Evidence update: right to silence
[30 April 2023] – The right to remain silent during interrogation and at trial gives effect to the principle that a suspect is presumed innocent and the onus of proving otherwise is on the authorities. A suspect is not obliged to prove or disprove facts or incriminate themselves. Experience has shown that in the absence of this right, evidence obtained from suspects under interrogation is often unreliable and the temptation to use coercive techniques is high.
Although Israeli military law includes the right to silence, evidence obtained over the years indicates that few suspects were informed of the right prior to interrogation and reports of coercion commonplace. Ten years ago a delegation of senior lawyers
were unable to secure any assurances from Israel's Ministry of Justice that Palestinian children were formally cautioned on arrest although the Ministry of Defence did confirm that confessions should not be admissible in court if the suspect had not been informed of the right to silence. Also around this time, UNICEF
"At the commencement of each interrogation session, the child should be formally notified of his or her rights in Arabic, and in particular, informed of the privilege against self-incrimination."
Senior lawyers have also recommended that a breach of this principle should result in the discontinuation of the prosecution and the child's immediate release.
In response to these reports and recommendations, the Israeli military prosecutor in the West Bank confirmed in April 2013, that "Israeli police started using a revised Arabic text to notify children arrested for alleged security offences of their rights, including the right to remain silent".
During the intervening 10 years, MCW has collected 1,041 testimonies
from Palestinian children detained by Israeli forces in the occupied West Bank. While the evidence shows some years of improvement in the number of children being informed of their right to silence, observance of this right is now in decline, falling to just 4 percent in 2022. In most cases it is clear that the interrogators are fully aware of their obligation to inform children of their rights, but only do so midway through, or at the end of the interrogation, after the child has incriminated him or herself and/or his or her friends.
The following testimonies are representative of the 500-1,000 cases involving Palestinian children detained each year by Israeli forces in the occupied West Bank.
(17 years) - "On the third day after my arrest I was taken for interrogation. The interrogator did not remove the handcuffs. He did not allow me to speak to a lawyer and did not inform me of my right to silence. When I denied the accusations, the interrogator lost his temper. He shouted and threatened to keep me in solitary confinement if I did not confess. He questioned me for about four hours until I was exhausted and sent me back to solitary confinement. On the fifth day I was interrogated again. I did not speak to a lawyer and was not informed of my right to silence ... He then sent me to the next room where I was questioned by a policeman ... the policeman told me I had the right to silence."
(13 years) - "The interrogator phoned a lawyer and allowed me to speak to him. I was suspicious of the person on the line and refused to talk to him. The interrogator spoke to the lawyer but not me. Then, without informing me of my right to silence, the interrogator accused me of chasing a soldier with the intention of killing him ... The interrogator told me my friends had confessed against me. He showed me a photograph and wanted me to give him the name of that person. Then he threatened to lock me up in prison for three years ... After court I was taken for more questioning by an intelligence officer. He did not inform me of my rights and did not call a lawyer for me. He told me if I helped him he would help me."
(14 years) - "The interrogator wore civilian clothes and had a voice recorder on his desk. He started to interrogate me before allowing me to speak to a lawyer. He did not inform me of my right to silence. He accused me of throwing stones and wanted me to confess. At first, he was calm but when I denied the accusation he became angry. He scared me with his loud voice. When I told him I did not know anything he shouted even louder and slapped me. At the end I confessed to being too close to the Wall and throwing five stones. After confessing the interrogator phoned a lawyer who told me not to confess because if I did I would go to prison. When I told the lawyer I had already confessed, the line was cut off."
(14 years) - "The interrogator removed the blindfold but kept me tied. He phoned a lawyer and allowed me to speak to him while he left the room. The lawyer told me not to confess and to persevere. Then, without informing me of my right to silence, the interrogator told me I was accused of throwing stones at the Wall. At first, I denied the accusation. The interrogator insisted I confess. He told me one of my friends had confessed against me. He then brought his face close and shouted “confess, confess”. He was swearing and wanted me to confess against my friends. Another interrogator came in and yelled urging me to confess. Then he opened the door and ordered me to strip. I refused to strip and confessed to throwing stones at the Wall."
(16 years) - "Without informing me of my right to silence, the interrogator accused me of going with some friends to throw stones at a security car. I denied the accusation. He gave me a specific date and told me my friends had confessed against me. Then he played a voice recording of my friends confessing against me and showed me their signatures on their confession documents. The interrogator questioned me for about two hours and told me I had to confess. He told me he would bring me cigarettes and food if I confessed. He also told me if I confessed against my friends he would send me home. At the end he wanted me to sign on an iPad. I signed one page and refused to sign any more. The text was in Hebrew."