The Right To a Fair Trial In Israel

by Avigdor Feldman

I. Introduction

Criminal trials in Israel are normally held in regular courts, where the judges are professional and selected by a Nominations Committee comprising representatives of the Knesset (the Israeli parliament) and the Chamber of Advocates and two Supreme Court judges. The meetings of the Nominations Committee for judges are held in secret. As a rule, Israel's judicial system is autonomous and independent; a judge cannot be removed from office except in very unusual circumstances that are defined in law. Judges serve until reaching the age of seventy.

Soldiers in Israel are tried in military tribunals, where the bench is made up of one professional military judge, and two officers who have no legal training and who are appointed for the trial at which they will sit in judgement.

There is also a military court system for persons accused of offences against the Emergency Defence Regulations. In these courts, military personnel are the judges. The judges include a professional judge and two others who are officers that may or may not be legally trained.

The right of an accused to a fair trial is guaranteed, generally, in the Criminal Procedures Act, the Law of Evidence and the Penal Law. Furthermore, criminal procedure in general is subject to the Basic Law of Human Dignity and Freedom, which is a constitutional basic law providing, inter alia, that no person's life, body or dignity shall be harmed, nor shall the liberty of a person be denied by imprisonment, arrest or extradition. These basic rights can only be denied by a law "appropriate to the values of the State of Israel, for an appropriate purpose, and to an extent that does not exceed requirements."

The criminal process in Israel is divided into two main stages: 1) the criminal investigation, and 2) the trial. Each part has its own system of checks and balances. Defence of the rights of the accused/suspect is weaker in the criminal investigation part.

A person suspected of tax offences does not have a right to remain silent in a tax investigation, and he is required to answer questions and give explanations. Non-co-operation in such a case is itself a criminal offence.

A person suspected of a criminal offence must give his fingerprints and permit the police officer to photograph him. He is not required to give a sample of his blood, hair or tissue, but according to judicial rulings, such samples can be taken from him by trickery and without his consent, and will be admissible in his trial.

At the trial itself, the accused need not testify nor give his version of events, but to refrain from testifying might even be used against him as corroboration of the evidence of the prosecution. There is some dispute in judicial interpretation as to whether refraining from testifying might be used to corroborate the prosecution's evidence where corroboration is required.

The investigator may continue to investigate the suspect even after he has declared his intention not to answer questions or after asking for a lawyer to be present during the questioning. In general, the accused is not entitled to have a lawyer present in a criminal investigation, but he may ask to meet a lawyer.

A criminal investigation often goes on a long time after the suspect has declared his intention to exercise his right to remain silent, and if, during such investigation, the suspect changes his mind and decides to confess to a crime, that confession is admissible in court if it is not proven that beyond the continuation of the investigation despite the suspect's wish to exercise his right to remain silent, no other disqualified means were employed.

Since the suspect is entitled to a lawyer during the investigation, a confession obtained without the presence of a lawyer is admissible in court.

II. The Pre-Trial Stage

A. Admissibility of an Accused's Confession

Under the provisions of the law, confessions are admissible in a trial only if they are freely given. Evidence of the use of disqualified methods in order to force the accused to make a confession render such confession inadmissible. Disqualified means include violence towards the suspect psychological pressure, threats of violence, and promises of benefits if he makes a confession.

If during a trial the accused alleges that the confession was not made of his own free will, a "little trial" will be held -- a trial within a trial -- in which the prosecution must bring evidence proving that the confession was made freely by the accused and that no disqualified methods were employed. Where the disqualified methods employed against the accused are particularly severe, amounting to torture, then the confession is immediately disqualified; but where less severe means are used, the court may examine, during the little trial, whether such means did indeed prejudice the accused's free will. While evidence is being heard on the admissibility of the confession, the court may read the confession itself and conclude from the wording whether or not the accused offered it from his own free will.

By shifting the centre of gravity from the disqualified methods to the question of whether the confession was made of the accused's free will, an opening has been made for admissibility of confessions obtained under limited pressure. Examination of free will by the court is extremely complex, and in most cases the court will decide that free will was not adversely affected.

There is now a proposed Bill in Israel, that was written after a special commission headed by a Supreme Court judge was appointed to study the question of the conviction of accused persons solely on the basis of their confessions. This commission proposed two levels of disqualified methods. One is especially severe means amounting to torture, as defined in the Convention against Torture. Such means disqualify a confession without need for any further inquiry. The second is pressure that is less extreme than the first level. In the latter case, the confession will be admissible, but a conviction cannot be achieved thereby without corroborating evidence.

In the current legal situation, in order to convict on the basis of confession alone, the prosecution must have what is called "something in addition", meaning some additional indication, not necessarily independent corroborating evidence, that the confession is truthful. Over time, it has become more and more easy to satisfy the demand for "something in addition" such that today it can be almost anything that the court believes serves as an indication that the confession is the truth.

There is currently in Israel intense public discussion about the possibility of conviction on the basis of confession alone. It follows in the wake of several cases in which it transpired, to some extent or another of certainty, that innocent persons have been convicted solely on the basis of their confessions.

B. Safeguards Against the Use of Disqualified Methods in Obtaining Confessions

There are very limited safeguards against the exercise of disqualified methods during an investigation. The absence of a lawyer at the investigation stage and the fact that the police are not required to tape or video a criminal investigation allow disqualified methods to be exercised without their coming to light at the trial.

The pending bill before the Knesset will make video recording the investigation of serious crimes mandatory, and if such recording is not possible then a lawyer must be present. This proposal was recommended by the report of the commission investigating convictions based solely on a confession.

Since there is no requirement to appoint a lawyer for an accused at the criminal investigation stage and before an indictment is filed, there are numerous cases of accused persons of inadequate means or of poor social awareness, who are not represented by a lawyer at the criminal investigation stage even when they are accused of the most serious crimes, such as murder, robbery with violence or rape.

