Challenging Military Order Preventing Palestinian Detainees from Meeting their Lawyers
On 9 August 2004, Adalah submitted a pre-petition to the Office of the State Attorney demanding her immediate intervention to repeal an illegal policy whereby attorneys' access to prisons has been limited or denied. This policy has been particularly prevalent in the Hadarim and Nafha prisons. In the pre-petition, Adalah demanded that the Office of the Attorney General allow free entry to attorneys into prisons and cancel the Israel Prison Service's (IPS) policy, according to which attorneys must pre-arrange their visits with prisoners. Adalah further demanded that prisons allocate a designated room for attorney-prisoner meetings, which is separate from family visitation rooms.
Adalah has contacted the State Attorney's Office over this issue in the past, specifically detailing particular instances of prison personnel employing various means to prevent attorneys from visiting prisoners, especially prisoners who have received sentences. However, Adalah has yet to receive a response to its previous motion.
Adalah has recently received numerous complaints from attorneys whose requests to visit prisoners in Nafha prison have been denied. For example, in early August 2004, Attorney Fidah Ka'war requested permission to visit prisoners in Nafha prison. Attorney Ka'war notified the prison authorities 24 hours in advance of the time at which he wished to meet his prisoner-client, in line with the IPS regulations. Upon his arrival at the prison, however, he was informed that he would not be permitted to enter the prison, as family visits were taking place that day. Attorney Ka'war was denied entry to the prison on more than one occasion for the same reason.
In accordance with Regulation 28 of the Prison Regulations � 1978, attorneys are entitled to visit prisoners on the condition that they provide power of attorney documents which attest to the fact that they have been granted permission to visit their prisoner-clients on a given day and during regular working hours. In accordance with the law, such attorney-prisoner meetings may be prevented only in specific cases where there exists clear reason to suspect that such a meeting may lead to the perpetration of a crime which could endanger public safety. Furthermore, Article 35 of the Criminal Procedure Ordinance (Arrest and Search Powers) - 1969 specifically determines that a detainee suspected of �security� offenses must be granted access to a lawyer within the shortest time possible, and that the postponement of such a meeting must conform to specific legislation: the meeting cannot be delayed for longer than ten days; any further delay must be authorized by a judge and the Attorney General; and the maximum number of days for preventing an attorney-prisoner meeting stands at 21 days.
In the pre-petition, Adalah attorney Abeer Baker argued that the right of attorney-prisoner meetings is a constitutional right, and thus any infringement upon this right must adhere to the limitations stated in the Basic Law: Human Dignity and Freedom. Furthermore, Adalah argued that limiting visits between attorneys and prisoners is a gross violation of authority, as it does not adhere to any law. In the pre-petition, Adalah also related to the IPS policy which stipulates that an attorney must coordinate in advance of any prison visit. According to this policy, any attorney wishing to visit a prisoner must coordinate the visit in advance with the prison authorities and await approval of the request. If an attorney does not coordinate their visit, they are refused entry into the prison. Adalah argued in its pre-petition that this policy has been radically modified, to the extent that prison authorities have begun to deny attorneys' meetings with their prisoner-clients upon their arrival to the prison, on the pretext that the visit was not arranged in advance. Adalah further argued that this policy illegally limits the right to legal counsel. The fulfillment of this right, Adalah argued, means that �an attorney shall always be granted the right to meet their client in any location and at any time they request.� Thus, any direct or indirect limitation on the occasion of such a meeting constitutes an infringement upon this constitutional right, which can be authorized only so long as it adheres to the conditions of the relevant legislation.
Adalah argued that the IPS is attempting to establish a new policy, which does not conform to any existing legislation, and according to which the IPS will be able to pre-determine attorney visits. This policy aims to limit visits without any specific or implicit authority, despite that fact that, in accordance with the law, attorney-prisoner meetings must be authorized so long as there is no legislation preventing them. The legislation regulating attorney-prisoner meetings detail these limitations, including the length of time legally permitted for delaying an attorney-prisoner meeting. Therefore, Adalah argued that the IPS has illegally, unlawfully and without authority taken it upon itself to restrict attorney-prisoner meetings.
