[31 May 2017] - In a recent decision handed down by the Military Appeals Court on 2 April 2017, (Military Prosecution v A. and another), Judge Lt. Colonel Ronen Atzmon identified numerous shortcomings in the manner in which two Palestinian minors were interrogated. The minors, both below the age of 15, were interrogated by Israeli police in Jerusalem on allegations of stone and pipe bomb throwing at Israeli soldiers in the West Bank in February 2017. The Court noted serious discrepancies between the regulations designed to protect the rights of accused minors and the practice on the ground.
Discrimination based on race or national identity - The Court noted that one of the minors was a Palestinian citizen of Israel who was interrogated in Jerusalem but prosecuted in a military court in the West Bank. While this is permitted under Israeli law, the Court noted that if a Jewish citizen of Israel commits a crime in the West Bank, even if interrogated in the West Bank, he/she would "probably be interrogated and tried in accordance with Israeli civilian laws". The Judge noted that "the decision to interrogate an Israeli citizen within the boundaries of Jerusalem, but do so in accordance with the military law of the Area (West Bank), due to the minor being an Arab, instills a sense of discomfort."
Absence of a Youth Interrogator - The Court noted that in accordance with Police procedures a trained Youth Interrogator should have conducted the interrogation. However, the evidence indicated that just 1 out of the 9 interrogation sessions (11 percent) was conducted by a Youth Interrogator.
Absence of a parent during interrogation
- Under Israeli civilian law the minors' parents should have been summoned and allowed to be present during the interrogation. No such right exists under Israeli military law but the authorities have acknowledged that there is a discretion to permit parents to attend interrogations. Evidence
collected by MCW in 2016 indicates that 93 percent of children detained under military law continue to be interrogated in the absence of a parent.
Access to a lawyer of choice
- Under both the civilian and military legal systems the minors should have been permitted to consult with a lawyer of their choice prior to questioning. However, in this case when the minors asked to consult with a lawyer the interrogators chose to contact an unknown lawyer whom no one had asked for. In contrast, when a lawyer contacted by the family arrived at the police station, around 30 minutes after the beginning of the interrogation, she was not permitted to meet with her clients. Evidence
collected by MCW in 2016 indicates that 90 percent of minors detained under military law continue to be denied access to a lawyer prior to interrogation.
Interrogated during daytime hours - Under Israeli civilian law minors should generally only be questioned during daytime hours. No such protection exists under Israeli military law and interrogations are frequently conducted at night and while the minor is sleep deprived.
The right to silence
- The Court noted that a caution should have been given to the minors in accordance with the wording under Israeli civilian and military law. Israeli military authorities informed UNICEF in December 2013 that a form in Arabic detailing a minor's legal rights, including the right to silence, had been developed for distribution prior to interrogation. Evidence
collected by MCW in 2016 indicates that 88 percent of minors detained under military law continue not to be informed of their right to silence prior to interrogation.
Handcuffed during interrogation
- The Court noted that according to the Youth Law and Police regulations, minors should not be handcuffed unless this is necessary, and this may only be done for the shortest possible time. In this interrogation, as seen in the video footage, the minors were handcuffed for many hours, with no apparent justification. Furthermore, at some point the interrogator was heard saying to the minor that if he does not cooperate, he will handcuff him again. In other words, the handcuffs were being used as a means of pressure rather than for the interrogator's security. Evidence
collected by MCW indicates that many minors detained under military law remain tied during their interrogation, and in a few cases, remain blindfolded.
Threats and verbal abuse
- The Court noted that "at some point in the interrogation the interrogator threw a piece of clothing in the minor's face, while the latter was sitting handcuffed in front of him, and later voiced threats and verbal abuse, which violate the dignity of the interrogated minor but also that of the interrogator and the reputation of the Israeli Police". Evidence
collected by MCW in 2016 indicates that 54 percent of minors detained under military law reported threats and 43 percent verbal abuse.
Discrepancies and shortcomings in recording interrogations - The Court noted a number of serious shortcomings in the manner in which the interrogations were recorded. First, much of the interrogations were not recorded by any means - there was simply no record of what took place; secondly, parts of the interrogation were filmed, but not noted, while other parts were noted, but not filmed. In cases where the interrogation was both filmed and noted, the Court found "large" discrepancies between the police notes and the video footage.
The legal process in this case was ultimately concluded by way of plea bargains favourable to the accused minors. However, the Court noted that "the Police need to clarify to all interrogators the importance ascribed to abiding by the regulations as to interrogations of minors, to uphold the rights of interrogated detainees as well as ensuring that trust in Police statements is not diminished, so that the work of the interrogators will not be done in vain."
Although the Court noted that this was far from being an isolated incident the Judge stated that he could not say whether the shortcomings listed above would have resulted in the statements given by the minors during interrogation being ruled inadmissible by the Court. And therein lies the problem - there is very little incentive provided by the law or the military courts to encourage interrogators to comply with the regulations for conducting interrogations of minors. Further, very few cases are reviewed by the courts to this degree due to the prevalence of plea bargains - resulting in limited exposure or oversight of the interrogation process.
Without effective incentives, such as the automatic exclusion of improperly obtained evidence by the military courts, it is highly improbable that the shortcomings identified by the judge in this case will be satisfactorily resolved in accordance with existing regulations and the rule of law.
Although decisions of the Military Appeals Court are binding on lower courts this decision has not been officially published in Arabic.