HCJ 5591/02
1.
Halel Yassin
2.
Ibrahim Puzi Abrahim
3.
Iad Nebil Aish Alaba’ad
4.
Sha’ar Manjed Yusef Mansuer
5.
Mustafa Ahmed Basharat
6.
Mahmus Shabana—
7.
Ramzi Mahmud Fiad
8.
Adalah—The
9.
Kanun—The Palestinian
Organization for the Protecion of Human and Enviormental Rights
10.
The
Center for the Defense of the Individual founded by Dr. Lota Zetzberger
11.
B’tselem—The
12.
Addameer—Prison Support and
Human Rights Association
13.
Alhak—The Law in Service of
Human Rights
14.
15.
Nadi Alasir Alfalstini—
16.
The Public Committee Against
Torture in
17.
Physicians for Human Rights
v.
1.
Yoni Ben-David—Commander of the
Kziot Military Camp-Kziot Detention Facility
2.
Binyamin Ben-Eliezer—Minster
of Defense
The Supreme Court Sitting as
the High Court of Justice
[
Before President A. Barak, Justices D.
Beinisch and
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: In the context of IDF operations against the terrorist
infrastructure in areas of the Palestinian Authority (“Operation Defensive
Wall”), thousands of suspects were detained. Due to overcrowding, some of these
petitioners were transferred to the Kziot detention facility in the
Held: The Supreme Court held that the presumption
of innocence should be applied to the detainees, as they are being held under
administrative detention orders, and have neither been tried nor convicted. The
Court further held that the army must ensure that the detainees be treated
humanely, and in recognition of their essential human dignity. In determining
whether the detainees were being treated humanely, the Court had recourse to
domestic Israeli law as well as international law. Concerning the petition at hand,
the Court held that, due to inadequate preparation on the part of the army, the
initial conditions of detention did not meet minimum standards. In the
intervening time, however, the army had improved conditions to the point where
they did meet Israeli and international standards.
Basic
Laws cited:
Basic Law:
Human Dignity and
Legislation
cited:
Emergency Powers (Detentions) Law-1979
Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996, §§ 1(c), 9(a)
Regulations
cited:
Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981, §§ 5(a), 5(b), 6(a), 6(b), 8(a), 8(c)
Emergency Regulations (Offences Committed in Israeli-Held Areas—Jurisdiction and Legal Assistance)-1967
Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997
Treaties
Cited:
The International Covenant on Civil and Political Rights (1966),
Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949
Israeli
Supreme Court cases cited:
[1] HCJ 3278/02 The Center for the Defense of the Individual founded by Dr. Lota Salzberger v. Commander of the IDF Forces in the West Bank, IsrSC 57(1) 385
[2] HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801
[3]
HCJ 2320/98 El-Amla v.
Commander of the IDF Forces in the
[4]
HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in
[5] HCJ 355/79 Catlan v. The Prison Service, IsrSC 34(3) 294
[6] CA 5942/92 John Doe v. John Doe, IsrSC 35(1) 536
[7] HCJ 221/80 Darvish v. The Prison Service, IsrSC 50(2) 749
[8] HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service, IsrSC 38(2) 826
[9] HCJ 337/84 Hokma v. The Minister of the Interior, IsrSC 50(4) 136
[10] CA 4463/94 Golan v. The Prison Services, IsrSC 52(5) 826
[11] HCJLA 6561/97 The State of
[12] HCJL.A. 823/96 Vanunu v. The Prison Service, IsrSC 51(2) 873
[13] HCJ 3114/02 Barake v. The Minister of Defense, IsrSC 56(3) 11
Foreign
Books cited:
[14] J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)
Petition denied.
For the petitioners—Morad Alsana; Hasan Gabarin; Mahmud Gabarin
For the respondents—Shai Nitzan
JUDGMENT
President A.
