Opinion; Subjects: ISRAEL, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-10728 (E) 080716
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-fifth session, 18-27 April 2016
Opinion No. 13/2016 concerning a minor (whose name is
known by the Working Group) (Israel)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its
decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30
September 2010. The mandate was extended for a further three years in resolution 24/7 of
26 September 2013.
2.
In accordance with its methods of work (A/HRC/30/69), on 9 November 2015 the
Working Group transmitted a communication to the Government of Israel concerning a
minor (whose name is known by the Working Group). The Government has not replied to
the communication. The State is a party to the International Covenant on Civil and Political
Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
United Nations
A/HRC/WGAD/2016/13
General Assembly
Distr.: General
24 June 2016
Original: English
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(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability or other status, that aims towards or can result in ignoring the equality of human
beings (category V).
Submissions
Communication from the source
4.
A minor (whose name is known by the Working Group), born in 1996, is a
Palestinian, holding a Jordanian passport. He normally lives in Jordan with his father. His
mother lives in Hares in the Salfit governorate, in the northern West Bank. He was arrested
in 2013 at the age of 16 and has been detained since then.
5.
In March 2013, the minor went to visit his mother in Hares. According to the source,
on 14 March 2013, he was playing football there with some friends, who were minors at the
time. However, according to the Israeli authorities, the minor and his friends were throwing
stones at Israeli cars driving towards Tel Aviv along Route 5 (a highway to the Israeli
mega-settlement of Ariel and other settlements), for more than 30 minutes, which led to a
car accident. The Israeli authorities subsequently arrested, charged and detained him and
his friends. The case is known as the “Hares boys” case.
6.
On 15 March 2013, at approximately 3 a.m., the General Staff Reconnaissance Unit
of the Israeli Defence Forces broke into the house of the family of the minor. Members of
the Israeli Defence Forces were masked, heavily armed and accompanied by dogs. They
woke up the minor and beat him with rifle butts until he fainted. They shackled his arms
and locked him in a separate room and interrogated him about the stone-throwing incident
and the identity of the other children allegedly involved. The interrogation lasted until 7
a.m., when the minor was blindfolded and forced into a military car, which brought him to
Al Jalame Interrogation Centre in Haifa, Israel. The Israeli Defence Forces officers did not
show an arrest warrant nor did they explain the reasons for the arrest.
7.
On the afternoon of 16 March 2013, the minor was strip-searched and locked in a
small room for a long time, during which he was obliged to be naked and hold stressful
positions. Subsequently, he was brought to an interrogation room where he was shackled by
his hands and feet to a chair and questioned for several hours. He was also subjected to
verbal abuse and threats. During the interrogation, the minor was forced to sign a document
that he was prevented from reading beforehand.
8.
For 21 days, the minor was held in solitary confinement in Al Jalame Interrogation
Centre with no access to the outside world and denied visits from his family and lawyer.
9.
On 5 April 2013, the minor was transferred to Megiddo Prison in northern Israel,
where he was kept again in solitary confinement for 19 days until he was allowed to meet
with his lawyer.
10.
On 9 April 2013, the Salem Military Court held the first hearing on the case of the
minor and the other “Hares boys”.
11.
On 29 April 2013, the Salem Military Court formally indicted the minor for more
than 20 charges, including attempted murder. At the time of writing the present
communication, there had been 20 hearings, after each of which the minor’s detention was
systematically extended. The minor and the other “Hares boys” accused of the same crimes
were often brought to court handcuffed and blindfolded. The minor’s parents were
prevented from attending the trials.
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12.
The minor is currently detained in Megiddo Prison. His next hearing is scheduled for
26 November 2015.
13.
The source submits that the continued deprivation of liberty of the minor is arbitrary
and falls within categories I, III and V of the arbitrary detention categories referred to by
the Working Group when considering cases submitted to it. In the source’s view, the
deprivation of liberty of the minor between 15 March 2013 and 9 April 2013 was without
any legal basis. During that period of time (23 days), the minor was detained without any
charge or trial. That is in violation of article 9 of the Universal Declaration of Human
Rights and article 9 (1) and (2) of the International Covenant on Civil and Political Rights,
thereby rendering the detention arbitrary as it falls within category I.
