possibly other witnesses as well) a testimo-
nial privilege enabling them to withhold testimony on issues that concern their
“core” intimate sphere, especially when these facts are not directly related to the
crime at issue. One might also consider giving the victim a veto right to stop crimi-
nal prosecution of an offense that affects only him, when the victim fears that the
criminal process may do additional serious damage to his physical or mental
health.195 The fact that such proposals may appear “radical” in both the Israeli and
the German legal system possibly demonstrates that we are not used to paying much
attention to the impact the criminal process can have on individual victims’ human
dignity, including their “core” rights to privacy and bodily integrity. With respect to
victims’ testimonial privileges, the reluctance of the legal systems to grant such
rights in order to protect the victim’s privacy may be explained by an overriding
concern for upholding the defendant’s right to a fair trial, in particular with regard to
providing access to evidence that might serve to exonerate him. Yet, it may be
possible to find solutions that accommodate the basic rights of all persons affected.
For example, the law could provide for a rebuttable presumption that the victim
concurs with the defendant’s version of the facts if the victim makes use of his
privilege not to testify. In light of the eminent importance of the victim’s right to
privacy based on his human dignity, such compromise solutions would at least be
worth exploring. Although it is true that the criminal process is primarily concerned
with the relationship between the state and the defendant, one should bear in mind
that respect for the human dignity of the defendant and the victim does not have to
be a zero-sum game.196
194 See STPO § 68a, para. 1. According to section 2a of the Amendment of Procedure (Interro-
gation of Witnesses) Law, supra note 79, the victim must disclose such facts if a miscarriage of
justice could otherwise occur.
195 The German Strafantragsrecht makes public prosecution of certain offenses depend on a
formal complaint filed by the victim, and thus grants the victim a veto right. However, the number
of offenses where such a complaint is necessary has shrunk to a very short list of petty offenses
such as trespass (STGB § 123) or slander (STGB § 185). Such an arrangement does not exist in
Israel. However, the prosecution services can take these considerations into account when they
decide whether to file criminal charges. See Criminal Procedure Law, supra note 58, § 62.
196 See William T. Pizzi, Victim’s Rights: Rethinking our Adversary System, UTAH L. REV.
349, 365 (1999): “A trial system that fails to treat victims well will often end up treating most
defendants poorly too.” Dubber, supra note 6, at 7, has suggested that respect for victims’ rights,
understood correctly, could also serve to set proper limits to the criminal law and to decrease the
severity of punishment.
B. RIGHT TO COMPENSATION
The state bears responsibility for protecting its citizens’ life and health from crime,
and it must therefore pass and enforce criminal laws for the protection of these basic
individual interests. It may be part of human dignity that this protection not be
withheld.197 But it is a different question whether human dignity also requires
legislation to compensate victims for their losses when they have been harmed by a
crime. In both Israel and Germany, that question has been answered in the negative.
Even where agents of the state have been delinquent in their obligation to protect
citizens from harm, the victim’s human dignity does not require that he receive
monetary compensation from the state or even from the offender. It is therefore
within the discretion of the state whether and to what extent it grants victims com-
pensation from public funds.198 Israel has as yet refrained from introducing a general
victim compensation scheme, limiting victims to filing tort claims against individual
police officers for negligence,199 and Germany has limited state compensation to the
most serious cases of victimization (intentional violence). Either solution is recon-
cilable with the protection of human dignity, although one might wish for a more
generous extension of public funds to needy crime victims.
C. RIGHT TO ACTIVE PARTICIPATION IN THE CRIMINAL PROCESS

