Legal Advocacy

Supreme Court Petitions: Prisoners' Rights

Demanding Permission for Physical Contact during Visits between Political Prisoners and their Children. Petition filed to the Supreme Court in 8/04 demanding an injunction instructing the Israel Prison Service (IPS) to allow children of prisoners classified by the IPS as "security" prisoners physical contact with their incarcerated parents during visits. Petition filed against the IPS on behalf of ten children of political prisoners, Ansar al-Sajeen (the Prisoners' Friends Association) and in Adalah’s own name.

The IPS began severely restricting physical contact between political prisoners and their children in 5/02, after an alleged attempt by a child to smuggle a banned object to his imprisoned father. The law allows any prisoner and detainee to receive family visits, and does not distinguish between their classification (criminal or security) over visitation rights. The right to family visits for political prisoners is made particularly critical by the fact that these, unlike criminal prisoners, are not permitted to use telephones, and because visits by Palestinian families from the Occupied Territories are extremely limited due to the Israeli military's restrictions on their entry into Israel. Adalah has previously approached the IPS on this issue; in its responses, the IPS argued that, because physical contact between political prisoners and their children has been exploited in the past, allowing such contact could pose a threat to national security and the security of the prisons. The IPS added that political prisoners' contact with the outside world has been specifically restricted, and that there is no possibility of reversing the IPS's policy, as security considerations outweigh any others.

Adalah argued in the petition that the IPS's decision to deny physical contact between children and their incarcerated parents is illegal, since the IPS is not authorized to introduce such limitations: the decision infringes the constitutional right to dignity; contradicts and neglects the principle of acting in the best interests of the child; is discriminatory; and constitutes illegal and collective punishment. Adalah further argued that the decision gravely harms the right of prisoners with children to equality and dignity, as well as their right to family visits. Adalah contended that preventing physical contact between a parent and child contradicts Israeli law, as well as international treaties to which Israel is a signatory, including the Convention on the Rights of the Child (CRC). Article 9(3) of the CRC stipulates that state parties must respect the right of children separated from one or both of their parents to continue engaging in a personal, direct, and physical relationship with them. In 8/04, the Court ordered the IPS to respond to the petition within one month. The IPS subsequently requested and received several delays.

The IPS, represented by the State Attorney's Office, responded in 11/04 that the IPS will allow physical contact between political prisoners and their children only as an exception, following review of prisoners' requests and according to individual circumstances. The IPS emphasized that the restrictions placed on physical contact are due to security considerations. The IPS's response made no mention of children's rights, focusing only on the IPS regulation which enables the restriction of physical contact.

At a hearing on the case held in 3/05, The State Attorney's representative claimed that a general sanction for physical contact between prisoners and their children would represent a danger to state security. Adalah countered that the state's argument is an attempt to over-emphasize isolated incidents, without examining the root of the issue - the state's lack of authority to limit children's rights, as protected under international law. Adalah objected to the IPS's suggestion of allowing physical contact in exceptional circumstances, arguing that this suggestion does not guarantee that any child will be allowed to approach his parent, and stressed that the IPS's response did not detail the criteria for the acceptance or non-acceptance of a prisoner's request for physical contact with his or her children. During the hearing, the Court ordered the IPS to explain the reasons for the prevention of children from having physical contact with their incarcerated parents other than in exceptional circumstances. The Court's order also obliges the IPS to draw up a complete list of the criteria which apply for the permitting of such contact. The Court gave the IPS three months to submit its detailed responses.

In 8/05, the IPS informed Adalah of new directives under which it allows physical contact between prisoners and their children provided that the child is younger than six-years of age, the prisoner submits a written request, the prisoner’s behaviour is good, and there is no security-related reason for withholding such permission. In 9/05, Adalah responded, objecting to IPS’s new directives. Specifically, Adalah stated that a child should not be punished for his parent’s conduct in prison and that the imposition of the age restriction of six-years of age is unjustified and arbitrary. Adalah further stated that there can be no obligation on the part of prisoners to file a request for something to which they and their children are legally entitled.

