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The state has failed to abide by a Supreme Court ruling against allowing remand hearings for security detainees to be held without the detainee being present in court, The Association for Civil Rights in Israel charged in a professional opinion last week.
The provision allowing detainees not to be present during remand hearings was included in a temporary law passed in June 2006 and extended until December 29, 2010.
The terms of the law, which is aimed at anyone arrested on suspicion of involvement in security offenses, is harsher than the original one dealing with the detention of all suspects, which did not distinguish between “regular” criminal and security suspects.
According to the law dealing with security suspects, the state may prevent a suspect from being brought before a judge for 96 hours, as opposed to 48 hours in the regular law.
Another provision of the law dealing with security suspects allows the state to detain a suspect in custody for 20 days before being obliged to bring him before a judge, instead of 15 days according to the law dealing with “regular” suspects. The law dealing with security suspects also allows the court to extend the remand in custody for up to 35 days. After that, the request for a remand extension must by approved by the attorney-general. The regular law requirement is 30 days.
According to the law governing security suspects, if the state had not asked the court to grant a remand in custody of 20 days in one fell swoop in the first court hearing (which must take place within 96 hours), it could ask to extend the remand for up to 20 days (in one or more requests) without the suspect being present.
On October 21, 2007, the Public Defender’s Office appealed to the Supreme Court on behalf of a specific security suspect who was prevented from attending his own remand hearing in accordance with the temporary law.
On February 11, 2010, a panel of nine Supreme Court justices handed down a ruling in principle accepting the appeal and rejecting the article that allowed for remand hearings to take place without the suspect being present.
In response, the state has now drafted a revised bill which addresses the court ruling and makes other, smaller, changes in the bill, such as reducing the number of days that the state can ask to extend a remand to 30 days before the attorney-general must approve the request.
As for the court’s objection to “absentee” remand hearings, the state has proposed that instead of the right to request one or more remand extensions between day five and day 20 of the detention without the suspect being present, it would be allowed to do something else.
Two remand requests would be allowed of up to 72 hours each between day five and day 20 of incarceration. These requests could only be made under condition that a Supreme Court justice approve the state’s request. The reason for making the request must be based on a near certain probability that if the interrogation is interrupted in order to bring the suspect to court, it could lead to a failure to prevent loss of life.
But in its opinion, ACRI charged that the state’s new proposal violated
the Supreme Court’s ruling. A majority of five justices voted
unequivocally against the “absentee” provision in the original law. ACRI
quoted from the opinion of Justice Eliezer Rivlin who wrote, “Despite
the special complexity in balancing between the values involved in this
matter, the harm to the detainee’s right to fair procedures stemming
from the fact that he is not brought to the judicial hearing in his
matter, is so deep and fundamental that it must not be allowed even if
it means making it much more difficult for the security officials to
carry out their activities to enforce the law and protect the state.
“Giving the individual a fair trial, which depends, in part, on his
presence at the hearing and his right to properly defend himself against
the suspicions and allegations raised against him, is one of the basic
elements in a constitutional system of justice. Without it, the value of
fair trial is dealt a fatal blow.”