To:
Mr. Meni Mazuz
Attorney General
29 Salah al-Din St.
Jerusalem
To:
Ms. Tzipi Livni
Minister of Justice
29 Salah al-Din St.
Jerusalem
URGENT!
Re: The legal memorandum regarding the Criminal Procedure Law (Law enforcement – instructions for the investigation of criminal security offenses committed by non-residents) (Temporary Order) 2005
1. We are writing to you to ask that you take urgent action to bring about the revocation of the proposed legislation that is currently under deliberation, and is due to be raised at the next meeting of the ministerial committee for constitutional issues on 9/10/05. As will be detailed in this letter, the proposal calls for a series of new provisions that will apply to suspects accused of committing security related offences who are not residents of the country. These provisions severely violate the basic rights of an individual to due process in criminal proceedings, and provide a clear opportunity for the holding of interrogations far from judicial supervision. In addition to which, the proposal which seeks to apply special rules to non-residents, discriminates unjustifiably against foreign nationals.
Postponing the appearance of a detainee before a judge for a period of 96 hours – clause 2(1) of the proposed legislation.
2. Clause 2(1) of the proposed legislation calls for the police force and the Shin Bet to be authorized to delay the appearance of a suspect before a judge for a cumulative period of up to 96 hours, whenever the investigating officer/s are of the opinion that “the investigation requires it”. An initial delay of up to 48 hours from the moment of detention can be authorized by an appointed investigating officer, and any further delay, up to a period of 96 hours, requires special authorization.
3. The law currently states that a suspect must be brought before a judge within 24 hours. In exceptional circumstances, when an investigating officer determines “that an urgent investigative procedure is required, that cannot be carried out if the suspect is not in detention, and cannot be delayed until after the suspects appearance before a judge”, or when it is determined that “an urgent investigative procedure is required with regard to a specific security offence”, the suspects appearance before a judge can be delayed for up to 48 hours from the moment of detention. (Section 30 of the Criminal Procedure Law (enforcement powers – detainees), 1996 herein, “Detention Law”). Section 31 makes clear that upon conclusion of the urgent matter that justified the delay, the suspect must be brought before a judge at the earliest possible opportunity or released.
4. In other words, even according to current legislation, a security suspect’s appearance before a judge can be delayed by up 48 hours when the delay is necessary to facilitate an urgent investigative procedure. The proposed clause would allow such delay – regarding non-residents – even when there is no such urgency.
5. The legal memorandum asserts that this instruction is a result of the “special circumstances” associated with the interrogation of a non-resident accused of a security offence such as: the fact that in many instances the investigating agents do not have access to potential witnesses or to intelligence information; the fact that in many instances the suspect is motivated by ideology and therefore particularly uncooperative; and the fact that “some of the interrogations must be carried out consecutively and with no interruptions in its initial days…” It would seem that the purpose of the proposal is to facilitate the isolation of the suspect and turn the detention itself into a tool for pressuring the suspect into cooperating against his will. When the appearance of a detainee before a judge does not undermine any “urgent investigative procedure”, what justification is there to delay judicial review, other than the avoidance of any external supervision of the methods employed to carry out the interrogation, or to ensure that the attempt to “break” the suspect is undisturbed?
6. Judicial supervision of the procedures employed to detain suspects have a twofold purpose: to ensure that the period of detention does not exceed the required term, and to assure judicial supervision of the interrogative process. The very fact that the suspect must be brought before a judge within 24 hours of detention acts as a guarantee against the use of illegal pressure techniques during the interrogation, and prevents the use of detention itself as a means of causing the suspect to feel that he is completely isolated from the outside world and at the mercy of his interrogators. Moreover, the fact that the detainee knows that he is to be brought before a judge within 24 hours does itself limit the danger of the detention itself – and the sense of isolation it causes – which is liable to result in the suspect’s cooperation with the interrogators against his/her will, and even to confess to acts he/she did not commit.
7. It should be noted that the bringing of a detainee before a judge is a critical guarantee against the use of torture during interrogations. In many instances, especially when a detainee is denied access to an attorney (something that is particularly widespread in security related investigations), the appearance before the judge represents the first opportunity the suspect has to report any use of illegal investigative tactics or torture. The very fact that the suspect is taken out of the hands of the investigating authorities and placed in the jurisdiction of a neutral judicial body is critical to the protection of his/her rights during the interrogation.
To conclude: In the absence of an urgent investigative procedure which necessitates a delay in the detainee’s appearance before a judge for a number of hours, and delayed judicial review, can only serve illegitimate purposes. It can even sanction use of detention as a means of applying pressure, and enable the investigating authorities to act as they please with no external supervision. It also significantly increases the danger that torture will be used, and that investigative techniques will cause detainees to confess to acts that they did not commit.
