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Home » Public statements »

Evidence update: access to lawyers

[24 February 2021] – Under Israeli military law a detainee has the right to consult with a lawyer prior to interrogation.[i] There are exceptions but generally these do not apply to children. A detainee must also be informed of this right prior to questioning. In 2006, Israel's Supreme Court confirmed that the right to promptly consult with a lawyer is a fundamental right.[ii] Regardless of the law, for years the military authorities have systematically denied children access to lawyers until after the interrogation process was concluded, and in many cases, coerced confessions were obtained. 

In 2012/13 two reports on the treatment of children in Israeli military detention were published highlighting, among other things, the lack of prompt access to lawyers. The first report, issued by a delegation of lawyers, recommended that the child's right to consult with a lawyer prior to interrogation should be respected and any breach should result in the discontinuance of the prosecution and the child's release. The second report, published by UNICEF, not only recommended that each child should have prompt access to an independent lawyer, but also that the lawyer should be physically present throughout the interrogation. 
 
Following the release of these reports Israel’s Ministry of Foreign Affairs stated that it would work to implement the reports' recommendations and delegated the task to the military prosecutor in the West Bank.[iii] Subsequently, the military prosecutor informed UNICEF that:[iv]
  • The right to consult with legal counsel has been recognized by the Israeli Supreme Court as a fundamental right of a suspect, and that breach of that right could lead to the inadmissibility of any statement given. 
     
  • In December 2013 the Israeli Police started using a revised Arabic text to notify children arrested for alleged security offenses of their rights, including the right to legal counsel. 
     
  • The same regulations apply for Palestinian children in military detention as for Israeli children under Israeli law: children have the right to consult with a lawyer, but the lawyer does not have the right to be present during the interrogation. 
     
  • The Military Prosecutor attempted to compile a list of lawyers representing children before the military juvenile courts, to be at children’s disposal upon arrival at the police stations.
     
  • The Military Prosecutor has also facilitated an initial meeting with the Israeli police to discuss how children are notified of their rights, including the right to counsel, and explore options, including child-friendly materials, to ensure that children are clear that they can avail themselves of these rights. 
Notwithstanding this dialogue, in 2015 UNICEF reported that it was in possession of 208 affidavits collected from children detained between 2013 and 2014, of which 78 percent reported not being adequately notified of their legal rights, in particular the right to counsel and the right to silence. UNICEF concluded by stating that: “The data demonstrates the need for further actions to improve the protection of children in military detention, as reports of alleged ill-treatment of children during arrest, transfer, interrogation and detention have not significantly decreased in 2013 and 2014.”
 
Since 2013, MCW has documented a rise in the number of children having phone access to a lawyer prior to interrogation, although there was a notable reversal of trend in 2020. MCW has also documented a small number of cases in which military court judges have rejected evidence on the basis that the child was denied prompt access to a lawyer.[v] That said, 85 percent of children processed through the system in 2020 were denied prompt access to a lawyer, and in cases where access was granted, it generally consisted of a phone call of less than 60 seconds duration with the interrogator listening. In no case documented by MCW in 2020 did a child physically meet with a lawyer prior to interrogation. 
 
In 2020, children continued to describe the interrogation process and access to lawyers, as follows:
  • "At around 1:00 a.m. I was re-tied and taken to Al Mascobiyya police station in Jerusalem where I was interrogated again. This time the blindfold was removed but not the tie. The interrogator did not inform me of my right to silence but half way through the interrogation he told me I could consult with a lawyer. He then phoned a lawyer and allowed me to speak to him. The conversation lasted for about a minute and the interrogator was listening. (A.M.Y.W. - 15 yrs)
     
  • "About half way through the interrogation the interrogator phoned a lawyer and handed me the telephone to speak to him. The lawyer told me to give short answers like “yes” and to only talk about things that actually happened. I spoke to the lawyer for about a minute and then the interrogator took the telephone away. He was listening to our conversation." (I.S.I.M. - 16 yrs)
     
  • "The interrogator told me I had the right to consult with a lawyer. Then he phoned a lawyer and allowed me to speak to him. The lawyer told me to deny everything and advised me to remain silent. I spoke to the lawyer for about two minutes on a land line in another room and the interrogator was not listening." (R.U.K.K. - 15 yrs)
     
  • "At the end of the interrogation the interrogator told me I had the right to consult with a lawyer but he did not call a lawyer for me. Then he showed me documents in Hebrew and asked me to write my name on the document and I did." (T.A.F.S. - 15 yrs)
(All 850 testimonies collected by MCW are available here)
 
 

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[i] Under article 56 of the Security Provisions Order (Military Order No. 1651) (the Order) a detainee has the right to consult with a lawyer (exceptions apply) and article 136c provides explicit instructions to investigators as to how children should be notified of this right.
 
[ii] Yisascharov v The Head Military Prosecutor (2006)
 
[iii] The Military Prosecutor in the West Bank at the time was Lt. Col. Maurice Hirsch, a resident of an illegal West Bank settlement. (See also Haaretz: Former Top Military Prosecutor Lives in House Built Illegally on Palestinian Land (3 May 2018). In November 2016, Hirsch left his post as Military Prosecutor in order to take up a consultancy position with the non-governmental organisation NGO Monitor.
 
[iv] UNICEF Bulletin No. 2 (February 2015) – available at https://is.gd/miEAIO
 
[v] See MCW statements: The right to a lawyer - Case analysis (31 May 2018) - available at https://is.gd/7MkF4n; Legal safeguards and reforms failing to protect minors during interrogation (31 May 2017) - available at https://is.gd/9fYXMW; The right to a lawyer and admissibility of evidence - Case analysis (16 March 2017) - available at https://is.gd/Avl2bW; Children prevented from effectively exercising legal rights (30 April 2015) - available at https://is.gd/l4Z54B; Double interrogation continue (6 May 2014) - available at https://is.gd/2hBVk2; Military justice - paying lip service to the rule of law (18 July 2013) - available at https://is.gd/z7ubEB. See also Haaretz: In First, Israeli Military Court Throws out Palestinian Boy's Interrogation (24 April 2018) - available at https://is.gd/orb5eX