It is a hotly debated question whether human dignity demands an opportunity for
victims to play an active role in the criminal process. Traditional theory regards the
criminal process as a matter between the suspect and the state and therefore does not
accord the victim an independent active role. But a claim can be made for the
victim’s legal option to play a more active role.200 That claim can be based on the
197 That is, at least, the view of the German Federal Constitutional Court. In its decision on the
constitutionality of an Air Security Law that would have allowed shooting down a hijacked airplane
threatening innocent citizens on the ground, the Court argued that the passengers in the hijacked
plane, who are in a dilemma “without issue” (ausweglose Lage), are turned into mere objects for
the saving of those on the ground when a state agent orders the plane to be shot down. The Court
therefore found that a statute authorizing such orders violated human dignity. See 115 BVERFGE
118 (154) (2005). For a discussion, see Tatjana Hörnle & Mordechai Kremnitzer, Human Dignity
as a Protected Interest in Criminal Law, 44 ISR. L. REV 143 (2011).
198 Thomas Weigend, “Die Strafe für das Opfer”? Zur Renaissance des Genugtuungs-
gedankens im Straf- und Strafverfahrensrecht, 1 RECHTSWISSENSCHAFT 39, 52 (2010).
199 See supra note 115 and accompanying text.
200 For a view favoring victims’ rights to be heard and to participate actively at the trial, see
Susanne Walther, Zum Anspruch des Deliktsopfers auf rechtliches Gehör und auf ein faires Ver-
fahren, 154 GOLTDAMMER´S ARCHIV FÜR STRAFRECHT 615, 619-20 (2007). For a similar position,
see Peter Rieß, Zur Beteiligung des Verletzten im Strafverfahren, in FESTSCHRIFT FÜR HEIKE JUNG
751, 755 (Heinz Müller-Dietz et al. eds., 2007). In Israel, one of the advocates for increasing
victims’ role in sentencing is Dana Pogatch, Director of Noga Legal Center for Victims of Crime.
See, e.g., Pogatch, supra note 187.
premise that the victim’s human dignity gives him a right to be treated as a “subject”
in the criminal process. The critical issue for that argument is whether the criminal
process against the suspect/defendant is (also) the victim’s process. If that is the
case, the victim may have a right not only to address the court and to present his
views, but to also co-determine the outcome. If, on the other hand, the criminal
process is primarily a matter between the state and the accused, the victim has no
claim to allocution rights or to an even more active role. In such a case, the victim is,
structurally, a mere by-stander. German legal theory and jurisprudence have so far
refrained from recognizing a legal interest of the victim to derive satisfaction from
the conviction and sentencing of the defendant.201 In that regard, the victim is re-
ferred to the civil process, where he can claim monetary damages. Israeli case law
has by and large adopted a similar approach.202 However great the individual vic-
tim’s interest in the conviction and sentencing of “his” offender may be, it remains
true that the criminal process, regardless of its adversarial or inquisitorial structure,
is about the defendant’s responsibility toward the state. It is the state that imposes,
through its courts, criminal sanctions, and it is the state that enforces them.203 There
is no basis, therefore, for regarding the victim as a “natural” party in the criminal
process.204
When the German legislature granted minimal rights to all crime victims and
more far-reaching participation rights to some victims of crimes against the person,
it did not base this move on a general right of the victim to participate in the process
but on the victim’s interest in rebutting attempts on the part of the defendant to shift
the blame to the victim.205 In order to maintain his status as a “legitimate” victim, the
victim has the right to inspect the prosecutor’s file 206 in advance of the trial and, if
.
he has joined the prosecution as a subsidiary prosecutor, to confront the defendant at
201 For example, the Federal Constitutional Court has rejected a victim’s claim that he had a
constitutional right to have “his” offender prosecuted. See BVerfG Nov. 5, 2001, NJW 815, 2002;
BVerfG Mar. 28, 2002, NJW 2589 (2590), 2002. For a discussion, see Jochen Bung, Zweites Opfer-
rechtsreformgesetz: Vom Opferschutz zur Opferermächtigung, 2009 STRAFVERTEIDIGER [STV]
430; Thomas Weigend, Das Opfer als Prozesspartei?, in VERBRECHEN—STRAFE, supra note 99;
Marc Wenske, Weiterer Ausbau der Verletztenrechte?, 2008 NSTZ 434.
202 See supra section IV.D.
203 This holds true even where an obligation to pay restitution to the victim is part of the crimi-
nal sentence, as the victim cannot directly enforce such restitution orders. See, e.g., STGB § 56f,
para. 1, no. 3 in connection with § 56b, para. 2, no. 1 (the court revokes probation if the offender
