Israel’s pre-charge detention law is undemocratic

The Israeli Supreme Court must follow in the footsteps of other Western democracies by finding the pre-charge detention law illegal.

By SHOULA ROMANO HORING
March 13, 2018 21:16
THE SUPREME COURT

The Supreme Court, Jerusalem. (photo credit: Wikimedia Commons)

 
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The growing number of former confidants of Prime Minister Benjamin Netanyahu turning state’s witness after spending time in detention has for the first time opened the eyes of many Israelis to the country’s broken and abusive legal system. In a March survey by Walla, 56% of Israelis agreed that in light of recent events, they have no faith in their own nation’s justice system.

While Netanyahu was in the US, news broke that the prime minister’s former spokesman, Nir Hefetz, was the latest Netanyahu associate to agree to cooperate with police and turn state’s witness against him. However, what was missing in the news reports was the fact that Hefetz became a witness after being in detention for 15 days, according to him in severe conditions, which included sleep deprivation, hundreds of flea bites and blisters, and a lack of access to immediate medical care.

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What was even more shocking to me, as a US attorney, was the fact that Hefetz, a mere suspect in the case, was held for at least 15 days in jail without being charged. In the United States, such a detention would have been found to be unconstitutional and any testimony or evidence from such a witness would have been inadmissible under the “fruit of the poisonous tree” doctrine.

“Fruit of the poisonous tree” is a legal metaphor in the US used to describe evidence obtained illegally. The logic of the terminology is that if the tree, the source of the evidence, is tainted, then the fruit is tainted as well.

In the US, as interpreted by the fifth and sixth amendments to the US Constitution, and state laws, a suspect can be held without being charged only up to three days (72 hours), and in my home state of Missouri only up to 20 hours in criminal cases. One of the purposes of such a law is to prevent false or coerced confessions and testimony by major witnesses or suspects.

Shockingly, under Israeli law, a suspect can be held in jail without being charged for up to 75 days by lower courts, and the Supreme Court may order an extension of the arrest, or new arrest, for a period not exceeding 90 days.

For a modern Jewish state, a worldwide center of intellectual pursuit and democracy, based on thousands of years of tradition supporting the sanctity of individual life and the prohibition against bearing false witness, to permit suspects to be held in prison for up to 75 days without charge, by mostly rubber-stamp courts, is morally repugnant and undemocratic.

Such a law imitates the draconian practices of totalitarian and undemocratic countries in the Middle East and falls far behind any similar laws in other Western democracies.

In the UK the police can hold a criminal suspect up to 24 hours before they have to charge a person with a crime or release him. In France, a suspect can be detained  for up to four days, and in Germany up to two days.

Even in Turkey, after the coup attempt, when Turkish President Recep Tayyip Edrogan ordered the arrest of thousands of judges and journalists, he only extended Turkey’s detention period before filing charges to 30 days from four.

On February 27, the judge who extended Hefetz’s stay in custody for a third time, prior to his becoming state’s witness, ruled that enabling or advancing the police investigation into the corruption allegations against Netanyahu trumped any harm to the suspect’s rights, including complaints of harsh conditions of detention.


Contrary to what this Israeli judge stated, in a liberal democracy, the chance of harming the individual rights of suspects in a criminal case must always outweigh advancing a police investigation. Moreover, extended detention in harsh conditions is likely to hinder the finding of the truth by causing those so held to provide false testimony to gain their freedom.

In the US, the framers of the Constitution over 200 years ago realized the dangers to democracy and the rule of law of such a practice by passing the Bill of Rights, which includes the 5th and 6th amendments, to protect individual citizens from the power of the government, which includes the police and prosecution.

The limited amount of time police can hold someone who has not been charged with a crime is guaranteed by the 6th Amendment’s right to a speedy trial and presumption of innocence, and by the Fifth Amendment’s right to due process.

The US Supreme Court explains that these rights protect suspects and defendants from serving lengthy jail times before a conviction and lessen the time that the accused must endure the anxiety and publicity of an impending charges or trial, and minimize the damage that delay might cause to the person’s ability to present a defense.

Similar to the United Kingdom and the US, Israeli law, is mostly based on a common law legal system but unlike their systems it is also reflects the history of Ottoman and British occupation prior to independence.

A review of Israeli court’s decisions indicates that American and other Western countries’ laws are frequently cited by the Israeli Supreme Court as precedents in analyzing Israeli laws.

But it seems that on the issue of pre-charge detention, the Israeli Supreme Court chose to follow the law of the Turkish Ottoman Empire, and the penal code used by the British in India and other colonies and territories, rather than to follow the recent and more modern law used in Britain and Turkey.

When Israel was established in 1948, many observers expected that the country would immediately replace the Ottoman-English legal heritage with a new legal system linked to Jewish law, such as the Ninth Commandment: Thou shall not bear false witness.

But in reality the Israelis chose to continue to use much of the Ottoman and colonial British  legal legacies, unlike other post-Ottoman and -British empire societies. This mixed Ottoman-English legal system that Israelis inherited was seen at the time as a neutral alternative which would allow them to postpone the decision of who exactly they were and what laws would therefore serve them.

After 70 years, the Israeli Supreme Court must depart from the past legal burden, and follow in the footsteps of other Western democracies by finding the pre-charge detention law illegal and thus take the first step in rehabilitating the public trust in the  Israeli justice system.

The author has been a criminal attorney and a law professor for the past 25 years in Kansas City, Missouri. Her blog:
www.shoularomanohoring.com.

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