Social welfare reports for bail applications in the military courts - Supreme Court petition
[29 March 2017] - On 27 February 2017, the law firm of Gaby Lasky & Partners filed a petition in Israel's Supreme Court (Anonymous and ors v Commander of IDF Forces in Judea and Samaria and ors (2017)) (Hebrew) seeking an order requiring the production of social welfare reports at every remand hearing involving a child (12-17 years inclusive) in the Israeli military courts in the West Bank (the military courts).
The petition seeks to address a fundamental shortcoming in the military courts whereby the overwhelming majority of Palestinian children continue to be denied bail and are held in custody on remand pending the conclusion of the legal proceedings. In the absence of a social welfare report the military judges have almost no evidence to inform their decision whether or not to release a child on bail, resulting, in most cases, with children being held in custody on remand pending the final determination of the case.
While there is currently no provision under Israeli military law for the production of social welfare reports relating to Palestinian children at remand hearings in the military courts, the law in Israel (Youth Law, section 10(g)) mandates the production of these reports in every case involving a child, including in cases involving Israeli children living in settlements in the West Bank.
While the petition does not suggest the application of Israeli civilian law to the West Bank, it does note that the current situation amounts to discrimination based on national identity, and seeks an amendment to the military law to eliminate this situation. The petition also claims that the lack of social welfare reports in the military courts violates due process rights and Israel's obligations under the UN Convention on the Rights of the Child.
The petition seeks an order from the Court directing the military commander in the West Bank to amend the law to mandate the production of social welfare reports at every remand hearing involving a child. As in Israel, the cost of producing these social welfare reports must be covered by the relevant authority, which in the West Bank, is the Israeli military command.
The timing of this petition has been largely dictated by the failure of the military authorities to satisfactorily deal with this issue in a timely manner after it was raised in writing with them in early 2016. While the military authorities indicated that reform was imminent, there has been no change in 12 months, resulting in the continued pre-trial detention of most Palestinian children prosecuted in the military courts.
It is anticipated that the Supreme Court will hear the petition sometime during the second half of 2017.