Adalah to Internal Security Minister: Cancel Regulation that Discriminates Between Detainees Defined as Security and Criminal Detainees in their Conditions of Confinement

On 19 December 2004, Adalah sent a letter to the Minister of Internal Security, Gideon Ezra, demanding the cancellation of a regulation that discriminates between detainees classified as security detainees and those classified as criminal detainees in their conditions of confinement. This regulation permits the imposition of harsher conditions of confinement on persons classified as security detainees simply because they are alleged to have committed offenses defined as security offenses under section 35(b) of the Criminal Procedure Law (Enforcement-Detention) – 1996.

Adalah Attorney Abeer Baker argued in the letter that a comparison between the rights and conditions of confinement of individuals classified as criminal detainees and those classified as security detainees leaves no doubt that these differences are both unreasonable and irrational. This is particularly so as all of the individuals are merely suspected of having committed offenses; none has been convicted or sentenced.

As provided in the regulation, the main differences in conditions of confinement include, among others: the provision of magazines, newspapers, books, TVs, radios; a razor and mirror; an electric kettle, a wall light, a fan, and a heater to individuals classified as criminal detainees and not to those classified as security detainees.

Crucially, there is also no obligation to provide a bed to an individual classified as a security detainee. The provision of two thin mattresses and clean blankets is considered sufficient.

The regulation also stipulates that individuals classified as security detainees are not entitled to a daily walk in the open air, and are not entitled to use the telephone at all, even to call their attorney. Individuals classified as criminal detainees, by contrast, are permitted an hour-long walk in the open air on a daily basis, and are allowed to make a daily telephone call to their attorneys.

According to the regulation, the cells of individuals classified as security detainees are to contain only a toilet, and are to be painted on an annual basis. By contrast, the cells of individuals classified as criminal detainees must contain both a toilet and a basin, and must be painted at least twice a year. Furthermore, whilst criminal detainees' cells must be sanitized and disinfected once a year and provided with detergents in order to keep the cell clean, this is not the case for those classified as security detainees.

Adalah argued that these differences, as set forth in the regulation, exhibit gross discrimination, flagrantly contradict the Criminal Procedure Law, and severely violate the fundamental rights of thousands of detainees, including their right to dignity, to personal freedom and to fair and minimal living conditions in detention centers.

The principle of equality is fundamental, Adalah argued, and all governmental agencies must comply with it. Adalah emphasized that the state is duty-bound to treat all of those under its custody with fairness, and that the accordance of different treatment to a specific group of detainees can only be legitimized when it is relevant to the distinguishing characteristic of the group. Adalah argued that it is not clear what relevant considerations necessitate providing individuals classified as security detainees with only three pairs of socks each, for example, when those classified as criminal detainees receive four pairs each. Nor is it clear what the justification could be for painting the cells of those classified as security detainees less frequently than the basis on which the cells of criminal detainees are painted.

The regulation's limitations on hygienic amenities and provisions for individuals classified as security detainees are also unconstitutional, Adalah stated. Preventing detainees from maintaining adequate personal hygiene constitutes a violation of the constitutional right to dignity, protected by the Basic Law: Human Dignity and Liberty – 1992.

In addition, Adalah noted that, according to Section 90 of the Criminal Procedure Law (Enforcement-Detention), every detainee is entitled to a bed, mattress and blankets, to a daily walk and to a daily telephone call. These rights are guaranteed by law regardless of the nature of the allegations made against a detainee. The regulation's blatant contradiction of this section therefore renders its implementation illegal. As a result, Adalah contended, the regulation must be cancelled without delay.