S t a t e o f I s r a e l M i n i s t r y o f J u s t i c e. The Legal Counseling and Legislation Department (International Law)

Transcription

1 S t a t e o f I s r a e l M i n i s t r y o f J u s t i c e Date: Av 9, 5774 August 5, 2014 Re: Palestinian Minors in Military Juvenile Justice System Executive Summary 1. The State of Israel attaches great importance to strengthening and promoting the protection granted to minors in the military justice system in the West Bank, while simultaneously taking into consideration the unique circumstances and security situation in the West Bank. This is reflected in both legislation and practice. 2. Law enforcement operations in the West Bank take place in the highly complex and complicated setting inherent to an armed struggle; Israeli law enforcement activities are carried out in hostile Palestinian towns and villages where every law enforcement activity has the potential of leading to wide-scale armed and violent riots. 3. The severity of the crimes committed by the Palestinian minors and their often ideologically-motivated nature create a unique set of demands from the criminal justice system. Terrorist organizations work to instill a sense of hatred through the indoctrination of children starting in pre-school and continuing all the way through adulthood, using children to advance their political goals. This education leads to many violent acts, including throwing stones and Molotov cocktails towards security forces and civilians % of crimes committed by the youth of the West Bank are violent. 4. The lack of cooperation by the Palestinian Authority should also be considered in this situation making it almost impossible to provide alternatives to detention. 5. It is against this background that Israel's military justice system, which was established in accordance with the Geneva Conventions, operates. This system, P.O. Box 9299 Tel-Aviv Tel: Fax: International@justice.gov.il

2 2 comprised of independent judges, has the same evidentiary rules and procedures as in Israel and is bound by the rulings of Israel's Supreme Court. 6. Judges working in the Israeli judicial system, as well as all law enforcement agencies are committed to uphold the rights of minors and to investigate any allegations of ill-treatment. 7. Since 2008 an interdepartmental team headed by the Deputy Attorney General (Criminal Law) has been tasked with assessing and reforming policies with regard to minors in the West Bank. As a result of this effort, criminal law and practice regarding minors in the West Bank have undergone significant reform. These include: 7.1. The establishment of a Juvenile Military Court; 7.2. Raising the age of majority to 18; 7.3. Introducing a special statute of limitation for minors; 7.4. Improving notification to the family of the minor and to the minors themselves regarding their rights; 7.5. Reducing detention periods.

3 3 I. Introduction 8. The State of Israel attaches great importance to strengthening and promoting the protection granted to minors in the military justice system in the West Bank, while simultaneously taking into consideration the unique circumstances and the security situation in the West Bank. 9. This can be demonstrated through a decision of the Israeli Military Juvenile Court from 31 August 2009 which stated "a minor is a minor is a minor; whether he lives in an area where Israeli law applies to its fullest or in an area where Israeli law might not fully apply, but [the minor] is still subordinated to the direct effects of the Israeli legal system". 1 This important judicial statement has since been quoted by the military courts in several subsequent decisions pertaining to minors. 10. The key legal instrument regulating criminal law and procedure in the West Bank, including the prosecution of Palestinian minors before the Military Courts, is the Security Provisions Order [Consolidated Version] (Judea and Samaria) (no. 1651) ("Security Provisions Order"). Following comprehensive amendments to the Youth (Trial, Punishment and Modes of Treatment) Law ("Youth Law ) that applies in Israel in 2008, the Israeli Government initiated an extensive review of the criminal law relating to minors in the West Bank, including examining the provisions of the Israeli Youth Law and their possible adaptation to the Security Provisions Order, insofar as possible under the circumstances. 11. The review of the criminal law applicable in the West Bank was two-fold. First, an extensive examination of the implementation of criminal law regarding detention periods in the West Bank was undertaken. This was carried out by a team of specialists from the relevant bodies, the purpose of this examination was to enhance the protection of the rights of detainees, suspects, and persons indicted in the West Bank. This work resulted in significant shortening of the 1 See: A.A. 2912/09 The Military Advocate General v. N.A.R.

