petition (H)
On 16 August 2004, Adalah submitted a petition to the Supreme Court of Israel demanding that the Court issue an order of injunction instructing the Israel Prison Service (IPS) to allow the children of prisoners classified by the IPS as security prisoners to have physical contact with their parents during prison visits. The petition was submitted on behalf of ten children of “security” prisoners, the Prisoner Association and in Adalah’s own name, against the IPS.
Israeli law distinguishes between political prisoners, the vast majority of whom are Arab citizens of Israel or Palestinians from the Occupied Territories, classified as “security prisoners,” and ordinary criminal prisoners. According to the law, any prisoner or detainee is entitled to receive family visits. Furthermore, the law does not distinguish between the classification (criminal or security) of prisoners or detainees over visitation rights. Nonetheless, “security” prisoner visits are conducted with a glass wall separating the prisoners from their children and any other visitors. Until two years ago, the IPS enabled the children of “security” prisoners under the age of ten to have physical contact with their parents during the final 15 minutes of the visit. Over the past two years, however, the IPS has stopped the petitioners, and other children of “security” prisoners, from having any physical contact with their parents in prison. The IPS began limiting physical contact between prisoners classified as security prisoners and their children in May 2002, after an alleged attempt by a child to smuggle a proscribed object to his imprisoned father. The right of “security” prisoners to receive family visits is made all the more significant by the fact that “security” prisoners are completely prohibited from using telephones; other prisoners are allowed to use the telephone daily. Consequently, visits are the only means by which the children of “security” prisoners can see and hear their incarcerated parents. Furthermore, visits by families from the Occupied Territories are extremely limited, and do not take place on any regular basis due to restrictions on their entry into Israel introduced by the Israeli military. Therefore, months can often pass by without children being able to visit their incarcerated parents. While the IPS imposes these restrictions on prisoners classified as security prisoners, criminal prisoners enjoy far more open family visits, without any barrier or glass wall separating them from their families. Adalah has approached the IPS over this issue in the past, demanding that all children of “security” prisoners be permitted physical contact with their incarcerated parents. In its responses, the IPS has argued that it does not intend to ban physical contact, but that it has been established that physical contact between “security” prisoners and their children has been exploited in the past, in a way which could pose a threat to national security and the security of the prison. The IPS added that the conditions of the population of “security” prisoners have been specifically restricted regarding contact with the outside world, and that, since security considerations outweigh any other considerations, there is no scope for reversing the IPS's policy. In the petition, Adalah attorney Abeer Baker argued that the IPS's decision of 2002 to deny physical contact between children and their incarcerated parents is illegal, as the IPS is not authorized to introduce such limitations on family visits: the decision infringes the constitutional right to dignity; violates the child’s right to receive love from both parents; contradicts and neglects the principle of acting in the best interests of the child; is discriminatory; and constitutes illegal and collective punishment. Adalah further argued in the petition that the IPS’s decision gravely harms the right of prisoners with children to equality and dignity, as well as their right to family visits, and therefore should be canceled. In the petition, Adalah also related to the direct and indirect repercussions of being denied physical contact with a parent on the lives and development of children. Adalah argued that any repercussion on the prisoner will immediately result in damage to the relationship between child and parent, and as a result will impair the child’s right to receive emotional support. “A prisoner whose ability to continue to be a parent has been harmed will not be able to provide his children with what they need, and thus any infringement upon the rights of the prisoner involves an additional detrimental effect on the child,” Adalah contended. Adalah further stated that the discrimination between children of “security” prisoners and criminal prisoners is not limited to the restrictions placed on visitation rights, but similarly impacts upon the implementation of a long list of IPS and Prisoner Reform Authority programs, whose goal is to strengthen the relationships between prisoners and their children, and protect children from emotional and psychological harm. Adalah added that preventing physical contact between a parent and child contradicts Israeli law, as well as international treaties to which Israel is a signatory. For instance, in accordance with Article 9(3) of the Convention on the Rights of the Child (CRC), state parties must respect the right of children separated from one or both of their parents to continue engaging in a personal, direct, and physical relationship with them. H.C. 7585/04 Hakim Kananeh et.al. v. The Israel Prison Service et.al.