Ofer - Release on Bail, Holding and trading of combat materiel

Translation: L.W.

On this day we were present at two trials, each of which was a world unto itself. 

The first was of a young boy sent by his employer to buy a knife for use at work. Upon his return, he was seized by the police, thereby learning that it is forbidden for Palestinians to carry tools and various instruments of different sizes, and from the moment that he carries a certain tool of certain size, he is breaking the law, the punishment for which is immediate arrest. His clean record and other intentions he would present to the judge.

Courtroom 6, fast trials for those “released” on bail.

Judge: Dahlia Kaufman

Prosecutor: Orit Fargi

Those waiting are not detainees and, therefore, there are no family members in court. Those awaiting trial sit with us on the public benches, without manacles or leg chains, but under guard. The hearings are brief and to the point.

 Files no. 5487/06 and 5488/06 – Waj’di Abed elKadar Said Zebaina and Nasser Suleiman Mahmud elMarkatan 

A file common to both on manufacturing and throwing of an incendiary device.

The hearing dealt with representation of the two. At the previous session, they arrived with a  defense attorney who was not prepared for the indictment, and the judge had asked whether they wanted to represent themselves. The two did want to represent themselves in order to finish the matter and speak with the prosecutor, because the defense attorneys did not arrive, but the judge recommended that they take an attorney: ultimately Advocate Ismail Tawil arrived to defend them, and a long debate ensued with the prosecutor on the level of the fine to be imposed on the two. The issue was not resolved while we were in court, and while the sums being voiced varied between 500 and 8000 shekels.

 File no. 1493/06 – Muhammad Marwan Ziad Mustafa KawasmaArraignment

Defense attorney: Advocate Ismail Tawil

Details of the indictment (from the defense attorney’s summation):

Muhammad Marwan did not know that such a knife was forbidden. He only took it out of the shop. His employer sent him to buy it for work. He was caught near his place of work. The police interrogated him and decided to release him that same day, but he remained four days in prison in order to raise the bail money.

The judge examined the details of the knife and of the law dealing with its possession. The law contains definitions of penknives, daggers and knives, there being exemptions on each up to a certain size. If the knife does not meet the definition, there is room to cancel the indictment. The borderline is apparently 10 centimeters for a penknife, but the prosecutor said that the matter had been transferred for police investigation and the reference was to a larger knife.

Judge: explain to the accused that we do not have to accept a plea bargain. Does he know the indictment?

Defence attorney: yes.

Judge: does he confess?

Defence attorney: yes.

Judgment: based on the confession, the accused is guilty of one offence in the indictment.

Prosecutor: presents the plea bargain – to sentence the accused to four days in prison, concurrent with the time he has been detained, conditional imprisonment to be at the judgment of the court, and a fine of 800 shekels.

Reasoning – the accused has a clean record, without even traffic offences, and his confession has saved the court time.

The defense attorney adds to the words of the prosecutor, explaining the background to the offence which has made an offender of an employee sent to purchase a work tool, and asked to relate to everything that had been said.

Judge: there is nothing to add. The accused is sentenced according to his confession of an offence in the possession of a knife; he had two knives in his coat pocket. The parties presented to me a plea bargain which I have decided to accept in the light of his clean record and the nature of the offence with which he is accused.

Sentence: “four days in prison, concurrent with his already served detention.

Ten days conditional for 18 months from today if he will repeat the same offence of which he is convicted.

A fine of 800 shekels, to be taken from the bail”.

In the next courtroom apparently an appeal was being heard, and it was crowded. We were told that the hearing was in camera, and so instead we arrived at the hearing on sentence for Mussa Abu Shaker, a shepherd. In this case, being heard before Judge Shlomo Katz, the accused is father of 15, on trial for possession and trading in weaponry.

Dark skinned and wrinkled by the sun -- like the face of my uncle Shmuel, my grandfather’s younger brother, a founder of one of the first moshavim (cooperative smallholdings) – the shepherd sat on the accused bench, his legs in chains.

The judge: Shlomo Katz

Prosecutor: Sagi Askenazi

Defense attorney: Advocate Muhammad Haleila

File no. 1376/07 – Mussa Halil Muhamad Abu Shaker

Accused of possession and trading in weaponry

Session: arguments for sentencing

Prosecutor: the accused sold five rifles and three pistols. He carried out the acts attributed to him on four separate occasions. For him this is a way of life. He sold the weapons to a man who admitted transporting bearers of weapons, though not the guns that the accused sold to him. In any event, the reference is to men who confessed to carrying out terror acts, and this makes the offence more severe. A fine will not deter the accused, and therefore the punishment must be imprisonment.

Defense attorney: the offences attributed to the accused were carried out four and a half years ago, in 2003, and since then he has not broken the law. This period of time is a factor in leniency of level of punishment. The accused is 45, a shepherd who does not live from the sale of weapons. He is father of 15 children. He has a severe medical problem in his stomach, is in treatment and needs an operation. A stay in prison is likely to be detrimental to his health. No connection has been established between the weapons that were sold and the terror act seemingly committed by Hader Abu Shaker, which involved a Kalashnikov (not sold by the accused), and in which there were no injuries. In consideration of his clean record, his family situation and health, this is not the time for severity in sentencing. I emphasize that there was no conspiracy to commit a terror act.

The defense attorney continued to give a list of precedents in sentences of the courts in Haifa and Beersheba, where for example the sentence was one year less time already served in detention (the judge: achieved by plea bargain). The attorney continued with precedents, including appeals to the High Court, of weapons stolen from military bases, trading, deception and violation of trust, where the maximum sentence was 22 months imprisonment.

The accused: asks for clemency.

Judge’s summing up:

The accused has been found guilty of selling, in August 2003, three M1 carbines, another rifle and three pistols to Fadel Abu Aram, thereby committing the offence of trading in weaponry according to Article...

He was also found guilty of another offence since he purchased from the same man a broken rifle for 2000 shekels in August 2006. The prosecutor asked for severity, and presented a ruling of the High Court and of a military court according to which such offences should be dealt with severely, and sentences of five years imprisonment should be imposed. The prosecutor also noted that the man who acquired the weapons is not innocent and did participate in a firing incident against IDF soldiers, though not with the weapons purchased from the accused. Since most of the details of the indictment took place in 2003, the passing of time blunts the severity of the offence.

However, the details of the second indictment, which took place in 2006, count against him. Without that detail, there is no doubt that my opinion would be the same as that of the learned defence attorney, and I would view the sales of 2003 as a closed episode, had the accused chosen not to commit other offences thereafter. But the matters are not so in that he again traded in weaponry in August 2006. The only item of credit in that act was that the rifle in question was broken. But even a broken rifle can be repaired, and can serve its purpose. I have noted his family situation – the 15 children – and his medical condition which requires treatment. After considering the mitigating and incriminating circumstances, I say already at this stage that I cannot ignore his serious action, and purchase and sale of weaponry is of the most serious. I pronounce the following sentence:

32 months of imprisonment, dating from the day of his arrest

12 months conditional imprisonment

a fine of 4000 shekels, or four months imprisonment in lieu of payment. This to be paid by the date of his release.

30 days right of appeal, from today.

The judge also thanked the learned defense attorney for his legal presentation, and the military prosecutor.