4 4 detention periods in the West Bank. Second, a specific review regarding Israel's dealings vis-à-vis minors in the military juvenile justice system in the West Bank was initiated, with significant changes made, as detailed below and of which is the focus of this paper. 12. In addition to the amendments already made, there remains an ongoing review process regarding the legal norms of the juvenile criminal justice system in the West Bank. This review is carried out under the auspices of the Deputy Attorney General (Criminal Law) and in conjunction with senior officials from various governmental departments and is meant to ensure that the system is constantly under review and amended if required and appropriate. Governmental departments such as the Military Advocate General's Corps (MAG), the Military Courts system, the Police, the Israeli Prisons Service (IPS) and the Israeli Security Agency (ISA) are involved. This review process consists of the provision of information from the field, on a regular basis, to enable the addressing gaps and issues as they emerge. II. Minors' Involvement in Terrorist Activities 13. The nature of the Israeli-Palestinian conflict in the West Bank, together with the severity of crimes committed there and their often ideologically-motivated character, create a unique set of demands from the criminal justice system in the West Bank. Moreover, law enforcement operations in the West Bank take place in a highly complex and complicated setting inherent to an armed struggle; Israeli law enforcement activities must be carried out in hostile Palestinian towns and villages where every law enforcement activity has the potential of leading to wide-scale armed and violent riots. 14. The presence of terrorist organizations is widely felt in the West Bank; one of their key motives is to instill a sense of hatred against the State of Israel and its citizens through indoctrination of the population starting in pre-school and continuing all the way through to adulthood. This education leads to regular violent activities, ranging from throwing stones and Molotov cocktails, to armed attacks and violent terrorist activities, targeted against military personnel and civilians alike.

5 5 15. Unfortunately, minors play a significant part in these acts; however the danger and damage caused, by their actions, is usually the same as if the acts are performed by adults. Consequently in 2013, of the 470 indictments filed against minors, 54% related to stone throwing, 14% to throwing Molotov cocktails, 23% to offences pertaining to the possession and use of paraphernalia, membership in terrorist organizations, assault against IDF soldiers, etc. and only 9% concerned criminal, rather than security related offences. 16. For example, in March 2011, five family members of the Fogel family, including a four month old baby, a four year old and an eleven year old child and their parents, were brutally slain by two Palestinians. Amongst the perpetrators was Hakim Awaad, a 17 year old minor at that time. Additionally, on March 14 th 2013, whilst driving on highway 5, Adva Bitton and her three daughters, aged three, four and five, were directly hit by stones thrown at their car by five Palestinian minors. Adelle, the (then) three year old, had to undergo two emergency surgeries and suffers from permanent brain damage. On 13 November 2013, a 19-year-old Israeli, Eden Attias, was stabbed to death, while sleeping on a bus, by a 16-year-old Palestinian. 17. This situation, in which Palestinian minors are often involved in criminal activity, both of a more negligible nature and unfortunately, an extremely serious and often deadly one, is very delicate; particularly given the security situation. It requires a criminal system which adequately balances the State's need to protect human life and its national security, and to guarantee (insofar as possible) some form of peace and order in the region, whilst simultaneously upholding the legal rights of the minor arrested or indicted. With this is mind, the decision as to whether an offense is of a security or criminal nature is evaluated throughout the process. III. Major Legislative Amendments 18. Many of these rights of Palestinian minors had, to some extent, been previously granted by the Military Courts in the West Bank. However several significant amendments made in order to better protect the rights of detained and accused minors were enacted as legislative amendments to the Security Provisions

