The right to a lawyer - Case analysis
[31 May 2018] – On 2 August 2017, a judge at Ofer military court rejected the admissibility of a statement given by a Palestinian minor during a police interrogation in the West Bank on the basis that, inter alia, the boy was denied access to a lawyer prior to interrogation as required under Israeli military law.[i] (Military Prosecution v Anonymous (minor), Case 3758/17). This is at least the second time that Judge Lt. Col. Yair Tirosh has rejected evidence based on a lack of access to a lawyer. However, recent evidence indicates that over 80 percent of minors continue to report being interrogated without prior access to a lawyer.
Facts of the case
On 11 March 2017, a Palestinian minor attempted to pass through an Israeli military checkpoint in Hebron while carrying a knife concealed under his shirt. When the metal detector sounded a soldier ordered the boy to lift his shirt revealing the knife. The boy immediately placed the knife on the ground as instructed and he was arrested.
The boy alleged that he wanted to be arrested due to his personal circumstances but that he had no intention of harming anyone. The military prosecution’s case was that the boy came to the checkpoint with the intent to “stab Jews”.
The boy was charged with knife possession and attempted assault under aggravating circumstances. The boy pleaded guilty to the possession offence but defended the assault charge. Much of the case turned on the manner in which the boy’s interrogation was conducted by the police. The boy was represented at trial by Nery Ramati from the law firm of Gabby Lasky & Partners.
The court found that the evidence did not support the Prosecution’s case that the boy intended to stab anyone but also ruled that the boy’s statement given to the police shortly after his arrest was inadmissible because he was denied his legal right to consult with a lawyer prior to interrogation and no waiver of this right could be implied. The court also referred to a number of other shortcomings in the manner in which the interrogation was conducted, including:
- The audio-recording of the interrogation was incomplete and did not include most of the period when the interrogator said he was explaining to the boy his legal rights.
- The boy signed a document printed in Arabic about his legal rights but only part of the document was explained to him. It also transpired that the boy could not read or write.
- As is the usual practice, the interrogation was conducted in Arabic and documented in Hebrew. However, the Police statement written by the interrogator in Hebrew omitted crucial information including the boy’s denial when it was suggested that he had gone to the checkpoint to “die as a martyr”.
- The decision to proceed with the interrogation without first informing the boy’s parents was not properly documented or authorized as required.
Under article 56 of the Security Provisions Order (Military Order No. 1651) a detainee has the right to consult with a lawyer (exceptions apply) and article 136c provides explicit instructions to investigators as to how children should be notified of this right.
After citing the relevant case law from the Supreme Court (Isacharov v The Military Prosecutor) and military courts, Lt. Col. Tiroshreiterated that the right to consult with a lawyer during the interrogation stage is a basic right and, in the circumstances of this case, the interrogating authorities blatantly violated the rights granted to the boy, including his right to a lawyer and his right to be properly informed of this and his other rights.
While this decision, and the decision in Military Prosecutor v Anonymous (Case 2030/16)are significant, it is worth noting the following:
- The overwhelming majority of cases in the military courts end in a plea bargain prior to final hearing and so these issues are rarely litigated before a judge;
- Recent evidence indicates that 82 percent of minors continue to report being interrogated without first consulting with a lawyer and 84 percent without being informed of their right to silence.
- In order to give full effect to the legal right to consult with a lawyer prior to interrogation the military courts should be required to conduct a preliminary enquiry at the first hearing following arrest to determine whether or not this right was respected. In cases where the prosecution is unable to establish that the right was fully respected the case should be summarily dismissed.
Finally, although Arabic is still an official language of the State of Israel and the exclusive language of the accused in the military courts in the West Bank, this decision has not been translated into Arabic by the military authorities. This decision was recently translated into English by MCW.