Litigation
In association with Attorney Gaby Lasky, MCW monitors litigation in the military courts, the Military Appeals Court and the Supreme Court. MCW does not provide general legal aid services to defendants prosecuted in the military courts, but seeks to challenge key aspects of the system through targeted litigation in co-ordination with the group’s advocacy strategy.
| Military Prosecutor v A.B. | ||||||||||
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Case: Military Prosecutor v A.B.
Court: Ofer Military Court
Judge: Major Shahar Greenburg
Lawyer: Nery Ramati, Gaby Lasky & Partners
Date: 15 July 2013
Issue: Admissibility of improperly obtained evidence
Background:- A 15-year-old Palestinian boy was charged with throwing stones at a demonstration in the West Bank. During the course of the trial, the evidence revealed that:
The evidence against the boy consisted of his own confession, and that of three other children. The three other children all claimed that they had been beaten and threatened during questioning before the audio-tape was turned on.
Decision:- In a written decision, Judge Major Shahar Greenburg was highly critical of the manner in which Sergeant Major Solomon Desta, an Israeli police investigator stationed in Hebron, conducted the investigation. The judge rejected the confession of one child who was threatened with physical violence whilst the audio-tape was on, but accepted the confessions of the other children who alleged they were threatened whilst the tape was switched off. Judge Greenberg went on to add that: “When dealing with a minor being questioned for the first time by police, without his family present, the imposing atmosphere of an interrogation with shouts every time the suspect did not respond to the investigators questions in fulfillment of the investigator’s expectations, raises serious questions regarding the reliability of the confession.” However, having detailed numerous defects in the investigation, Judge Greenberg found the boy guilty and sentenced him to nine months imprisonment.
Commentary:- As the treatment of children in Israeli military detention comes under greater scrutiny, a trend is emerging whereby military court judges are prepared to be highly critical of the manner in which the police interrogate children, but nevertheless find the child guilty.
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| Military Prosecutor v A.T. | ||||||||||
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Case: Military Prosecutor v A.T.
Court: Ofer Military Court
Judge: Major Sharon Rivlin Ahai
Lawyer: Gaby Lasky, Gaby Lasky & Partners
Date: 9 January 2012
Issue: Admissibility of improperly obtained evidence
Background:- On 23 January 2011, a 14-year-old Palestinian boy (A.T.) was arrested at night by Israeli soldiers from his home in the village of An Nabi Saleh, in the West Bank. A.T. reported that his arrest was violent and threatening. The army maintained custody of A.T. for several hours before handing him over to the police for interrogation. Whilst in the army’s custody, A.T. was unable to sleep and was not given any food or water. The police commenced interrogating A.T. in the absence of his lawyer, even though they were informed that the lawyer was on the way to the police station and would arrive within the hour. A.T. was questioned by four interrogators, of which only one was a trained youth interrogator. A.T. was not properly informed of his right to silence and only saw his lawyer following five hours of interrogation. Unusally, the interrogation was audio-visually recorded and A.T. appeared tired and exhausted, breaking down in tears on one occasion. During interrogation, A.T. made statements that were subsequently used as evidence to arrest and prosecute two community leaders from his village who were allegedly involved in organising weekly demonstrations against the nearby settlement. Two days after his arrest, A.T. was remanded in custody by Ofer military court. On 30 January 2011, A.T. was charged with throwing stones and participating in a demonstration without a permit. A.T. remained in detention for two months before being released on home detention.
Issue:- A.T.’s lawyer, Gaby Lasky, brought an interlocutory application to challenge the admissibility of the statements made during interrogation on the grounds they were not free and voluntary, as required under Israeli military law. Although many legal protections provided to children under Israel’s civilian juvenile justice system (Youth Law) do not apply under military law, the Military Appeals Court has stated that the “spirit” of the Youth Law “influences” military law (per former President of the Military Appeals Court, Col. Aharon Mishnayot in Military Prosecutor v N.A. (2009)). Under Israel’s Youth Law, children should not be interrogated at night (and by implication arrested at night); they must be informed of their right to silence; are entitled to see a lawyer prior to questioning; should be accompanied by a parent throughout; and must be questioned by a trained youth interrogator. Accordingly, Lasky argued that statements made by A.T. during interrogation were not admissible as evidence because:
Decision:- In dealing with the manner in which A.T. was arrested by the army, the judge accepted that “in certain circumstances, the use of violence, threats, or inappropriate treatment of the detainee immediately before his interrogation could influence the free admission of his guilt” but found “no support for the claim that the manner in which the defendant was detained affected his statement to the police.” In dealing with the manner in which A.T. was interrogated, the judge stated as follows:
Absence of a parent – “The police should try to uphold the obligation allowing parents in the interrogation … as long as the conditions in the region permit it.” Although the judge went on to find that “no real effort was made to check the option of having the parents present in the interrogation,” she held that the absence of a parent was not a “substantive flaw”.
Prevented from meeting lawyer – The judge accepted that the interrogators knew A.T.’s lawyer was on the way and that given his age and the absence of his parents, they should have waited a reasonable time before commencing the interrogation. However “it is hard to say that the decision not to wait … was so unreasonable and unjust that it critically undermined the fairness of the interrogation.”
Sleep deprivation – “In general, a minor arrested at night should be allowed to rest before interrogation and, when appropriate, the interrogation should be halted to allow the defendant to rest if he complains of tiredness.” However, the judge formed an impression in this case that A.T. was not so tired as to result in a “substantive flaw” in the interrogation.
Right to silence – The judge found that the failure to inform A.T. of his right to silence “is a substantive defect that under no circumstances can be considered a 'technical’ defect” and that it is an “absolute obligation” to inform a defendant of this right.
In a surprising conclusion given the specific findings in relation to the failure to inform A.T. of his right to silence, the judge concluded that although the defects in the interrogation were serious, they “did not have a substantive effect on the manner in which the defendant gave his confession … to the extent that would render his confession inadmissible.”
Commentary:- This case highlights the differential treatment children receive under Israel’s civilian and military legal systems. Statements by the Military Appeals Court to the effect that the “spirit” of the Youth Law influences military law are wholly inadequate to protect the rights of children. There is no legal justification for this differential treatment and all children subject to Israel’s penal jurisdiction should be guaranteed the same legal protections.
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