Forgot to tell suspect his rights? That's OK if he's smart, says judge
Military judge finds that intelligence and fluency of Palestinian minor outweigh fact that he wasn't told he doesn't have to speak to police.
A ruling earlier this month by Maj. Sharon Rivlin-Ahai, a judge at the Ofer military juvenile tribunal, settled a debate among anti-occupation activists divided over whether the army has internalized to what extent its routine detentions of Palestinian children violate the UN Convention on the Rights of the Child, to which Israel is a signatory, as well as Israel's own Youth Law.
Some had argued that Israel's November 2009 establishment of a military juvenile court, 42 years after the occupation of the West Bank, and its September 2011 decision to raise the age of majority for Palestinians from 16 to 18 - just as Israelis under 18 are considered minors - indicates a shift for the better, brought about after years of advocacy. Others suspected the changes were nothing but camouflage.
On January 9, Rivlin-Ahai came down on the side of the skeptics. She ruled that a statement provided to the police a year ago by a 14-year-old boy arrested in the middle of the night and questioned without his parents was admissible as evidence. She arrived at this conclusion even though, as she acknowledged, he was not informed of his right to remain silent and was prevented from meeting with a lawyer during part of the interrogation.
"In my opinion, the damage to the rights of the defendant in this concrete case did not cause the necessary level of infringement on his right to a fair criminal proceeding, to the extent of disqualifying the confession of the defendant, resulting in damage to the revelation of the factual truth and to the public interest in fighting crime," wrote Rivlin-Ahai. "I have decided not to disqualify the statement."
The boy, who may be identified publicly only by his initials, A.D., was detained by Israel Defense Forces soldiers around a year ago in the middle of the night at his home in the West Bank village of Nabi Saleh, where regular demonstrations against the occupation take place.
The IDF already had an incriminating statement from another resident indicating that A.D. and his older brother had participated in past demonstrations, but it was the 14-year-old who was arrested, perhaps because it was assumed that he would be easier to interrogate. In the approximately seven hours between his arrest and the start of his interrogation, he was not allowed to rest, eat or go to the bathroom.
Mood seems normal
"This is a 14-year-old, who was questioned when he was tired, in the absence of an adult chosen by him," Rivlin-Ahai wrote in her ruling. "His right to remain silent was not explained to him and he was prevented from meeting with defense counsel during the first hours of the interrogation."
All the same, the judge ruled that these flaws in the interrogation should not disqualify the testimony, in which he confessed to stone-throwing.
Videotapes of five hours of the nearly eight-hour interrogation (including two breaks ) were shown in court. The judge was impressed by the boy. She wrote: "Watching the recording of the interrogation, the defendant appears in a good physical and mental state. ... Even his mood seems normal throughout most of the interrogation. ... He cooperates, volunteers much information, asks questions and even jokes with the interrogators. ... For example, he laughs at interrogator Arnon Yahav's slow typing speed and points out to police officer Nihai Sawsan that if they don't hurry up with the translation, they will have to be there all night. ... Throughout the many hours of the interrogation, he doesn't complain at all about the circumstances of his arrest. ... It is clearly apparent that the defendant is talking freely and very openly, and even surprises his interrogators with many informative details."
The judge does not question the credibility of these details, but she does note the lack of credibility in his statement to one of his attorneys, because he pretended to have confessed to throwing only one stone, while he actually told the police about more.
Rivlin-Ahai also commented on times during the interrogation when the boy was less than composed, but said that overall, A.D. spoke to police "willingly and freely."
"At a certain stage, the defendant bursts into tears and tells his interrogators that he is worried about failing tests [in school]," the judge wrote. "The flood of words from the defendant continues even as he is still crying... [but] at no point in the interrogation does he seem scared or restrained, and he speaks freely. ... There are indeed moments when the defendant seems tired and sad, but for most of the interrogation he looks alert and occasionally amused. ... This is an interrogation of an intelligent, active and even proud youth."
The defense attorneys, Limor Goldstein and Gabi Lasky, saw in the same video a confused and scared boy, and do not think that his intelligence and polished speech counteract the police violation of the rules of interrogation.
