High Court: No remand hearings without suspect's presence

Justices strike key provision from temporary law dealing with detention of security suspects.

By DAN IZENBERG
February 11, 2010 23:53
3 minute read.
Supreme Court President Dorit Beinisch

Beinisch. (photo credit: Ariel Jerozolimski)

 
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In a unanimous decision, a panel of nine High Court justices ruled on Thursday to strike a key provision from a temporary law dealing with the detention of security suspects that allows the court to conduct hearings on the extension of a remand in custody without the suspect being present.

The ruling is one of several over the past 18 years in which the court has determined that a law approved by the Knesset violated the Basic Law: Human Dignity and Freedom.

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The law was controversial to begin with, which is why the Knesset has only approved it temporarily so far. It is due to expire in October 2010 after having already been renewed once since its original approval in 2005.

The law calls for more severe restrictions on the rights of detainees suspected of security violations than those of criminal suspects.

Originally, the government asked the Knesset to approve the law following the Disengagement from the Gaza Strip, when military law no longer applied to Palestinian security suspects since Israel no longer regarded itself as militarily occupying the area. During the process of approving the legislation, however, it was extended to include Israeli residents as well as security suspects from foreign countries.

The law was controversial because it introduced more draconian detention measures against suspects than had ever before appeared on the Israeli statute books. For example, according to the temporary law, security suspects may be detained for up to 96 hours before being brought before a judge. In all other cases, a suspect is usually held for 24 hours and, in exceptional cases 48 hours, before being brought before a court.

Another example is that in regular criminal cases, the court may only remand a suspect in custody for 15 days before the police must apply to the court for a further extension. In security cases, the court may remand a suspect in custody for 20 days at a time.



Although the constitutionality of the law in its entirety was challenged in court by human rights groups, they withdrew their petition in midstream.

Meanwhile, two attorneys from the Jerusalem Public Defender’s Office, David Halevy and Rashed Zuabi, specifically challenged Article 5 of the law, which grants the court the right to hold some remand hearings without the suspect being present. Halevy and Zuabi were defending a specific client and appealed lower court decisions rejecting their arguments that their client should be allowed to attend the remand hearings all the way to the Supreme Court. The Supreme Court decided to consider the constitutional aspect of this issue.

Deputy Supreme Court President Eliezer Rivlin, who wrote the main opinion, ruled that the right to be present at a remand hearing lay at the core of the right to a fair trial, which was a fundamental human right protected by the Basic Law: Human Dignity and Freedom. The only question was whether security considerations were a sufficiently worthy reason to curtail that right.

The state argued that all of the restrictions imposed in the temporary law regarding the detention of security suspects were meant to guarantee an intensive interrogation that would be as free of interruption as possible. That was the reasoning behind giving interrogators 96 hours without interruption at the beginning of the investigation and why the law allowed remand hearings to take place while the suspect remained at the interrogation center.

But Rivlin ruled that given all the other restrictions included in the law, suspects might be entirely cut off from the legal process, which is meant to protect their rights.

“The implication of all the provisions relating to the first stages of the interrogation of security suspects could be the negation of any possibility of conducting a minimal effective review of the protection of the detainee’s rights during the arrest and interrogation process,” he wrote.

Thus, the provision allowing the court to hold remand hearings without the suspect being present was disproportional, he concluded.

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