persistently fails to fulfill a court-imposed condition to make restitution).
204 For a more detailed discussion, see THOMAS WEIGEND, DELIKTSOPFER UND STRAFVER-
FAHREN 428-34 (1989).
205 See Entwurf eines Ersten Gesetzes zur Verbesserung der Stellung des Verletzten im Straf-
verfahren, DEUTSCHER BUNDESTAG: DRUCKSACHE [BT] 10/5305, 13, 16; Hilger, supra note 20,
marginal note 9; Rieß, supra note 200, at 756-57.
206 See STPO § 406e (granting a victim’s lawyer the right to inspect the prosecution file pro-
vided that he has a “justified interest” not overridden by countervailing interests of other persons).
the trial.207 Yet, we are not convinced that these desirable options of victim partici-
pation are demanded by respect for the victim’s human dignity.
A minimal guarantee that may have a human dignity “core” is the victim’s right
to be informed about the progress and outcome of the criminal process. If the victim
so wishes, criminal justice agencies should promptly inform him whether an accusa-
tion has been filed against the alleged offender, whether and when a trial will be
held, and whether the offender has been convicted and sentenced.208 This right is not
only the necessary basis for any active participation on the part of the victim but is
also an expression of the state’s recognition of the fact that the victim is not a mere
object of the process.209 Conversely, it would be humiliating for the victim to be
deprived, without good reason,210 of even minimal information about the progress of
“his” case. We therefore regard the provision of minimal information on the case as
demanded by respect for the victim’s human dignity.
VI. CONCLUSION
Israeli law and German law both prominently profess their respect for human dig-
nity. They differ as to the exact definition of human dignity and the scope of its
protection, but what emerges in both systems is a small human dignity “core,” which
the state is obliged to respect except in very exceptional circumstances, and a wider
aureole, where protection of human dignity interests is balanced against countervail-
ing interests. Life and bodily integrity and the privacy of the intimate sphere may be
considered part of the core of human dignity. The principle that a person should not
be treated as a mere object for the furtherance of other purposes may, properly
understood, be another way of describing the “core” of human dignity.
It is beyond doubt that the dignity of crime victims needs to be protected and re-
spected when they are involved—voluntarily or against their will—in a criminal
207 At the trial, a subsidiary prosecutor has the right to ask questions of the defendant, wit-
nesses, and experts. Id. § 397, para. 1.
208 The European Union has granted crime victims in its member states a minimal right to be
informed of: (a) the outcome of their complaint; (b) relevant factors enabling them, in the event of
prosecution, to know the conduct of the criminal proceedings regarding the person prosecuted for
offenses concerning them, except in exceptional cases where the proper handling of the case may
be adversely affected; and (c) the court’s sentence. See Council Framework Decision No. 220/JHA
of 15 March 2001 on the Standing of Victims in Criminal Proceedings, art. 4(2), 2001 O.J. (L 82)
1-4 (EU). Article 2(1) of the Framework Decision explicitly refers to the dignity of the victim:
“Each Member State … shall continue to make every effort to ensure that victims are treated with
due respect for the dignity of the individual during proceedings and shall recognise the rights and
legitimate interests of victims with particular reference to criminal proceedings.”
209 See WEIGEND, supra note 204, at 502-8.
210 Council Framework Decision, supra note 208, art. 4(2)(b), wisely leaves open the
possibility of withholding information “in exceptional cases where the proper handling of the case
may be adversely affected.”
process against the person who allegedly victimized them. However, we have found
that only few of the rights and privileges developed in Israeli and German substan-
tive and procedural law over the years to improve the situation of victims are actu-
ally anchored in human dignity. One of them is the victim’s right to be informed of
critical stages of the criminal process whenever the victim has expressed an interest
in such information. Moreover, in extreme cases, for example when the victim’s
physical or mental health or his core privacy interest is at risk, legislatures and
courts should consider granting the victim a right to veto the initiation of the crimi-
nal process or a right to refrain from testifying. Obviously, such rights would con-
flict with the state’s important interest in exposing crime and bringing offenders to
justice. But one can conceive of situations where the victim’s human dignity would
be too high a price to pay for obtaining a criminal judgment against the offender.

