The Israeli Supreme Court ruled on February that the clause in the Israeli Criminal Procedure Act which allows ex-parte court hearings for suspects in terror or national security crimes was unconstitutional and void (OCR 8823/07 Doe v. State). In the same case, the supreme court balanced between the burden of a democratic state has to face when facing terror within and due process and ruled that a suspect’s right for due process prevails as it is what makes Israel a democratic state:
Harming those who can’t defend from their arrest either by personal appearance or by ‘representative educated appearance’ is a material violation of human rights. it may annul the process and make the legal process void. … When an attorney did not meet the suspect, and the court is prevented as well from asking the suspect and inquiring about matters that need clearing, there is an actual burden on the possibility of exercising efficient and fair legal review. The court, in fact, relies on the statements of one party only. This result is grave in regards to the character of the legal due process and the matter is discussion – limiting a person’s freedom”.
In a same manner, clause 34 to the criminal procedure act states that the right to consult an attorney is one of the basics of due process; without decent representation a person will not have actual knowledge of his rights, will not have his day in court and therefore, any violation of this right, even if indirect, may cause damages to the legal process itself (and see, for this matter, HCJ 1548/07 Israel Bar v. Minister of Homeland Security which discusses the right to consult an attorney via video conference). However, foreign sources report that Israel has, again, not only violated the law, but kept covering it up. According to foreign sources, The Israeli-Arab author Ameer Makhoul was arrested in suspicion of committing crimes against national security and was prevented from meeting his attorney (and thanks to Yossi Gurvitz from Friends of George who referred me to this story). According to the reports, Makoul was prohibited from leaving Israel a month ago by the Minister of Interior Affairs, Eli Yishai, and that was against specific stipulations in Israel’s Basic Statute of Freedom and Dignity which states that “every person is free to exist Israel”.
Two problems come to mind when thinking about this, if it were actually true; the first is that now no one knows what Makhoul is a suspect of. his disappearance by the security services was not reported in the press, and we were not given any information, as a public, as to what he is suspected of. What actually happened is that the public trust that if it were taken by the dead of night for now reason, his friends, acquaintances, family and attorneys would know about it was lost due to the serial disappearance drawn by the government for dissidents. The graver danger in these cases, and cases such as deprevation of Jack Titel‘s right to consult an attorney, is that the damages to the due process would be irreversible. Not only that the public trust would be gone, but a person would not be able to evaluate in an educated manner what to do and sometimes is willing to do anything just to make the torture go away (and see RT 3032/99 Baranes v. State and HCJ 5100/94 Public Committee Against Torture v. Government).
The seconds problem is the gag orders; if in the Anat Kamm affair there were confused bloggers who couldn’t understand how to deal with unknown gag orders, when they understood that the Israeli Police does not want to enforce the gag order on Facebook since its servers are outside of Israel (and that’s in spite of the decision in OR 90861//7 Carlton v. State which ruled that “hiding under the veil that the company operates and runs outside of Israel, its servers are not in the state, does not exempt the appellant and the company he heads from the Israeli criminal law”). But it seems that the police and secret services do not wish for gag orders to become a dead letter and will just ignore the bloggers, and let the farce play in the national media.
No matter how you look at it, the arrest of dissidents and their disappearance does not fit Israel’s character as a Jewish-Democratic state.