Shackles Law Raises Hackles

Never mind that the law states prisoners and detainees are not routinely to be bound in court. The police and the Prisons Service have other ideas.

There are quite a number of laws that are not enforced. However, there are apparently few laws ignored as rigorously as the Shackles Law, and it is broken by the police and the Israel Prisons Service. The Shackles Law (regulating the authority to shackle a detainee or a prisoner in a public place) was passed by the chair of the Likud Knesset faction, MK Gideon Sa'ar, five years ago. It stipulates that a prisoner will not be shackled in a public place, for example a court, unless there is a real concern he will try to escape, to disturb public order or to conceal evidence.

Last Thursday the Knesset Constitution, Law and Justice Committee held a follow-up discussion on the law's implementation. A document sent to the committee by Deputy Public Defender Oshera Kancepolsky said "the law to regularize shackling is not implemented on the ground." In 2006 the Public Defender's Office inspected six detention facilities, finding that "most of the people under arrest are routinely led handcuffed and/or with their legs shackled through the corridors of the courthouse to the courtroom and that some of them even remain shackled during the deliberations in a way that can publicly humiliate them."

Thus, for example, at the Magistrate's Court in Petah Tikva people under arrest are forced to "cover a long and humiliating route from the collection vehicle that starts on the street in full view of passersby, up the stairs of the courthouse and to the detention facility, shackled hand and foot."

In 2007, there was no improvement. At the Jerusalem Magistrate's Court all detainees are escorted in shackled hand and foot, apart from exceptional cases (minors, the elderly and the ill). "At a deliberation that was held in the Jerusalem District Court a woman prisoner was brought in with her feet shackled even though she was disabled and confined to a wheelchair, with the right side of her body almost totally paralyzed." Kancepolsky believes this testifies to "a lack of sensitivity and total blindness to the prisoner's humanity."

During 2007, responsibility for transporting prisoners to court was gradually transferred from the police to the Prisons Service. The Public Defender's Office states that "the tendency that characterized the Israel Police also characterizes the Prisons Service. Moreover, the fact that the detainees are not known to the Prison Service [because it does not investigate them - S.I.] apparently leads to a more severe attitude."

The Public Defender's Office has received complaints that at detention facilities in the Northern District and Haifa, it is customary to shackle detainees' feet inside their cells." The office complained and was told the procedure has been changed. In November, 2007, the Magistrate's Court in Eilat handed down a decision that "the Prisons Service procedure at all courts is to escort detainees into the courtroom with their feet shackled."

In Eilat there is a standing order stipulating "prisoners and detainees will be escorted into the courtroom shackled hand and foot, and prior to the start of deliberations only the handcuffs will be removed. During a site visit to the detention facility at the Tel Aviv Magistrate's Court, Kancepolsky was told by Prisons Service representatives that "the procedure is to shackle all detainees," apart from exceptional cases.

"I take a grave view of the fact that five years later the situation remains as it was," says Knesset Constitution, Law and Justice Committee chairman Menachem Ben-Sasson (Kadima). Sa'ar addressed the police representatives and asked: "Doesn't it bother you to see prisoners, about whom it is clear to everyone that they pose no risk, led in shackles?"

A committee headed by Attorney General Menachem Mazuz determined in 1998 (Mazuz was then deputy attorney general) that prisoners held in hospitals should not be shackled unnecessarily. However, in a document sent to the Knesset Constitution, Law and Justice Committee by Niv Michaeli, the head of the prisoners department at Physicians for Human Rights, it emerges that the situation at hospitals is no better. "From the applications to us it emerges that most prisoners are as a rule shackled in hospitals, whether when they are hospitalized or there for examinations."

Michaeli says that the latest case in a disgraceful series of cases was that of Miklosz Gal, 84, who was held in a hospital in Nahariya shackled hand and foot to the bed. This, even though Gal is being held because of a suicide attempt by him and his wife. Unlike at the courts, where the Prisons Service people are required to justify the shackling to the judges, at hospitals there is no judicial authority that will supervise them.

At the Knesset Constitution, Law and Justice Committee the representative of the Courts Administration asserted that transferring responsibility to the Prisons Service for accompanying detainees and prisoners, there has improved the implementation of the law.

