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9.7.2009

The Court rejected an application under the Contempt of Court Ordinance in the petition against the ISA's use of torture in interrogations: the application was submitted by HaMoked: Center for the Defence of the Individual, the Association for Civil Rights in Israel and the Public Committee against Torture in Israel

In the application, which was submitted to the HCJ on 2 November 2008, the organizations claimed that the Israel Security Agency (ISA) was ignoring an HCJ judgment given in 1999, which explicitly stated that ISA officers do not have "the authority to ‘shake’ a man, hold him in the  ’Shabach’ position, […] to force him into a ’frog crouch’ position and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the ‘necessity defense’, found in the Penal Law, cannot serve as a basis of the authority for the use of these interrogation practices, or for the existence of directives pertaining to […] investigators, allowing them to employ interrogation practices of this kind".  The organizations claimed that this was grave and systematic contemptuous conduct, which has been enshrined in directives and procedures and persisted for 9 years and that it necessitated exceptional enforcement measures – the arrest of those responsible, namely, the prime minister and the head of the ISA. The application was backed by many reports, testimonies and publications, proving the organizations' claims.

On 6 July 2009, the HCJ ruled that the application must be rejected as "the judgment whose violation the petitioners protest was of a declaratory nature. [The question of] what is prohibited or allowed as a result of that judgment cannot to be decided according to the rules of contempt of court."

In a brief decision, only one page long, the court effectively accepted the ISA's vigorous denial of the existence of a procedure which sanctions the use of extraordinary measures in the course of an interrogation. The Court ruled that the petitioners did not provide a "sufficient factual basis" to support the serious claims they raised against the ISA.

In a perplexing measure, the Court found room in its brief decision to scold the organizations' counsel for the wording of the application, which ostensibly included a covert threat directed at the agents of the State, including the Court.

To view the application under the Contempt of Court Ordinance dated 2 November 2008 (Hebrew)

mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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