In a hearing in 4/06, the Supreme Court allowed the IPS 45 days to re-examine its directives governing the ability of security prisoners to enjoy physical contact with their children and ordered the IPS to consider restricting physical contact in only exceptional cases, and only for security-related reasons. In 6/06, the IPS provided revised guidelines which, for example, arbitrarily deny physical contact to children over six years old and for offenses committed in prison, thereby punishing the child for the parent’s behavior. The IPS also reserved the right to alter the guidelines. In 6/06, Adalah demanded the cancellation of the revised guidelines as they prevent the consistent exercise of rights.

H.C 7585/04, Hakeem Kana'ni, et. al. v. The Israel Prison Service (case pending).

Challenging Confiscation of Salt from Hunger-Striking Prisoners. Petition filed to the Supreme Court in 8/04 on behalf of family members of hunger-striking prisoners, several Israeli and Palestinian NGOs, and in Adalah's own name, against the Israel Prison Service (IPS) and the Minister of Internal Security, demanding that the IPS provide salt on a daily basis to hunger-striking prisoners incarcerated in prisons around the country, an injunction prohibiting the IPS from confiscating salt from prisoners' cells, and an urgent hearing on the petition.

Thousands of Palestinian political prisoners took part in a hunger strike which began on 15/8/04, in protest against the deplorable conditions of confinement in Israeli prisons and detention centers. The prisoners stated that the strike would involve refusing food, not fluids and salt. However, from the beginning of the strike, the IPS confiscated various materials from their cells, including salt. The IPS claimed that the confiscation of salt was a disciplinary measure taken against the hunger strike, classified as a disciplinary offence by IPS Order – 1971. Adalah contacted the IPS demanding the return, among other things, of salt to prisoners, since not ingesting salt daily is dangerous for the health. The IPS responded that, according to IPS medical regulations, not adding salt to drinking water during the first two weeks of a hunger strike does not damage the strikers' health. Adalah contacted the IPS and Attorney General (AG) several times, requesting copies of these medical regulations.

Adalah argued in the petition that confiscating salt from prisoners and refusing to provide striking prisoners with salt on a daily basis is illegal, as it breaches the constitutional rights of hunger-striking prisoners to bodily integrity and dignity, as well as their rights to health and personal autonomy, which are guaranteed whenever they are behind prison bars, including when on hunger strike. Two expert medical opinions included in the petition were provided by physicians specializing in internal medicine, who state that not ingesting salt in daily drinking water will result in the infliction of damage to a hunger striker's body and health. The petition stressed that the IPS, which is entrusted with protecting the prisoners, is thereby obligated to care for their health and well-being. Adalah further added that the IPS lacks the authority to order the confiscation of salt, since the existence of internal procedures do not grant the IPS authority to infringe the basic rights of hunger-striking prisoners, and that the confiscation is tantamount to illegal and overly-broad punishment. The Court provisionally denied the petitioners’ request for an injunction.

v In 8/04, the AG’s office argued in response to the petition that IPS medical regulations determine that two weeks after the beginning of a hunger strike, the hunger-strikers are to be provided with water enriched with essential vitamins and minerals. The AG claimed that this was already being provided to the prisoners several times a day, and that, in accordance with the regulations, prisoners who joined the strike at a later stage would be provided with the enriched water within a few days.

At a hearing in 8/04, the Court dismissed the petition. In 9/04, the Court issued a judgment upholding the IPS's decision claiming that, "Incarceration restricts the ability of prisoners to exercise their freedom of expression, and the limitations imposed upon prisoners' freedom of expression are stricter than the limitations imposed upon free individuals." Accordingly, the Court ruled that, "Even if we presume that the hunger strike is a legitimate means of expressing one's opinion and exercising the right of freedom of expression, hunger-striking is not considered a right accorded to a person during incarceration." In fact, the Court added that, "Hunger-striking impedes prison management." According to the Court, the hunger strike is a breach of the IPS’s internal regulations, and therefore the IPS is entitled to remove any amenities given to hunger-striking prisoners. However, the Court noted that this step must be proportionate, and not pose a danger to the prisoners' health or lives. The Court found that the steps taken by the IPS did not violate the prisoners' basic rights. The Court fully accepted the IPS’s representations that it had no duty to provide salt to the prisoners. The Court added that, as the IPS is responsible for feeding prisoners, the storing of food in cells is not a basic right of prisoners, and furthermore the IPS has the authority to sequester amenities from hunger-striking prisoners.

