Legal Position Paper: Supreme Court of Israel Invalidates “Security” Law Permitting Extension of Detention Hearings Without Detainee Present

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08 August 2014

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On 11 February 2010, a nine justice expanded panel of the Israeli Supreme Court, presided over by Chief Justice Dorit Beinisch, invalidated article 5 of the Criminal Procedure Law (Detainee Suspected of Security Offense) (Temporary Order) – 2006, which provided that “security” detainees could have their pre-trial detention extended in a hearing held in their absence. This law, which in practice allowed courts to extend individuals’ detention without their knowledge and without giving them the opportunity to defend themselves, was almost exclusively applied to Palestinians from the Gaza Strip.

The ruling was issued following a 2007 appeal by the Israeli Public Defenders’ Office on behalf of a detainee arrested in October 2007 after a lower court in Jerusalem extended his detention in a hearing in which the detainee was not present. Three human rights organizations – Adalah, the Association for Civil Rights in Israel (ACRI) and the Public Committee Against Torture in Israel (PCATI) – also submitted a petition in 2008 demanding that the court repeal the law (HCJ 2028/08, The Public Committee Against Torture in Israel, et al. v. The Minister of Justice) and were joined with the case from the Public Defenders’ Office. In addition to challenging article 5, these organizations were also challenging the legality of other provisions of the law, including:

  • article 3, which permits “security” detainees to be detained for up to 96 hours without being brought before a judge (instead of the 24 hour limit applicable to criminal detainees);
  • article 4(1), which allows for the extension of a “security” detainee’s pre-trial detention up to 20 days (instead of the 15 day limit applicable to criminal detainees); and,
  • article 4(2), which permits a suspect to be detained for 35 days without indictment (instead of the 30 day limit applicable to criminal detainees).

However, Adalah, ACRI and PCATI withdrew their petition in protest on 24 March 2009 after the Court heard secret evidence from the Israeli Security Agency regarding the constitutionality of the law without the petitioners present. The organizations rejected as unprecedented and illegal the court’s decision to allow this ex parte procedure, arguing the court’s ruling on the petition – which would be based on secret evidence the petitioners did not have the opportunity to examine or question – would constitute an unlawful procedure that could set a dangerous precedent for the judicial review of laws that violate human rights in Israel.

The appeal from the Public Defenders’ Office, which concerned only the constitutionality of article 5 of the law regarding extension of detention, continued. In a unanimous decision given on 11 February, the provision was struck down. Writing for the Court, Judge Eliezer Rivlin stated that article 5 violated detainees’ rights outside the ambit of acceptable rights violations permitted under Article 8 of the Basic Law: Human Dignity and Liberty (1992).

Addameer strongly opposes Israeli laws codifying discriminatory detention periods and practices under the ubiquitous and disingenuous banner of “security” justifications, and calls for an immediate review of the Criminal Procedure Law (Detainee Suspected of Security Offense) (Temporary Order) – 2006, and the annulment of all remaining unconstitutional provisions.