Supreme Court: Terror Suspects Cannot Be Remanded in Absentia

A law allowing courts to remand people suspected of security offenses in absentia contravenes the Basic Law on Human Dignity and Liberty, and is therefore unconstitutional, a nine-justice panel of the Supreme Court ruled yesterday.

The court said the law causes disproportional harm to the suspect's right to be present during deliberations on whether to keep him in jail.

According to Article 5 of the revised Penal Code of 2006, a court could remand someone suspected of security offenses even if he was not present at the hearing, if it was convinced that interrupting the suspect's interrogation in order to bring him to court would undermine the security services' ability to thwart a terrorist act.

The Supreme Court's ruling came in response to an appeal filed by attorneys David Halevy and Rashad Zoubi of the Public Defender's Office on behalf of a person suspected of belonging to a terrorist organization.

"A fundamental rule of criminal law is that no man can be tried without being present," wrote Deputy Supreme Court President Eliezer Rivlin in his ruling. This right is a constitutional one, he said, and applies not only to defendants facing trial, but also to suspects against whom an investigation is still ongoing.

The suspect's absence from a remand hearing "violates his ability to defend himself against the arguments that establish the pretext for the arrest, and [his ability] to give the court his arguments regarding the conditions of his detention and the way the interrogation is being carried out," Rivlin explained, noting that it is important for the court to be able to assess the prisoner's condition. "Effective interrogation carried out under conditions of incarceration must be combined with substantive judicial supervision."

Rivlin stressed that the court "has taken into account the special constitutional challenges facing a democracy battling terrorism" and quoted former Supreme Court president Aharon Barak, who wrote, "the fate of a democracy is that not all means are acceptable, and not all the methods used by its enemies are available to it. Often a democracy must fight with one arm tied behind its back."

The ruling was welcomed by the Public Defender's Office. "In a democracy, not all means are acceptable, even when there are serious suspicions" against a suspect in custody, it said in a statement. "It is important to recall that people who are innocent until proven guilty are being stripped of their liberty when they have not yet even been indicted."