Barak
This petition concerns the detention conditions of
detainees from Judea and
Facts
1. Both
2. Kziot Camp was opened in the second half of
the 1980s. It primarily held administrative
detainees from the area. The conditions
of the detention in the camp were the subject of
a comprehensive examination by this Court in HCJ 253/88 Sajadia v. The Minister of Defense [2]. The facility was
shut down during the second half of the 1990s. In April 2002, once it became
clear that
Arguments
3. Petitioners
complain about the conditions of the detention in Kziot Camp. Their chief
complaint concerns the fact that the detainees are being held in tents. Petitioners claim that tents do not provide
suitable means of detention. The tents
do not shield against the rigors of desert weather, such as heat during the day
and cold during the night. The tents
cannot be shut and, as such, sand, mosquitoes, crickets, insects and reptiles
enter the tents and disturb the detainees.
The petitioners also complain of overcrowding in the tents. Furthermore,
they contend that the food that the detainees are supplied with is insufficient
and of low-quality. The detainees, who
are exposed to the intense heat of the
4. In
respondents’ reply, they claim that the petition was submitted at the end of
June 2002. As such, the evidence presented by the petition consists of
affidavits submitted by detainees who were held in Kziot Camp in April, and the
last of which was submitted at the beginning of May. Those were the first months of the detention
facility's renewed operation, which was reopened on short notice. Between the
submission of the petition and the submission of respondents’ reply brief on
5. Referring directly to the specific claims
made by the petitioners, respondents asserted that the tents are not overcrowded. Respondents claim that the tents in the
facility provide suitable protection against the rigors of the weather. The quality and quantity of the food provided
to the detainees is satisfactory. In the
summer, they are supplied with a large quantity of ice. The wooden beds and mattresses meet the same standards
as those provided to IDF soldiers. There
is no want of clothing in the facility.
A fountain with a large number of faucets may be found in every
sub-division. The detainees are supplied
with a sufficient amount of soap. The
level of personal hygiene in the bathrooms and showers is satisfactory. There is an infirmary operating in the
facility which employs three doctors and thirteen medics. Medical inspections are performed daily in
the facility. When necessary, patients
are quickly transferred to the central hospital in the Negev,
Arguments
of
6. In oral arguments, petitioners admitted that
improvements had been made since the submission of their petition. Nevertheless, they claim, these improvements
are insufficient. Petitioners reiterated their claims against the use of tents
and the lack of 220-volt electricity.
They complained of insufficient bathroom stalls and cleaning
equipment. Additionally, they complained
that snakes and mice had been found in the area. Petitioners protested the absence of tables
in the facility, which forces the detainees to eat by their beds, which
consequently become filthy. Respondents answered
that the old tents had been replaced with new ones. They asserted that the location is now
sprayed for snakes and other animals.
However, regarding the issue of electricity, security considerations
prevent any change in the situation.
7. It is appropriate to open this discussion
with the normative framework of this case, as was done by Justice Shamgar in Sajadia [2]. This is in response
to the possible claim that, since the detainees being held in Kziot Camp are
terrorists who have harmed innocent people, we should not consider their detention
conditions. This argument is fundamentally incorrect. Those being detained in the Kziot Camp have
not been tried; needless to say, they have not been convicted. They still enjoy the presumption of
innocence. Justice Shamgar expressed
this notion in Sajadia [2]:
An administrative detainee has not been convicted, nor
is he carrying out a sentence. He is
detained in accordance with a decision made by an administrative-military
authority, as an exceptional emergency means due to security reasons …. The aim
of the detention is to prevent security hazards, which arise from actions that
the detainee is liable to commit, where there is no reasonable possibility of
preventing such hazards through standard legal action, such as criminal
proceedings, or by taking administrative steps with milder consequences…. The
difference between a convicted prisoner and a detainee being held in order to
prevent security hazards, is manifest in the status of the administrative
detainee and his detention conditions.
Sajadia, [2] at 821. In the same spirit Justice Bach noted:
With all due respect for security considerations, we
must not forget that we are talking about detainees deprived of liberty without
their having been convicted of any crime in standard criminal proceedings. We
must not be satisfied with a situation in which the detention conditions of
these detainees are poorer than the conditions of prisoners who have been
sentenced to imprisonment after being convicted.