The police must bring a suspect to court if they wish to extend his detention beyond 48 hours, and the court can extend the first period to a maximum of 15 days and then to an additional 15 days. These are relatively long periods of arrest, during which there is no real judicial supervision of the criminal investigation, and this fact too could contribute to the temptation that exists for the police to use disqualified methods in obtaining a confession, and then to deny in court that such methods were employed. The chances of an accused being able to prove in court that his confession was obtained by disqualified methods are not particularly good. The accused does not normally have witnesses to corroborate his allegation, or the possibility to write or document the details of the interrogation. As a result, times and events become confused in his mind, and when he testifies in court he will often give inaccurate factual descriptions of the interrogation and the court is liable to interpret these as a clear sign that he is not telling the truth.

Unlike the accused, interrogators can document the investigation, co-ordinate testimonies among themselves and as a rule, the court in Israel, which consists only of professional judges and no juries, tends to believe the police officer rather than a person accused of a serious crime.

In general, allegations of the use of disqualified methods in obtaining confessions are quite common in Israel and are heard in most trials in which the prosecution seeks to have the accused's confession admitted. Experience shows that the courts tend to dismiss such allegations as false, preferring the police testimony that no violent methods were used.

Although the penal law defines the exercise of disqualified methods by a police officer or investigator in obtaining a confession as a criminal offence, sanctions are very rarely imposed.

C. Special Permits for Interrogators of the General Security Service (GSS)

Interrogators of the General Security Service have a special permit given by a special ministerial committee appointed by the government, to exercise physical pressure in order to obtain information and confessions from persons suspected of acts of terrorism. These confessions are not necessarily admissible in court, and when the person who confessed goes to trial, such confessions must comply with the same conditions of admissibility as any other confession.

These special GSS permits are not legislated but are issued by government resolution. The nature of the permitted measures of physical and mental pressures is also secret, and is disclosed neither to the public nor to the suspect's lawyer.

It is known, however, that there are two levels of measures permitted to the GSS: a level called "moderate physical pressure", and a level that included more severe physical and psychological pressures. One of the means used in this more severe level has become notorious and is known as "shaking". In "shaking", the suspect is bound to a chair and the investigator grasps him by the shoulders and shakes him forcefully back and forth, an action liable to lead to brain damage and even death, as indeed occurred in at least one instance.

Sleep deprivation, long interrogation sessions, incarceration in very small cells, being bound painfully for long periods of time, are among the other means employed by GSS investigators under their special permits.

Both Israeli society and the courts are in dispute about these special GSS permits. The arguments for and against relate to the question of whether a society may use violence against suspects, and on the other hand, whether the use of these methods is essential in cases where the suspects believed to have perpetrated acts of terrorism are detained by the GSS and are known to have information on further acts of terrorism. In this way, the ticking time bomb principle was used to justify the use of these methods to obtain information that will assist in the prevention of such acts.

The ticking time bomb principle was fairly widely extended to cover not only cases where the information that the investigator hoped to obtain from the suspect relates to an imminent terrorist act, but also where general prevention of terrorism is concerned.

The legal situation in Israel becomes even more complex in light of the fact that the GSS as an institute, and its interrogators, act without there being established a law that regulates their actions and limits their powers. The GSS has been in existence since the founding of the State of Israel. It is a kind of obvious "natural fact" which exists without Israeli society seeing any need to regulate its actions in law.

Only now, after 48 years of statehood, is the GSS the object of a legislative process to regulate its actions in law. This came about mainly after legislation of the Basic Law of Human Dignity and Freedom in 1992. The provision in that law stating that a person's dignity and freedom can be denied only by law, for an appropriate purpose and to an extent that does not exceed requirements, has been interpreted by many as removing the legal basis for the GSS's actions.

There are now two constitutional petitions before the Supreme Court, filed by myself. One seeks a declaration that GSS interrogations are illegal, and the other seeks to bring to trial those GSS interrogators who employed shaking, and thereby caused a person's death.

In the wake of these petitions and the wide public discussion, there is now a GSS Bill that will legislate the powers of GSS interrogators, the manner of their appointment and supervision, including legal permits for the employment of interrogation methods that include physical and psychological pressure. According to the Bill, the methods permitted will be secret, and will be approved by a special ministerial committee. This law must meet the conditions of the Basic Law of Human Dignity and Freedom, otherwise the Supreme Court might well reject it.

Clearly, the fact that the GSS could obtain special permits to use physical means has "trickled down" to Police investigations and severely prejudiced the general message forbidding the use of disqualified methods in investigation. The GSS is admired and looked up to in Israel, and without a doubt its interrogators enjoy the status of role models among police investigators, who might well wish to imitate them and employ such methods themselves.

D. Use of Disqualified Confessions, Deceit and Fraud in Obtaining Confessions

Even in cases where a confession is ruled inadmissible due to the use of disqualified methods, there is nothing to prevent submission to the court of other evidence that comes to light as a result of the disqualified confession, such as articles found or any other admissible evidence. Israel's legal system does not recognise the "poisoned fruit" theory, and therefore evidence obtained by disqualified methods may well be a source of admissible trial evidence.

Disqualified methods are usually defined as physical violence or threats of violence or the promise of benefits that prejudice the free will of the accused. The use of various deceits, however, is not disqualified, and the courts have permitted such methods as misleading a suspect by letting him understand that his partner has made a confession that incriminates him, false representation by the Police as if the suspect's fingerprints had been found at the scene of the crime or articles belonging to the victim of the crime had been found in the suspect's home. There is also no restriction on the use of "plants", who share the suspect's prison cell and pass themselves off as fellow-inmates, and a confession obtained by such means is admissible in court even though, in the usual meaning of the term, such confessions were not given of the suspect's free will but on the basis of misleading, deception and fraud.

The use of plants to "encourage" a confession and of other means of deceit is widespread in Police investigations, and the public and the courts alike are sympathetic towards it as a sophisticated weapon in the war against crime.

Thus, even if the accused is unaware of the significance of his confession, whether because it was not explained to him or because it was obtained by fraudulent means such as a plant or in another manner, its admissibility remains intact.

A confession obtained by an accused as part of an agreement with the prosecution, as for example where he agrees to turn State's witness, in the absence of an express commitment by the prosecution that the confession will not be submitted to the court, is not disqualified as evidence, even in cases where it is the State that has breached the agreement with the accused.

