Adalah Appeals Unjust Denial of Prisoner's Furlough Rights to Supreme Court
On 15 April 2002, Adalah filed an appeal to the Israeli Supreme Court on behalf of Mr. Abd el-Rahim Masarweh, a Palestinian citizen of Israel from Taibeh, who is currently jailed at Ayalon prison. In the appeal, Adalah Staff Attorney Jamil Dakwar demanded that the Supreme Court reverse a decision of the Tel Aviv District Court to deny a furlough to Mr. Masarweh based on a drawing he produced in a prison art therapy class, secret evidence, and a reference to the security situation in Israel. A prisoner's right to furlough is specified in Article 12.05.01 of the Prisons Commission Ordinance on Prisoners' Obligations and Rights (though the Ordinance refers to it as a "privilege").
Mr. Masarweh is serving a nine-and-a-half year sentence for armed robbery, arson and theft. He is not classified as a security prisoner, defined as a prisoner who could pose a threat to national or public security. Mr. Masarweh last left the prison for a 96-hour furlough on 27 December 2000.
In early January 2001, while Mr. Masarweh was being held at Ma'asiyahu prison, he attended an art therapy class where he was instructed to express his feelings in a drawing, in a free and uncensored manner. Mr. Masarweh's drawing depicted a crying eye in the middle of a map of Israel and the Occupied Palestinian Territories, superimposed over a set of bars, and above a Palestinian flag. He explained that the drawing expressed his desire to see an end to violence in Israel and Palestine.
Mr. Masarweh's drawing was confiscated during a search of his cell on 7 January 2001. Following the confiscation, his status at the prison was changed from "B2" to "A," which led to the cancellation of his rehabilitation program and the denial of his right to a furlough outside the prison. In justifying this decision, prison authorities claimed that Mr. Masarweh was suspected of incitement. In addition to re-classifying him, prison officials transferred Mr. Masarweh, over the course of the next 18 months, from Ma'asiyahu prison to Atlit prison, from Atlit prison to Sharon prison, and finally to Ayalon prison.
Mr. Masarweh, represented by Attorney Asil Masarweh, filed a prisoner's petition to the Tel Aviv District Court, challenging the prison authorities' decision to deny his right to a furlough. The petition was heard in May 2001 by District Court Judge Neera Litsky, who upheld Mr. Masarweh's re-classification and the denial of his rights. Judge Litsky stated that her decision was not based on Mr. Masarweh's drawing, but on secret prison intelligence materials. Judge Litsky admitted that she was not able to analyze the intelligence materials, and asked that the prison authorities reconsider their assessment of Mr. Masarweh within a reasonable period of time.
Mr. Masarweh filed a second prisoner's petition to the Tel Aviv District Court in January 2002, challenging the continued denial of his right to a furlough. District Court Judge Avraham Tal dismissed the petition on 23 January 2002, after considering Mr. Masarweh's drawing from November 2000 and a secret prison intelligence document. Mr. Masarweh represented himself at the hearing.
In his decision, Judge Tal stated that, although the intelligence document and the drawing were over a year old, Mr. Masarweh's intentions were obvious. He noted that his decision was based in part on a consideration of the current security situation in Israel. Additionally, Judge Tal asked prison officials re-assess Mr. Masarweh within two months; however, no report of such a re-assessment was issued. Shortly after this decision, Mr. Masarweh asked Adalah to represent to him.
In its appeal, Adalah argued that the District Court erred in its January 2002 decision. The Court did not verify that prison officials had reconsidered their January 2001 assessment of Mr. Masarweh, as was required by Judge Litsky's decision. Further, the Court's decision was based solely on a secret intelligence document prepared more than a year ago, without granting Mr. Masarweh the opportunity to defend himself against the allegations contained therein. In Adalah's view, the judicial review of the prison authorities' decision was without substance, and a harsh violation of Mr. Masarweh's rights. Adalah challenged the decision to continue punishing Mr. Masarweh by denying his rights, based on secret evidence and without giving him the opportunity to defend himself.
Adalah further argued that in cases where suspicion of illegal activity is expressed, law enforcement authorities are required to open an investigation. Such an investigation was not conducted against Mr. Masarweh, nor were disciplinary proceedings initiated against him.
Adalah argued that the Court could not base its denial of Mr. Masarweh's rights on the picture he drew in art therapy class, as such expression is protected by his right to free speech, which is recognized by Israeli case law as a constitutional right even within prisons. Adalah argued that freedom of speech can only be denied where there is a high probability that such speech will pose a serious threat to public security, or to peace, order and discipline within the prison.
In addition, Adalah argued against the Court's reference to the security situation in Israel as a justification for denying Mr. Masarweh's rights. "Security situation," Adalah contended, is not a magic term that can be invoked to permit the automatic denial of a prisoner's rights in such a sweeping and absolute manner. Such a decision should be based on clear, concrete and direct evidence indicating that, in releasing Mr. Masarweh for a furlough outside the prison, it would be highly probable that he would pose a threat to public or national security. The decision should be objective, and based on the unique circumstances of the case.
Adalah further noted that the Court had ignored Mr. Masarweh's good behavior in making its decision. Mr. Masarweh works in a factory inside the prison that manufactures nylon sacks, where he performs his job well.
Adalah stated that the decision to deny Mr. Masarweh's rights is unreasonable and disproportionate. Prison authorities failed to strike an appropriate balance between his rights and other considerations.
On 16 April 2002, Deputy Chief Justice Shlomo Levin asked the Prison Authority to submit its response to Adalah's appeal within 15 days.
