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In association with Attorney Gaby Lasky, MCW monitors litigation in the military courts, the Military Appeals Court and the Supreme Court. MCW does not provide general legal aid services to defendants prosecuted in the military courts, but seeks to challenge key aspects of the system through targeted litigation in co-ordination with the group’s advocacy strategy. 

 Military Prosecutor v A.B.
Case:               Military Prosecutor v A.B.
Court:              Ofer Military Court
Judge:             Major Shahar Greenburg
Lawyer:          Nery Ramati, Gaby Lasky & Partners
Date:               15 July 2013
Issue:             Admissibility of improperly obtained evidence
Background:- A 15-year-old Palestinian boy was charged with throwing stones at a demonstration in the West Bank. During the course of the trial, the evidence revealed that:
  • The police investigator verbally threatened child witnesses in the case;
  • The investigator coached a number of children to incriminate their peers;
  • The boy was not interrogated by a certified youth investigator;
  • The police investigator was not fluent in Arabic;
  • Although the interrogation was audio recorded, it was not videotaped;
  • Children continue to be interrogated whilst extremely tired;
  • The boy was interrogated in the absence of a parent;
  • The notes taken by the police were incomplete; and 
  • A review of the recording showed the notes failed to say the boy initially denied the accusation.
The evidence against the boy consisted of his own confession, and that of three other children. The three other children all claimed that they had been beaten and threatened during questioning before the audio-tape was turned on.
Decision:- In a written decision, Judge Major Shahar Greenburg was highly critical of the manner in which Sergeant Major Solomon Desta, an Israeli police investigator stationed in Hebron, conducted the investigation. The judge rejected the confession of one child who was threatened with physical violence whilst the audio-tape was on, but accepted the confessions of the other children who alleged they were threatened whilst the tape was switched off. Judge Greenberg went on to add that: “When dealing with a minor being questioned for the first time by police, without his family present, the imposing atmosphere of an interrogation with shouts every time the suspect did not respond to the investigators questions in fulfillment of the investigator’s expectations, raises serious questions regarding the reliability of the confession.” However, having detailed numerous defects in the investigation, Judge Greenberg found the boy guilty and sentenced him to nine months imprisonment.
Commentary:- As the treatment of children in Israeli military detention comes under greater scrutiny, a trend is emerging whereby military court judges are prepared to be highly critical of the manner in which the police interrogate children, but nevertheless find the child guilty.
Military Prosecutor v M.H.
Case:               Military Prosecutor v M.H.
Court:              Ofer Military Court
Judge:             Major Sharon Rivlin Ahai
Lawyer:          Nery Ramati, Gaby Lasky & Partners
Date:               7 June 2013
Issue:             Identification evidence
Background:- On 7 June, a 17-year-old volunteer photographer with the Israeli human rights group, B'Tselem, was arrested by Israeli soldiers whilst photographing them attempting to arrest children throwing stones. As all the children fled, M.H. remained behind holding his camera and was detained by the soldiers. M.H. was charged with throwing stones.
Decision:- M.H. pleaded not guilty. During a full evidentiary hearing, one soldier gave evidence that he positively identified M.H. throwing stones from a distance of 40 metres. The judge accepted the soldier's testimony and found M.H. guilty. M.H. was sentenced to 6.5 months in prison.
Military Prosecutor v M.H.J and M.Z.J
Case:               Military Prosecutor v M.H.J. and M.Z.J.
Court:              Ofer Military Court
Judge:             Shmuel Flaishman
Lawyer:           Nery Ramati, Gaby Lasky & Partners
Date:                25 May 2013
Issue:              The "spirit" of the Youth Law
Background:- On 25 May 2013, two boys, aged 13 and 14, from Abu Dis, in the West Bank, were arrested from their homes in the middle of the night. The boys were taken for interrogation and questioned without first seeing a lawyer and without their parents being present. During their interrogation the boys confessed to throwing stones.
Decision:-  The court ruled that due to flaws in the investigation and the age of the boys, they should be released from custody provided their father appeared in court the following day. The following day the prosecution charged the boys with throwing stones and asked the court to detain the children until the end of the legal process. The court rejected the prosecution's request and released the boys. The case was finalised by way of plea bargain whereby the boys were given five month suspended sentences (for three years) and fined NIS 2,500.
Commentary:- Under Israeli military orders there is no prohibition against arresting or interrogating children at night or a requirement that parents be present during interrogation. However, the Military Appeals Court has said that the "spirit" of the Youth Law (Israel's civilian law applicable to children) should be followed. Under the Youth Law, children must not be interrogated at night and are permitted to have a parent present during questioning. The ruling of the Military Appeals Court regarding applying the "spirit" of the Youth Law appears to be applied by the military courts on an ad hoc basis. It is submitted that the safeguards included in the Youth Law must also be enshrined in the military orders.