With respect to self-incrimination in other proceedings, a person involved in administrative, civil or other criminal proceedings need not incriminate himself unless he is promised immunity against the use of his testimony for the purpose of his incrimination. Such a promise, even where given, does not protect him against the use of evidence obtained as a result of that evidence and the use of that self-same evidence against him.

E. Detention of Suspects

Prisons in Israel officially maintain complete segregation of suspects undergoing police investigation, those whose investigation is completed and against whom an indictment has been filed in the courts, and those whose trial is over and are incarcerated on the basis of their sentence. However, in practice, and due to the overcrowding of prison facilities, there are many instances where this separation is violated. In the natural course of events, those who have started their sentences enjoy better conditions, both as to their cells and the possibility of working inside the prison, and at a later stage also outside the prison. They are also entitled to leaves to which detainees whose trial is not yet over are not entitled.

Under Israeli law, there are certain crimes for which a person against whom an indictment has been filed may be held until completion of his trial -- normally crimes of violence, drug-related offences and rape. In a crime of murder, a suspect will not be released on bail unless it transpires that the evidence against an indicted suspect is particularly flimsy. A court decision on whether to hold a suspect until inquiries are completed depends on several considerations, namely: the extent of the risk that he will commit additional crimes if released, influence witnesses, or flee jurisdiction. The more serious the crime, the greater the risk that the suspect will be held until completion of his trial. The decision also depends on the amount of evidence against the suspect, and whether it proves his guilt. There is currently intensive polemic in Israeli rulings on the question of what constitutes circumstances in which the court will order a suspect to be held until completion of his trial, mainly with an eye to the Basic Law of Human Dignity and Freedom quoted above and the conditions provided therein that denial of freedom shall be solely for an appropriate purpose and to an extent not exceeding requirements. A ruling is expected soon, from a special session of nine Supreme Court judges before whom I appeared, on the question of what evidence justifies holding a suspect in custody until the completion of a trial.

Before an indictment is filed, a person can be held for a period of 30 days by order of the court, which can then approve further detention of 15 days at a time. In special cases, the preliminary detention can be extended beyond 30 days, but only in response to an application filed by the Attorney General.

In practice, in almost every Police investigation of serious crimes the suspect will be held in custody during the investigation stage. The period will vary according to the type of crime. I do not have statistical data on arrest periods prior to filing an indictment, but it would appear that for white collar crimes the average is about five days, for violent crimes it will usually be the full 30 days permitted by law, and sometimes even more with the approval of the Attorney General.

Clearly, detention at the investigation stage serves indirectly as a means for obtaining a confession from the suspect, who understands -- or is led to understand by his interrogators -- that if he makes a confession and if the crime is not of the type to justify detention until his trial is completed, after filing the indictment he will be released.

Nevertheless, according to judicial interpretation, a specific promise given to the accused that if he makes a confession he will be released, or vice versa -- if he does not confess the police will seek extension of his detention -- disqualifies any confession that may be made.

In practice, many confessions are made in order to obtain release, and this is indeed one of the most widespread ways of obtaining a confession from a suspect. Indirectly, the courts encourage this phenomenon, since an accepted argument in an arrest proceeding is that because the suspect is co-operating with the Police, the investigation requires more time for questioning the suspect in custody.

F. Information to the Accused

On arresting a person, the police officer is required to inform him of the nature of the offence for which he is being arrested, but information given at this time can be of a general nature, such as that the person is suspected of murder or rape, and detailed information of the crime of which he is suspected can be withheld from the suspect. When the suspect is brought before the judge for extension of his detention (after 48 hours without a court order), the police representative is not required to present investigation material to the suspect, and usually during the first stages of detention the accused does not know the nature of the evidence against him, and the court hearing is usually on the bias of material delivered only to the judge. The accused or his attorney are not entitled to see this material and respond to it. At the more advanced stages of detention, as the maximum period of 30 days approaches, there is a tendency to reveal to the accused some of the material gathered against him, but there are many cases where throughout detention the accused does not know exactly what he is being accused of and what the evidence against him consists of, and this is entirely at the discretion of the court.

The courts tend to approve arrests and for a long period of up to 30 days, without the accused being given proper opportunity to respond to the charges against him or to deal with them effectively. The arguments usually brought against the need to enable a suspect to deal with the suspicions against him are that it might prejudice the investigation and that the good of the investigation requires that the suspect know as little as possible of the material being gathered against him with respect to perpetration of the crime.

After an indictment is filed, all the investigation material is disclosed to the suspect, and the prosecution is indeed required by law to submit all such material to the suspect when the indictment is filed. Failure to deliver such material to the suspect leads to sanctions, whereby the prosecution is not permitted to present it to the court. In extreme cases such failure can even lead to an acquittal. The prosecution is also required, at this stage, to disclose to the suspect any material in his favour and which the prosecution does not intend to use at the trial. Failure to disclose such material to the defence can also lead to acquittal of the accused.

The prosecution is permitted not to disclose to the accused material for which a seal of secrecy has been issued by a Government minister. Justification for a seal of secrecy is where disclosure of the material might be prejudicial to State security or public safety. The court is empowered, on the application of the accused, to disclose to him any material on which a seal of secrecy was issued, if it is convinced that without that material that accused's defence is prejudiced.

G. Detention Before and After Filing an Indictment

The Supreme Court in Israel has recently been making efforts to position detention on a narrower base and to reduce the number of cases in which persons are detained at the investigation stage. These efforts are based upon the Basic Law of Human Dignity and Freedom and the State Controller's Report, which published the numbers of detentions and showed that only very few of those arrested for investigation are later brought to trial and convicted.

With respect to detention after filing an indictment, the law stipulates that a person can be held in custody if the court is convinced that there is a reasonable basis for believing that his release will prejudice the conduct of the trial or that the accused will flee, or that in the circumstances of the crime it is believed that the accused will endanger public policy or public safety. The legislator names certain crimes for which a person can be held in custody solely on the basis of the severity of the crime; these are drug-related crimes other than use and possession for self-use, crimes of violence in which a weapon was used, and crimes against minors. In each case, the law determines that the court shall not order detention if the object of the detention can be achieved in other ways, such as house arrest or other restrictions that can be imposed on the accused. For the crime of murder, arrest until completion of the trial is the norm, which can be deviated from only if the evidence does not justify such detention.

