Israel detains hundreds of African asylum seekers without trial every year, with the approval of officials in the Population, Immigration and Border Authority.
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According to data released by the authority following a Freedom of Information request, Haaretz has learned that from January 2016 to March 2017, a total of 311 Eritrean and Sudanese citizens were detained without trial, some of them for several months.
The practice effectively allows the authority and police to bypass the judicial process and detain asylum seekers who have completed a prison term and are due for release, as well as individuals who are suspected of crimes but who cannot be prosecuted due to insufficient evidence.
The authorities cite as justification a clause in the Entry into Israel Law that allows the detention of an individual whose release “endangers state security, public safety or public health.”
The High Court of Justice has criticized the practice of denying the freedom for prolonged periods of asylum seekers who cannot be deported legally, as in the case of Eritrean and Sudanese citizens. It did not, however, prohibit the detention without trial of asylum seekers in certain circumstances.
Although the policy is not new, the figures show the authorities are making extensive use of detentions without trial, sometimes exceeding the attorney general’s instructions.
In January 2014, then-Attorney General Yehuda Weinstein ruled that an asylum seeker may be held in custody indefinitely if he endangers public safety and his own welfare, but not for disrupting order, as previous regulations allowed.
Weinstein forbade imprisoning asylum seekers if the cases against them were closed due to lack of public interest. He stressed that the detention was not intended to replace or bypass criminal procedure, and forbade keeping in detention asylum seekers whom the court had ordered released. Among other things, he authorized holding without trial asylum seekers suspected of low-level violent crimes, breaking and entering, forging documents and driving without a license.
According to the Population, Immigration and Border Authority (which is part of the Interior Ministry), in the 15 months from the beginning of 2016, 223 asylum seekers who were suspected of crimes were held without trial, at the request of the police. An additional 88 asylum seekers remained in detention after serving out prison sentences.
The Freedom of Information request was filed by Elad Cahana, a lawyer from the Refugee Rights Clinic of Tel Aviv University’s law school, on behalf of the Hotline for Refugees and Migrant Workers.
“The state deprived 311 people of the right to due process over the past 18 months,” said Hotline Executive Director Reut Michaeli. “That means 311 people did not receive legal counsel or representation and were not brought to court. The state created a separate justice system for people with a different skin color. ... If you’re an African asylum seeker, your liberty is simply worth less,” added Michaeli.
In late December, an asylum seeker from Darfur was arrested on suspicion of assault and possession of a knife, and ordered to remain in detention for a few days to allow police to complete the investigation. At the end of the period, the police did not request an extension of the detention, instead announcing that the man would remain in detention without trial (or administrative detention) since he posed a danger to public security.
The police submitted a legal opinion in which it was argued that the man’s involvement in a crime “has a direct implication for the sense of security of passersby in Tel Aviv.”
The Population Authority’s detention tribunal authorized the measure. The asylum seeker appealed the ruling. His lawyer, Michal Pomerantz, said there was no evidence warranting his prosecution and that in any event he constituted no danger to public safety.
The authority that if he didn’t want to stay in prison, he could leave Israel and travel to a third country (i.e., an African state other than Sudan). Ten days after he was placed in administrative detention, the immigration tribunal ordered his release within a week unless he was charged during that time.
The tribunal ruled that indefinite detention “turns the detention into a disproportionate penal measure that violates the Basic Law on Human Dignity and Liberty.” It said the authority had not considered an alternative to detention that would not deprive the man of his liberty. The man was released after two and a half weeks, without being charged.
Placing asylum seekers in administrative detention instead of taking them through legal criminal proceedings infringes on their rights to fair procedure, said Pomerantz. The state denies asylum seekers the right to a public defender and to court supervision, she added. “This is especially egregious in light of the fact that these are people who cannot afford a private lawyer and cannot defend themselves,” she said.
The authority also holds asylum seekers in detention without trial on drug- and property-related offenses. One South Sudanese man suspected of drug-dealing was held in Givon Prison for two months without being indicted.
“They said, ‘Go back to your country, we don’t want you here,’” the man related, saying he was pressured to agree to be flown to Rwanda or Uganda. Then, he said, he was told he would not be released because he was dangerous. “I said, ‘How am I dangerous?’ They said ‘We found drugs in your house.’ I said, ‘Why didn’t you take me to trial?’ They said ‘There’s no trial, just go back.’”
The immigration tribunal approved the man’s detention, but later ordered him released if he was not indicted by a certain date. He was released and eventually confessed to possessing drugs for personal use, under a plea bargain. He did not serve any more time in prison.
Two cases of asylum seekers who were detained without trial were heard by the Supreme Court in the past year. The first involved an Eritrean man who was convicted of sexual assault and sentenced to 14 months in prison. However, when his sentence ended, he remained in custody “until his expulsion from Israel,” ostensibly because he posed a danger to the public.
He remained in custody for 14 more months until the Supreme Court ordered his release, saying that more dangerous sex offenders were released at the end of their sentence.
In another case, a man from Darfur was convicted of killing another asylum seeker in a south Tel Aviv bar. He had been mugged in the street and followed the attackers into a nearby bar. The bar manager hit him with a stick and in the ensuing fight the man killed the manager with a broken bottle.
He was sentenced to seven years in prison, but, shortly before he completed the term, the authorities decided to keep him in administrative detention. A district court ordered his release, but the state appealed to the Supreme Court, which returned the case to the lower court. The latter court ordered his release, noting that the state hadn’t proved there was a public interest in keeping him in prison. The man was released two months ago, after spending six months in administrative detention.
The man told Haaretz the Population Authority threatened to keep him in prison indefinitely unless he left Israel. “I told them I had nowhere to go to. They said, ‘You must go back to Africa and you’re a danger to the public.’ I’m not dangerous to the public. I don’t cause problems. Why [was] I being held after my release?”
The Population, Immigration and Border Authority said in response that its actions were done according to “guidelines authorized by the then-attorney general, and reaffirmed a number of times in the courts, including the Supreme Court. [The court’s ruling] was that the authority must use its power in cases when a foreigner poses a threat to public safety. Accordingly, it is unclear why this is now deemed improper use of criminal justice.”
The Israel Police responded: “The authority to transfer infiltrators [the government term for African asylum seekers] is given to the Population, Immigration and Border Authority and the Interior Ministry. When an infiltrator is suspected of a crime considered serious enough to pose a threat to state security or public order, they are taken in by the authority, which begins an administrative process according to the law and the ‘Infiltrators Involved in Crimes’ directive, per the attorney general’s orders. Before involving the immigration authority, the police first exhaust all of the investigative means available to them.”