The Court’s findings contradicted the expert opinions by specialists in internal medicine brought by Adalah. Moreover, the Court failed to address one of the petitioners’ main arguments, namely the issue of illegal and overly-broad punishment. Further, as Adalah argued during the hearing, even if the hunger strike is considered as a violation of the IPS's Regulations, unlike other punishments, including fines and solitary confinement, the confiscation of salt is not recognized in the regulations as a legal punishment.

H.C. 7837/04, Lila Bourgal, et. al. v. The Israel Prison Service, et. al. (petition dismissed).

Ending Illegal Policy of Limiting Attorneys' Meetings with Hunger-Striking Prisoners. Petition submitted to the Supreme Court in 8/04 by Adalah and the Association for Civil Rights in Israel (ACRI), in the name of seven attorneys and other human rights organizations, against the Israel Prison Service (IPS). The petitioners requested that the Court prohibit the IPS from preventing attorneys from visiting hunger-striking political prisoners and detainees.

Thousands of Palestinian political prisoners took part in a hunger strike, which began on 15/8/04, in protest against the deplorable conditions of confinement in Israeli prisons and detention centers. Since the start of the strike, the IPS prevented attorneys from visiting hunger-striking prisoners classified by the IPS as "security" prisoners. The IPS imposes conditions on permits for attorneys seeking to visit "security" prisoners, obliging them to inform the IPS of their intention to visit a prison 24 hours in advance. The IPS had been obstructing attorney-prisoner meetings before the announcement of the hunger strike, sometimes for days and even weeks. Earlier in 8/04, Adalah submitted a pre-petition to the State Attorney's Office, demanding her immediate intervention to end the IPS's policy of limiting or denying attorneys' access to political prisoners, and emphasizing the unlawfulness of these restrictions. The IPS failed to respond to the pre-petition.

The petitioners argued that the prevention of meetings between attorneys and hunger-striking prisoners and detainees has no legal basis, contradicts existing laws and constitutes illegal punishment. Further, obstructing such meetings violates prisoners' basic right to legal counsel, their constitutional rights, and the rights to life, bodily integrity and dignity, in addition to the right to access to justice. The petition also argued that preventing prisoner-attorney meetings deprives attorneys of their ability to defend their clients and fulfill their professional duty, and impinges upon their freedom to practice their profession. Moreover, as the IPS also prevents "security" prisoners from receiving visits from their families and Members of Knesset, the hunger-striking prisoners had no link to the outside world, increasing the gravity of the situation. The petitioners stressed that, even if the IPS considered the hunger strike a breach of prison regulations, it does not have the authority to punish the prisoners and detainees by preventing them from meeting their attorneys.

At a hearing in 9/04, the Supreme Court ruled - for the first time - that the right of prisoners and detainees to meet with their lawyers is guaranteed, including those taking part in a hunger strike. The Court also decided that cases of the IPS barring such meetings during the recent hunger strike undertaken by Palestinian political prisoners and detainees were illegal, at the admission of the state’s own representative.

H.C. 7867/04, Fida Kawaer, et. al. v. The Israel Prison Service (decision delivered 1/9/04).

Permission for a Political Prisoner to Attend Son's Wedding. Appeal filed in 9/01 to the Supreme Court on behalf of a Palestinian political prisoner citizen of Israel, Mr. Mohammad Zayed, seeking an order to compel the Prison Authority to grant Mr. Zayed a furlough to attend his son's wedding. Mr. Zayed had already served 13 years of an indeterminate life sentence, and had previously been granted permission to attend his mother's funeral six years ago. According to Israeli law, Prisons Order (1971), the Minister of Internal Security may grant prisoners who received indeterminate life sentences a leave of absence for up to 48 hours under special circumstances, such as for family affairs. In this instance, the Prison Authority chose to deny Mr. Zayed's request, and the District Court upheld this refusal. Adalah argued that although the Prison Authority has no obligation to grant a leave of absence, in this case, it offered no reasonable basis for rejecting the request. Further, Adalah argued that the decision was discriminatory, as the Prison Authority routinely granted requests made by similarly situated Israeli Jewish prisoners.

