Adalah: New punitive measures by Israel against stone throwers are unconstitutional

Adalah expects continued action in the Israeli Knesset this week concerning two pieces of legislation concerning criminal and civil sanctions against Palestinian children convicted of stone-throwing and their families. Over the last month, Adalah has written letters to several state authorities and members of the Knesset against these newly proposed laws. 

On 19 October 2015, Adalah sent a letter to the Chairman of the Knesset’s Constitution, Law and Justice Committee, MK Nissan Slomiansky and other members of the Committee, as well as Attorney General Yehuda Weinstein and State Prosecutor Shai Nitzan, to demand that they oppose two proposed amendments to the Israeli Penal Code, National Insurance Act and the Youth (Care and Supervision) Law, that seek to impose new, unconstitutional punishments on stone-throwers and their parents. The two bills have passed initial readings in the Knesset.

One of the bills, a proposed amendment to the Penal Code and the National Insurance Act, would impose a mandatory minimum penalty of four years’ imprisonment for stone-throwing, in addition to the stripping of social security benefits from the parents of a child convicted of this offense.

As Adalah Attorneys Mohammed Bassam Mahajna and Nadeem Shehadeh argued in their letter, the bill to impose a mandatory minimum sentence for throwing stones contradicts most forms of criminal sentencing followed in Israel: “The bill upends the status quo by creating a punitive model in which the judge will exercise discretion and take into account the particular circumstances of each individual only exceptionally.” With this new law, judges lose their discretion in imposing sentences. The amendment violates the constitutional rights of minors by allowing their imprisonment for a mandatory minimum of four years without taking into account the individual circumstances of each case.

In addition, Attorneys Shehadeh and Mahajna argued that although the majority of the stone-throwers are minors, the bill does not allow judges to give reasonable weight to the option of rehabilitation. Here, it contradicts The Youth (Care and Supervision) Law, which stipulates that the exercise of powers and initiation of proceedings against a minor must be done in such a way that safeguards his or her dignity, and that due weight must be given to considerations of rehabilitation, treatment, reintegration into society, age and maturity.

Regarding the social security benefits, Adalah contended that the claim made by the bill’s drafters, that it is possible to withdraw the benefits from the parents of a child convicted of the crime of stone-throwing during the period of the child’s imprisonment because their basic needs are met in prison, breached the fundamental principle of equality.

“Just as the state cannot deny benefits to the parents of a child convicted of criminal offense on the pretext that the child’s needs are being met by the prison, so the same should apply in the case of a child convicted of a ‘security offense.’ Thus the bill is legislating irrelevant, arbitrary discrimination between minors.”

Adalah emphasized that the Penal Code currently rules out the withdrawal of social security benefits from either security prisoners or criminal prisoners who are minors. The bill, however, creates a new criterion, according to which benefits are withdrawn from the parents of convicted minors, rather than from the children themselves on the basis of their national belonging. This is so as the bill will overwhelming affect Palestinian children and their parents.

The second bill allows for direct fines to be imposed on the parents of children convicted of stone-throwing. In his letter concerning the bill, Adalah Attorney Nadeem Shehadeh argued that the proposed legislation violated the most basic principles of criminal law, that the imposition of criminal responsibility and punishment must be specific to the person who committed the offense.

Adalah contended that, “The bill violates the constitutional right to a fair trial which is derived, according to case law, from the right to dignity … Punishing the parents, as the bill proposes, leads to the violation of the parents’ right to a fair trial.” Further, the bill “contradicts the prohibition on collective punishment. No parent should be punished for the crime of their child, there can be no ‘vicarious liability’ on parents for the acts of their child, since the child’s actions are not attributable to his or her parents.”