14.
The source further submits that the minor has not been guaranteed the international
norms of due process and guarantees to a fair trial during the period of his deprivation of
liberty, in violation of articles 9 and 10 of the Universal Declaration of Human Rights and
articles 9 and 14 of the International Covenant on Civil and Political Rights. The minor was
arrested without a warrant and was not informed of the reasons of the arrest, which violates
article 9 (2) of the Covenant. During interrogation, he was tortured and forced to sign a
document without reading it first, which contravenes article 14 (3) (g) of the Covenant.
Moreover, the minor, under the age of 18 at the time of the arrest and detention, was not
allowed to receive a visit from his lawyer for 21 days following the date of his arrest, which
is in violation of his right to defence as guaranteed under article 14 (3) (b) of the Covenant,
as well as article 37 (d) of the Convention on the Rights of the Child, which provides that
every child deprived of his or her liberty shall have the right to prompt access to legal and
other appropriate assistance. In addition, the minor, being a minor at the time of the arrest,
was not tried by a juvenile justice system in a speedy manner, which is in violation of
article 10 (b) of the Covenant. Lastly, the minor was brought and is being tried before a
military court in Israel. The source argues that trials of civilians before military court
breach the fundamental guarantees of fair trial as recognized in the Universal Declaration of
Human Rights and the Covenant.
15.
Furthermore, the source argues that the minor, being an Arab Palestinian child, was
targeted by the Israeli authorities, which constitutes discrimination on ground of his
national, ethnic or social origin, thereby also falling within category V of the Working
Group’s categories of arbitrary detention.
Further updates from the source
16.
The Working Group was informed that, on 26 November 2015, the minor had been
sentenced by Salem Military Court to 15 years’ imprisonment for 27 charges related to
stone-throwing and to pay the sum of 30,000 new sheqelim as compensation by the end of
January 2015. The other “Hares boys” have been sentenced to similar penalties. The minor
remains detained in Megiddo Prison to date.
Discussion
17.
In its letter of 9 November 2015, the Working Group provided the Government of
Israel with the summary of the case and requested any information that the Government
would wish to provide regarding the allegations. The Working Group regrets that the
Government has not responded to the allegations transmitted by it.
18.
Despite the absence of any information from the Government, the Working Group
considers it is in the position to render its opinion on the detention of the minor, in
accordance with paragraph 16 of its methods of work.
19.
The Working Group received reliable information that, on 15 March 2013, at
approximately 3 a.m., masked members of the Israeli Defence Forces, heavily armed and
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accompanied by dogs, broke into the house of the family of the minor. The agents woke the
minor, beat him with rifle butts until he fainted, shackled his arms and locked him in a
separate room, without showing an arrest warrant or explaining the reasons for the arrest.
Afterwards, the agents interrogated him until 7 a.m. The Working Group was also
convinced that the minor was blindfolded and forced into a military car, which brought him
to Al Jalame Interrogation Centre in Haifa.
20.
The Working Group was also informed, and the Government of Israel did not refute,
that, on 16 March 2013, the minor was strip-searched and locked in a small room for a long
time, during which he was obliged to be naked and hold stressful positions. In an
interrogation room he was shackled by his hands and feet to a chair and questioned for
several hours. He was also subjected to verbal abuse and threats and forced to sign a
document that he was prevented from reading beforehand. For 21 days, the minor was held
in solitary confinement with no access to the outside world and denied visits from his
family and lawyer.
21.
The Working Group received reliable information that, on 5 April 2013, the minor
was transferred to Megiddo Prison in northern Israel, where he was kept again in solitary
confinement for 19 days.
22.
When the minor was deprived of liberty he was 17 years old and had the right to be
tried by a juvenile justice system in a speedy manner; military tribunals cannot be
competent for civilians, in accordance with relevant international human rights law. He was
arrested without a warrant, was not informed of the reasons of the arrest and was not
allowed to receive a visit from his lawyer for several days following the date of his arrest.
