Israeli Supreme Court Decision: A Suspect Charged with Security Offenses Must Be Allowed To Attend Judicial Detention Hearings [CHR 8823/07]

On 11 February 2010, the Israeli Supreme Court published an important decision to strike down a law provision that enabled courts to conduct detention hearings in abstentia in cases involving suspects charged with security offences.[1]  The nine Supreme Court Justices agreed that the provision was unconstitutional and violated due process requirements. Still the decision to strike down the article was accepted by a majority of 8-1, the sole dissenting Justice opining that the revocation of the article should be postponed by six months in order to allow the legislature to take appropriate steps to remedy the legislation in question.

The Supreme Court’s decision to revoke a piece of primary legislation is rare: this is the sixth time that the Supreme Court has struck down Knesset legislation; and it is only the second time that it has revoked security-related legislation. In this article, we discuss the relevant elements of the decision as part of the ongoing coverage of pertinent judicial decisions by IDI’s Terrorism and Democracy Newsletter.

The Criminal Procedure Law (Enforcement Powers – Detention) (Detainees Suspected of Security Offense) (Temporary Order) 2006 (hereinafter: "the Detention Order" or  "the Order") [2] was enacted as a temporary law for a period of 18 months in order to maintain a framework for the detention in Israel of Gaza residents similar to the one that was in force in Gaza under military law (Israel withdrew from Gaza in September 2005 and revoked the military laws that had been applied in that area). This framework was deemed more conducive to meeting the needs of the Israel Security Authority (ISA; formally known as the General Security Service) than the ordinary legal framework that governs the detention of criminal suspects. Specifically, the laws that had applied in Gaza (and that continue to apply in the West Bank) permit longer detention periods of suspects without judicial review than is allowed under Israeli law with respect to detainees held in Israel proper. Such longer periods of detention are deemed by the ISA to be conducive to the conduct of an effective interrogation in cases involving the attainment of urgent and actionable intelligence.

The Detention Order authorizes the State to detain suspects charged with security offenses for up to 96 hours without judicial review (as opposed to the 24-48 hour limit of regular criminal procedure under Israeli law); it also allows hearings to extend detention periods to be conducted in the absence of the detainee (although the detainee must be represented at the Court hearing).[3] Moreover, the State may forestall notifying the detainee of the Court's decision to extend his or her detention. On December 2007, the Knesset extended the validity of this Order for three more years. It should be noted that although the Detention Order was designed to meet the particular challenges associated with the detention and interrogation of detainees from Gaza, its provisions could apply to any individual, regardless of his or her nationality, who is charged with a security-related offense.

On 5 October 2007, the appellant was detained as a suspected member of an illegal association (a security offense under the Detention Order), and the decision was made to prevent the detainee from meeting his lawyer for three days. On 7 October 2007, the Magistrate Court in Jerusalem extended his detention until 17 October 2007. The State requested that the appeal against this specific decision be conducted in abstentia, pursuant to Article 5(2) of the Detention Order. This issue was eventually brought to the Supreme Court  and approved by Justice Vogelman, without addressing the constitutionality of the article.[4] In anticipation of the hearing on the further extension of the appelant's detention on 17 October 2007, the State requested the authorized Magistrate Court to conduct the hearing in abstentia under Article 5(1) to the Detention Order. The appellant's lawyer claimed that the article in question is unconstitutional and, therefore, should be annulled. This claim was rejected  by the Magistrate Court and subsequently by the District Court, which upheld the appeal on the grounds that the provision is appropriate for "ticking bomb" situations, and that its function is proportional to the harm caused to the detainee's due process rights.

The appellant challenged this decision before the Supreme Court, claiming that Articles 5(1) and 5(2) (which deal respectively with  in absentia detention extension proceedings and with appeals against these proceedings) are unconstitutional as they infringe the detainee's right to be present at his hearings, his right to due process, and his rights to dignity and to freedom in a matter that cannot be considered proportionate under Israeli law. This is especially so considering the cumulative effect of the in abstentia process and the other restrictions imposed on suspects charged with security offenses (such as limits on the right to meet his or her attorney). Moreover, the appellant claimed that these provisions are contrary to Israel's obligations under international humanitarian law.

It should be noted that by the time the Supreme Court had began hearing the appeal, the restrictions of the Order no longer applied to the appellant. Nonetheless, the Court decided to hear the case, citing the importance of the constitutional question that it raised, the chances that the question will be raised again in future cases, and the difficulty of conducting “real time” constitutional review in pre-indictment detention cases (which typically involve short periods of detention). 

In its response, the State did not dispute the importance of the right of a detainee to be present at his or her hearings. However, it did claim that Article 5 of the Detention Order was constitutional, because it offered the State a legitimate tool to deal with the security situation in the area. The State also claimed that the terms of these articles are very narrow and that the security forces use these measures very rarely.

While the appeal was pending, a general petition against the constitutionality of the Detention Order was filed by several NGOs, and the Supreme Court decided to combine the cases and to expand the panel to nine Justices. However, following the Court's decision to hear security evidence ex parte notwithstanding the objections of the petitioners, the NGOs decided to withdraw the petition.[5] The Supreme Court therefore decided to continue only the proceedings of the appeal.

On 11 February 2010, the Supreme Court published its decision to accept the appeal, thereby annulling Article 5 of the Detention Order.

