Case Number

HCJ 3368/10

Date Decided

4-6-2014

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitions request shortening the periods of detention prescribed in the security legislation in the West Bank, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the “Order”), such that they match the periods applicable to Israeli citizens in the West Bank and those of detentions prescribed in Israel.

The High Court of Justice (Justice E. Arbel, Justices Amit and Shoham concurring), issued a partial judgment as follows:

The High Court of Justice discussed the constitutional human right to liberty and its importance in a democratic system. It further discussed the right to due process before denying one’s liberty. The Court found it warranted that such person be able to respond and make arguments prior to restrictions on such a fundamental right. Additionally, the High Court of Justice discussed the public interests in exposing criminals and preventing crime, as well as thwarting security offenses. Therefore, it is necessary to strike a balance in the constant tension between security and protecting suspects’ rights that exists in the Israeli reality.

On the one hand, a proper legal procedure is an essential element in ensuring the proportionality and constitutionality of a detention for interrogation purposes. In principle, the suspect’s appearance before a judge should not be viewed as an obstacle but rather as a fundamental requirement for an effective and constitutional detention for interrogation purposes. This follows from the customary fundamental approach that judicial review is inherent to the detention process. Therefore it is necessary to adjust interrogation methods to interruptions that allow an effective and fair judicial procedure to take place. On the other hand, the security legislation was created in light of a complex security situation in a territory under belligerent occupation (occupatio bellica), where special security conditions dictate establishing arrangements that are different than those in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects.

During the course of the Petition’s proceedings, the Respondents took a far-reaching approach to shortening the periods of detention such that they would more closely match the detention periods in Israel. Such change would aim to reduce, as much as possible, the infringement of Palestinian detainees’ rights. Considering the distinctions inherent in the different conditions between Israel and the West Bank, and in light of the dramatic changes that were made, whose “on the ground” implementation must be examined over time, the High Court of Justice ruled that in terms of the maximum periods of pre-indictment detention of adults suspected of committing security offenses, and in the scope of offenses that are defined as security offenses, the Petitions were exhausted and therefore are to be dismissed. However, with respect to the periods of detention of minors, the periods of detention of adults suspected of other offenses, and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) the High Court of Justice ordered the Respondents to file an update notice.

Keywords

Constitutional Law -- Basic Law: Administration of Justice, Constitutional Law -- Basic Law: Freedom of Occupation, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Constitutional Law -- Prisoners’ Rights, Criminal Law -- Conviction, Criminal Law -- Enforcement, Criminal Law -- Local application, Criminal Law -- Offenses, Criminal Law -- Prisons Ordinance, Criminal Law -- Sentencing, International Law -- Detention of prisoners, International Law -- International Humanitarian Law, International Law -- Occupied territories

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