High Court upholds harsher detention policies

New law would treat detention appeals more like those regarding civil litigation and could radically reduce number of criminal cases that reach the Supreme Court.

June 27, 2013 03:18
2 minute read.
The Ayalon Prison in Ramle

Ayalon prison 370. (photo credit: Reuters)


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The High Court of Justice on Wednesday rejected a petition by lawyer Haim Shtenger seeking a declaration that two major changes to the Detention Law are unconstitutional.

The first of the changes to the law attacked by Shtenger was changing the rule for appealing detentions to the Supreme Court from being an appeal of right to an appeal only by permission of the court.

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Until now, detainees could appeal a magistrate’s court order of detention to a district court and then appeal that order all the way to the Supreme Court automatically.

The new law maintains one automatic round of appeals to the district court, but says that the Supreme Court can turn down most detention appeals unless a broader issue is implicated or there is a case of extreme injustice.

The change could radically reduce the number of criminal cases that get to the Supreme Court and treats detention appeals more like civil litigation appeals, which are generally limited to one automatic appeal.

The second change is allowing the Supreme Court to extend a defendant's detention for 150 days past the current nine-month limit.

In cases where an indictment has been filed and a defendant has been ordered detained until the end of the proceedings, the prosecution usually has nine months to conclude its case.

The idea is that depriving the defendant of liberty while he has not been convicted of a crime is an extreme measure and should not go on indefinitely.

While until now, the Supreme Court could at most, on request from the prosecution, extend preconviction detention for 90 days past the nine months, in extreme cases and if the court believes the prosecution is moving the case forward at a reasonable pace, it will be able to extend the detention for 150 days.

Shtenger made two objections to both changes. First, he said the changes in the law were executed by a defective procedure, which should render the amendment invalid.

He also argued that both changes trampled on defendants’ rights to liberty by making it more likely that more defendants will be detained for longer and will have less recourse to challenge their detentions.

Supreme Court President Asher D. Grunis said that while the Knesset’s procedure for passing the amendment was defective, the defect was limited and did not warrant throwing the law out or a court’s intervention.

On the second issue, Grunis said the purpose of the amendment was to limit the number of cases overburdening the Supreme Court.

He said the purpose was a fitting one and would allow justices to get to other criminal cases that still reach them at a much faster pace.

Grunis also noted that the change did not eliminate appeals. Rather, it maintained one round of automatic appeals, as with many other legal issues, and still left open a potential appeal to the Supreme Court anytime the court believed hearing it was warranted.

Accordingly, the change did not violate the defendants’ right to liberty, said Grunis.

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