Practice Relating to Rule 99. Deprivation of Liberty
Section D. Prompt appearance before a judge or judicial officer
Israel’s Order Concerning Administrative Detention (2007) states:
4. (a) A person detained according to this Order will be brought within 8 days of his above mentioned arrest before a judge, in accordance with para. 3(b)(1) of the Order concerning Security Provisions (Judea and Samaria) (No 378), 1970 (hereafter: The Security Provisions Order), with a rank no lower than Major. The judge may confirm or annul the Arrest Warrant, or shorten the detention period stated in it;
If the detainee was not brought before a judge, and court proceedings not begun within the above mentioned 8 days, the detainee shall be released, unless according to any law or security legislation there is another reason for his detention.
(b) The judge shall annul the Arrest Warrant if it is proven that it was issued on grounds other than security of the area or public security considerations, or that it was not issued in good faith or that its issue was based on irrelevant considerations.
The decision of the judge, made according to par. 4, may be appealed before a judge of a Military Appeals Court as stated in par. 3(b)(4) of the Security Provisions Order, who shall have all the authorizations granted a judge as per this order.
In its judgment in the Mar’ab case in 2003, Israel’s High Court of Justice stated:
25. Petitioners’ second claim relates to the detention period. The claim does not concentrate on the length of the period per se, since the length of the period is determined by the needs of the investigation. The claim focuses on the period between the detention and the first instance of judicial intervention. Under Order 1500, this period lasts 18 days; the petitioners claim that this period is excessive. Moreover, they claim that there are a number of detainees who have yet to be brought before a judge despite the fact that the 18-day period has passed. In order to rectify this situation Order 1502 was issued, under which such detainee[s] are to be brought before a judge as soon as possible and no later than 10.5.2002, see supra, para. 12. The petitioners claim that, under the authority of this latter order, some detainees were held for a period of 42 days without judicial intervention. The petitioners also assert that Order 1505, under which the detention order may prevent judicial intervention for a period of 12 days, is also illegal, as the period specified there is also excessive. This period remains valid under Order 1512 and Order 1518.
26. Judicial intervention with regard to detention orders is essential. As Justice I. Zamir correctly noted:
Judicial review is the line of defense for liberty, and it must be preserved beyond all else.
HCJ 2320/98 El-Amla v. IDF Commander in Judea and Samaria, at 350.
Judicial intervention stands before arbitrariness; it is essential to the principle of rule of law. See Brogan v. United Kingdom (1988) EHRR 117, 134. It guarantees the preservation of the delicate balance between individual liberty and public safety, a balance which lies at the base of the laws of detention. See AMA 10/94 Anon. v. Minister of Defense, at 105. Internal Israeli law has established clear laws in this regard. In “regular” criminal detention, the detainee is to be brought before a judge within 24 hours. See section 29(a) of the Criminal Procedure (Enforcement Powers-Detentions) Law-1996. In this case, the order is issued by the judge himself. In “administrative” detention, the detention order is to be brought before the president of the district court within 48 hours. See section 4 (a) of the Emergency Powers (Detentions) Law-1979. The decision of district court president is an integral part of the development of the administrative detention order. See AMA 2/86 Anon. v. Minister of Defense, at 515.
Similarly, in detaining an “unlawful combatant,” the detainee is to be brought before a justice of the district court within 14 days of the issuance of the imprisonment order by the Chief of Staff. See section 5 of the Imprisonment of Unlawful Combatants Law-2002. With regard to the detention of military soldiers, section 237A of the Military Justice Law-1955 provided that the detainee is to be brought before a military justice within 96 hours. We reviewed this provision, and concluded that it was unconstitutional, as it unlawfully infringed upon personal liberty, and was not proportionate. See Tzemach. Subsequent to our judgment, the law was amended, and it now provides that in detaining a military soldier under the Military Justice Law, the detainee is to be brought before a judge within 48 hours. What is the law with regard to detentions carried out in the area?
27. International law does not specify the number of days during which a detainee may be held without judicial intervention. Instead, it provides a general principle, which is to be applied to the circumstances of each and every case. This general principle, which pervades international law, is that the question of detention is to be brought promptly before a judge or other official with judiciary authority. See F. Jacobs and R. White, The European Convention on Human Rights 89 (2nd ed., 1996). Thus, for example, Article 9.3 of the Covenant on Civil and Political Rights 1966 provides:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by the law to exercise judicial power.