Detention after filing an indictment is for a period of one year, and the accused will be released if the trial has not ended after one year unless a Supreme Court judge instructs that he will be detained for a further period of three months. The Supreme Court can also continue to extend detention for additional periods of no more than three months each.

A decision to detain a person in custody until his trial is completed can be appealed in the Supreme Court and for reconsideration during the detention period, if new facts come to light that could alter that decision.

H. Administrative Detention

Administrative detention and special detention proceedings exist for acts against the security of the State. Under powers granted by law, during states of emergency the Minister of Defence may order a person to be held under arrest for a period not exceeding six months. A person so arrested must be brought before a judge within 48 hours, and the judge has the authority to approve or rescind the arrest order. The State, through its legal representative, may submit confidential material to the judge that is not disclosed to the suspect or his attorney, and the court is empowered to approve the administrative detention solely on the basis of such confidential material, which of course the suspect can neither respond to nor refute as he has no knowledge of its contents and nature. The use of confidential material is widespread in cases of administrative detention.

Even though the authority for administrative detention is limited to times when a state of emergency is declared, the legal situation in Israel is such that a state of emergency was declared in 1948, a short time after Israel's declaration of independence, and has not been rescinded since then. There is now a proposed Bill before the Knesset whereby states of emergency will be limited to three month's duration.

The use of administrative detention within the borders of the State of Israel, as opposed to the Administered Territories, is extremely rare, and is exercised mainly against Arabs, although there have been occasions when it has been used against right-wing Jews.

I. The Right to an Attorney

By law, a suspect is entitled to demand to meet with a lawyer the moment he is arrested, and the police officer in charge of the investigation must allow such a meeting "as soon as possible". The meeting is held in a place that guarantees the confidentiality of the conversation.

Also by law, the police officer may instruct that the meeting between the suspect and his lawyer be postponed for a number of hours, if there is reason to believe that such a meeting will prejudice the investigation or prevent the arrest of additional suspects.

In special cases of crimes against the security of the State, a high-ranking police officer or senior GSS official may prevent, by injunction, a meeting between a suspect and a lawyer for 7 days, and this period can be extended to 15 days.

Decisions to postpone such a meeting for security reasons for periods of up to 15 days, are by no means rare; they are, in fact, almost routine when the person arrested is an Arab suspected of perpetration of or involvement in terrorist acts.

A decision to postpone the meeting of a suspect and his lawyer can be scrutinised by the Supreme Court. The snag here is that this can take several days, by which time the interrogators have usually achieved their aim, which is to extract a confession from the suspect.

Once the indictment is filed, the accused is then always entitled to representation by a lawyer where the crime of which he is accused carries a sentence of at least ten years imprisonment, or in the case of minors under 16 years of age, or where the accused cannot afford a lawyer and the court believes that he should have defence counsel appointed from him. The lawyer's fee in this case will be paid by the State.

With regard to the appointment of defence counsel by the State, it is noteworthy that they are selected from the private lawyer sector and that the fee paid them is extremely low in comparison to that of a private lawyer hired by the accused himself. Consequently, it is usually only inexperienced lawyers who will accept such an appointment, and their appearance in court very often does little to assist the accused.

There is now a program in Israel to institutionalise public defence. Lawyers will be retained for a fee in the same way as the State retains prosecutors, and they will be appointed to defend accused persons where the law requires the appointment of defence counsel.

The courts try to arrange hearings to give defence counsel adequate time to become familiar with the case. Court schedules are, however, overloaded, and trials are scheduled many months after an indictment is filed, so the problem of adequate times rarely arises. On the contrary, the problem is one of persons being held under arrest for long periods before their trials start.

The right of an accused to consult with his lawyer in confidence is protected under the law, although he can waive such confidentiality. The law also protects the lawyer from being required to disclose information conveyed by his client to any authority, and in particular where that lawyer will be a witness in the trial. Furthermore, the law forbids phone taps on the lawyer's telephone even where, by law, such an act might be justifiable.

III. The Trial Stage

A. The Speed of the Trial Process

If the accused is not being held in custody, years may pass between the time of completing the investigation and filing the indictment, and the actual trial date. Where the accused is detained, the indictment will be filed without delay, but even then, several months may elapse before the trial starts. And despite the requirement of the law that a trial be held on consecutive days, there will often be long adjournments between sessions. It is by no means rare for a trial to end five years after the filing of the indictment where the accused is not held in custody, and a year thereafter where the accused is detained. This situation arises not only because of courts' schedules, but also because of lawyers' schedules. This gives rise to a regrettable situation of "silent co-operation" between the courts and lawyers in not complying with the provisions of the law as regards the timing of trials.

The period of limitation for criminal trials is extremely long -- 20 years, or 10 years for serious crimes, so the long adjournments carry no risk of exceeding the limitation.

If the accused is held in custody, the trial is supposed to start 60 days after filing the indictment. This provision is usually adhered to, but often means that after the first session it will then be adjourned for a fairly long period. As mentioned above, if the trial is not ended one year after the filing of the indictment and the accused is being held, he will be released unless the Supreme Court extends his detention by three months.

When a person is convicted and wishes to file an appeal, if that appeal is to the Supreme Court it might be heard only a year after filing. If the accused has been sentenced to a long term of imprisonment then he will start to serve that sentence in the meantime, and if his appeal is granted he will have served prison time of more than a year for a verdict that was reversed.

In cases of short terms of imprisonment, and in order to avoid a situation where a convicted person will serve all or most of his sentence before his appeal is heard, the court will often defer the serving of the sentence until after the appeal is heard.

B. Public Trials

Trials are usually open to the public, but the court is empowered to order a trial to be heard in camera where State security is involved or for the protection of minors or in cases of sex crimes. Most trials dealing with crimes of espionage and State secrets are held in camera.

The media are entitled to attend an open trial. Photography is forbidden during the sessions except by special approval. In exceptional cases, the court will allow television cameras, as indeed was the case during the Demjanuk trial for complicity with the Nazis and the murder of Jews at Auschwitz concentration camp.

