On Appeal, Adalah Obtains Release of Kufr Kanna Man Denied Right to Counsel and Detained Without Cause

16/04/2002

On 8 April 2002, the Israeli police went to the Kufr Kanna residence of Mr. Basel Said with a warrant to search his house for a photograph of Sheikh Hassan Nasrallah, the leader of the Lebanese guerilla movement Hezbollah, that Mr. Said was alleged to have displayed at a Land Day march in Kufr Kanna on 30 March 2002. Mr. Said was not at home when the police arrived. The police searched the house, leaving it in considerable disarray, and seized papers belonging to Mr. Said's father, Mr. Johar Said, a journalist with the Nazareth-based weekly newspaper Al-Mithaq. The police presented the elder Mr. Said with a request for his son to appear at the police station the following day.

Mr. Basel Said went to the Nazareth Police Station on 9 April 2002 and was investigated under suspicion of supporting a terrorist organization, namely Hezbollah. Following questioning, he was arrested and detained overnight at the police station.

Prior to his hearing at the Nazareth Magistrate Court the following day, Mr. Said met with a representative of the public defender's office, who informed him that an attorney would be assigned to represent him. No attorney was present, however, when Mr. Said was brought before Nazareth Magistrate Court Judge George Azulay. Nevertheless, the Court heard the request of the police to extend his detention for five days. In a brief four-line decision, Judge Azulay extended Mr. Said's detention until 14 April 2002, stating that there was a reasonable basis for filing an indictment against him and for detaining him without bond until the end of the legal proceedings in the case. The entire hearing took no more than 10 minutes.

Adalah accepted the representation of Mr. Said the following day, 11 April 2002, and immediately filed an appeal to the Nazareth District Court. In the appeal, Adalah Staff Attorney Jamil Dakwar argued that there was no legal basis for the extension of Mr. Said's detention. Adalah raised three principal arguments:

The Nazareth Magistrate Court had violated Mr. Said's right to counsel, in contravention of the Public Defense Law (1995), by holding a hearing without the presence of a public defender.
The Court had failed to consider any alternative to detention, contrary to Article 12(b) of the Criminal Procedure (Enforcement Powers - Arrest) Law (1996) ("the Detention Law").
The Court and the police had failed to provide prima facie cause for the extension of Mr. Said's detention. The State Prosecutor's representative, Ms. Meerit Shtern, had acknowledged in a statement presented by the police at the Nazareth Magistrate Court hearing that the investigation against Mr. Said was complete and that she was considering filing an indictment against him. Article 17(d) of the Detention Law requires that prima faciecause be provided in order to continue detaining Mr. Said. No such cause was indicated in the prosecutor's statement, or in Judge Azulay's decision.

Judge Menahem Ben David, Deputy President of the District Court of Nazareth, heard Adalah's appeal on the same day that it was filed. He suggested that, because of legal mistakes in the extension of Mr. Said's detention, Mr. Said should be released on a bond of NIS 20,000 cash. Adalah rejected this offer and demanded to argue the case, contending that such an exorbitant sum imposed an unfair barrier to Mr. Said's release. Without explicitly acknowledging the serious legal mistakes made by her office and by the Nazareth Magistrate Court, the prosecutor asked that Mr. Said be placed under house arrest, and that he deposit a cash bond. The Court finally agreed to release Mr. Said to house arrest until 14 April 2002, in addition to having him deposit a bail bond of NIS 5,000.

On 14 April 2002, the State filed an indictment against Mr. Said under Article 4(g) of the Prevention of Terrorism Ordinance. This article defines as an offense:

…any act manifesting identification or sympathy with a terrorist organisation in a public place or in such manner that persons in a public place can see or hear such manifestation of identification or sympathy, either by flying a flag or displaying a symbol or slogan or by causing an anthem or slogan to be heard, or any other similar overt act clearly manifesting such identification or sympathy as aforesaid.

Adalah is continuing to represent Mr. Said on this charge, arguing that his actions are protected by his right to free speech. Adalah contends that there was not a high probability that Mr. Said's act of protest would pose any threat to the state's security. Further, the Prevention of Terrorism Ordinance does not specify that carrying the picture of the head of a "terror organization" is an illegal action. No date has been set for the next hearing in the case, at which Adalah will seek Mr. Said's release and the cancellation of his house arrest.