Judges nullify clause in Criminal Procedure Law
In rare move, nine Supreme Court judges annul section permitting remand hearings in absence of detainees suspected of security offences. Argument: Clause violates Human Dignity and Liberty Basic Law
Amidst Knesset efforts to deny the Supreme Court's power of nullifying laws - another case in point emerges. Three months after nullifying the prison privatization law, a panel of nine Supreme Court judges has ruled against a clause inside the Criminal Procedure Law.
In a rare step, the judges have decided that the clause which permits holding remand hearings in the cases of detainees suspected of security offences in their absence should be nullified. It was claimed that the clause offends the detainee's right to be present during his arrest procedures and therefore contradicts the Human Dignity and Liberty Basic Law.
The judges discussed a petition filed by attorneys David Halevy and Rashad Zoabi with the Supreme Court which appeals the decision to hold a remand hearing for their client who is suspected of being a member in an illegal organization in his absence.
Supreme Court Vice President Justice Eliezer Rivlin, who wrote the verdict, claimed that a defendant's right to be present in his own trial is an "integral part of the right for due process outlined in man's constitutional right for liberty and dignity."
"The legal procedure does not address hidden parties, but present parties," Rivlin wrote and added that the principle is particularly relevant for "the arrest procedure which entails severe violation of a suspect's rights, and warrants adherence to due process and effective judicial criticism."
Rivlin further claimed that the clause, which is aimed at improving enforcement elements' ability to conduct a speedy and efficient inquiry in cases of security offences is worthy but that the means of ensuring it are not proportional.
Other legal solution needed
Supreme Court President Dorit Beinish and judges Ayala Prokachia, Edmond Levy, Asher Grunis, Edna Arbel, Elyakim Rubinstein and Salim Jubran all endorsed Rivlin's arguments in the verdict.
Beinish added that there may be unusual and rare cases in which absentia is required in order to prevent immediate danger but that a legal solution can be found for such incidents.
One contesting voice of that of judge Miriam Naor, who on the one hand agreed that the clause does not meet the basic law's standards, and on the other claimed that its nullification should be suspended for a period of six months.
This, in order to allow legislators to set conditions under which the clause will apply in more specific circumstances. Her opinion was not accepted.