There is currently public discussion in Israel on whether to allow televising trials, and if so in what circumstances. If the tendency was to permit television, that tendency has lost impetus since the Simpson trial in the USA, which was perceived as a strong counter-indication.

Criminal law recognises the sub judice rule and bans publicity relating to an ongoing trial if such publicity might affect its outcome. In fact, every trial of public interest gives rise to various kinds of publicity, including the publication of evidence not yet presented in court but conveyed to the press by the prosecution, defence or the police, so that in fact, very limited use is made of the sub judice rule. To the best of my knowledge, to date no more than five indictments have even been filed for sub judice offences. Since jurisdiction in Israel is in the hands of professional judges and there is no jury system here, it is generally accepted that judges are not influenced by press publicity.

C. Venue

Trial venue and its removal from areas where media interest was strongest, is not relevant for Israel, which is a small country; nor is there any particular significance in a change of venue. Nevertheless, trials are usually held in the area in which the crime was committed. A Supreme Court judge may change the venue in special circumstances, on the application of counsel for prosecution or defence.

D. The Accused's Presence at the Trial

Other than for minor crimes to which a confession has been made in writing, an accused cannot normally be tried in absencia. In any event, he cannot be sentenced to imprisonment unless he is present in the court.

A person who is no longer living cannot be tried.

A trial for a minor offence held in the absence of the accused and for which no imprisonment was imposed, can be canceled at the accused's request if he can show good reason for his non-attendance despite having been duly summoned.

E. Trial of the Mentally Incompetent

If the court believes, on the basis of evidence or arguments presented, that the accused is unfit to stand trial for reasons of mental illness or mental illness at the time the crime was committed, then the court may order that he undergo psychiatric tests. If the accused is indeed found to be mentally ill and incompetent to stand trial, the court will order his hospitalisation. Exemption from criminal liability is given where, due to his illness, the accused is unable to distinguish between good and bad, or acted out of an uncontrollable impulse.

The court may continue to try a mentally incompetent person if the defence counsel so requests or if the court, for special cause, sees fit to do so. At the end of such a trial, the court may acquit the accused. If it decides not to acquit the accused, it will bring the trial to a close. An accused found to be mentally incompetent cannot be convicted unless he is later declared healthy.

F. Translation During a Trial

The court must provide a translator for an accused unable to understand the language in which the trial is conducted. The translation must incorporate all the evidence and arguments brought before the court. There is no requirement to translate the trial protocol. The accused is not entitled to choose his own translator unless it transpires that that the court-appointed translator is not properly fulfilling his function.

G. Evidence Admissible at Trial and the Presumption of Innocence

As a rule, the accused is not restricted in calling witnesses and presenting evidence in compliance with the rules of admissibility as provided in law and other relevant rules. The court will not usually restrict the accused for lack of relevance unless he is clearly attempting to prolong the trial by artificial means.

The accused may question prosecution witnesses in cross-examination almost without limits. Under the laws of evidence, if a witness in court retracts the testimony he gave to the police, or due to threats or pressure fails to appear to give his testimony, the statement submitted to the police by that witness can be read out in lieu of testimony. The accused may then cross-examine the police officer who took the statement as to the circumstances in which it was given. Obviously, giving a statement to the Police rather than testifying on the witness stand, severely prejudices the right to cross-examine.

Another instance of prejudice to the right to cross-examine is in the case of minors who allege sex offences. In this case, the minor's testimony in court can be denied on the recommendation of a social worker, and it is the social worker who will testify to the court in place of the minor. The defence counsel may question the social worker, but this is clearly of much less value than questioning the minor himself.

Apart from a statement given to the Police as described above, public documents generated under conditions prescribed in law can also be submitted in court.

The prosecution must prove guilt beyond a reasonable doubt and this principle applies to each count of the indictment, apart from clear defence arguments such as drunkenness, which the defence must prove on the basis of propensity of evidence only.

In civil trials, proof on the basis of propensity of evidence is sufficient. A party to civil proceedings can subpoena a witnesses, and a witness who does not respond to such a summons can be charged with contempt of court and sentenced to imprisonment. Civil servants and senior officers such as ministers can also be called in civil proceedings, provided that the court is shown that their testimony is relevant to the prosecution.

H. Publicity

Israel's court system is independent of the political system, and the same is true, in general, with respect to the media. There is thus no fear of manipulation of the courts by State authorities. As regards the media, the situation is somewhat different. State authorities are likely, through their good connections in media, to pass on slanted information -- and this has been known to happen. On the other hand, the defence counsel also has access to the media, and it is by no means rare for a defence counsel to use the media to advance its case.

I. Independence of Judges

The independence of judges is guaranteed by the method of appointment described above, and by the fact that a judge cannot be removed from office except in extremely unusual circumstances, such as accusation of a crime or his being unable to fulfil his function.

While in fact there is no fear that judges will rule on the basis of material not in evidence, there is nevertheless a certain difficulty arising from the fact that Israel has no jury system but only professional judges, and many judges come into the legal system from government ministries or other offices in the public sector. The number of judges who were previously private defence lawyers is rather small. There can be no doubt that such composition of the bench affects the judges' perceptions, their tendency to convict, and their tendency to give preference to police or civil service evidence rather than the testimony of an accused. Their philosophy and "worldly wisdom", shaped during service as prosecutors, creates a predisposition to convict and a sceptical or ironic outlook towards defence arguments with regard to reasonable doubt.

In this context, the composition of the Supreme Court bench is particularly noteworthy. There is at present not one judge who attained professional and social maturity in the private sector. All have a past of lengthy service at senior levels of the civil service; some come from the academic world. Jurists see this fact as having considerable influence on the Supreme Court's stance with respect to the war against crime, the means that can be employed to overcome crime, detention until completion of the trial after filing an indictment, and other topics where there are significant differences of outlook among those who attained intellectual maturity in prosecution, compared to those who were defence lawyers in private practice.

As noted, there is no jury system in Israel and the courts are in the hands of professional judges. For serious crimes, three judges will sit on the bench, and the same is true for appeals to the Supreme Court. In special cases, more than three Supreme Court judges will sit, up to its full complement of twelve.

