Cancel Exemption for Israeli Police and GSS from Recording Interrogations of Security Suspects

HCJ 9416/10 Adalah v. Ministry of Public Security

In a petition submitted today, 21 December 2010, to the Supreme Court of Israel, Adalah demanded the cancellation of a sweeping exemption in law granted to the Israeli police and the General Security Services (GSS) from the duty to make audio and video recordings of their interrogations of individuals suspected of security offenses. The petitioners argued that the exemption stands in violation of Israel's obligation under article 2 (a) of the UN Convention Against Torture (CAT) to take measures to prevent acts of torture. The petition was submitted by Adalah Attorney Abeer Baker in Adalah's own name and on behalf of Physicians for Human Rights – Israel (PHR), the Al-Mezan Center for Human Rights (Gaza) and The Public Committee Against Torture in Israel (PCATI),

The Criminal Procedure (Interrogation of Suspects) Law – 2002 requires audio and video recordings to be made of interrogations of detainees suspected of committing serious offenses that carry a sentence of ten or more years' imprisonment. However, as Adalah emphasized in the petition, if the police and GSS decide that a certain interrogation is a security interrogation, they are consequently exempted from recording it.

Article 17 of Criminal Procedure (Interrogation of Suspects) Law stipulates that the police and GSS do not have to make audio and video recordings of their interrogations of security suspects, without detailing precisely what constitutes a security offense or under which conditions an offense is to be regarded as a security offense. The exemption followed an amendment made to the law in 2008, which has subsequently been extended and is currently valid until July 2012.

Both the GSS and the police claim that the interrogations of individuals suspected of committing security offenses should not be recorded in order to avoid exposing the techniques and methods that are employed in such interrogations. According to the petitioners, however, such an aim does not justify the harsh violation of the constitutional rights of detainees that results from the lack of recording, including the rights to due process, equality and dignity, as well as the freedom from torture and other forms of ill-treatment. Moreover, the exemption entails discrimination on the basis of national belonging, since the overwhelming majority of individuals suspected of committing security offenses are Palestinians, and it is therefore Palestinians who will suffer its consequences.

The petitioners further argued that the methods of interrogation used by the police and GSS should be subject to judicial review and standards of transparency. In addition, the duty to record interrogations is aimed not only at protecting the rights of detainees, but also to ascertain the truth and prevent the extraction of false confessions. Recording is a potentially effective means of supervision that can deter attempts by interrogators to exceed the authorities granted them by law, in particular by employing illegitimate methods of investigation, including those that amount to torture or cruel, inhuman and degrading treatment or punishment (CIDT).

The petitioners argued that the arbitrariness of the exemption from recording these interrogations has harsh implications, as these individuals face additional restrictions on their rights. These interrogations typically involve the use of harsh methods of investigation and are subject to limited judicial review. The suspect is usually prevented from meeting a lawyer for an extended period of time; interrogations are often long and exhausting; gag orders are issued perfunctorily in almost every security case; and the suspects' detention is extended while they are held in what essentially amounts to incommunicado detention, cut off from any contact other than with their interrogators. During the interrogation, the suspects are generally held in difficult conditions of confinement that prevent all oversight, thereby violating the suspects' due process rights and exposing them to greater risk of torture and CIDT. In this context, video and audio recordings of the interrogations are therefore the only remaining means available to suspects through which to demonstrate any claims regarding the use of illegal investigation methods against them, and a crucial safeguard against torture and CIDT.

By exempting the police and GSS from the duty to record these investigations, Israel also stands in violation of article 11 of the UN CAT, according to which each state party “shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.”

In May 2009, the UN Committee Against Torture expressed its sharp criticism of the sweeping exemption granted to the police and the GSS from making audio and video recordings of their interrogations of security suspects. The committee stated that that “Video recording of interrogations is an important advance in protection of both the detainee and, for that matter, law enforcement personnel.” The committee further recommended that Israel should, “as a matter of priority, extend the legal requirement of video recording of interviews of detainees accused of security offenses as a further means to prevent torture and ill-treatment.”

Case citation: HCJ 9416, Adalah v. Ministry of Public Security

The Petition (Hebrew)