Sajadia, [2] at 831.
In a different context, Justice Zamir indicated that:
Administrative detention deprives an individual of his
liberty in the most severe fashion.
HCJ 2320/98 El-Amla v. Commander of the IDF Forces
in the
Not
only should we not allow the detention conditions of administrative detainees
to fall short of those of convicted prisoners, we should also strive to ensure
that the conditions of detainees surpass those provided to prisoners. These
detainees continue to enjoy the presumption of innocence. See HCJ
8259/96 The Association for the
Protection of the Rights of Jewish Civilians in
8. The detainees were lawfully deprived of their
liberty. They were not, however,
stripped of their humanity. In an affair that occurred more than twenty years
ago, prior to the legislation of the Basic Law: Human Dignity and
Every person in
HCJ 355/79 Catlan v. The Prison Service [5]. This is especially true after the enactment of the
Basic Law: Human Dignity and
9. An important
legal source with regard to detention conditions is the Emergency Powers
(Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These
regulations set forth the standards that govern the detention conditions of
those who are administratively detained in
Where an arrest warrant or
detention order has been issued against any person in the area, pursuant to the
proclamation or the order of a commander, such a warrant or order may be
executed in Israel in the same manner that arrest warrants and detention orders
are executed in Israel; and that person may be transferred, for detention, to the
area where the crime was committed.
In Sajadia [2] the court held, based on this
regulation, that Kziot Camp must heed the Detention Regulations as well. See
also HCJ 1622/96 Abad Al Rahman
Al Ahmed v. The General Defense Service [8]. Regulation 5(a) of
these regulations states that “a detainee in a detention facility shall receive
the same meal portion provided to the jailers in that detention location.” The regulations do not specify that there
must be an operative canteen in the facility.
However, they do specify that “in a detention facility which has a canteen,
the commanding officer may permit the detainees to purchase goods there.” The regulations also state that “a detainee
is entitled to receive medical treatment and medical equipment, as is demanded
by his health condition.” See Regulation 6(b). Regulation 6(a) specifies that “a detainee
shall be examined monthly by a doctor designated by the commander, and at any
time where it becomes necessary to do so.” The Detention Regulations also state
that “a detainee is entitled … to receive bathing and cleaning materials as necessary,”
regulation 8(a), as is he entitled “to receive newspapers and books for
reading, as has been decided by the commander” regulation 8(c).
10. Aside from these regulations, which concern the
conditions of administrative detention, comprehensive rules concerning the
conditions of “regular” detention may be found in other legislation and
regulations. Section 9(a) of the
Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996 states that
“a detainee shall be held under suitable conditions, which shall not harm his
health or dignity.” Detailed instructions may be found in the Criminal Procedure
Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in
Detention)-1997.
We shall now turn to the provisions of international
law regarding detention conditions.
International Law
11.
All persons deprived of
their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.
This rule, which has the force of customary
international law, see The Center
for the Defense of the Individual, [1] at par. 23, is in harmony with the
Basic Law: Human Dignity and
A person deprived of his/her liberty for terrorist
activities must in all circumstances be treated with due respect for human
dignity.
12. The Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
[hereinafter The Fourth Geneva Convention] provides an additional legal source
for examination of the detention conditions in Kziot Camp. This convention sets forth comprehensive
arrangements concerning conditions of detention. The validity of the convention
with regard to the detention conditions at Kziot is not a subject of dispute
before us, as
13. Israeli
common law provides an additional legal source concerning this matter. Our common law includes a long list of judgments
concerning the conditions of detention in
It is an important principle that every civil right to
which a person is entitled is preserved even when he is imprisoned or detained.
Imprisonment does not deprive anyone of any right, unless such deprivation is
an inherent part of detention—such as taking away one’s freedom of movement—or
where an explicit statute refers to this matter.