Result: Appeal denied without a hearing. Supreme Court ruled that it would not intervene in the Prison Authority's decision.

(Appeal 6990/01, Mohammad Zayed v. The Prison Authority, decision delivered 6 September 2001)

Appeal of Unjust Denial of Prisoner's Furlough Rights. An appeal was filed in 4/02 on behalf of Mr. Abd el-Rahim Masarweh, a Palestinian citizen of Israel who is currently incarcerated at Ayalon prison. Adalah requested that the Supreme Court reverse the District Court’s decision to deny a furlough to Mr. Masarweh based on a drawing he produced in a prison art therapy class, secret evidence, and a reference to the security situation in Israel. In the appeal, Adalah argued that the District Court erred in its 1/02 decision, as it failed to verify whether a mandated re-assessment of Mr. Masarweh's status was carried out, and that it relied solely on a secret intelligence document prepared over one year ago, without granting Mr. Masarweh the opportunity to defend himself against these allegations. Responding to the Supreme Court appeal, the state accepted that Mr. Masarweh be granted a furlough, however, the state imposed a condition of house arrest. The state also agreed that Mr. Masarweh be allowed to apply to the Prison Authority for re-classification, in order that he may participate in a rehabilitation program. Adalah argued that these remedies were insufficient; however, the Court accepted the state's position and rejected the appeal in 6/02.

Request for Appeal 3187/02, Abd el-Rahim Masarweh v. Israel Prison Authority (decision delivered on 6 June 2002; Takdin Elyon 2002(2), 1914).

Demanding Cancellation of Israel Prison Service Order Restricting Attorneys’ Access to Detainees. Petition filed in 9/06, demanding the issuance of an injunction to cancel Article 4(a) of the Prison Service Order #04/34/00, which is used by the Israel Prison Service (IPS) to restrict an attorney’s access to a detainee, sometimes for many consecutive days, on the pretext that the meeting was not pre-arranged with the IPS. Significantly, the order does not grant the IPS the authority to prevent a meeting between an attorney and a detainee, but merely stipulates that an attorney who wishes to visit a detainee must inform the prison authorities of the visit in advance. The petitioners further demanded the annulment of the IPS’s policy of arbitrarily closing prisons to attorneys who want to visit Palestinian political prisoners and detainees (classified in Israel law as “security” prisoners) for several days without any legal basis.

In general, meetings with attorneys are restricted only in the cases of Palestinian political prisoners and detainees. Thus, for example, three members of the Palestinian Legislative Council (PLC) arrested in 6/06 were prevented from meeting their attorneys for over two months, on the pretext that the meetings were not pre-arranged with the IPS. In 7/06, Adalah petitioned the Supreme Court on behalf of the detained PLC members’ lawyers. In response, the IPS announced before the Court that it would allow all attorneys to enter prisons to visit Palestinian prisoners, including members of the PLC. Adalah, however, requested that the Court rule on the IPS’s general policy of restricting attorneys’ access to Israeli prisons. In response, the Court asked that the petition be amended to focus on the principle issue. In the amended petition, filed in 9/06, Adalah argued that the way in which the IPS interprets its authority to limit meetings between attorneys and detainees contradicts the Criminal Procedures Law (Power of Enforcement – Detainees) – 1996. The petitioners further contended that the language of Article 4(a) of the Prison Service Order #04/34/00 is vague, which has allowed the IPS to interpret it in an arbitrary manner. This in turns breaches the rule of law and the legal duty to set out clear and transparent criteria. In addition, Adalah argued that the prevention of meetings between detainees and attorneys increases the danger that harm will be caused to detainees’ bodily integrity health and dignity, and that their rights to legal counsel and to access to the courts will be violated.

H.C. 5613/06, Attorney Fadi Qawasmi, et al. v. The Israel Prison Service (case pending)