6 6 Order. Furthermore, many changes were made to the regulatory and enforcement aspects, that necessitated measures to be taken by all the relevant bodies, as detailed throughout this document. The most pertinent improvements and protections include: Establishment of the Juvenile Military Court - On July 29, 2009 a Juvenile Military Court was established. This specialized court, presides exclusively over cases involving defendants who are minors (persons under the age of 18). The judges of this court are specifically appointed by the Chief Justice of the Military High Court of Appeals. Only judges that have received relevant professional training, similar to the training offered to justices of the Youth Courts in Israel, are qualified to serve as juvenile judges as single judges or as a head of a judicial panel. In addition, most proceedings involving minors must be held separately from those of adults, and a minor may not be indicted together with an adult, unless such an indictment is specially approved by the Military Advocate General, or a person appointed by him/her Special statute of limitations - A person who was a minor when the offense was committed may not be indicted if more than one year has passed since the commission of the offense, unless specially authorized by the Military Advocate General or a person appointed by him/her. The statute of limitation for security offences committed by minors is two years. Furthermore, the list of offences regarded as security offences was recently reevaluated and was significantly reduced which led to a decrease in the limitation period for many additional offences Raising the age of majority - In September 2011, the Security Provisions Order was amended to raise the age of majority from 16 to 18. However, even prior to this legislative amendment, the Military Courts in the West Bank considered juvenile offenders between the ages of 16 and 18 as minors in many other aspects.

7 Informing the minor's parents Subject to some exceptions, there is an obligation to inform a minor's parent or close adult relative, as per the contact details provided by the minor, when a minor is brought to a police station for investigation. Additionally, the Juvenile Military Court may order that a minor's parents be present at every hearing. Parents also have the right to act on behalf of a minor during the proceedings before the courts by filing applications, questioning witnesses and pleading either with or instead of the minor Reduction of initial detention periods: Minors under the age of 14 - the maximum detention period prior to being brought before a judge is 24 hours for all offences (with the option of an additional 24 hours in special circumstances) Minors between the ages of 14 and 18- the maximum detention period prior to being brought before a judge is 48 hours, for all offences (with the option of an additional 48 hours in special circumstances). Note that in security offences, for minors aged 16-18, the general rule will apply Reduction of the detention period of minors until the conclusion of proceedings: A minor who is held in detention further to an indictment for a period of one year (18 months for adults in security offences), and the proceedings in his/her case have not yet been concluded, must be brought before the Military Court of Appeals. Any extension of this detention period in such cases is subject to judicial review by the Military Court of Appeals no later than every three months (compared to judicial review by the Military Court of Appeals every six months for adult defendants) Time period for remand (for investigative purposes) - Military Order 1726 came into effect in October According to the amendment, a minor's initial remand for the purpose of investigation of a minor can only be extended for 15 days if necessary. This remand can be

8 8 extended again by the Military Court for periods of up to 10 days each. After a total of 40 days of investigation only the Military Court of Appeals can extend the remand for up to 90 days at a time Probation Officer's Report Following a minor's conviction, the Juvenile Military Court may, if deemed necessary for sentencing purposes, order the preparation of a Probation Officer's Report by a welfare officer in the Civil Administration. Such a report may contain information regarding the minor's background, family, financial situation, health (including that of his/her family members) and any other circumstances which may have led him/her to commit the offense. The report may also provide the Court with an assessment of the likelihood of the minor's rehabilitation. 19. Notifying minors of their legal rights The Security Provisions Order imposes a duty to inform a minor of his/her right to consult an attorney in private, before the commencement of an investigation. This must be relayed in a language which the minor understands, taking into account the minor's age and maturity. The text of the notification to be given was recently reviewed, and after receiving the approval of the Ministry of Justice, distributed to the police investigators. Furthermore, a notification of the minor's upcoming investigation must be provided to a defense attorney decided upon by the minor, for the purpose of providing him/her with legal counseling. 20. Juvenile detention centers a minor may only be held in a prison or detention center for minors, or in a wing within a general prison or detention center specifically designated for minors. The latter must be completely separated from, and inaccessible to, other wings or detainees, subject to certain exceptions which serve the minor's best interests. This separation must also be maintained in police stations and during the transferal of minors. 21. Military Order 1727 which came into effect in October 2013, and included these amendments in the Security Provisions Order as a temporary amendment to a