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HUMAN DIGNITY AND VICTIMS’ RIGHTS IN THE

GERMAN AND ISRAELI CRIMINAL PROCESS

Anat Horovitz * and Thomas Weigend **

A. TAKING VICTIMS’ INTERESTS SERIOUSLY

* Senior Lecturer (adjunct track), Hebrew University of Jerusalem (Israel).

infra section II.

It is necessary to emphasize the importance of a genuinely victim-oriented ap-

System, 15 WAYNE L. REV. 977, 997 (1969).

and Conclusions of the Conference, in RESEARCH ON VICTIMIZATION: REPORTS PRESENTED TO

II. WHO IS A VICTIM?

A. VICTIMS AND SUBSTANTIVE CRIMINAL LAW

SEINE ERWARTUNGEN UND PERSPEKTIVEN. EINE BEFRAGUNG VON BETROFFENEN ZU OPFER-

B. VICTIMS AND PROCEDURAL LAW

17 Cf. Jochen Bung, Zweites Opferrechtsreformgesetz: Vom Opferschutz zur Opferermächti-

GEORGE FLETCHER, THE GRAMMAR OF CRIMINAL LAW: FOUNDATIONS 119-33 (2007). An

III. CONCEPTS OF HUMAN DIGNITY IN ISRAEL AND GERMANY

A. THE CONCEPT OF HUMAN DIGNITY IN ISRAELI LAW

and Israel, 44 ISR. L. REV. 25 (2011).

20, 2006), Nevo Legal Database (by subscription).

There shall be no violation of rights under this Basic Law except by a

B. THE CONCEPT OF HUMAN DIGNITY IN GERMAN LAW

ISRAEL 253, 262-65 (1993).

D. A WORKING DEFINITION OF HUMAN DIGNITY

53(4) PD 817 [1999]; STPO § 136a.

IV. RIGHTS OF VICTIMS IN THE GERMAN AND ISRAELI CRIMINAL

ISRAEL 1 (Amos Shapira & Keren C. Dewitt-Arar eds., 1995).

Shubert v. Tzafrir 46(4) PD 136 [1992].

Witnesses in Criminal Proceedings, http://www.justice.gov.il/NR/rdonlyres/37E738A8-5A79-4E3C-

the public prosecution as a subsidiary prosecutor (Nebenkläger).66 Of all these

SEINE ERWARTUNGEN UND PERSPEKTIVEN 29 (1.2.2.1.) (1991); GÜNTHER KAISER, KRIMINOLOGIE

B. VICTIMS AND WITNESSES

Although these new relaxations of a witness’s traditional duties to appear, to

C. RIGHT TO PHYSICAL SAFETY AND PRIVACY

85 Criminal Procedure (Enforcement Powers—Arrests) Law, 5756-1996, SH No. 1592 p. 338,

(Jan. 17, 2010), Nevo Legal Database (by subscription).

95Criminal Procedure Law, supra note 58, § 74.

BRECHEN—STRAFE—RESOZIALISIERUNG. FESTSCHRIFT FÜR HEINZ SCHÖCH ZUM 70. GEBURTS-

101 STPO § 68, paras. 2 & 3.

identity papers for the witness under a different name.

(Aharon Barak & Haim Berenson eds., 2000) (in Hebrew).

19(1) BAR ILAN STUDIES IN LAW 205 (2002).

E. ACTIVE PARTICIPATION IN THE CRIMINAL PROCESS

CHRISTA PELIKAN, JAHRBUCH FÜR RECHTS- UND KRIMINALSOZIOLOGIE 1999: MEDIATIONSVER-

142 Id. § 63.

Legal Database (by subscription).

the President of Israel.164

Crime Law, supra note 15, § 2.

dural steps that may also be of interest to the victim.

tionary dismissal by the court if it deems the defendant’s guilt to be insignificant.179

F. ANALYSIS: SIMILARITIES AND DIFFERENCES

183 See section IV.1.a.

dural balance in an adversarial system.184 Due to its inquisitorial heritage, Germany

RENT TRENDS IN CRIMINAL PROCEDURE AND EVIDENCE: A COLLECTION OF ESSAYS IN HONOR OF

Strafverfahren, 2009 JA 753, 757.

The evidence on “victim friendliness” is therefore mixed in both systems. This

2006); Mireille Delmas-Marty, Reflections on the “Hybridisation” of Criminal Procedure, in

V. VICTIMS’ RIGHTS AND HUMAN DIGNITY

A. RIGHT TO BODILY INTEGRITY AND PRIVACY

C. RIGHT TO ACTIVE PARTICIPATION IN THE CRIMINAL PROCESS

he has joined the prosecution as a subsidiary prosecutor, to confront the defendant at

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