The Lod District Court issued an initial order on Thursday to release to house arrest the minor defendant in the Duma alleged Jewish terrorist case.
The actual release of the minor, which included conditions such as an electronic ankle bracelet, court-approved oversight and a prohibition on his communications, was frozen until Sunday in case the prosecution decides to appeal.
The release order comes two and a half years after his arrested and after the Shin Bet (Israel Security Agency) used enhanced interrogation on him, and about a month after the same court declared much of the evidence against him regarding Duma as tainted because of the harshness of the interrogation.
Even if he is released, he will be kept under house arrest as there are other crimes he is still accused of and the prosecution maintains it may still even be able to convict him as a secondary role-player in the July 2015 Duma arson murders of three members of the Dawabshe family.
On Thursday, the prosecution even issued a statement highlighting that the court had not said that the minor defendant was in the clear on the Duma conspiracy to aid in the murder allegations.
In contrast, the minor-defendants lawyers, the Honenu legal aid group and MK Bezalel Smotrich also latched on to the court’s order to free the minor from prison as a sign that he had been kept in prison wrongfully.
Prior to the hearing, Justice Minister Ayelet Shaked had issued a statement calling on the court to act on the basis of compassion toward the minor.
In mid-June, the court confirmed the validity of key confessions of the main defendant in the Duma case giving the prosecution a strong chance to convict, while disqualifying key confessions given by the case’s minor-defendant.
The mixed blockbuster decision had, and will have, far reaching consequences, did disqualify some confessions of the main defendant during and 36 hours after enhanced interrogation was used on him.
The Justice Ministry and the Shin Bet have a strong lead toward convicting the main defendant, Amiram Ben Uliel.
Regarding the minor-defendant, the decision means that while he will likely face convictions for lesser price tag attacks, he has a strong chance of acquittal from the Duma case.
The July 2015 arson terrorist attack – which killed Palestinians Sa’ad, Riham and Ali Dawabshe in Duma – and the Shin Bet’s admitted enhanced interrogations of the two Jewish defendants created convulsions in the region and within the Israeli political establishment.
In January 2016, the prosecution filed an indictment against Amiram Ben-Uliel for murdering the Dawabshe’s and against the minor, for conspiracy in planning the murder and other “price tag”-type crimes. Honenu and the defendants implied that the state was using a gag order to conceal that it tortured the defendants to obtain false confessions.
The court’s decision dissected different pieces of evidence in the case for both Ben Uliel and the minor with surgical precision.
Regarding Ben-Uliel, the most incriminating evidence he gave, including a reconstruction at the scene of the crime, will be admitted against him in court as it was given more than 36 hours after the Shin Bet used enhanced interrogation on him.
The court commented that it could see from a video of his confessions at this stage that he was calm, volunteering facts which investigators did not know about and freely cooperating.
In contrast, the court disqualified his confessions both during and for 36 hours after the enhanced interrogation saying that it was not convinced that he was cooperating freely at those points.
Judges Ruth Lorech, Zvi Dotan and Devora Atar went out of there way to say that this did not mean that they were characterizing the enhanced interrogation as having crossed a line into torture.
In fact, they said that it appeared that the Shin Bet had not merely used enhanced interrogation to discover if the defendants were involved in the Duma terror attack, but had mainly used it to learn about potential new attacks which it believed defendants’ organization was planning.
Rather, on the crossing the line question, the judges said they did not need to decide that issue as they could disqualify confessions at that stage merely as not being given freely even if the enhanced interrogation was legal.
However, those confessions of Ben-Uliel which were disqualified were not the key ones, which is why he is now likely to be convicted.
In contrast, the court in mid-June said it was not provided by the Shin Bet with a video of the minor’s confessions.
Because of that, because the minor in real time in earl court proceedings said he was just telling the Shin Bet what they wanted to hear in order to escape more enhanced interrogation – all of the minor’s key confessions, during and after enhanced interrogation, were disqualified.
This is why the minor has a strong chance of acquittal in the Duma case, for which he was only ever indicted for conspiracy to commit murder and not murder like Ben-Uliel.
Despite that win, the prosecution told The Jerusalem Post that before the enhanced interrogation, the minor had given a hypothetical statement about his actions which matched up exactly to what he and Ben-Uliel later confessed to.
In addition, the prosecution told the Post that some of Ben-Uliel’s statements, which were now accepted in evidence, included his fingering the minor.
Overall, the judges appeared to have far more sympathy for the minor due to his age and fragility and this could help him toward an acquittal, though it is not a guarantee.