Military Prosecutor v H.A.
Case:               Military Prosecutor v H.A.
Court:              Ofer Military Court
Judge:              Amir Dahan
Lawyer:           Nery Ramati, Gaby Lasky & Partners
Date:                18 May 2013
Issue:              Release without charge

Background:- On 18 May 2013, a 16-year-old Palestinian youth from Hebron was arrested and accused of throwing stones. The only evidence against H.A. was a blurred photograph of somebody throwing a stone. Two days after his arrest, H.A. was brought before a military court for the first time. The court extended H.A.'s detention for an additional four days so that he could be interrogated further. In extending the period of detention, the court noted that the evidence against H.A. was weak.
Decision:- On 24 May 2013, the Israeli police requested that H.A. be released on bail (NIS 1,500). H.A. has not been charged with an offence.

Military Prosecutor v S.T.
Case:               Military Prosecutor v S.T.
Court:              Ofer Military Court
Judge:             Major Sharon Rivlin Ahai
Lawyer:           Nery Ramati, Gaby Lasky & Partners
Date:                24 April 2013
Issue:              Release without charge

Background:- A father and his son were arrested on their land by Israeli soldiers after a group of settlers convinced the soldiers that the land belongs to the settlement. Father and son were taken to a police station and questioned. They were detained for 24 hours and ordered not to return to the land for 30 days.
Decision:- One day after their arrest, both father and son were brought before a military court that ordered their immediate release without conditions. The court held that there was no evidence to indicate that the father and son were not permitted to be on the land.

Military Prosecutor v S.H., M.H. and B.A.
Case:               Military Prosecutor v H.A.
Court:              Ofer Military Court
Judge:             Shmuel Kidar
Lawyer:           Nery Ramati, Gaby Lasky & Partners
Date:                17 March 2013
Issue:              Arrest

Background:- Three boys, aged 15 and 16, were arrested whilst herding their sheep and goats near the settlement of Ma'on, in the south Hebron hills, West Bank. The boys were accused of touching the settlement's perimeter fence with sticks which triggered an alarm. The boys were interrogated and detained for 48 hours. Upon request of their lawyer, the boys were brought to court the following day.
Decision:- The prosecution requested that the boys be released on bail of NIS 2,000 each. The court ruled that the boys should not have been arrested and should be released without payment of bail.

