As a result of the petition submitted by ACRI attorney, Michal Pinchuk, to the Supreme Court to demand an amendment to the sections of The Law of Entry into Israel that pertain to the conditions of detention and deportation of migrant workers who are residing in Israel illegally, the court ordered the state to provide, within 6 months, a detailed submission to the court outlining the action it has taken to initiate legislation that will stipulate the period of time an individual may be held in detention before being brought before the custodial court, the time period for the re-evaluation of an individual case, and details of its re-examination of the objectivity of the procedure used to appoint judges, which is currently largely dependent upon the recommendation of the Minister of the Interior.
The petition on this issue was revised after the Supreme Court ruled in January this year that, since the submission of the original petition in 2002, a number of factual changes have occurred that make it necessary to reconsider the legality of the amendment to The Law of Entry into Israel through the preparation of a new petition.
Attorney Pinchuk emphasizes in the petition that the legal procedure for detaining a foreign resident who is residing in Israel illegally, and the supervision thereafter, according to the current law, deviates severely from the accepted standards of Israeli law regarding criminal detention and/or civil detention. Despite certain improvements, which were a result of new regulations that were instituted following the submission of the original petition, the violations referred to in the current petition still occur. Thus, as long as the provisions referred to in the petition remain, so does a real fear that foreign residents who are residing illegally in Israel, or are erroneously suspected of such a status, will be held in custody for long periods of time, for no reason and in breach of the law.
The amendment to the law was enacted in 2001 and violates the rights of foreign nationals who are residing in Israel illegally (or are suspected of doing so), to personal liberty, equality and dignity. Attorney Pinchuk makes clear that the arrangements that relate to these foreign residents deviate, in an extreme way, from formal regulations governing the implementation of the detention laws, to such an extent that if in the case of criminal detention the guiding principle is liberty, and the exception is detention, the amendment to the law overturns this order and the custodial detention has become the norm, and release on bail has become the exception. Whereas usually a suspect is brought before judicial review within 24 hours, or at the very latest, 48 hours, the amendment stipulates that a migrant being held in custody should be brought before judicial review within 14 days. In addition to which, a review of an individual’‘s detention should be carried out by an independent court, in the case of foreign residents the amendment stipulates that the review will be carried out by a court in which the independence of the appointment procedure is highly suspect.
The petition emphasizes the critical importance of a rapid and professional judicial review of decisions to hold individuals in detention. The speed with which a suspect is brought before a court is important both to prevent a situation in which a foreign resident who has a valid permit to remain in the country legally, will be held in detention (and sometimes even expelled from the country), purely because of the difficulties that arose when trying to clarify their residency status, or as a means of preventing unnecessary delays in release from detention for detainees who can be justifiably released for humanitarian reasons.
Two and a half years ago, in response to a petition submitted by ACRI challenging the law, which allows the detention of foreign nationals that are due to be deported, the Attorney General issued instructions stipulating that a suspect must be brought before a custodial court within 4 days from the date of their detention. Individuals who are brought after this time period will be released on bail. The Attorney General also stipulated that the number of cases that are brought before the courts daily should be limited to 30. Overall administrative responsibility for the Court was transferred from the Ministry of the Interior to the Ministry of Justice in order to reduce potential conflicts of interest, but the responsibility for the appointment of justices was not. However, many of the violations of the rights of detainees continue. For example, there is still a significant gap between the four days in which migrant detainees wait in detention for their case to be heard, and the 24 hour waiting period for detainees who are arrested on criminal charges. There are also significant doubts as to the level of judicial independence of the judges who are appointed upon recommendation by the Minister of the Interior, and who are also responsible for the issuance of deportation custodial orders. In addition to which, there are also other areas of concern which are raised in the petition. Many of these problems have also been addressed and severely criticized in a report by the State Comptroller which dealt, in depth, with the detention and deportation policy of migrant workers.
last updated : 08/02/07
