The text is simple and quite short, and it merits being quoted in full: “The Netanya Magistrate’s Court has decided to extend by 24 hours the detention of three Palestinians, without holding a hearing about their alleged crimes. The reason for the absence of such a hearing is that the suspects speak only Arabic, and could not communicate with the public defender appointed for them.”
The abstract form of this masterpiece of news briefs deserves a few words of attention. Reporter Ra’anan Ben Zur successfully conveys the fully Kafkaesque nature of the situation in two little sentences. We have three defendants, about whom we know nothing except for their nationality; the fact that a public defender has been appointed for them; that they cannot communicate with said defender; and that they are consigned to detention due to this lack of communication. We do not know their names, and most importantly, the crime of which they are suspected is missing from the report. Is this a serious crime, where the suspect must be detained? Or maybe it is a minor, negligible crime, and the suspects were only arrested for their ethnicity? The truth is — and the newsflash expressed it well — that it does not really matter. What matters is that three people were denied their liberty, without having the opportunity to defend themselves from this arbitrary decision.
In defense of the court, it is very likely that it would have come to the same decision even if it had to hear the case of three migrant laborers from China, who also would not have been able to converse with their public defender because he did not happen to speak Chinese and their Hebrew was not sufficient. It is, of course, significantly easier to find a speaker of Arabic than of Chinese, so you could accuse the court of having taken the easy way out here, but the principle stands.
Denial of liberty is the most severe sanction that we permit our courts. We do not permit corporal punishment and we do not have a death penalty (it exists, and rears its head occasionally, when it becomes necessary to make a ritual human sacrifice — of the three cases of death penalty, two involved Nazi criminals and the third was suspected of treason — but it generally lies dormant), and after financial penalties, only the denial of liberty remains.
The Supreme Court has written exhaustively about the fact that denial of liberty should not be used without appropriate cause, but in practice detentions are extended at Magistrates’ Courts by overloaded judges, and the Israeli courts tend to work in favor of the prosecution in any case. Frequently the police motion to extend detention is granted automatically. Once a person has been detained, the police has plenty of time to apply pressure and extract a confession, and once a confession has been produced, the case is pretty much closed.
And here comes the court and denies the liberty of people without the police even taking the trouble to make a case for such action. The three men have not even been accused, no evidence against them has been put forth: this is a classic case of the principle of “innocent until proven guilty”. Even the argument that their release could be risky is irrelevant here, because no one made that argument. The court has simply punished the three men for the lack of competence by the judiciary authorities themselves, who did not discharge their basic obligation, which is to provide the defendants with an attorney. And no, sending an attorney who is incapable of conversing with his clients does not count as “providing counsel”.
The court could have delayed the hearing and called in an interpreter. It could have — in fact, it should have — released the three defendants, because they were not able to put up a defense against whatever it was that the police argued against them. But the decision taken was to arrest them. Next time the judges ask themselves why people have been losing faith in the system of justice, they should look at this sort of decision and the lower steps of the hall of justices – the ones that trip up most citizens who are unfortunate enough to run into the system.
(The original is here, translation courtesy of Dena Bugel-Shunra.)