9 9 permanent order, out of recognition of the importance of protecting the rights of minors. IV. Recent Practical Amendments 22. In addition to legislative amendments, there have also been noticeable changes in the practice of the Israeli military justice system specifically concerning Palestinian minors In April 2013, the IDF Commander in the West Bank introduced the requirement that a form, in both Hebrew and Arabic, be provided to the parents of an arrested minor at his/her place of residence. The form provides parents with the reasons for the arrest and information as to where the minor is being taken, including a contact phone number. A copy of this form must also be attached to the minor's interrogation file In May 2013, the IDF Legal Adviser for the West Bank issued a letter to the heads of all Brigades, Divisions, Police and Military Police operating in the West Bank to remind all units of existing standard operating procedures and policies relating to the arrest of minors. The letter referred to the following requirements: blindfolds should only be used when there is a security need; handcuffing should be done at the discretion of the head of the arresting forces and should always be through the use of three plastic ties; compulsory physician examination upon the minor's detention and then further medical care as needed; immediate notification of the minors' family of the reasons for the arrest (in accordance with the form described above); immediate transferal of minors to the relevant authorities for interrogation, enabling the fast examination of the suspicions regarding the minor, and the possibility of refuting these suspicions and his/her immediate release Separation between minors and adults during arrest hearings the relevant legislation already requires that a minor's trial be held separately from those of adults. At the Military Courts' initiative and

10 01 with the consent of the Military Prosecution, amendments have been made so that minor's arrest hearings are also held separately from those of adults. 23. The IDF has been addressing this important matter throughout the chain of command in the IDF, including through routine briefings, designated training and regular debriefings before the Commander of the Central Command. The IDF has completed a detailed work plan to address the issue of minors in the military juvenile justice system, including through legal, operational and advocacy-related measures. This includes details about where resources should be allocated to establish an updated database on minors in the military justice system. V. Specific Issues Pertaining to the Juvenile Military Justice Process 24. Nighttime arrests - Minors suspected of committing criminal offences are arrested by the IDF and the Israeli Police. In many instances, the suspicion of a minor's involvement in criminal activity stems from intelligence and therefore the arrests are preplanned, and carried out at the minor's residence. All such arrests are done in accordance with strict standard operating procedures and some are conducted at night for security and operational reasons. The IDF is well aware of the complexities and challenges surrounding the timing of most arrests. However, extensive data has demonstrated that the IDF's entrance into Palestinian towns and villages during the daytime had caused wide-scale disturbances to the peace and unnecessary danger to the forces and the local population. Note that following further examination, the arrests are now planned for the early morning hours, subject to operational considerations, to curtail the length of time for the minors' transfer from the IDF to the police stations. At the same time, following extensive consultations and the examination of various approaches, the IDF Central Command has commenced a program which includes the summons of minors in lieu of nighttime arrests in the West Bank.