HCJ 337/84 Hokma
v. The Minister of the Interior, [9] at 832. In the same spirit Justice
Matza wrote:
It is a firmly established precept that, even between
prison walls, a person’s fundamental rights “survive.” Such rights belong to
the prisoner (as well as the detainee) even within his prison cell. The only
exceptions to this rule are the prisoner’s right to freedom of movement and
other limitations which are inherent to depriving him of his personal liberty,
or which are based on explicit legal instructions.
CA 4463/94 Golan
v. The Prison Services, [10] at 152-53. Justice Matza continued, [10] at
155:
We do not allow the deprivation of basic human rights,
which the prisoners require. These rights consists not only of the prisoner’s
right to eat, drink and sleep, but also the right to have these needs supplied
in a civilized manner.
These decisions and others like them, whether directly
or indirectly, provide standards by which we can examine the detention
conditions in Kziot. See, e.g., HCJLA 6561/97 The State of Israel v. Mendelson [11]; HCJL.A. 823/96 Vanunu
v. The Prison Service [12].
Furthermore, Israeli administrative law applies to the actions of every
government authority in
From the General to the Specific
14. Soon after the
reopening of Kziot Camp, conditions of detention there underwent changes. This reopening was done hastily and without
preparation. The detention conditions
encountered by the first detainees, whose affidavits are attached to this
petition, did not meet the necessary minimum standards. There was no
justification for this. Operation
Defensive Wall was planned in advance.
Its main goal was “to prevail over the Palestinian terror
infrastructure, and to prevent the recurrence of the terror attacks which have
plagued
15. In time, the
conditions were improved and the necessary minimum standards were met. In certain matters, the conditions now exceed
minimum standards. For example, the tents
are no longer overcrowded; the quantity and quality of the food supplied is
satisfactory. The detainees are supplied
with an adequate quantity of ice. There
are sufficient changes of clothes available.
The conditions of personal hygiene, as well as the general level of
sanitation, are both satisfactory. The
medical treatment is satisfactory. The
detainees are provided with newspapers, and they are allowed to use battery-operated
radios. In each section there are ball
games and a ping-pong table. There is an
operational canteen on location. In
fact, during oral arguments, respondents dropped many of the claims raised in
their petition. We will therefore focus
on a number of issues, which have not been resolved.
16. The first issue
relates to the detainees’ being held in tents.
According to petitioners, the environmental conditions in the
In their reply
respondents emphasized that the tents provide suitable protection against the
rigors of Israeli weather. They added
that thousands of soldiers, including those who supervise the detainees in
Kziot, regularly reside in tents for long periods of time. However, it must be
noted that, while the conditions of the soldiers are both important and relevant
to this petition, they cannot provide a decisive answer. Furthermore, the
Detention Regulations do not address this matter. Even so, it has been accepted
practice—both in Kziot and in the military prison in
17. Article 85 of
the Fourth Geneva Convention concerns living conditions. It states that the detaining authority must ensure
that the detainees:
[B]e accommodated in buildings or quarters which
afford every possible safeguard as regards hygiene and health, and provide
efficient protection against the rigors of the climate and the effects of war.
In Pictet’s explanation of this rule, he asks:
Could the term ‘buildings or quarters which afford
every possible safeguard as regard hygiene and health, and provide efficient
protection against the rigors of the climate and the effects of war’ be taken
to mean camps made up of tents? This
practice is allowed in the case of prisoners of war where the Detaining Powers
follow the same procedure for their own troops.
During the Second World War it proved satisfactory in certain climates
when some essential improvements had been carried out (cement floors, brick
walls, stone paths and access roads).
The same latitude, however could hardly be granted with regard to
civilian internees and it seems clear that ‘buildings or quarters’ must be taken
to mean structures of a permanent character.
See J.S.
Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian
Persons in Time of War 386 (1958). I doubt that Pictet’s interpretation is
correct. It seems that a better approach
would vary according to the time and place.
It depends upon the nature of the tents on the one hand, and the
conditions of the location on the other.
Additionally, a significant factor is whether the detention is
short-term or long-term, whether it lasts months or even years. Ultimately, the test is one of reasonableness
and proportionality. Thus, we call for this
matter to be investigated.
