Ofer - Danger to Regional Security, Remand Extension
Translation: Marganit W.
A cold day, full of people and court cases. We park next to a car belonging to two characters not typically seen at this court: Orit Struk and her husband. Outside, near the turnstiles in an improvised shed, unprotected from wind and cold, a throng of relatives waits to be summoned into court. Inside, too, a long line of women forms in front of the security check building where movement is very slow. Struk moves to the head of the line, but is asked to let Palestinian women who were ahead of her get in first. But, surprisingly, we too are then moved to the head of the line, following her.
No list of trials is posted on the doors; everything is guesswork. The interpreters are busy and only one of them finally gets us the list. Even a phone call Hava placed to the court office does not help today.
No wonder an icy wind blows there today - In Building 1 the trial of the "Hebron Marketplace Stores" takes place with Attorney Michael Sfard. Ora went there to check out the litigants, and we entered Courtroom 3 where remand trials take place.
Judge: Eran Laufman
Prosecuter: Eran Levi
All the time we were there, until noon, the discussions were noisy and boisterous. We were unable to make out or note down any case number; we received the names of the detainees from their relatives. The entire process did not look like a regular court procedure. There was constant movement of guards, interpreters, attorneys and detainees, all talking with each other on all manner of topics, while the attorneys were trying to drown the noise with the court business. However, with all this commotion one rule was observed: the detainees were barred from exchanging a word with their families.
First Detainee - Hamam Alkik
Charge - Membership in "Kutla Al-Islamiyya" (Hamas party in the elections)
Defense Attorney - Ahlam Haddad
ACTIVITY AND MEMBERSHIP - most of the discussion centered on this topic: Is one considered a member of an organization even after one has ceased to be active in that organization? In this case the organization was formed for the purpose of running in the elections; once the elections are over, the activity ceased too. The prosecution and the defense argued about the length of time the accused could be considered a member. The defense argued that after the 2005 elections, both activity AND membership were terminated, since there is no point in belonging to an organization whose raison d'etre was running for elections that are now over. Witnesses testified that the activity continued until the end of 2007.
The judge opined that the accused had indeed ceased his activity but the debate was about membership, which was not terminated.
The Judge: "According to existing jurisdiction, an office-holder cannot be released from membership in an illegal organization. I maintain that he can be released, but since the defense has not attempted to demonstrate that he ceased his membership, I argue that his membership in the organization was in effect until the day of his arraignment."
The judge further quoted from an earlier verdict: "Membership in Hamas and the interaction between the political and military branches dictate that we detain those members, in particular field operators and office holders, whether high or low ranking."
"In a previous appeal by members of Kutla Al-Islamiyya... witness no. 2 testified that the accused was a member of an action committee... thus he did not prove cessation of membership and consequently... remand in custody to the conclusion of proceedings."
Next session - 10.3.08 - with Justice Lieberman presiding
At the moment the little courtroom - in an area of 4 meters across - contains: a judge, a typist, 3 attorneys, 4 detainees, 2 interpreters, 2 prosecutors, guards, and in the audience section: guards, family members (always sitting in the back) and the two of us - the public.
Murid Abu Farah - Case No. 1642/08
Charge - Providing shelter
Defense - Attorney Ahlam Haddad
Murid Abu Farah, from Surif village near Hebron, is a student at Al-Najah University. Two of his brothers are already in jail, he is the third in his family to be detained.
The charges - Murid's brother, Marrwan Abu Farah requested that in the event of his arrest, Murid would hide a certain sack belonging to Marwan outside their home. On 20.1.08, when the brother was arrested, Murid took said sack and buried it near the fence of the house. Inside the sack were found: Klatchnikov assault rifle - 3 cartridges for M-16 and two for Klatchnikov with bullets. Murid has a prior conviction from 2004 for possession of arms. The prosecutor claims that hiding the sack is a felony because "there's a conscious psychological awareness that his brother is wanted by the authorities and his own activity constitutes aiding and abetting a criminal... the accused's own words imply that he is aware of the crime."
An argument ensues between the defense and the prosecution: if the brother is already detained he is not "wanted." The prosecutor concludes: "this is a case of aiding hostile terrorist activity."
Attorney Haddad states that the suspect did not know what was in the sack, and his other brother, Majid Abu Farah, in his testimony of 21.1.08 does not mention Murid at all, stating that his brother Marwan Abu Farah knew only about the existence of the rifle.
Attorney Haddad argues that in this case, remand is not called for, since the suspect did not know the content of the sack, and it was he who led the security forces to its hiding place.
But the judge insists: In view of the danger to public order and security in the area...."
Remand until the conclusion of proceedings.
No communication is allowed between the family members sitting in the back and their son who is sitting so close, in the dock.
The next court appearance will take place on 10.3.08 with Justice Lieberman presiding.
Ali Ahmad Shmasana - Case No. 3676/07
Another detainee - Case No. 4603/07
Defense: Attorney Labib
Due to the commotion in the small courtroom it was very hard to obtain personal details of the detainees from either their families or the attorney. There may be errors in the following account.
The court has decided to coalesce two cases into one session. Most of the judge's lengthy statements did not address the real reasons for the long detentions but only the merging of the two cases, the court procedures and other legalistic matter. The prosecutor was heard mumbling to himself, the judge pored over his papers, there was incessant noise of people coming and going, and only the defense was holding forth loud and clear. Thus, the following report on the charges is based mostly on the defense's statements.
DOES THE STATE PUNISH PEOPLE FOR TAKING PART IN ELECTIONS?
Ali Shmasana and the other detainee (whose name we could not catch) are from Katana village, situated north of Maale-Hahamisha. He is 46 years old, married and father of 9. In the 2005 election (which included local municipalities) he was elected to the village council. Since the elections, both men have been arrested twice. Since 25.9.05 Shmasana was put on administrative detention for a month and half and was released by agreement.
In May 2007 he was once more arrested and has remained in detention ever since. The defense claims that this is "random" arrest, resembling a roulette, CONSIDERING THAT ONLY TWO COUNCIL MEMBERS WERE ARRESTED. The other members were not charged.
We are dealing here with democratic municipal elections, conducted under international supervision, endorsed by the state; now the state has changed its position and arrests those who ran for office. In this particular case the issues are: garbage collection, sewage treatment, services that have nothing to do with security. "This is an entrapment: they claimed to champion democracy, teach us to be like other nations, and now they accuse us of illegal activity."
Release on bail: The defense wants to separate the issue of punishment from the issue of detention and continued proceedings. The defense wants a full court procedure, with witnesses, but this may take months, and he wants to conduct it without detention....
The judge inquires again if both sides agree to a joint session and joint protocol; he makes no reference to the defense's arguments. The Judge's conclusion: "Unfortunately, I find no grounds for granting the defense's request..."
The final decision was handed after the recess.
JUDICIAL PROCESS AND PLEA BARGAIN: The session underscored the insurmountable difficulties facing detainees and their representatives - when no release on bail is acceptable; detentions, for whatever reason, until "the conclusion of proceedings," are inordinately protracted. When there are long periods between court appearances, the legal process can prolong the detention indefinitely.