11 Use of restraints in Military Courts - The use of restraints is a precautionary measure against possible escape or danger to others. Due to the nature of the physical facilities where the courts are located and the severity of the alleged crimes, minors' hands and feet are restrained on their way to the court and upon their arrival there, the restraints on their hands are then removed. 26. Proactive judges - Judges in the Military Courts in the West Bank take allegations of inadmissibility of evidence very seriously. The rules of evidence applicable in Military Courts are identical to those within the State of Israel. When a defendant claims that his/her confession was elicited as a result of misconduct by the investigative authorities, the Court is required to hold a special session, in order to determine whether or not the confession is admissible. Flaws in the interrogation of minors have resulted, on various occasions, in their release from custody; to the inadmissibility of unlawful evidence; and the minor's acquittal of certain offences. 2 Such flaws may include confessions signed in a language not understood by the suspect. For this reason, all interrogations are conducted in Arabic and the minors' statements are taken and written in Arabic, or are otherwise audio or audio-visually recorded. Additionally, if a judge senses distress from the minor they would automatically carry out questioning about the interrogation, of their own volition. Furthermore, the Juvenile Military Court is vigilant in concluding the court cases of minors as quickly as possible, to lessen the burden on the minors and their families and enable them to resume their lives. 27. Investigations and audio-visual documentation Where available, youth investigators that underwent special training, carry out the investigation of minors. Similar to the situation in Israel, when necessary, these investigations are carried out, and often documented in Arabic. Although the applicable law does not require that interrogations be recorded by audio-visual means, data regarding the 465 cases of minors indicted in 2013 reveals that the documentation of a third of the cases are in Arabic and two thirds have been 2 See, for example Military Court decisions: A.A. 1411/11 D. A. v. The Military Advocate General; A.A. 2763/09 A. v. The Military Advocate General; A.A. 2912/09 The Military Advocate General v. A.-R.; and A.A. 2683/11 The Military Advocate General v. A.; Judaea Case, 2783/13 The Military Advocate General v. P.

12 02 documented through audio or video methods. These recordings are part of the investigative materials handed to the defendant and his/her lawyer after submitting an indictment. The handing over of these materials allows defense attorneys, at the early stages of the trial, to raise claims pertaining to the validity of the evidence or of the confession obtained. It also allows the courts the opportunity to hear and assess such allegations in depth and in a timely manner. 28. Legal Representation - The right to counsel and the right to avoid selfincrimination are substantive requirements under the existing law in force in the West Bank and there is a duty to inform the suspect of these rights. Any breach of these rights may result in the inadmissibility of the confession or evidence attained in court. Practice shows that minors and their families are well aware of their rights and are familiar with the relevant defense lawyers, and are fully represented. 29. Release on bail - Statistics from 2013 indicate that 17% of minors indicted before the Military Courts, were released on bail. An additional 11% of cases were concluded on the same day the indictment was submitted, and in many instances, with the minor's release. The Military Court has held, in an increasing number of cases, that when the case involves a minor, even though many of the cases involve crimes of a violent nature and there may be a risk of danger to public safety by releasing the accused, it is inclined to consider alternatives to detention based on the fact that a minor is involved. 3 As is the case with all instances of alternatives to detention, a primary factor considered before deciding if a suspect or defendant can be released on bail is the local environment to which the accused is being sent back into. If such an environment promotes violence and the endangering of public safety and order, it would be hard to allow for release on bail. Nonetheless, the Military Courts encourage defense attorneys to present evidence as to the social background of the minor already at the arrest stage and sometimes requests the Israeli 3 A.A. 2558/11 The Military Advocate General v. I. H.

13 03 authorities to do this themselves, with the view of considering the option of release on bail when the circumstances are appropriate. 30. Alternatives to detention - Even though Military Courts place particular emphasis on the rehabilitation of minors, it is often extremely difficult to create rehabilitation mechanisms in the West Bank given the vast majority of the offences are committed for ideological reasons, and the Palestinian Authority (responsible for the social welfare of the Palestinians according to the Interim Agreements of 1995) does not have a supportive social welfare system which otherwise would provide the Military Courts with better options when deciding whether there are good rehabilitation prospects. Notwithstanding these challenges, Military Courts make every effort to find rehabilitation solutions if possible. To this end, the courts give great weight to considerations of a minor's family's willingness to supervise the minor's conduct and to evidence of a supportive, positive environment, when deciding on sentencing. 31. Strip-searches - Strip searches are only conducted by IDF forces when an overwhelmingly strong suspicion exists that the suspect arrested is concealing on his/her person an object which could pose danger to the safety of the forces. Similar to the situation in Israel, when necessary, strip searches may also be conducted upon entering a prison to prevent the entrance of prohibited items into the facility. Standard Operating Procedures are in place to regulate strip searches by the Police and the Israeli Prisons Service in order to ensure that the dignity of the person searched is protected at all times.