There are special courts in which a professional judge will be joined on the bench by a representative of the public, such as the Labour Court and military tribunals. Public representatives in Labour Courts are selected from a list submitted by worker organisations and employer organisations. There are also administrative and disciplinary courts, which conduct their proceedings without professional judges.

A judge may claim to be an interested party, or that in an earlier proceeding he formed an opinion against the accused, or that in a legal proceeding for approval of detention he saw evidence relating to the trial to be heard before him. In such cases, the judge will disqualify himself. Refusal of a judge to disqualify himself can be appealed in a proceeding that is usually heard by the President of the Supreme Court. The rules on this issue provide that expression of a predisposition towards an accused, reading evidence before it is presented, or awareness of the accused's criminal past -- all justify disqualification of a judge.

IV. Judgment and the Post-Trial Stage

The judgement given by the court must be fully reasoned, and the law requires the judge to set out the factual basis for the conviction and to discuss the legal questions entailed. Verdicts are usually long, and include meticulous details of the factual findings and extensive discussion of the legal aspects. An unreasoned or partially and defectively reasoned verdict can be cause for its reversal by an appeals court.

Judgements of Appeals Courts also provide lengthy explanations of their reasoning. One does sometimes see, however, laconic judgements: in civil proceedings in the case of rejection of an appeal, the court may give its judgement without reasons, stating simply that it saw no cause to intervene in the judgement referred to in the appeal.

Judgements are public, other than in cases where the law allows the trial to be held in camera for reasons of State security, etc. In such cases, the court may instruct that the entire judgement or only a small part of it be confidential. In any case the judgement will be disclosed to the accused and his lawyer.

A. Double Jeopardy

Criminal law recognises the principle of double jeopardy, whereby a person already convicted or acquitted of a crime cannot be re-tried for the same crime. Thus, if an accused can show, at the beginning of his trial, that he has already been tried for the crime, he cannot be re-tried.

The term "mistrial" does not exist in Israel law, but once the accused has pleaded not guilty to a crime, the trial can be ended only by a guilty verdict or an acquittal, and if the accused is acquitted by reason of failure to prove the accusations against him or for another reason, then such acquittal precludes his being brought for re-trial for the same crime.

The rule is that a law creating a crime is not applicable to an act that took place before that law took effect. A law canceling a crime or reducing the punishment for it, applies retroactively: if an offence was committed and the law that made it an offence is abrogated, proceedings against the accused will be stopped; if he has started to serve his sentence the sentence will be canceled, and if the sentence was shortened the convicted person will serve the shorter sentence.

B. Civil Detention

The Supreme Court recently repealed as unlawful, provisions that permitted the arrest of debtors. Therefore, civil detention now exists only for contempt of court, i.e. for persons who refuse to comply with instructions given in the verdict of a competent court.

C. Collective Punishment and Vicarious Responsibility

Israeli law does not recognise collective punishment. Imposition of vicarious responsibility is very limited, and the prosecution must prove the accused's independent criminal intent for the action of another by way of conspiracy or partnership. The main rule in this regard is that there is no criminal responsibility without criminal intent.

D. Capital Punishment

Capital punishment exists in Israel only for bringing Nazis to justice (for which there is no statute of limitations), and for crimes tried in military tribunals under the Emergency Defence Regulations. Capital punishment has been imposed in Israel several times but, with the exception of Adolf Eichmann, has never been carried out, having been reversed on appeal. Ivan Demjanuk was sentenced to death by the District Court, but was given the benefit of the doubt by the Supreme Court and acquitted.

E. Cruel and Degrading Punishment

The punishment that the court is authorised to impose is defined in the law as imprisonment, suspended sentence, fines and community service. Israeli law does not recognise physical punishment or imprisonment with hard labour. Nevertheless, it is noteworthy that during a period of incarceration, a prisoner can be isolated for fixed and renewable periods. This authority is sometimes exercised to isolate prisoners convicted of security violations or to prevent them passing on secrets to other prisoners. There have been several instances of prisoners spending fairly long periods in isolation, the latest and best known case -- but not the only one -- being that of Mordechai Vaanunu, who was convicted of passing on information to the Sunday Times concerning Israel's nuclear capability. Clearly, isolation can have a deleterious effect on mental stability, even to the extent of irreversible damage. Appeals to the Supreme Court in the matter of prisoners incarcerated for long periods in isolation have not led to their release from such conditions, and the Supreme Court will prioritise the security aspect over the risk to the prisoner's mental health.

Acts of torture are liable to occur at the investigation stage, mainly during GSS interrogations, but not during the term of imprisonment imposed in sentencing. As noted above, a ministerial committee is empowered to permit GSS interrogators to use physical pressure against suspects where there is reasonable cause to believe that they have information on acts of terrorism.

The terms of imprisonment imposed by the courts are usually reasonable, rarely attaining the maximum prescribed in law, and the courts are also usually amenable to hearing arguments for mitigation of punishment. The prisoner's admission of guilt, co-operation with the Police and expressing remorse, are all likely to influence the court in this respect.

F. Right of Appeal

A person convicted in a Magistrate's Court can appeal to the District Court, and can, by special leave, appeal to the Supreme Court. A person convicted in the District Court can appeal without leave to the Supreme Court. For a sentence imposed by the Supreme Court the accused can, in very special cases, apply for an additional hearing before an augmented bench, which can be up to its full complement of 13 judges. Such additional hearing will be granted only where a question of legal principle is involved.

An appeal must be filed within 45 days. However, at that time the accused can file his appeal without explanation of the reasons, and submit his arguments later. An appeal can be filed on questions of law, and sometimes also on factual determinations, although the appeals courts tend not to intervene in the latter case. The punishment itself can also be appealed.

The accused's right to a lawyer for an appeal is the same as his right at the trial itself. The prosecution may also file an appeal, against an acquittal and against a lenient sentence.

The right of appeal applies also in civil cases, including application for the right to appeal intermediate decisions -- a right that does not exist in criminal cases other than where a judge decides not to disqualify himself. It is sometimes possible to file a petition in the High Court of Justice against an intermediate decision in a criminal case on a constitutional issue.