This provision is perceived as part of customary international law. See N. Rodley, The Treatment of Prisoners Under International Law 340 (2nd ed., 1999). A similar provision may be found in the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, which was ratified by the UN General Assembly in 1988 (hereinafter the Principles of Protection from Detention or Imprisonment). Principle 1.11 provides:
A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.
According to the interpretation of the UN Human Rights Committee “[D]elays must not exceed a few days.” See Report of the Human Rights Committee, GAOR, 37th Session, Supplement No. 40 (1982), quoted by Rodley, Id., at 335. On a similar note, Article 5(3) of the European Convention for the Protection of human Rights and Fundamental Freedoms-1950 provides:
Everyone arrested or detained in accordance with the provisions of paragraph 1(C) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.
In one of the cases in which the European Court of Human Rights interpreted this provision, Brogan v. United Kingdom, EHRR 117, 134 (1988), it stated:
The degree of flexibility attaching to the notion “promptness” is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3. Whereas promptness is to be assessed in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5(3), that is the point of effectively negating the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.
In that case, the British authorities had been holding a number of detainees, who had been detained with regard to terrorist activities in Northern Ireland. They were released after four days and six hours, without having been brought before a judge. The European court determined that in so doing, England had violated its duty to bring the detainees before a judge promptly. A number of additional cases were similarly decided. See McGoff v. Sweden, 8 EHRR 246 (1984); De Jong v. Netherlands, 8 EHRR 20 (1984); Duinhoff v. Netherlands, 13 EHRR 478 (1984); Koster v. Netherlands, 14 EHRR 196 (1991); Aksoy v. Turkey, 23 EHRR 553 (1986) See also Human Rights Law and Practice 121–22 (Lester and Pannik eds., 1999).
28. Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter the Fourth Geneva Convention] includes a general provision under which:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
The Fourth Geneva Convention does not include provisions which specify set detention periods or occasions for judicial intervention with regard to detention. It only includes provisions concerning administrative detention (internment). The first provision, Article 43, which applies to detentions carried out by the occupying state, provides:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.
The second provision, Article 78, which applies to detentions carried out in the occupied territory, provides:
Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay.
There are no additional provisions which relate to this matter, or to the issue of judicial intervention into detention which is not administrative.
29. Finally, there is security legislation relating to “regular” criminal detention and administrative detention, in the area. With regard to “regular” criminal detention, Order 378 provides that a police officer, who has reasonable reason to believe that a crime has been committed, has the authority to issues a detention order for a period of up to 18 days, see section 78(3). Following the recommendations of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Landau Commission), Order 378 was amended, and the detention period without judicial intervention was reduced to 8 days. In a petition submitted in this matter, the Court held that “at this time, there is no room for this Court to intervene to reduce the maximum period of detention permitted before bringing persons detained in the territories before a military judge.” HCJ 2307/00 Natsha v. IDF Commander in the West Bank (unreported case).
With regard to administrative detention in the area, such detentions were initially carried out under the Emergency Defense Regulations, which apply to the area. Later on, provisions regarding administrative detention were included in the Defense Regulations Order (Judea and Samaria) (Number 378)-1970. Under these provisions, if a person was detained on the authority of an administrative order, he was to be brought before a judge within 96 hours, see section 87B(a). These provisions were suspended by Order 1226. This Order provided that any person who had been administratively detained would be brought before a judge within 8 days. With the issuance of Order 1500, this was changed, and this provision was substituted by one which provided that an administrative detainee should be brought before a judge within 18 days. With the issuance of Order 1505, Order 1226 was once again amended, and it provided that if an administrative detention order was issued against a person who had been formerly being detained under Order 1500, his case was to be brought for judicial review within 10 days of his detention.
