Adalah Opposes the State's Submission of Secret Evidence in Case Involving Conjugal Rights of Arab Political Prisoner
On 16 April 2009, Adalah submitted a motion objecting to the state's presentation of secret evidence (referred to as “intelligence material”) for review by the Nazereth District Court, in the absence of the petitioner, in a case involving the request of a political prisoner, a Palestinian Arab citizen of Israel, for conjugal visits with his wife in order to have a baby. The state sought to present secret evidence on the grounds that it clarifies the state’s opposition to his request.
Adalah Attorney Abeer Baker, who is representing the prisoner, Mr. Walid Daka, argued that this secret evidence should not be submitted because the court has no authority to review it in the framework of a prisoner’s appeal. She argued that doing so would constitute a serious violation of the principles of the interests of justice and due process. There is no law that allows for violating a prisoner’s constitutional rights to due process, family life and dignity by means of secret evidence. Consequently, the court should refuse to receive this evidence within the framework of this proceeding.
In cases involving a petitioner’s opposition to the presentation of secret evidence, the Supreme Court generally rules in line with the presumption that serves the state, assuming that the secret information justifies the state’s decision. The court does this without even reviewing this information. Attorney Baker argued in the motion that there is no reason for the court to apply this presumption when it is not authorized by law to receive secret material solely in the presence of one party.
Adalah contends that the state’s use of secret evidence in the framework of prisoners' petitions has become prevalent and routine. The state exploits the fact that the prisoner cannot review and refute the evidence, and that any objection on his part to this evidence only strengthens the state’s position. This improper practice violates due process and paves the way for infringement of the rights of prisoners in general and political prisoners in particular.
Last month, on 24 March 2009, at a hearing held before an expanded panel of nine justices of the Israeli Supreme Court, three human rights organizations - The Public Committee Against Torture in Israel, the Association for Civil Rights in Israel (ACRI) and Adalah withdrew a petition challenging the constitutionality of harsh criminal procedure law that applies to "security suspects", overwhelmingly Palestinians from the Occupied Palestinian Territory (OPT). The petition was withdrawn in protest against the Supreme Court's unprecedented and illegal decision to hear secret evidence presented by Israel's General Security Service (GSS) ex-parte, in the absence of the petitioners, relating to the constitutionality of the law.
Citation: Prisoner's Petition 609/08, Walid Daka v. The Israel Prison Service (Nazereth District Court)
