Reports and Studies

Position Paper: Denying the Right to Legal Counsel to Exert Pressure on Palestinian Detainees

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17 April 2012

The right of a detainee to meet with and be represented by an attorney has long been recognized as a basic constitutional right, one which derives from an individual’s rights to personal liberty, dignity and due process.
Israel’s Supreme Court has recognized this right, going so far as to disqualify evidence gathered due to a violation of that right.
[1] However, the Court’s recognition of the right to counsel does not extend fully to those classified as ‘security detainees,’ most of whom are Palestinians from the Occupied Palestinian Territory (OPT).
The existence of a separate military legal system, which defines, or more precisely, diminishes the rights of prisoners, underlines the distinctions created by the state between its citizens and residents of the OPT, who are under its control.
Israeli civil law and the laws of the military system that apply to residents of the OPT distinguish between regular prisoners and those who are classified as security prisoners.
The General Security Service (GSS or Shin Bet) makes extensive use of its authority to prevent meetings between security detainees and their attorneys.
  Even since the enactment of the ‘Basic Law: Human Dignity and Liberty’ in 1992, the Israeli Supreme Court has upheld sweeping provisions to prevent security detainees from meeting with their attorneys.
One ruling in particular must be noted, as it has provided the legal basis for consistently rejecting detainees’ challenges.
In the Sufian ruling, the Supreme Court rejected a prisoner’s petition to meet with his attorney, arguing that according to classified material reviewed by the court, it was nearly certain that allowing the meeting would harm the security of the region and be detrimental to the investigation.
[2] The Supreme Court intervened only partially, choosing not to examine the circumstances of the arrest or the interrogation, and ultimately basing its decision on classified GSS material.
Since the judgment in this case, any appeals from the GSS to ‘the security of the region’ or ‘the interests of the investigation’ have provided the justification for preventing a prisoner from exercising his right to counsel.
  In addition to the existing legislation restricting meetings between detainees and their attorneys in the course of an interrogation, recent legislation has led to convicted prisoners also being exposed to abuse and ill treatment at the hands of the Israel Prison Service.

[1] HCJ 3412/91 Sufian v.
Commander of IDF Forces in Gaza, PD 47(2), 843, 847 (1993) (hereinafter: the Sufian case), Criminal Appeal 5121/98 Issacharov v.
Chief Military Prosecutor, Paragraph 14 of the ruling by President Beinisch (issued on 4 May 2006); HCJ 3239/02 Marab v.
Commander of IDF Forces in Judea and Samaria, PD 57(2), 349, 380 (2003) (hereinafter: the Marab case.
) [2]  See Sufian case, at note no.
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