The fact that A.D. was not informed that he has the right to have his parents present during the interrogation and was not told his rights "properly and in a language he understands" combine to "create a critical mass of violations... that justifies disqualification of the what the defendant said," his lawyers said in their summation. They also said he was questioned by three interrogators trained only in questioning adults and one juvenile interrogator "who is completely unfamiliar with the rules of interrogation."
But Rivlin-Ahai would not be swayed.
"Each of the circumstances referred to above - interrogation without the presence of parents, failure to wait for the defense attorney, preventing a meeting with the defense attorney and the fatigue of the defendant - could in certain circumstances, each one separately and certainly cumulatively, lead to the conclusion that the fairness of the interrogation had been seriously affected," the judge acknowledged. "In extreme cases, the conclusion might even be that a statement taken in these circumstances was not given willingly and freely by the person being interrogated."
But that's not so here, she said: "In the unique, concrete circumstances of the case, I did not find that this was so."
The judge also criticized the interrogators for what she termed "the lack of a specific explanation of the right of the defendant to remain silent," even as she decided the defendant's statement would be admissible nonetheless.
"This is an essential flaw that can in no way be considered a technical shortcoming," wrote Rivlin-Ahai. "The fact that time after time, this essential right to remain silent during the interrogation is forgotten by investigator Moshe Medioni - even though he does take the time to read the other rights on the advisory list, and at the same time tells the defendant repeatedly that he must tell the truth - may give the defendant a false impression that the only option available to him is to provide information during the interrogation."
All the same, the judge found that the defendant's right to a fair criminal proceeding was not impaired, writing: "I reached the conclusion that this flaw did not have any real impact on the way the defendant made his confession."
A.D. was released to house arrest in April. Since then he has been allowed to leave the house only to go to school and appear in court.
Had he and his attorneys agreed to do what many others do - sign a plea bargain, thus waiving the right to a trial and saving the justice system time and manpower - he would already have been free to go where he pleases a long time ago.
Fewer arrests, same offenses
There has been a steady decline since mid-2010 in the number of Palestinian minors arrested by the Israel Defense Forces and jailed in Israeli detention facilities and prisons, even though there has been no drastic change in the number of stone-throwing incidents in the West Bank.
Most of the Palestinians arrested over stone-throwing are minors.
The number of Palestinian minors in Israeli prisons dropped below 300 in June of 2010, for the first time since January 2008, when the independent non-governmental organization Defence for Children International started recording the number, using Israel Prison Service data.
Israel had 291 Palestinian minors behind bars in June of 2010, down from 305 the previous month and 327 in November of 2008.
The numbers have continued dropping since 2010, dipping to 180 in August of last year and 161 in November. In December, 55 minors were released as part of the Gilad Shalit prisoner swap and the total number of detained minors dropped to 135, including one girl.
But the IDF has actually recorded an uptick in stone-throwing incidents, from 3,903 in 2008 to 4,336 last year (with a slight drop in 2010 ), according to the IDF spokesman's office.
Some have argued that the decline in the number of detainees, and therefore in the number of Palestinian minors indicted and tried, attests to a change in policy, primarily due to the activities of the international children's aid group as well as local human rights organizations like B'Tselem, Yesh Din, Machsom Watch, the Association for Civil Rights in Israel and the popular struggle coordination committees for West Bank towns where demonstrations took place.
However, Defense for Children International and B'Tselem, which gather evidence from minors and monitor the courts' activities, note that the arrest procedures for minors remain the same.
They are still often arrested in the middle of the night, dragged out of their beds by armed, and often masked, soldiers. In some cases, 12- and 13-year-olds have been arrested on stone-throwing charges while they were on their way to visit relatives or work in the family's field.
The hands of the minors are still bound with tight plastic handcuffs and their eyes are covered, and they are regularly tossed onto the floor of a jeep full of soldiers who often strike them. And they are brought to police stations and interrogated without their parents being present, and frequently without having a chance to consult with a lawyer.
They are rarely released on bail and even minors (like adults ) remain in custody until the end of the proceedings, which encourages plea bargains.
And the indictments indicate that even the prosecution is not quite sure about the details of the charges. The charge sheets contain the standard formula that the defendant threw stones in unknown locations and "at a time unknown to the prosecution."