العربية
HE
العربية
HE
Detention of the petitioner and HaMoked’s attempts to locate him
On 9 November 2004, the petitioner, a Palestinian holding a Jordanian passport, was detained and handed over to the General Security Service [GSS, later known as ISA] for interrogation. The day he was detained, and for a month after that, he was prohibited by order to meet with his attorney. On 27 January 2005, a partial indictment was filed against him, charging him with membership in Islamic Jihad. He was ordered to be held until the end of the legal proceedings against him.
Among its various activities, HaMoked assists residents of the Occupied Territories by locating the place where Palestinians detained by Israeli security forces are being held. HaMoked’s action in the matter is vital in enabling the detainees and their families to exercise their right to know where the detainee is being held, especially in that the state has failed to meet its obligations set by the Supreme Court in HCJ 6757/95, Hirbawi et al. Commander of IDF Forces in Judea and Samaria, and does not inform, as a rule, the detainee’s relatives of his whereabouts.
As part of its activity locating detainees, on 6 March 2005 HaMoked contacted the military’s Incarceration Control Center to locate the petitioner. Two days later, the Control Center replied that the petitioner was not located. Later that same day, HaMoked was informed that he had been located and was being held in Kishon Detention Center. Despite this, when HaMoked called Kishon Detention Center, the respond was that the petitioner was not listed on the computer and was not being held there.
HaMoked then contacted the judge advocate’s office, which replied that the petitioner was indeed being held in Kishon Detention Center. However, when HaMoked contacted Kishon Detention Center and the Control Center, it was again told that the petitioner was not on record as being there.
On 11 March 2005, an attorney on behalf of HaMoked went to Kishon Detention Center to visit the petitioner. Upon arrival, he was told that the Petitioner was not listed on the computer, and hence was not detained there. Only following a lengthy delay and the insistence of the attorney was it “discovered” that the petitioner was being held in the facility.
On 22 March 2005, after finding that the petitioner had not yet been listed on the records in the place where he was being detained, the petitioner’s counsel wrote to the commander of Kishon Detention Center, demanding that the detainee be recorded and that a thorough investigation be made into why he was not recorded, and why the flaw had not been rectified when it was uncovered.
On 7 April 2005, the petitioner’s counsel went to Kishon Detention Center to visit the petitioner. At reception, following a check of the computer terminal, she was told that there was no record of the petitioner and that he was not being held there. Only after the petitioner’s counsel insisted that the petitioner was being detained in the interrogations wing of the detention center was it confirmed that he was being held there, and the request to visit him was granted.
The conditions in which the petitioner was held in Kishon Detention Center
During his detention in the interrogations wing of Kishon Detention Center, the petitioner was kept in a number of cells. His description paints a severe picture of the conditions in which he was held: the cells were 3.0 X 1.5 meters and contained at least two more detainees. The cells did not have beds, and he and the others slept on mattresses on the ground. The toilets were not separated from the rest of the cell. Once or twice a week, a GSS agent came and offered the petitioner and the others in the cell a chance to go and take a shower. The petitioner was never permitted to take a daily walk in the yard. He was not allowed to receive visitors or to send or receive letters. Only once, after his interrogation ended, he was allowed to make a telephone call to his mother. Although he suffers earaches, the petitioner’s repeated requests to be examined by a physician were rejected.
The petition filed by HaMoked and the court’s decision
After it appeared that requests regarding the keeping of a record of the petitioner in the detention center were completely ignored, and that the petitioner continued to be held in the interrogations wing in harsh conditions, even though an indictment had been filed against him, HaMoked filed a petition in the Court for Administrative Matters in Haifa.
The petition emphasized the right of the detainee to have his place of detention clearly known to all, and the importance that his presence in the place of detention be on record:
"Only then can his family and attorney check with the persons in charge of the place of detention about his status, his health, the detention conditions, if and when it is possible to visit him, and the like. Only then can they act to ensure exercise of his rights as a detainee. Also, the right of a detainee to be present at the legal proceedings against him depends on a proper record being kept in his place of detention".
In addition, HaMoked’s petition contends that the detention conditions in which the petitioner was held violated the law. The Criminal Procedure Law (Enforcement Authorities – Detention) and the regulations enacted pursuant to it state that it is permissible to restrict certain rights given to a detainee by law, but that these restrictions only apply to detainees before an indictment has been filed against them.
On 20 April 2005, a court hearing was held on the petition. It should be mentioned that, shortly before the hearing, the authorities decided to move the detainee to Gilboa Prison, but he was moved for some reason to Megiddo Prison. Judge Ron Shapira pointed out that it was hard to avoid the impression that the filing of the petition led to the petitioner’s transfer to another prison. Also, the judge was surprised that Megiddo Prison officials did not know of the intention to move him to Gilboa Prison.
Judge Shapira criticized the way the authorities kept a record of the petitioner:
"… It should be made clear that there is an obligation to make a precise record of all who stay in every detention facility in a way that enables their relatives to locate them. This [obligation] is mandated both by statute and by the decisions of the Supreme Court, and these provisions must be complied with.
We cannot accept a situation in which a detainee is held in a detention facility and his family does not know where he is being held and is unable to ensure protection of his fundamental rights. If some technical fault occurred in the case of this petitioner, it should be checked, and if there was a deliberate decision and it was part of normal working method, it is an unacceptable method in violation of the law".
The judge also related to the holding of the petitioner in the detention center after his interrogation had been completed:
"This action was in itself improper, in the sense that a detainee whose interrogation has ended and is being held until the end of the proceedings against him should be held in a Prisons Service facility and be provided the conditions of a prisoner…. Obviously, the rule must be that a detainee whose interrogation has ended and is being held until the end of the proceedings against him shall be held by the Prisons Service in a wing intended for prisoners, and the exception must be, then, an exception and be based on reasonable and substantive grounds".
Subject to these comments and since the petitioner had been moved to Megiddo Prison, the petition was dismissed.
In light of the court’s decision, HaMoked again wrote to the commander of Kishon Detention Center regarding the petitioner’s matter and regarding the failure to record another detainee being held there. In the letter, HaMoked requested that a thorough investigation into the failure to record the two detainees be conducted, and asked what had been done to ensure that the failure did not recur. Despite repeated requests, and although the court was stern in its condemnation of the failure to have a record of the detainee, the commander of Kishon Detention Center has continued to defend his actions. In his reply, sent on 3 May 2005, he wrote:
"The above-reference detainees did not go through intake and thus were not recorded as belonging to the detention center, and also were not listed as being in the security wing that is part of Kishon. There are situations in which security detainees are transferred for interrogation purposes from facility to facility, and they are not connected in any way to the detention center"…