During interrogation, he was tortured and forced to sign a document without reading it first.
23.
With respect to the detention of minors, the Convention on the Rights of the Child
states that no child shall be deprived of his or her liberty unlawfully or arbitrarily. The
arrest, detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time (art. 37
(b)). The Convention further states that every child deprived of his or her liberty shall have
the right to prompt access to legal and other appropriate assistance, as well as the right to
challenge the legality of the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a prompt decision on any such
action (art. 37 (d)).
24.
The Working Group refers to the interpretation provided by the Committee on the
Rights of the Child that, as part of a comprehensive policy for juvenile justice, States
parties should:
Develop and implement a wide range of measures to ensure that children are dealt
with in a manner appropriate to their well-being, and proportionate to both their
circumstances and the offence committed. These should include care, guidance and
supervision, counselling, probation, foster care, educational and training
programmes, and other alternatives to institutional care (art. 40 (4)).1
25.
No such measures have been sought by the authorities in the present case. In the
view of the Working Group, the fact that the minor was arrested, brought to trial and
sentenced without having sufficient time to prepare his defence or to confer with a lawyer,
and in a military tribunal that lacks the impartiality and independence required by
international law, also breaches the above-mentioned provisions of the Convention on the
Rights of the Child.
1 Committee on the Rights of the Child, general comment No. 10 (2007) on children’s rights in juvenile
justice, para. 23.
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26.
The Working Group on Arbitrary Detention is aware of the findings of the United
Nations Children’s Fund (UNICEF) related to the detention of Palestinian children by
Israeli armed forces, namely, that:
Each year approximately 700 Palestinian children aged 12 to 17, the great majority
of them boys, are arrested, interrogated and detained by Israeli army, police and
security agents. In the past 10 years, an estimated 7,000 children have been detained,
interrogated, prosecuted and/or imprisoned within the Israeli military justice system
— an average of two children each day.2
27.
In that regard, the Committee on the Rights of the Child has expressed concerns
regarding the arrest and detention of Palestinian children, including that the State of Israel
has violated rights of children living in the Occupied Palestinian Territory by subjecting
them to military orders (CRC/C/ISR/CO/2-4, para. 73):
The Committee is gravely concerned that an estimated 7,000 Palestinian children
aged from 12 to 17 years, but sometimes as young as nine years, have been arrested,
interrogated and detained by the State party’s army over the reporting period (an
average of two children per day), this number having increased by 73 per cent since
September 2011 as observed by the Secretary-General (A/67/372, para. 28). The
Committee expresses deep concern that:
(a)
Most of the Palestinian children arrested often on an arbitrary basis as
testified by several Israeli soldiers are accused of having thrown stones, an offence
which can carry a penalty of 20 years of imprisonment;
(b)
236 children are currently detained for alleged security reasons;
dozens of them are between the ages of 12 and 15;
(c)
Arrested Palestinian children can be detained for four days before
being brought before a judge (eight days until August 2012), are rarely informed of
their rights, including their right to have the presence of a parent who are often not
even aware of the place where their children are detained, and to have access to a
lawyer;
(d)
Palestinian children arrested by the State party military and police are
systematically subject to degrading treatment, and often to acts of torture, are
interrogated in Hebrew, a language they do not understand, and sign confessions in
Hebrew in order to be released;
(e)
Children are brought in leg chains and shackles wearing prison
uniforms before military courts where confessions obtained from them under duress
are used as the main evidence. The lawyers they meet for the first time do not have
access to a translated version into Arabic of military orders which will be applied to
children;
(f)
The sentencing provisions applicable to adults apply to children aged
16 and 17;
(g)
Many Palestinian child detainees (215 children since 2009) are
transferred out of the Occupied Palestinian Territory and serve their detention and
sentences inside Israel in breach of article 76 of the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War. A large number of
2 See “Children in Israeli military detention: observations and recommendations”, February 2013.
Available from www.unicef.org/oPt/UNICEF_oPt_Children_in_Israeli_Military_Detention
_Observations_and_Recommendations_-_6_March_2013.pdf.
