On 11 February 2010, an expanded nine-justice panel of the Supreme Court of Israel struck down article 5 of the Criminal Procedures (Detainees Suspected of Security Offences) (Temporary Order) Law – 2006, which stipulated that “security suspects” could have their pre-trial detention extended in their absence and thus without their knowledge and without the opportunity to defend themselves. The individuals subjected to this law are overwhelmingly Palestinians from Gaza.

The ruling was issued on an appeal submitted by the Israeli Public Defenders' Office in 2007 on behalf of a detainee following a decision by the lower courts to extend his detention in his absence. Three human rights organizations – Adalah, the Association for Civil Rights in Israel (ACRI) and the Public Committee Against Torture in Israel (PCATI) – also submitted a petition in 2008 demanding that the court annul the law. The petitioners challenged the constitutionality of the law, which blatantly violates detainees' basic rights and applies to “security suspects” overwhelmingly Palestinians from Gaza (HCJ 2028/08, The Public Committee Against Torture in Israel, et al. v. The Minister of Justice (petition withdrawn 24 March 2009).

The Supreme Court decided to join the two cases for hearings. At a hearing held on the case in March 2009, the court made an unprecedented and illegal decision to hear secret evidence presented by Israel's General Security Service (GSS) ex-parte, at the request of the state and in the absence of the petitioners, relating to the constitutionality of the law. The petitioners withdrew the petition in protest against the Supreme Court's decision, which meant that it would decide on the petition regarding the constitutionality of the law on the basis of secret evidence, without giving the petitioners the opportunity to examine or question it. The organizations argued that the extraordinary decision had no legal basis and set a dangerous precedent that threatened future possibilities for judicial review of laws that violate human rights. The appeal submitted by the Public Defenders' Office remained pending for further deliberation.

The appeal submitted by the Public Defenders' Office related only to the unconstitutionality of article 5 of the law. However, in petition filed by Adalah, ACRI and PCATI also requested the annulment of additional unconstitutional provisions of the law that severely violate the due process rights of suspects by: allowing persons suspected of committing security offenses, in certain circumstances, to be detained for 96 hours without being brought before a judge (paragraph 3), for the extension of their pre-trial detention up to 20 days (paragraph 4.1), and for a suspect to be detained for 35 days without indictment (paragraph 4.2).

Furthermore, these articles are usually implemented in tandem with article 35 to the Detention Law, which allows a detainee suspected of committing security offenses to be prevented from meeting a lawyer for 21 days. In practice, the end result of these measures is that a suspect can be held in isolation, in the hands of GSS interrogators, for a period of 21 days, a situation that renders him or her vulnerable to torture and ill-treatment. Since the petition was withdrawn in protest, the constitutionality of these provisions was not subject to judicial review.

The UN Committee Against Torture in its concluding observations on Israel in 2009 expressed concern about this law in paragraph 15: “The Committee also notes with concern that the 2006 Criminal Procedure Law allows detention for up to 96 hours of persons suspected of security offenses before being brought before a judge – although the State party claims a majority of cases are brought within 14 hours– and up to 21 days without access to a lawyer– despite the State Party's claim that more than 10 days is “seldom used”.”

In a response to the Supreme Court's ruling, Adalah stated that legal rationale behind its decision to strike down article 5 of the law pertains equally to the other unconstitutional provisions contained in the law, which should also be voided.

For more information, see Adalah's press release about the law and withdrawing the petition in 2009: http://www.adalah.org/eng/pressreleases/pr.php?file=09_03_24

 (Decision, Hebrew only)

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