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9.9.2013

Though Palestinian detainees continue to "disappear" and their families receive no notification regarding their whereabouts: the court refuses to instruct the state to change the protocol governing registration of detainees and notification of their arrest

On November 21, 2012, HaMoked filed an urgent petition for a Writ of Habeas Corpus, in order to reveal the whereabouts of a 16-year-old Palestinian. He was arrested 24 hours earlier, when he arrived for interrogation at the Etzion police station. Shortly after the petition was filed, the state notified HaMoked that the teen was held at the Ofer prison, but it was only 60 hours after the arrest that he was processed and registered at the prison. Security forces had held him, without keeping record, in the kitchen of a nearby army base, where he was subjected to torture and ill-treatment.

During the hearing of the petition, HaMoked stressed that this omission was not an isolated incident and that there were systemic issues with providing notification of the whereabouts of detainees. As a result , the court instructed the state to submit a detailed response with respect to the protocol governing registration of detainees and issuance of notices regarding their arrest.

In its response, the state relied, among other things, on the arrangement reached in 1995 in the Hirbawi case. According to this arrangement, the army control center must collate and provide up-to-date information regarding the whereabouts of detainees within 24 hours of receiving a tracing request. The state argued that the overall performance of the control center was reasonable and appropriate and that the petitioner's case was an isolated aberration. However, the state added, "in order to minimize repeat occurrences of such errors, the soldiers staffing the control center have been instructed to make further inquiries with the regional brigades in the West Bank and the Military Police in the various military commands when detainees are not found at facilities belonging to the Israeli prison service, police or military. Given these instructions, the state requested the petition be dismissed on the general aspects and withdrawn on the individual aspect.

HaMoked stood its ground on the general aspects raised in the petition, arguing that the problem lies mainly in the fact that the law does not require police officers to enter information regarding detainees held in police stations into the computerized database, and the officers simply record detainees in the station logbooks manually. This results in detainees that "disappear" and cannot be traced by the control center. HaMoked demanded procedural changes that would require police officers to keep general, organized records that are accessible to the control center and would allow it to quickly trace detainees held by the police. In addition, HaMoked insisted that when detainees "disappear" for an unreasonable amount of time, as in the case discussed in the petition, the control center would be instructed to provide full details of what happened to the detainee from the moment of the arrest until the detainee was located, in addition to the information regarding the current place of detention. HaMoked further demanded, in its submission of June 9, 2013, that the control center be instructed to expedite tracing, particularly in cases in which the detainees are minors or women or when they suffer from an illness. HaMoked stressed that in such cases, the 24-hour period pledged by the state in Hirbawi was unreasonable, especially considering the improvements made in the computer systems used by the detaining authorities.

On August 22, 2013, the HCJ rejected the petition. The justices did not discuss the remedies related to detainee registration in police stations and expediting the processing of applications to trace detainees. The justices said that these remedies were "a departure from scope of review required in this petition. They were not raised by the petitioners originally and therefore this is not the context in which to rule on them". With respect to the remedy related to providing information about detainees from the moment of the arrest until they are traced, the justices accepted the state's position that this remedy was not as urgent as locating a "missing" detainee and informing his family of his current whereabouts, and therefore, the control centre was not the agency that should make such inquiries. Instead, the court ruled, in cases of failures that require investigation into the history of detainees' movements prior to being traced, a request to state authorities to provide factual information would suffice and such requests would be answered within the timeline provided for in the law.

HaMoked stresses that filing a request with an authority is a process that often takes many months and, furthermore, fails to meet the immediate need to correct serious errors that result in breaches of the law and violations of detainee rights. The case at hand shows how far such violations can go when a helpless minor is held in an unrecognized place of detention, in improper conditions, while his family has no knowledge of his whereabouts and the authorities are unable to trace him. In deciding not to grant the remedy meant to enable swift, real-time exposure of unlawful conduct by the agencies tasked with arrests in the West Bank, the court allows the state to continue ignoring its obligations toward detainees and settle for retroactive investigation of irregularities.
mail@hamoked.org.il (02) 627 1698   (02) 627 6317

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