G. Pardon, Amnesty and Expungement

Anyone convicted in a criminal trial may apply to the President for a pardon. The policy of a President with respect to pardons changes as the President changes and also depends on the times and on other circumstances. There is no way to foresee which considerations will affect the decision on an application for pardon.

A sick prisoner whose life is at risk may apply to a special committee and be released before his sentence is up, if the committee is convinced that there is indeed a risk that he will die of his illness while still in prison. Considerations entailing public safety might prevent such release, and it is therefore not usually granted for persons convicted of crimes against State security.

A convicted person may request a retrial if he has come into possession of evidence proving his innocence, such evidence having been beyond his reach at the time of the trial, or if one of the witnesses who testified against him was convicted of perjury in a matter that was material to the conviction of the accused. There is now a Bill before the Knesset that will also permit a retrial where the accused is able to indicate a miscarriage of justice, which will necessarily be connected with new evidence that he has obtained.

H. Prejudice of Basic Rights

Prejudice of basic rights can be corrected by petitioning the High Court of Justice, which is competent to instruct State authorities on matters concerning prejudice of a person's basic freedoms. Under Israeli law, the right of habeas corpus cannot be denied. The High Court of Justice is not normally vested with the power to award compensation, but only to issue a mandamus. A person who was incarcerated until his verdict was handed down and was eventually acquitted, is entitled to compensation for the period of his imprisonment only if he can prove that there were no grounds for his imprisonment or that there are special circumstances justifying compensation. Courts will rarely award such compensation, and the onus on the accused to prove that there was no justifiable cause for filing an indictment against him -- is a heavy one. The compensation itself is small -- equal to the average national wage for the period of imprisonment.

If a person proves that he was arrested because of a negligent police investigation or that he was maliciously accused by the State authorities, he might receive compensation for negligence. There is no special right to compensation for prejudice of a constitutional right unless it is proven that at the same time, he was caused damages such as are recognised under the law of torts, although there is now a new development in Israel -- an independent cause of action for prejudice of a constitutional right.

V. Other Judicial Proceedings

A. Proceedings Against Juveniles

There are special provisions in the law for judging juveniles, which include a special legal system that meticulously observes the confidentiality of the proceedings. There are also special means of punishment for minors, such as incarceration in a closed facility. Mandatory punishment prescribed in law, such as life imprisonment for the crime of murder, do not apply to juvenile offenders. It is obligatory to appoint a lawyer for a juvenile.

The juvenile court system tries to schedule its sessions without undue delay. The law itself does not specify special requirements as to the time by which a juvenile must be brought to trial.

Civil proceedings contain no special provisions for juveniles beyond the normal ones for persons without legal competence. They can therefore be represented in court by a legal guardian.

Under the law, a juvenile may not be incarcerated together with adults. Regrettably, this provision of the law is not always applied due to overcrowding, and the incidence of juveniles and adults sharing a cell is far from rare.

B. Military Tribunals

As noted above, Israel has a system of military tribunals authorised to try civilians for offences against the Emergency Defence Regulations. The vast majority of accused persons in these tribunals are Arabs who were involved in one way or another in activities in Palestinian organisations that were declared terrorist organisations. The number of litigants in such tribunals varies with the times and according to the political situation. Obviously, during the Palestinian uprising their number was quite high. The judges in these military tribunals are one professional judge and two officers. The judge is also a military man and dependent on the military system for his advancement, and accordingly he has no protection against dismissal or transfer. According to the law and practice, the military authorities do not intervene directly in the judicial proceedings in such a court. And although the provisions do not specify precisely the procedure and rules of evidence in these courts, it has for years been the practice that they try to conduct their sessions in the same manner as civilian courts, acting by the same rules of evidence and other rules designed to ensure a fair trial. The verdict of such a tribunal can be appealed to the Military Appeals Court, which is actually the same court that hears appeals from the regular military tribunals that court martial soldiers. The Appeals Court will consist of three professional judges, military men, who also have no protection against dismissal or transfer.

The overall view of military tribunals is that they generally keep to the rules that ensure the accused a fair trial. The real difference is the level of punishment, which is often much higher than in civilian courts. They have the power to impose the death penalty, a power never so far put into practice in Israel and where imposed, reversed on appeal. Also troubling is the fact these judges are dependent on the military system for their career advancement; they are unlikely to rush to bite the hand that feeds them. Another characteristic of the military tribunals is their tendency not to release an accused person on bail, and most of those brought before them are detained until the end of the trial. It can be assumed, however, that if these same accused persons were brought to trial in the civilian system, they would also be held in custody until completion of the trial, due to the type of serious crimes for which they are being tried. Any review of the functioning of the military tribunal system will reveal that the level of acquittals is lower than in civilian courts. This is due, inter alia to the fact that in this type of crime a full confession is almost always obtained from the accused at the interrogation stage. Furthermore, and equally a matter for concern, is the fact that the litigants in these courts are all Palestinian Arabs, which is liable to, and indeed actually does, give rise to discrimination and the creation of special criteria applicable to Arab litigants that differ from the criteria applicable to Jewish litigants.

Since all those accused and tried in military tribunals are Arabs, it is not possible to make a comparison between different groups of litigants and the levels of punishment. The low level of acquittals is perceived, prima facie, as being connected with the nature of the court, and not as expressing discrimination against Arab litigants.

In general, and despite the attempts of the military legal system to act fairly towards those accused, I strenuously object to the existence of this system. A petition filed in the High Court of Justice by myself for the removal of the system, has not been granted, and the Supreme Court has determined that its removal can be ordained only by the legislator.

If the military legal system has clearly prejudiced the right of an accused to a fair trial and since the military tribunals are subject to all the laws and rules that relate to the constitutional rights of accused persons, application can be made to the High Court of Justice for non-suit.

In practice, the military legal system parallels the civilian system and the accused can be tried before the civilian system without recourse to the military legal system. The decision whether to try an accused before the military or the civilian system resides with the Attorney General. Historically speaking, the military legal system is a remnant of the pre-State British Mandate period, and the use made of it changes from time to time.

