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The right to a lawyer and admissibility of evidence - case analysis

[16 March 2017] - On 22 February 2017, a judge at Ofer military court rejected the admissibility of a statement taken from a 15-year-old boy during interrogation on the basis that, inter alia, the boy was denied access to a lawyer prior to interrogation as required under military law (Military Prosecutor v Anonymous (Case 2030/16)). This decision has potential significance, as there is evidence to indicate that up to 90 percent of children detained by the military in the West Bank continue to be interrogated without prior access to a lawyer.

Facts of the case
The decision involves the case of a 15-year-old boy who, in the company of other boys, is alleged to have been involved in throwing Molotov cocktails at a military sentry point in Hebron on or about 1 December 2015. During the incident, soldiers at the sentry point reportedly shot two boys in the legs before the boys managed to escape. Over the course of the next two months the military authorities attempted to identify the boys by identifying all children who reported gunshot wounds on the relevant date. This process ultimately led to the arrest of the Defendant in or about February 2016. 
One week after his arrest the Defendant was released on bail due to a number of weaknesses in the prosecution's case, including shortcomings in the identification evidence. Eight months later, in or about October 2016, the case came before Lt. Col. Yair Tirosh in Ofer military court for final hearing, where the Defendant was represented by Nery Ramati from the law firm of Gaby Lasky & Partners.
During the course of the hearing, the Defendant's lawyer challenged the admissibility of a statement provided by the Defendant during his interrogation. The primary objection to the admissibility of the statement was that the Defendant was actively prevented with consulting with his lawyer prior to interrogation. It was also argued that the Defendant was not properly notified of his right to consult with a lawyer and his parents were not notified of his arrest, as required under the relevant military law. 
Applicable law
Under article 56 of the Security Provisions Order (Military Order No. 1651) (the Order) 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 hearing argument from the parties, Lt. Col. Tirosh reviewed the relevant case law dealing with the right to consult with a lawyer and the consequences in circumstances where this right is violated.
Citing the Supreme Court decision in Isacharov v The Military Prosecutor the judge reiterated that the right to consult with a lawyer during the interrogation stage is a basic right for a number of reasons including the following:
  • An interrogation is a stressful experience which can result in false confessions if faced alone - particularly in the case of children;
  • Access to a lawyer ensures that the interrogation is fair and free from improper coercion; and
  • Access to a lawyer ensures that the accused is aware of his/her legal rights including the right against self-incrimination and the right to silence.
Lt. Col. Tirosh then referred to the relevant evidentiary principle to be applied in circumstances where a statement is obtained illegally/improperly during interrogation, for example, because the accused was denied access to a lawyer or was not properly informed of his right to silence, which is that: the court has a discretion to exclude the statement if to do otherwise would violate the accused's right to a fair trial.
During the course of the judgment consideration was also given as to whether or not the right to a lawyer could be waived by the accused. Lt. Col. Tirosh noted that there is a heavy evidentiary burden on the prosecution to establish that the right to a lawyer had been effectively waived and the burden increases significantly in the case of a child.
In rejecting the admissibility of the child's statement obtained by the interrogator, Lt. Col. Tirosh concluded: "that in the circumstances of this case the interrogating authorities had blatantly violated the rights granted to the Defendant by force of law and court rulings ... The violation of rights is all the more grave considering the Defendant's young age during his interrogation at the police."
While this decision is significant its impact should not be overstated. It can be noted that:
  1. This decision may be useful at remand hearings in support of an application to release a child on bail in circumstances where the child was interrogated without prior access to a lawyer.
  2. In circumstances where the only shortcoming in the investigative process is the lack of access to a lawyer prior to interrogation, it remains unlikely that this defect alone would result in the exclusion of evidence obtained during the interrogation.
  3. In circumstances where bail is denied and a child is remanded in custody until the end of proceedings, it is unlikely that this decision will have a significant impact as these cases tend to be determined by way of a plea bargain without a full evidentiary hearing requiring a determination of the admissibility of the evidence.
It may be possible to measure the impact of this decision by monitoring any appreciable increase in the percentage of children who are granted access to a lawyer prior to interrogation and by measuring any increase in the percentage of children released on bail as a result of the failure by investigators to permit access to a lawyer prior to interrogation.
Finally, although Arabic is 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.