Ofer - Stone Throwing, Minors
Room Nr.3, Court of Appeal
Judge: Lieut.-Col. Netanel Benishu
Prosecution: Captain Michael Avitan
Defense: Gaby Lasky
Detainees
:
Khalef Lutfi Khalef Awwad, ID 859831802 - File 1218/10, 14 years old
Muhamad Naim Ahmad Murad, ID 859346173 - File 1219/10, 15 years old
Summary:
How to keep 2 minors 11 days in custody, although two judges decided to release them.
Muhamad(15) and Khalef (14) from Budrus threw rocks towards the Separation Fence. No one was hurt and nothing was damaged. Muhamad was arrested on 11.02.10, Khalef could escape and was arrested one day later. On 14.02.10 they were brought to court and confessed to having thrown stones.
The judge on duty decided to release them, but the prosecution appealed to the Military Court of Appeals against their release.
The appeal was heard on 16.02.10 in our presence. It turned out, that while the prosecution appealed against the release, it has also presented the bill of indictment without informing Gaby Lasky of this step (allegedly she was not available). Gaby Lasky was furious. If a bill of indictment was provided, why did the minors have to stay in remand. Furthermore, she was not familiar with the evidentiary material. Judge Benishu did not think that it made a big difference if the minors were in or out of prison for 2 more days and suggested that Gaby should study the evidence during the lunch break, and then both sides should meet for a previous court hearing in the afternoon.
In the afternoon the hearing was taken up in room nr. 5.
The prosecutor argued that the 2 minors were dangerous. He produced a video shot with the surveillance camera of the Separation Fence, where the boys are seen throwing stones at the soldiers (from a distance of 100 m). The fact that the 2 boys threw stones together (!) and even used a slingshot (!) increased the imminent danger considerably. Khalef tried to escape, which was another reason to keep them under arrest.
Gaby Lasky pointed out that one of the minors was interrogated for 1 1/2 hours after 11:00 PM and without the presence of a parent or social worker, and not by a investigator for minors. This does not comply with Amendment 14 to the Juvenile Law, which created a new reality concerning the investigations of minors. The law aims at the rehabilitation of the minor and not at his punishment. Even if this law does not apply to the military courts in the occupied territories, its spirit ought to be a guiding force. This faulty handling in the investigation of the minors has to be a reason for their release.
The judge took into consideration that the boys were still pupils, that the arrest could have a negative effect on them, that their past was clean, that their investigation was faulty and decided to release them on bail (5000 NIS each).
The Judge gave the prosecution 48 hours (to 18.02.10 16:00) to appeal and this was, of course, the trigger for the second appeal to the Military Court of Appeals in the case of the 2 minors. Gaby Lasky told the judge that had he granted the prosecution only 24 hours, they might not have appealed. But on 18.02.10 the prosecution indeed appealed to the Court of Appeals, and the appeal was heard on Monday, 22.02.10. (see report "Ofer", 22.2.10 AM).
At the appeal on Monday, 22.02.10 before Justice Lieut.-Col. Zvi Lekah, the same arguments were presented as in the hearing on 16.02.10 - this time by the prosecutor captain Zhenia Wolinsky..
5. Captain Wolinsky produced a diskette taken from the surveillance camera of the Separation Fence, where the boys are seen throwin stones at the soldiers (from a distance of 100 m). The fact that the 2 boys threw stones together (!) and even used a slingshot (!) has increased the imminent danger considerably. Khalef tried to escape, which was another reason to keep them under arrest. She asked for remand in custody until the conclusion of the proceedings.
The defense pointed out that one of the minors was interrogated for 1 1/2 hours after 11 PM, without the presence of a parent or social worker, and not by a investigator for minors. This does not comply with Amendment 14 to the Juvenile Law, which created a new reality concerning the investigations of minors. The law aims at the rehabilitation of the minor and not at his punishment. Even if this law does not apply to the military courts in the occupied territories, its spirit ought to serve as a guiding force. This faulty handling in the investigation of the minors has to be a reason for their release. The conditions under which the minors could have been released by the previous court, seem to guarantee that the 2 minors will not repeat their misdeeds.
The judge decided to release the boys and adopt the conditions for release of the previous court:
Fine of 5000 NIS for each one and admonitions not to repeat the offences.
The fathers who were present in court promised to do everything in their power to prevent their sons from a relapse.
There seems to be an unwritten agreement between the judges and the prosecution. The judges can display some liberalism and release from time to time detainees or defendants, but they can be assured that the requested balance between indicted and acquitted will be maintained - the prosecution will take care of the balance and will appeal against the release.