The judgment was given in a petition filed by HaMoked to allow a former inmate to visit his brother who is incarcerated in Israel, after the Israel Prison Service (IPS) opposed the visit.
In the petition, submitted to the court on May 14, 2009, HaMoked argued that the IPS – by ignoring the petitioner’s appeals to it on this matter – violated a ruling by the High Court of Justice (HCJ). The aforesaid judgment found,
inter alia, that Regulation 30(A) of the Prison Regulations 5738-1978 which establishes that a person who was a criminal prisoner would not visit a prisoner in prison other than with the commissioner’s approval, obliges the IPS to respond to applications within 14 days of the date of submission. Therefore, HaMoked argued, not only has the IPS violated a judgment by the HCJ in refraining from responding to the petitioners’ appeals and from authorizing a visit by the former inmates, but it has also violated the rights vested in prisoners and their relatives by Israeli and international law, including the right to family life.
In the response submitted to the court, the IPS claimed that the petition must be rejected out of hand as the petitioners have an alternative remedy at their disposal – a prisoner’s petition – which the petitioners were attempting to circumvent.
It is worth noting that a number of months ago, in a petition on an identical issue which was heard before the HCJ, the IPS raised the very same argument.
In a decision handed down in that petition, the HCJ rejected this position by the IPS, finding that the petitioners were correct in that Regulation 30(A) of the Prison Regulations 5738-1978, which lay at the base of the petition, refers to former inmates and not the prisoners awaiting a visit from them. Therefore, the court ruled that one must reject the IPS’ position that former inmates who wish to visit their incarcerated relatives have an alternative remedy in the form of a prisoner’s petition, as it is an entirely different remedy.
In complete contrast to the decision of a few months ago, in its December 9, 2009 judgment, the HCJ turned the tables and ruled that the petitioners do indeed have an alternative remedy in the form of a prisoner’s petition and therefore rejected the petition. HaMoked stresses that this unfortunate ruling which prevents access to the courts from the direct victims of a decision by an administrative authority is a dangerous precedent and is in complete contrast to the fundamental principle of due process.
And, as if this were not enough, the court goes further and i
n another judgment from the same day, with some of the same justices presiding – uses an argument which is the complete opposite of the judgment at hand. In that judgment, handed down in a petition by residents of the Gaza Strip seeking to visit relatives who are incarcerated in Israel, the court rejected the petition using the opposite argument: despite the fact that the prisoners are the ones injured by the refusal to allow their relatives to enter Israel in order to visit them, indeed, the prisoners are not the focal point of the issue, their relatives wishing to visit them are, and as such, the injury is merely indirect.
In conclusion, HaMoked stresses that along with the seal of approval the HCJ gives this severe infringement on the right of those former inmates to due process and the denial of their constitutional right to access the courts, it is important to remember that the reason the former inmates were forced to submit the petitions themselves is none other than the outrageous conduct of the IPS in the time leading up to the submission of the petitions. At that time, the IPS delayed answering appeals by prisoners for many months and routinely responded with unexplained refusals to applications for visits by former inmates. Now, when the HCJ is also shutting the door on former inmates, there is a real concern that the IPS will soon return to its old ways, when it is entirely unclear whether prisoner’s petitions are a solution for this plight.
To view the petition dated May 14, 2009 (Hebrew)
To view the Judgment dated December 9, 2009 To view the court’s decision dated June 25, 2009 (Hebrew)