30. Against this normative background, which demands prompt judicial review of detention orders, the question again arises whether the arrangement established in Order 1500 – under which a person may be detained for a period of 18 days without having been brought before a judge – is legal. Similarly, is the arrangement established in Order 1505 legal? This arrangement – which was unaffected by Order 1512 or Order 1518 – provided that a person may be detained for a period of 12 days without having being brought before a judge. In answering these questions, the special circumstances of the detention must be taken into account. “Regular” police detention is not the same as detention carried out “during warfare in the area,” Order 1500, or “during anti-terrorism operations” Order 1505. It should not be demanded that the initial investigation be performed under conditions of warfare, nor should it be demanded that a judge accompany the fighting forces. We accept that there is room to postpone the beginning of the investigation, and naturally also the judicial intervention. These may be postponed until after detainees are taken out of the battlefield to a place where the initial investigation and judicial intervention can be carried out properly. Thus, the issue at hand rests upon the question: where a detainee is in a detention facility which allows for carrying out the initial investigation, what is the timeframe available to investigators for carrying out the initial investigation without judicial intervention?
31. In this regard, the respondents claim before us that it was necessary to allow the investigating officials 18 days – and after Order 1505, 12 days – to carry out “initial screening activities, before the detainee’s case is brought before the examination of a judge.” This was due to the large number of persons being investigated, and constraints on the number of professional investigators. In their response, the respondents emphasized that “during the warfare operations, thousands of people were apprehended by the IDF forces, under circumstances which raised the suspicion that they were involved in terrorist activities and warfare. The object of Order 1500 was to allow the “screening” and identification of unlawful combatants who were involved in terrorist activities. This activity was necessary due to the fact that the terrorists had been carrying out their activities in Palestinian populations centers, without bearing any symbols that would identify them as members of combating forces and distinguish them from the civilian population, in utter violation of the laws of warfare.” See para. 51 of the response brief from May 15, 2002. The respondents added that it is pointless to bring detainees before a judge, when they have not yet been identified, and the investigative material against them has not yet undergone the necessary processing. This initial investigation, performed prior to bringing the detainee before the judge, is difficult and often demands considerable time. This is due, among other reasons, to “the lack of cooperation on the part of those being investigated and their attempts to hide their identities, their hostility towards the investigating authorities due to nationalistic and ideological views, the inability to predetermine the time and place of the detentions, the fact that most of the investigations are based on confidential intelligence information which cannot be revealed to the person being investigated, and the difficulty of reaching potential witnesses.” See para. 62 of the response brief from June 11, 2002.
32. The respondents thus claim that the investigating authorities must be allowed the time necessary for the completion of the initial investigation. This will, of course, not exceed a period of 18 days, under Order 1500, or 12 days, under Order 1505, as it was amended in Orders 1512 and 1518. In this timeframe, all those detainees against whom there is insufficient evidence will be released. Only those detainees, whose initial investigation has been completed, such that the investigation is ready for judicial examination, will remain in detention.
In our opinion, this approach is in conflict with the fundamentals of both international and Israeli law. This approach is not based on the presumption that investigating authorities should be provided with the minimal time necessary for the completion of the investigation, and that only when such time has passed is there room for judicial review. The accepted approach is that judicial review is an integral part of the detention process. Judicial review is not “external” to the detention. It is an inseparable part of the development of the detention itself. At the basis of this approach lies a constitutional perspective which considers judicial review of detention proceedings essential for the protection of individual liberty. Thus, the detainee need not “appeal” his detention before a judge. Appearing before a judge is an “internal” part of the dentition process. The judge does not ask himself whether a reasonable police officer would have been permitted to carry out the detention. The judge asks himself whether, in his opinion, there are sufficient investigative materials to support the continuation of the detention.
Indeed, the laws regarding detention for investigative purposes focus mainly on judicial decisions. In a “natural” state of affairs, the initial detention is performed on the authority of a judicial order. See H. Zandberg, Interpretation of the Detentions Law 148 (2001). Of course, this state of affairs does not apply to the circumstances at hand. It is natural that the initial detention not be carried out on the authority of a judicial order. It is natural that the beginning of the initial investigation in the facility be performed within the context of the amended Order 1500. Judicial review will naturally come later. Even so, everything possible should be done to ensure prompt judicial review. Indeed, the laws of detention for investigative purposes are primarily laws which guide the judge as to under what circumstances he should allow the detention of a person and under what circumstances he should order the detainee’s release. Judicial detention is the norm, while detention by one who is not a judge is the exception. This exception applies to the matter at hand, since naturally, the initial detention is done without a judicial order. Nevertheless, everything possible should be done to rapidly pass the investigation over to the regular track, placing the detention in the hands of a judge and not an investigator. Indeed, the authority to detain as set by Order 1500, as well as the detention authority under Orders 1505, 1512, and 1518, is not unique. This detention authority is part of the regular policing authority, see para. 24. Otherwise it could not be conferred upon an authorized officer. This nature of the detention authority affects its implementation. Like every detention authority, it must be passed over to the regular track of judicial intervention as quickly as possible.