Military Prosecutor v A.T.
Case:               Military Prosecutor v A.T.
Court:              Ofer Military Court
Judge:             Major Sharon Rivlin Ahai
Lawyer:          Gaby Lasky, Gaby Lasky & Partners
Date:               9 January 2012
Issue:             Admissibility of improperly obtained evidence
Background:- On 23 January 2011, a 14-year-old Palestinian boy (A.T.) was arrested at night by Israeli soldiers from his home in the village of An Nabi Saleh, in the West Bank. A.T. reported that his arrest was violent and threatening. The army maintained custody of A.T. for several hours before handing him over to the police for interrogation. Whilst in the army’s custody, A.T. was unable to sleep and was not given any food or water. The police commenced interrogating A.T. in the absence of his lawyer, even though they were informed that the lawyer was on the way to the police station and would arrive within the hour. A.T. was questioned by four interrogators, of which only one was a trained youth interrogator. A.T. was not properly informed of his right to silence and only saw his lawyer following five hours of interrogation. Unusally, the interrogation was audio-visually recorded and A.T. appeared tired and exhausted, breaking down in tears on one occasion. During interrogation, A.T. made statements that were subsequently used as evidence to arrest and prosecute two community leaders from his village who were allegedly involved in organising weekly demonstrations against the nearby settlement. Two days after his arrest, A.T. was remanded in custody by Ofer military court. On 30 January 2011, A.T. was charged with throwing stones and participating in a demonstration without a permit. A.T. remained in detention for two months before being released on home detention.
Issue:- A.T.’s lawyer, Gaby Lasky, brought an interlocutory application to challenge the admissibility of the statements made during interrogation on the grounds they were not free and voluntary, as required under Israeli military law. Although many legal protections provided to children under Israel’s civilian juvenile justice system (Youth Law) do not apply under  military law, the Military Appeals Court has stated that the “spirit” of the Youth Law “influences” military law (per former President of the Military Appeals Court, Col. Aharon Mishnayot in Military Prosecutor v N.A. (2009)). Under Israel’s Youth Law, children should not be interrogated at night (and by implication arrested at night); they must be informed of their right to silence;  are entitled to see a lawyer prior to questioning; should be accompanied by a parent throughout; and must be questioned by a trained youth interrogator. Accordingly, Lasky argued that statements made by A.T. during interrogation were not admissible as evidence because:
  • A.T. was violently arrested at night, intimidated and held in poor conditions;
  • He was interrogated whilst sleep deprived;
  • He was prevented from consulting with his lawyer;
  • He was interrogated in the absence of a parent;
  • He was not properly informed of his right to silence; and
  • Only one out of four interrogators was trained as a youth interrogator.
Decision:- In dealing with the manner in which A.T. was arrested by the army, the judge accepted that “in certain circumstances, the use of violence, threats, or inappropriate treatment of the detainee immediately before his interrogation could influence the free admission of his guilt” but found “no support for the claim that the manner in which the defendant was detained affected his statement to the police.” In dealing with the manner in which A.T. was interrogated, the judge stated as follows:
Absence of a parent – “The police should try to uphold the obligation allowing parents in the interrogation … as long as the conditions in the region permit it.” Although the judge went on to find that “no real effort was made to check the option of having the parents present in the interrogation,” she held that the absence of a parent was not a “substantive flaw”.
Prevented from meeting lawyer – The judge accepted that the interrogators knew A.T.’s lawyer was on the way and that given his age and the absence of his parents, they should have waited a reasonable time before commencing the interrogation. However “it is hard to say that the decision not to wait … was so unreasonable and unjust that it critically undermined the fairness of the interrogation.”
Sleep deprivation – “In general, a minor arrested at night should be allowed to rest before interrogation and, when appropriate, the interrogation should be halted to allow the defendant to rest if he complains of tiredness.” However, the judge formed an impression in this case that A.T. was not so tired as to result in a “substantive flaw” in the interrogation.
Right to silence – The judge found that the failure to inform A.T. of his right to silence “is a substantive defect that under no circumstances can be considered a 'technical’ defect” and that it is an “absolute obligation” to inform a defendant of this right.
In a surprising conclusion given the specific findings in relation to the failure to inform A.T. of his right to silence, the judge concluded that although the defects in the interrogation were serious, they “did not have a substantive effect on the manner in which the defendant gave his confession … to the extent that would render his confession inadmissible.”
Commentary:- This case highlights the differential treatment children receive under Israel’s civilian and military legal systems. Statements by the Military Appeals Court to the effect that the “spirit” of the Youth Law influences military law are wholly inadequate to protect the rights of children. There is no legal justification for this differential treatment and all children subject to Israel’s penal jurisdiction should be guaranteed the same legal protections.