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them are detained in overcrowded cells together with adults in poor conditions, with
poor ventilation and no access to natural light. Poor quality and inadequate amounts
of food, harsh treatment by prison officials and deprivation of any form of education
add to their plights.
28.
The Working Group is aware that Israel is subject to the obligations of the
Convention of the Rights of the Child. As a result, Israel is bound by the findings and
recommendations of the Committee on the Rights of the Child regarding the treatment of
Palestinian children in conflict with the law. In particular, the Working Group would like to
highlight the following recommendation of the Committee to Israeli authorities
(CRC/C/ISR/CO/2-4, para. 74):
The Committee strongly urges the State party to guarantee that juvenile justice
standards apply to all children without discrimination and that trials are conducted in
a prompt and impartial manner, in accordance with minimum fair trial standards.
The Committee also urges the State party to dismantle the institutionalized system of
detention and use of torture and ill-treatment of Palestinian children at all stages of
the judicial procedure. All those who have been involved in this illegal system
should be brought to justice and punished if found guilty. The Committee also urges
the State party to comply with the recommendations it made in 2002 and 2010 and
which have been constantly reiterated by all human rights mechanisms, the
Secretary-General and the High Commissioner for Human Rights and in particular
that it:
(a)
Review and amend all laws that allow the sentencing of Palestinian
children to 20 years of prison for having thrown stones, and remove from detention
all children that are held there for this reason;
(b)
Ensure that detained children have effective access to an independent
judicial review of the legality of their arrest and detention within 24 hours of their
arrest and are provided with adequate free and independent legal assistance
immediately after their arrest and can contact their parents or close relatives;
(c)
Ensure that children accused of having committed security offences
are only detained as a measure of last resort, in adequate conditions in accordance
with their age and vulnerability and for the shortest possible period of time. In case
of doubt on having reached the age of criminal responsibility, children have to be
presumed to be below this age;
(d)
Ensure that all confessions written in Hebrew and signed or adopted
by a Palestinian child be rejected as evidence by the courts and that decisions are no
longer made solely on the basis of confessions from children;
(e)
Ensure that all detained Palestinian children are separated from adults
and are held in appropriate conditions and with access to education in facilities
located in the OPT. Their detention should be periodically and impartially reviewed;
(f)
Ensure that children in detention have access to an independent
complaints mechanism and that all those who were unlawfully detained and subject
to torture and ill-treatment obtain redress and adequate reparation, including
rehabilitation, compensation, satisfaction and guarantees of non-repetition.
29.
In view of the above, the Working Group considers that the detention of the minor
between 15 March 2013 and 9 April 2013 was without any legal basis or any charge or trial.
Furthermore, it is of the opinion that those acts from Israeli authorities are in violation of
articles 9 and 10 of the Universal Declaration of Human Rights, as well as articles 9, 10 and
14 of the International Covenant on Civil and Political Rights. The Working Group also is
of the opinion that detention of the minor is based on his Palestinian origin and is therefore
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discriminatory in nature. In view of the foregoing, the detention of the minor is arbitrary
under categories I, III and V of its methods of work.
Disposition
30.
In the light of the foregoing, the Working Group renders the following opinion:
The Working Group considers that the detention of the minor is arbitrary and falls
within categories I, III and V of the arbitrary detention categories referred to by the
Working Group when considering cases submitted to it.
31.
Under relevant international law, victims of arbitrary detention are entitled to seek
and obtain effective reparations from the State, which include restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition. In accordance with the present
opinion, the Working Group recommends that the Government of Israel provide full
reparations to the minor, starting with his immediate release.
32.
The Working Group recalls the call by the Human Rights Council for all States to
cooperate with the Working Group, to take account its views and, where necessary, to take
appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and
to inform the Working Group of the steps they have taken.3
33.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
considers it appropriate to refer the allegations of torture to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, for appropriate
action.
[Adopted on 21 April 2016]
3 See Human Rights Council resolution 24/7 on arbitrary detention, paras. 3, 6 and 9.