33. Of course, such judicial intervention takes the circumstances of the case into account. In evaluating the detention for investigative purposes, the judge does not ask himself whether there exists prima facie evidence of the detainee’s guilt. That is not the standard which needs to be tested. At this primary stage, there must be reasonable suspicion that the detainee committed a security crime and reasonable reason to presume that his release will disturb security or the investigation. Regarding this reasonable suspicion, Justice M. Cheshin stated:
“Reasonable suspicion” will exist even if it is not supported by “prima facie evidence for proving guilt,” where there is evidence which connects the suspect to the crime at hand to a reasonable extent that justifies, in the balancing of the interests on each side, allowing the police the opportunity to continue and complete the investigation.
VCA 6350/97 Rosenstien v. State of Israel (unreported case); VCA 157/02 Tzinman v. State of Israel (unreported case).
Indeed, the judge may often learn of the existence of reasonable suspicion from the circumstances of the detention themselves, which raise the suspicion that the individual detainee presents a danger to the security of the area, see the definition of detainee in Orders 1500 and 1505. The judge will review the circumstances and examine whether they raise reasonable suspicion that the crime has been committed. He will, of course, consider additional materials submitted to him. He will inquire into the intended course of investigation and the difficulties of the investigation – whether they be the lack of manpower or difficulties in the investigation itself – in order to be convinced that the investigators are truly in need of additional time for their investigation. All these will ensure that the decision regarding the continuation of the detention, even if it is only based upon initial investigative materials, will not be made by the investigating authority, but rather by a judicial official. This is the object which lays at the base of both the international and Israeli regulation of detention for investigative purposes.
It is possible, that in the end, the judge will decide to allow the continuation of the detention, as would an authorized officer. This is irrelevant, since the judge’s intervention is intended to guarantee that only the proper considerations be taken into account, and that the entire matter be examined from a judicial perspective. This is the minimum required by both the international and Israeli legal frameworks. President Shamgar, in HCJ 253/88 Sajadia v. Minister of Defense, at 819–820, expressed the same in reference to judicial review over administrative detention, which also applies to the matter at hand:
It would be proper for the authorities to act effectively to reduce the period of time between the detention and the submission of the appeal, and the judicial review.
Of course, this does not mean that the judicial review should be superficial. On the contrary, “it is highly significant that a judge thoroughly examine the material, and ensure that every piece of evidence connected to the matter at hand be submitted to him. Judges should never allow quantity to affect either quality or the extent of the judicial examination.” President Shamgar in Sajadia, at 820. In exercising his discretion, in each and every case, the judge will balance security needs, on the one hand, and individual liberty, on the other. He will keep in mind President Shamgar’s words in Sajadia, at 821, which were said with reference to administrative detention, but apply to our case as well:
Depriving one of his liberty, without the decision of a judicial authority, is a severe step, which the law only allows for in circumstances which demand that such be done for overwhelming reasons of security. Proper discretion, which must be exercised in issuing the order, must relate to the question of whether each concrete decision regarding detention reflects the proper balance between security needs – which have no other reasonable solution – and the fundamental tendency to respect man’s liberty.
34. With this in mind, we are of the opinion that detention periods of 18 days, under Order 1500, and 12 days, under Orders 1505, 1512 and 1518, exceed appropriate limits. This detention period was intended to allow for initial investigation. However, that is not its proper function. According to the normative framework, soon after the authorized officer carries out the initial detention, the case should be transferred to the track of judicial intervention. The case should not wait for the completion of the initial or other investigation before it is brought before a judge. The need to complete the initial investigation will be presented before the judge himself, and he will decide whether there exists reasonable suspicion of the detainee’s involvement to justify the continuation of his detention. Thus, Order 1500, as well as Orders 1505, 1512, and 1518, unlawfully infringes upon the judge’s authority, thus infringing upon the detainee’s liberty, which the international and Israeli legal frameworks are intended to protect.