8. This attempt to facilitate an extended interrogation with no judicial review clearly contravenes the Basic Law: Human Dignity and Liberty, and the Israeli constitutional law. It also violates international human rights law, to which the State of Israel is obligated. (On the obligation to bring a suspect promptly before a judge see, among other sources, Article 9(3) of the International Covenant of Civil and Political Rights (ICCPR). Today it is generally accepted that this obligation, which serves as a principle guarantee against arbitrary detention, embodies a general principle of international customary law. In light of the importance of judicial review as a means of ensuring the dignity and wellbeing of the incarcerated individual, the failure to bring the detainee before a judge also represents a violation of the state’s obligation to ensure that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person (Article 10(1) The United Nations International Covenant on Civil and Political Rights).
9. For similar reasons we object to the proposal advocated in clause 2(3) to extend the maximum period of each detention on remand to 20 days, and the detention period requiring the intervention of the Attorney General to 40 days.
The holding of hearings regarding detention on remand in the absence of the detainee – clause 2(4) of the proposed legislation
10. Clause 2(4) of the proposed legislation proposes that after the court has extended the detention of an individual to a period of less than 20 days, the court can further extend the detention for a period of no longer than 20 days from the date of the first hearing in the absence of the detainee.
11. Clause 4 further proposes that appeals and hearings requesting a reconsideration of the court’s decision be held in the absence of the detainee, unless a judge rules otherwise.
12. According to current legal practice, detention hearings and appeals must always be held in the presence of the detainee, unless the court is convinced, in accordance with a medical appraisal, that the suspect cannot take part in the hearing for medical reasons (clause 16(2) of the Detention Law).
13. For the same reasons explained above, it appears that this proposed clause also does not serve any legitimate purpose. Its only purpose is to extend the period during which a detainee can be held in a state of isolation from the outside world, without his/her physical appearance before a judge. As it would seem its purpose is to ensure that a detainee, during this extended period, will be entirely at the mercy of the interrogating officers and that he/she will feel helpless in the face of the interrogation. There is nothing more foreign to the democratic system than an attempt to legislate procedures designed to facilitate the use of detention as a means of applying pressure and of the interrogations of suspects with no effective judicial supervision.
14. In this context as well it should be remembered that many security suspects are denied access to an attorney for prolonged periods of time. According to the current law, as previously stated, a security detainee may be denied access to an attorney for up to 10 days without judicial authorization, and with judicial permission for up to 21 days. As we will see, the current proposal seeks to significantly lengthen this period to up to 50 days. Under these circumstances, the proposed delay in judicial review is even more egregious, as on a practical level it will lead to the isolation of the suspect from the outside world for extended periods of time.
Denying access to an attorney for a period of 50 days – clause 2(5) of the proposed legislation
15. As previously stated, the proposed legislation grants judicial authority to the Supreme Court to deny a detainee the right to meet with an attorney for a cumulative period of up to 50 days.
16. The right of a detained suspect to meet with an attorney is a basic right of primary importance that is well ensconced in Israel’s constitutional law and international law, and represents a critical pre-condition for the protection of the full spectrum of an individual’s rights. Even the currently existing draconian arrangement in clause 35 of the Detention Law, that permits the denial of access of a detainee to an attorney for up to 21 days, is unacceptable; there is certainly no justification for extending it. Allowing interrogators to deny a suspect’s right to meet with an attorney for fifty days will obliterate even the most basic of protections necessary to uphold the rights of detainees and people in detention or under interrogation.
Unacceptable discrimination
17. The proposal seeks to establish an unjustifiably discriminatory differentiation between suspects accused of security offences who are residents of the country, and foreign national suspects. This discrimination contravenes both Israeli constitutional law and international law.
18. As stated, even in the memorandum itself, the purpose of this discrimination is to “solve” the “problem” posed by the revocation of the military legislative authority in the Gaza Strip, with its extensive enforcement powers. As noted in the memorandum a legislative solution is required, as today “with the end of the military regime in the Gaza Strip, the investigative authorities no longer have such powers regarding Gaza residents”.
19. This attempt to “import” problematic law enforcement principles from a military regime of “belligerent occupation”, to domestic Israeli law, while creating a “special law” that will apply to only a certain group of people, is particularly egregious and dangerous.
20. Recently, The House of Lords in England revoked a special law that permitted detention of foreign residents suspected of terrorist activities, even when they could not practically be expelled or removed from the country.@2@ The House of Lords ruled that the enactment of special detention provisions for foreign residents – provisions that are not substantively related to immigration issues or expulsion proceedings – constitutes illegal discrimination, in violation of Article 14 of the European Convention for the Protection of Human Rights. The text of the article is similar to that of Article 2(1) of the ICCPR, which states that:
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
21. The difficulties associated with investigating security offences that are pointed out by the authors of the memorandum, are not necessarily specific to foreign nationals, and are liable to arise to the same extent during investigations involving residents of the country who are suspected of committing crimes of this nature. As detailed above, the Detention Law already contains special provisions regarding the investigation of such crimes (provisions, which also, at least in part, unjustifiably violate human rights), and there is therefore no valid reason for creating special rules directed specifically at foreigners.
22. In light of all the aforementioned above, we appeal to you to act urgently to bring about the revocation of this drastic and dangerous legislative proposal.
Yours respectfully
Attorney Lila Margalit
last updated : 21/11/05
