An Israeli military court has made a precedent-setting ruling by refusing to admit a Palestinian minor’s statements to police because the police investigator denied him access to an attorney.
The ruling could have far-reaching ramifications because most Palestinian minors are not allowed to speak to an attorney before their interrogation starts. The judge, Col. Yair Tirosh, permitted publication of his ruling, despite objection by the military prosecutors, Capt. Daniel Goldhammer and Lt. Na’aman Khatib. Tirosh conditioned publication on not identifying the accused.
The minor’s attorney, Nery Ramati, requested disqualification of the statement, citing a case in which the Supreme Court disqualified the confession of a soldier before military investigators because they did not inform him of his right to an attorney before being questioned on suspicion of using drugs.
In the case at hand, soldiers shot N., then 15 years old, and his friend O., 16, near Hebron’s Old City in late 2015. The two were injured and required hospitalization and surgery. They were arrested in O.’s home about two months later. Two different police investigators interrogated them, on suspicion that they had thrown Molotov cocktails at an army position before being shot.
O.’s interrogator let him consult with a lawyer. O. was released immediately after the interrogation and not indicted. N. was interrogated by First Sgt. Yaakov Cohen and released after about a week on bail. He denied any involvement. The charge sheet against him states that the soldiers, Yakir Zagay and Adar Gueta, saw what the two had allegedly done, shot them in their lower bodies and later found five explosive devices.
Ramati heard a tape of the interrogation, according to which the investigator did not let N. meet with a lawyer. Cohen asked him if he had a lawyer. The minor said he did. The investigator cut him off and asked, “Do you have one now?” The minor replied, “I will bring a lawyer.” The investigator cut him off again, and said: “Do you have a lawyer now? Talk only about now. Do you have one?” N. answered, “Not now.” Cohen said, “Not now. Good. You will talk later with a lawyer in court.”
Ramati asserted that the investigator’s behavior showed that he wanted to deny the youth his right to counsel. He also did not let him meet with his parents, the attorney added.
The military prosecutors asserted that there were no substantial flaws that affect the fairness of the criminal process and violate the rights of the accused.
Tirosh wrote in his decision, made last week, that the military court must function according to the rules of Israeli civil courts when it comes to the laws of evidence.
Judge: Police 'blatantly violated' suspect's rights
“The investigative authority blatantly violated the minor’s rights in these circumstances,” wrote Tirosh. “These are not minor, insignificant flaws as claimed but significant and serious ones with clear judicial repercussions. Violating rights is particularly severe considering the accused’s young age.”
The prosecutors refused to withdraw the indictment.
Ramati told Haaretz, that it is a well-known norm that investigators do not allow Palestinian minors to consult with attorneys or parents. (78 percent of 208 Palestinian minors told UNICEF between 2013 and 2014 that Israeli investigators had not informed them about their rights. The Ramallah-based Military Court Watch took testimonies of 79 Palestinian minors who were detained by the military in 2016, and 91% of them said they did not consult a lawyer.)
Ramati said military judges had sufficed with reprimands in previous cases in which the defense pointed out flaws in the interrogation. Most Palestinian minors are held until the end of procedures. Cases usually end in plea bargains due to the defense’s fear that the trial will take longer than the length of incarceration sought as punishment.
“The ruling is a very clear message to the police, precisely because of the simplicity of this case,” Ramati told Haaretz. “There were no shouts. There was no overly difficult physical or mental pressure. It simply was a violation of rights – something that is all too common – and therefore the court disqualified the statement.”