18. The second
issue is the height of the beds. Petitioners complain of the height of the beds
being 10-15 centimeters. They claim that,
as a result, many of the detainees find their faces covered with insects, which
easily enter the tents. In response, respondents
argued that the detainees have makeshift beds, which they independently built
from the cots found in the sub-sections of the facility. Whether or not this answer has resolved the
problem is unclear. We ask that this
matter be thoroughly reexamined. For as
long as the detainees remain in tents, the army should do all in its power to
provide the detainees with reasonable sleeping conditions. The fact that detainees built make-shift
beds with their own hands points to the existence of a problem. This fact also
indicates that making the beds higher does not raise security issues. In these circumstances, the obligation to resolve
this problem rests on respondents. They must address this issue.
19. The
third matter which has not been resolved is the absence of toilet seats in the
bathrooms. Respondent's reply does not
specifically refer to this matter, save the general statement that the authorities
consider the level of personal hygiene satisfactory. This matter also requires reexamination.
20. The fourth
unresolved issue is the absence of tables for eating. In The
Center for the Defense of the Individual [1], respondents argued that this matter raises security
issues. Respondents did not repeat this argument here. Instead, they argued
that erecting tables would cause overcrowding. We presume that, for those who
request it, eating on tables, as opposed to on the floor, is one of the
conditions which “guarantee civilized and humane life.” Darvish [7], at 538
(H. Cohen, D.P.) Other than their general argument regarding lack of space, we
received no relevant explanation from the respondents. We ask that this matter be thoroughly examined
and satisfactorily resolved.
Again in the Matter of Detention Conditions and
Judicial Review
21. In this
petition we have dealt with the fine details of detention conditions. Such is our duty, and we do not take it
lightly. Nevertheless, this is not an
optimal arrangement, neither from the perspective of the rights of the
detainee, nor from a security perspective.
It is necessary that there be an “intermediate body” between the
detention authorities and the High Court of Justice. Such a body must be able to carry out
prolonged surveillance and supervision.
The body must be well informed about security requirements and the needs
of the detainees and must be able to advise the respondents about all matters
regarding detention conditions. Justice
Shamgar emphasized the need for such an arrangement in Sajadia, [2] at 825-26:
As such, we find it appropriate to
direct the respondents' attention towards the need to determine efficient
manners of inspection and supervision. Our suggestion is that the respondents consider
nominating a permanent advisory committee, which will carry out constant
inspection and will report and advise the respondent on the matter of the
detention conditions in the Kziot detention facility. The head of the committee can be a senior
military judge from the military tribunal units, and the committee may consist
of experts from the fields of medicine, psychology, and jailing management.
We are confident that the respondents will take our
suggestions into account, and that the proper steps will be taken in order to
realize them.
22. Furthermore, it
should be reconsidered whether it is appropriate that the army be responsible
for the detention conditions of administrative detainees from the area. It is our opinion the government should consider
placing this responsibility in the hands of the Prison Service. Such a resolution would allow a number of
advantages. First, the responsibility of
tending to detainees and detention conditions will be placed in the hands of a
body whose expertise is in this field. Second,
the Prison Service operates in accordance with a intricate system of law. These laws guarantee that an appropriate
balance is struck between security needs and the rights of the detainees. For example, under these laws, the detainees
will have the opportunity to submit “prisoner petitions,” which will ensure
judicial review over their detention conditions. We are well aware of the problems which arise
from our suggestion. We ask that the
matter be considered both practically and normatively. There should be an investigation concerning
whether legislative modification would be necessary for the implementation of
this suggestion, or whether it would be possible, and perhaps even necessary, to
achieve this result in the context of existing law. See section 6 (b) of
the Emergency Regulations (Judea and
Petition Denied.
Justice D. Beinisch
I agree.
Justice Y. Englard
I agree.
Petition denied, as per the opinion of President A.
Barak
Translated by: Leora Dahan
Edited by: Eli Greenbaum
Comments, questions and
suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il