Obstacles to Prisoners' Access to the Courts in Israel A Position Paper by Adalah and the Legal Clinic for Prisoners' Rights and Rehabilitation at Haifa University
Adalah and the Legal Clinic for Prisoners' Rights and Rehabilitation at Haifa University published position paper on 21 July 2010 which details numerous obstacles for prisoners regarding their access to courts. These barriers include holding hearings in prison; preventing the public from attending the hearings in a manner that infringes the principles of openness and transparency, the right to dignity and the right to a fair trial; the Israeli Prison Services (IPS) regulations, which prevent prisoners from obtaining information for the preparation of their legal proceedings; the state's submission of secret evidence against the prisoners; courts that hear prisoners' petitions without the legal authority to do so; and transporting prisoners to court hearings in vehicles under humiliating conditions.
The position paper was submitted to a special committee established by the Chief Justice of the Supreme Court, Dorit Beinisch, to examine the proper procedures for prisoners' petitions.
The paper reveals how the authorities create obstacles for prisoners, who wish to improve their conditions of confinement by using the courts. According to the position paper, District Court judges turn prison cells into closed courtrooms. The public is prohibited from accessing the room, although the law requires that all court proceedings must be open to the public. The courts, in this case, are thus governed by IPS regulations. The prison guards who are a party to the proceedings also provide food and drink to the judges hearing the prisoners' cases. The prisoners arrive to their hearings without prior knowledge of the state's response to their petitions which will be heard before the court. In other words, the prisoner becomes aware of a crucial part of the subject matter of the proceedings during his/her actual court hearing.
The state's response to the petition is only revealed during the opening statements of the proceeding, giving the prisoner no time to prepare. Every individual has the right to appeal a decision of the court of first instance on at least one occasion, except in the case of prisoners. Prisoners are required to ask for permission to appeal. In effect, this means that prisoners must address a legal question for the court to allow them to file an appeal. The IPS prevents prisoners from filing joint petitions although the IPS does not have the authority to do so. Secret evidence is submitted to courts without any authorization by law. The court of administrative matters hears prisoners' petitions although the law does not authorize these courts to do so. Frequently, the prisoners' petitions are transferred illegally from one district court to another if the prisoner is transferred from one prison to another. This practice often results in a lack of discussion of the substantive issues raised by the prisoner's petition, rendering the petition redundant. In addition, the prisoners are transported to the hearings under humiliating conditions. The transportation along to and from court sometimes takes a total of 12 hours.
Adalah Attorney Abeer Baker emphasized in the paper that the IPS has full control over the lives of prisoners and that it can use its sweeping authority in a manner that violates the dignity of the prisoners. These practices are illegal and violate principles of natural justice and transparent procedures. These procedures should be public, transparent and non-discriminatory. Certainly, there is a special importance for prisoners, due to the deprivation of their liberty, for access to courts.
The position paper proposes, inter alia, the following recommendations for improving the current situation:
- Ending the practice of holding hearings in prison facilities rather than in courts;
- Requiring the IPS and the state to give prisoners their responses to petitions in advance in order to allow them to properly prepare for the proceedings;
- Eliminating the use of secret evidence;
- Changing the procedures to enable prisoners to submit joint petitions;
- Avoiding the transfer of prisoners' cases from one court to another;
- Amending the current law to permit also prisoners the right to appeal decisions;
- Encouraging district courts to grant prisoners the right to appeal to the Supreme Court;
- Shortening the length of time for transportation to courts, and improving the transportation and waiting conditions.