Justice Eliezer Rivlin, the Deputy President of the Israeli Supreme Court, writing for the Court, held that the defendant's right to be present at his or her criminal trial is part of one’s due process rights, which are an essential part of the constitutional right to freedom, established in Basic Law: Human Dignity and Liberty. Justice Rivlin held that the same conclusion applied to the right of a detainee to attend detention proceedings. Therefore, the Court must examine whether the due process restriction introduced by Article 5 to the Order complies with the terms of the Basic Law’s limitation clause: limitation by law, compatibility with the values of the State, an aim to further a worthy cause, and proportionality. According to Justice Rivlin, since the Order was designed to protect a legitimate security interest, the key question in this particular case is whether the limitation is proportional under Israeli constitutional law, that is, whether: 1) the measures taken rationally lead to the realization of their objectives (“rational means” test); 2) the measures  harm the individual to the least extent possible (“least injurious means” test); 3) the anticipated harm from the action is proportional to the benefit gained from it (“proportionate means” test).

With regard to the first test, Justice Rivlin noted that the main objective of the Order is to improve the ability of the security forces to conduct effective investigations of security offenses, while taking into account the special characteristics of these offenses and the difficulties of gathering intelligence in order to prevent acts of terrorism. The Order, and especially Article 5, is intended to allow the security forces to conduct rapid, successive, and effective investigations, which are meant to prevent future acts of terrorism and to uncover terrorist organizations. Therefore, Justice Rivlin held that Article 5 was legislated for a germane purpose. Nevertheless, he emphasized that the Order applies to detainees charged under criminal law and, therefore, their detention is not primarily preventive in nature. Since the  detainee is being held as a criminal suspect, he or she should be treated accordingly.

Justice Rivlin found, however, that the provision does not meet the second and third tests of proportionality (the least injurious means and strict proportionality) and, hence, must be annulled. Although the interruption of the interrogation for the purpose of conducting court hearings may complicate the investigation, an appropriate balance does not appear to have been struck between the harm to the detainee’s due process rights and the requirements of the  investigation. The harm to due process caused by Article 5 is particularly severe. The absence of detainees from their hearings raises serious concerns about their ability to defend themselves against the charges brought against them, which serve to justify keeping them in custody. It also compromises detainees'  ability to approach the Court with regard to their treatment while in detention. This concern is intensified when dealing with a suspect charged with security offenses, whose ability to defend himself or herself during the detention proceedings is significantly limited as a result of other measures being applied against him or her, such as being prevented from meeting one's lawyer. The combination of these measures might cause the proceedings to be equivalent de facto to ex parte proceedings, consequently blocking the possibility to conduct an effective and fair judicial review.

Moreover, Justice Rivlin held that in a democratic society, the effective interrogation of a subject in detention must include meaningful judicial review. Therefore, the methods of interrogation must be modified in order to allow effective and fair judicial review. Justice Rivlin asserted that the few occasions in which the security forces sought judicial permission to apply the provisions of Article 5 only underscores the rarity of the necessity to conduct uninterrupted interrogations, as well as the constitutional problematic generated by legislation permitting such practices.

Justice Rivlin concluded his decision by noting that although human rights are meant to be "shock absorbent," the fight against terrorism obliges Israel, as well as other states, to adjust their constitutional standards. Still, constitutional order must be protected even in the face of counter-terrorism imperatives, because the rule of law is integral to the strength of democratic societies.

In her dissenting opinion, Justice Naor agreed that Article 5 is unconstitutional, since its infringement of the detainee’s due process rights is disproportional to the social interest it protects. However, unlike Justice Rivlin and the other Justices, Justice Naor opined that the article should not be immediately annulled; instead the Court should allow the Knesset a period of six months to amend the Order and to set narrower restrictions on its application. According to Justice Naor, the State should be allowed to resort to the Order in the rare cases of an unequivocal need to conduct detention proceedings in absentia in order to prevent risking lives (such as "ticking bomb" situations).

The Supreme Court rarely issues decisions that strike down legislation, especially when dealing with security related issues. This decision, like the recent HCJ decision obliging the State to reopen Route 443 to Palestinian traffic,  may signify renewed activism on the part of the Court, and a greater willingness to review security measures that compromise human rights.  It also marks a return to the President Barak-era rhetoric about the need to fight terrorism "with one hand tied behind one's back," [7]  which have nurtured widespread public perception in Israel that the Court and, more generally,  the legal system, is unnecessarily limiting the State’s counter-terrorism efforts. Indeed, recent initiatives in the Knesset to curb the Court’s power to strike down legislation have cited the imperatives of the war on terror.[8] 

Interestingly enough, despite the fact that both the appellant and the State included in their arguments claims regarding the relevance and applicability of international law standards to this situation, the Court seems to be satisfied with the conclusion that due process is a constitutional right in Israel, and did not relate to the relevant due process provisions in international conventions, such as the International Convent on Civil and Political Rights, which impose certain obligations and restrictions on Israel (however, Justice Rivlin did cite a relevant European Court of Human Rights case).

1. CHR [Criminal Hearing Request] 8823/07 Ploni v. State of Israel <Hebrew>
   
   
2. www.knesset.gov.il/committees/heb/material/data/H30-05-2007_9-56-41_hok.pdf <Hebrew>
   
   
3. Article 5 of the Law is the provision that is relevant to this case. It allows the court to hold a hearing in abstentia in the following cases: (1) To extend the detention of a suspect of security offenses up to a total period of 20 days if the court is convinced that an interruption of the investigation would jeopardize the prevention of a security offense or the prevention of an action aimed to save lives. (2)  To request to appeal or to rethink the decision to detain the suspect.
   
   
4. The parties to the proceedings did not challenge the constitutionality of this article.
   
   
5. For further discussion of this petition, see the fifth issue of The Terrorism and Democracy Newsletter.
   
   
6. HCJ 2150/07 Abu Safiya v. Minister of Defense. For a discussion of this decision, see the thirteenth issue of The Terrorism and Democracy Newsletter.
   
   
7. HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel.
   
   
8. www.ynet.co.il/english/articles/0,7340,L-3843473,00.html