Adalah Appeals to the Supreme Court against Decision Prohibiting Palestinian ‘Security Prisoner’ Citizen of Israel from having Children

Today, 27 October 2009, Adalah submitted an appeal to the Supreme Court of Israel on behalf of Walid Dakka, who is a Palestinian citizen of Israel classified by the Israel Prison Service as a ‘security prisoner’, to overturn a Nazareth District Court decision, dated 21 September 2009, prohibiting allowing him from having children. The appeal was submitted by Adalah Attorney Abeer Baker.

Mr. Dakka, who was born in 1961 in the Arab town of Baqa Al-Gharbiyah in Israel, is one of the oldest Palestinian political prisoners, who are citizens of the State of Israel. He was imprisoned in 1986 after receiving a life sentence. In 1999, he married a human rights activist dedicated to raising awareness of the issues faced by Palestinian prisoners.

For the past six years, Mr. Dakka has requested permission from the IPS to allow him to have children, but the IPS has refused on the grounds that he is a ‘security prisoner’ and that such a close meeting his wife would constitute a threat to state security. In July 2008, Adalah petitioned the Nazareth District Court on behalf of Mr. Dakka to rescind the decision.

At the hearings on the case before the District Court, the IPS claimed that Mr. Dakka was still in contact with an enemy organization, and therefore does not meet the criteria set forth by the IPS in this regard. The IPS did not submit any evidence to the court to confirm its statement and when called upon to do so, the IPS claim that the evidence was “secret” and that it would provide it solely to the court. Thus, the IPS refused to show this evidence or otherwise make it accessible to Mr. Dakka or Adalah, his legal representative. Adalah argued that the court should not allow the submission of secret evidence as the law does not authorize such a step during deliberations of a prisoner's demand to exercise his fundamental rights. Attorney Baker informed the court that the IPS had previously admitted that Mr. Dakka is not affiliated with any organization that it considers to be hostile. This sudden change in the IPS’s position requires it set forth clear and convincing evidence of its claims, Adalah argued, and not hide behind secret information that cannot be examined or have its credibility verified.

Following Adalah's objection to allow the intervention of the General Security Service (GSS or the "Shabak") and its secret evidence, the District Court rejected the petition. The court justified its decision by finding that it could not consider the reasonableness of the IPS’s decision as long as the court could not access the secret information on which the IPS based its decision. Further, the court ruled that the IPS is not obliged to offer specific evidence to substantiate its claim about Mr. Dakka and the extent of the risk he posed. The court held that it was sufficient that Mr. Dakka was classified as a security prisoner and that the GSS provide an opinion to support the allegation that he remains in touch with an enemy organization; this information legitimizes the restrictions placed on him, including its refusal to allow Mr. Dakka to father a child.

In the appeal to the Supreme Court, Adalah emphasized the District Court’s error in viewing the security classification as a single spectrum through which to define an individual’s rights in prison, particularly as the classification is decided by the IPS when he enters the prison and it remains as such until he is released, if he is ever released. Classifying a prisoner in the same way for life without taking into account the length of his sentence, the time spent in prison, changes that have occurred during the past years, his age, needs, inclinations and aspirations, means that the IPS ignores the person as a human being, depriving him of all the attributes of humanity and violates his constitutional rights.

Adalah emphasized that Mr. Dakka and his wife are advancing in age, which reduces the chances that they will be able to conceive a child naturally. The longer Mr. Dakka is denied the right to have children, the greater the possibility of depriving him the lifelong right to become a parent.

Adalah stressed that the District Court decision gives a green light to IPS to continue to violate the fundamental rights of prisoners, including the right to family life and dignity and the right for due process and fair trial based on secret information provided by the GSS.