Israel operates a military occupation regime in the Occupied Territories. The military tribunals there operate in accordance with international law, the Hague Convention and the Geneva Convention. These courts are competent to try the inhabitants of the Occupied Territories who have violated military legislation, and they too seek to ensure that an accused has a fair trial. Just like the military tribunals in Israel proper, they consist (other than for cases of minor offences) of three judges -- one professional, and two officers untrained in the law. Nominally independent, these courts are nevertheless fairly dependent on the military system in the Territories, and will usually fulfil by legal decisions the aims of the military regime. There is severe criticism of their functioning -- the level of acquittals is almost non-existent and they rarely release a suspect on bail, even for minor offences. Prima facie they operate according to normal procedures, and petitions can be made to the Supreme Court against the prejudice of an accused's rights in these courts, but High Court of Justice intervention in their sentences is extremely limited. Until a few years ago, there was no appeal mechanism in the Occupied Territories. It has been in existence only since a petition was filed in the Supreme Court and that court adjudicated that the absence of an appeals mechanism was prejudicial to the rights of accuseds and such a system should be established.

C. Emergency Measures

The Emergency Defence Regulations legislated in Israel under British Mandate rule have not been changed by Israel's legislation. Under these rules, the administrative restrictions that can be imposed on a person severely prejudice basic freedoms; he can be deported, placed under house arrest, restricted to a particular place, and prevented from leaving the country. In the past, the regulations even permitted placing a person under administrative arrest, but Israeli legislation transferred this particular power to independent Israeli law.

The decision to use administrative means against a person is usually in the hands of a military authority or the Minister of Defence. In cases relating to severe measures, such as deportation, a competent military committee is appointed to hear an appeal against an administrative order. In such a proceeding, confidential material can be presented to the committee without it being seen by the appellant or his legal representative, and the committee may confirm the administrative measures on the basis of that confidential material alone.

The committee's decision, and indeed any other administrative restriction, can be petitioned in the High Court of Justice. But the practice (which is not prescribed in law) is that here too, confidential material not shown to the petitioner or his legal representative can be submitted, and here too, the High Court may approve restrictions that prejudice a basic freedom on the basis of that information alone.

Administrative arrest is imposed in Israel under Israeli law, which made a slight change in the provisions of the Emergency Defence Regulations. The following are the relevant provisions of that law:

Where the Minister of Defence has reason to believe that reasons of State security or public safety require that a person be held under arrest, he may, by means of a warrant signed by him, order the arrest of that person to be stated in the order and that shall not exceed six months.

Where the Minister of Defence has reason to believe, immediately prior to the expiry of an order pursuant to the above ("the Original Arrest Warrant"), that reasons of State security or public safety still require that person be held under arrest, he may by means of a warrant signed by him, order the arrest of that person for a period to be stated in the order and that shall not exceed six months.

Where the Minister of Defence has reason to believe, immediately prior to the expiry of an order pursuant to the above ("the Original Arrest Warrant"), that reasons of State security or public safety still require that person be held under arrest, he may by means of a warrant signed by him, form time to time extend the validity of the Original Arrest Warrant for a period not exceeding six months, and the extension warrant shall be duly treated in all matters as the Original Arrest Warrant.

Where a person is arrested by order of the Minister of Defence under this law, he will be brought within 48 hours of his arrest before the president of the District Court, and the President may confirm or cancel the arrest warrant or shorten the term of arrest stipulated therein; if the detainee is not brought before the president and hearing has been initiated before him within the aforesaid 48 hours, the detainee will be released.

The President of the District Court will cancel an arrest warrant if it is proven to him that the reasons for which it was issued were irrelevant to State security or public safety, or that it was issued mala fide or for inapposite considerations.

The Minister of Defence is empowered to cancel an arrest warrant issued pursuant to this law.

If an arrest warrant is approved under this law, with or without change, the President of the District Court will reconsider the matter of the arrest no later than three months after its approval, or within a shorter time stated by the President in his decision as long as the detainee has not been released.

D. Rights in the Administrative Arrest Process

1. Deviation from the Laws of Evidence

In proceedings concerning administrative arrest, deviations from the laws of evidence are permitted if the President of the District Court is convinced that this will assist in discovering the truth and in a just trial.

In these proceedings, the president of the District Court may receive evidence even not in the presence of the detainee or of his legal representative or without disclosing it to them if, after reading the evidence or hearing an argument, even though not in the presence of the detainee or of his legal representative, he is convinced that disclosure of the evidence to the detainee or his legal representative is liable to prejudice State security or public safety.

2. Appeal

A decision of the president of the District Court to approve an arrest warrant, with or without changes, or to cancel or change it, and his decision as regards reconsideration, can be appealed before the Supreme Court, which will hear the appeal before a sole judge.

3. Presence and Representation of a Detainee

The detainee may be present at any hearing of administrative arrest even where confidential material is presented to the judge.

The Minister of Justice may, by injunction, restrict the right to representation in proceedings under this law, only to whom so ever was approved to serve as defence counsel in military tribunals.

3. Proceedings In Camera

Hearings of proceedings pursuant to this law will be held in camera.

Since administrative arrest is in almost all cases imposed on the basis of confidential material, the chances of effectively opposing it are non-existent, and in reality, the vast majority are approved by the District Court judge and also by the Supreme Court judge to whom an appeal may be filed.

All of the administrative restrictions mentioned above also apply in the Occupied Territories, where their use is much more widespread. During the Palestinian uprising there were more than 10,000 persons under administrative arrest, and thousands more were restricted by other means. Furthermore, 300 Palestinians were deported for an unlimited period.

During the uprising, the administrative restrictions replaced the normal legal means of indictment and adjudication by military tribunal.

The administrative restrictions imposed in the Occupied Territories are subject to the scrutiny and criticism of the High Court of Justice, but this court almost never intervenes. Since these restrictions too are based mainly on confidential material, there is no way to overcome them.

5. The Occupied Territories Today

Since the agreement with the P.L.O. (the Oslo Accords) and the onset of their implementation, violations of citizens' rights in the Occupied Territories, which were the main problem in this field in the State of Israel, have become less severe, and are occupying Israel's legal community and civil rights organisations to a much lesser extent.