The legal adviser to the Prisons Service, Brigadier Haim Shmulevitz, reported that the Service is examining the possibility - in certain cases - of replacing the shackling of a prisoner with a concealed splint device on his leg to prevent him from running. Three months from now the Knesset Constitution, Law and Justice Committee will hold another follow-up session to examine whether the Prisons Service has internalized in the interim the rule that shackles are the exception, and not the rule.

JNF goes to the Negev

The debate on the Jewish National Fund (JNF) Law has dropped from the headlines a bit. Behind the scenes (ever so slowly) the negotiations between the JNF and the Finance Ministry have been continuing on a formula for the exchange of lands so during the next decades any Arab who wins a tender for JNF land will receive it, while the JNF, which is a kind of Jewish waqf (religious trust), will not lose a single dunam of land.

The JNF owns about 12 percent of the lands in Israel, about 2.6 million dunams. About half of the lands were bought directly from the owners and about half are lands that belong to Arab absentees and purchased from the state at their real value at the start of the 1950s.

The JNF was established by the founders of Zionism to purchase lands in the Land of Israel for the Jewish people, and its regulations prohibit it from leasing its lands to non-Jews. But the JNF lands are managed by the Israel Lands Administration (ILA), which is not allowed to discriminate between Jews and non-Jews.

Until a few years ago an arrangement prevailed so that when an Arab won a tender for JNF land, the ILA gave it to him and the JNF received alternative land in the same area.

However, in 2004, the legal advisers to the ILA determined that this arrangement is not legal, because there are lessees on the lands that the JNF receives and it is impossible to change the ownership without the lessees' agreement. Thus, as the result of a marginal technical flaw, a constitutional crisis ensued.

The ILA published for the first time in 2004 a tender that was subordinate to the JNF regulations - that is, it allowed the land to be sold to Jews only. Adalah, The Legal Center for Minority Rights in Israel, hastened to petition the High Court of Justice on the grounds this was illegitimate discrimination.

Attorney General Mazuz stated in response to the petition that the ILA cannot lease any lands, including JNF lands, to Jews only.

In response, in 2007, the Knesset passed a law in its preliminary reading, by a large majority, that would allow the ILA to do this. This proposal was harshly criticized as racist.

And thus a balance of terror emerged. No doubt, most of those concerned would prefer to solve the problem without intervention by the High Court or the Knesset.

Initially it seemed the JNF would transfer all its urban lands to the ILA, about 120,000 dunams, and in return would receive land in the Negev (90 percent) and the Galilee (10 percent)..

Then the figure dropped to 65,000 dunams (all the lands on which there is already construction) on the assumption that every time another tender for more JNF land is issued, it would be transferred to the ILA, and the JNF would receive an alternative plot in the Negev.

However, it emerged that of the 65,000 dunams, there was no parcellation (plan for the division into individual plots) for about 20,000 dunams, so it was impossible to exchange them. The upshot was that about 45,00 dunams remained in the deal. The JNF will receive a dunam for a dunam and the negotiations now are on the financial addition. After all, the JNF is giving urban land and getting barren land.

The JNF is asking for NIS 350 million. The Treasury is offering several tens of millions.

The negotiations have been dragging on for months. The High Court, which had allotted three months for the negotiations, has extended the period for another three months. Knesset Finance Committee chairman MK Gilad Erdan (Likud) wonders whether in the end the committee will have to determine the amount of compensation.

Deputy JNF chair Menachem Leibowitz says he is prepared to go to a mediator. A source at the Finance Ministry says that in the past the JNF was given a generous offer for all the urban lands and did not accept that offer. Now renewed negotiations are underway.

However, this is not the treasury's only demand. It is also demanding that the JNF agree to decrease its representation on the ILA board of directors from 50 percent to 13 percent in accordance (more or less) with its share of state lands.

This follows the recommendation of the Gadish Committee on reform in the ILA and the government resolution of June,2005 to adopt its recommendations. Ostensibly it is only reasonable that the JNF's representation reflect the extent of the lands it holds. However, this could also be seen as severe damage to the status of the Zionist institutions and the Jewish people.

MK Uri Ariel (National Union-National Religious Party) is the person behind the proposal for the JNF Law. Ariel makes it clear he intends to bring any agreement between the Finance Ministry and the JNF for ratification in legislation - to anchor the status of the JNF. In this law he intends to preserve the JNF representation of 50 percent on the ILA board of directors. The Finance Ministry has responded that changing the JNF representation on the ILA board is anchored in the government resolution that adopted the recommendations of the Gadish Committee.