35. How can this problem be resolved? We doubt that it would be suitable to substitute the periods of detention without judicial intervention set in Order 1500 and the amended Order 1505 with a shorter predetermined detention period. As we have seen, everything rests upon the changing circumstances, which are not always foreseeable. It seems, that due to the unique circumstances before us, the approach adopted by international law, which avoids prescribing set periods and instead requires that a judge be approached promptly, is justified. In any case, this is a matter for the respondents and not for us. Of course, presumably, this means that it will be necessary to substantially enlarge the staff of judges who will deal with detention. It was not argued before us that there is a lack of such judges. In any case, even if the claim had been raised before us, we would have rejected it and quoted President Shamgar’s words in Sajadia, at 821:
What are the practical implications of what has been said? If there are a large number of detainees, it will be necessary to increase the number of judges. Difficulty in organizing such an arrangement, which will increase the number of judges who are called to service in order that a detainee’s appeal be heard promptly and effectively, cannot justify the length of the period during which the detainee is held before his case has been judicially reviewed. The current emergency conditions undoubtedly demanded large-scale deployment of forces to deal with the riots occurring in Judea, Samaria and the Gaza Strip, and the matter at hand – the establishment of a special facility in Kziot – is an example of this deployment of forces. However, by the same standards, effort and resources must be invested into the protection of the detainees’ rights, and the scope of judicial review should be broadened. If the large number of appeals so demands, ten or more judges may be called upon to simultaneously review the cases, and not only the smaller number of judges who are currently treating these matters. Such is the case – aside from the differences which stem from the nature of the matter – with regard to prosecutors as well. The number of prosecutors may also be increased, due to the need to hasten the appeal proceedings and the preparations thus involved.
Notably, under international law, judicial intervention may be carried out by a judge or by any other public officer authorized by law to exercise judicial power. This public officer must be independent of the investigators and prosecutors. He must be free of any bias. He must be authorized to order the release of the detainee. See Ireland v. United Kingdom, 2 EHRR 25 (1978); Schiesser v. Switzerland, 2 EHRR 417 (1979).
36. Thus, we hold the 18-day detention period without judicial oversight under Order 1500, and the 12-day detention period without judicial oversight under Orders 1505, 1512, and 1518, to be null and void. They will be substituted by a different period, to be set by the respondents. To this end, the respondents should be allowed to consider the matter. Therefore, we hold that this declaration of nullification will be effective six months from the date at which this judgment is given. Compare Tzemach
, at 284. We have considered respondents’ request to present us with classified information. We are of the opinion that such is neither appropriate nor desirable. We hope that the half-year suspension will allow for the reorganization required by both international and internal law.
In its judgment in the A. v. State of Israel case in 2008, concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
With regard to the periods of time between the detention of the detainee and the initial judicial review of the detention order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and discretion whose price is likely to be a person’s loss of liberty without just cause, the administrative detainee should be brought before a judge “as soon as possible” in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence  IsrSC 42(3) 801, at pages 819–820). It should be noted that this case law ruling is consistent with the arrangements prevailing in international law. International law does not stipulate the number of days during which it is permitted to detain a person without judicial involvement, but it determines a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the detention decision should be brought before a judge or another person with judicial authority “promptly” (see in this regard the provisions of article 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature. … )
In the case before us, the Internment of Unlawful Combatants Law [(2002)] provides that the date for holding the initial judicial review is “no later than 14 days from the date of issuing the internment order.” The question that arises in this context is whether the aforesaid period of time excessively violates the right to personal liberty. The answer to this question lies in the purpose of the law and the special circumstances of the detention thereunder, as well as in the interpretation of the aforesaid provision of the law. As we have said, the Internment of Unlawful Combatants Law applies to foreign parties who belong to terrorist organizations and who conduct persistent hostilities against the State of Israel. As we have said, the law was intended to apply, inter alia
, in circumstances where hostilities are taking place in a territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not see fit to hold that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the margin of proportionality in such a way that it justifies our intervention by shortening the maximum period provided in the law. At the same time, it should be emphasized that the period of time provided in the law is a maximum period and it does not exempt the state from making an effort to bring the detainee to an initial judicial review as soon as possible in view of all the circumstances of the case.