Ofer - Plea Bargain, Stone Throwing
Translation: Marganit W.
According to the lists in the four courtrooms operating today (apart from Courtroom 7 where confidential trials of administrative detainees took place that we were not allow to attend) 118 defendants were supposed to appear before the court in the space of 6-7 hours. Only a few would be judged by a panel of judges, most would face a single judge. This is how the court in Ofer operates five days a week.
The charges are varied. According to the dockets of 3 of the courts (in courtroom 5, presided by Justice Shmuel Kedar, the charges are not specified) about forty percent of the charges are in two categories, “throwing objects” and “producing and throwing an incendiary object”. About 25 percent of the charges are for “membership, activity, providing services and holding a position”. The rest are: 2 for dealing drugs and 9 for illegal stay in Israel.
These are random data, but they conform to other sources, mostly the media, reporting on “events” and the army’s conduct in the occupied territories: the Palestinians’ resistance in the villages and in the neighborhood around Jerusalem on the one hand, and the security forces’ actions and display of force in an attempt to quell the protests and intensify the occupation on the other.
Judge: Major Etty Adar
There are 29 cases in the docket. Three of the four detainees on the bench were taken out after a few minutes without any mention of the charges against them. It turned out that their attorney had not arrived (the judge must have assumed that he was taking part in the attorney’s strike). The defendant probably did not know who the attorney was or even if he had been assigned one. The judge set dates for the hearing in March, three weeks from today.
The fourth detainee was
Ali Ahmad Abed Alhamid, Ahalil, ID 850622028 - Case 1312/13
Defense: Atty. Haled Alaraj
The judge assumed that the defense was from “the Prisoners Association”. Even though the attorney was not present in court, she proceeded with the hearing. She read Ahmad the 9 counts of the indictment, all referring to events in his past: from conspiracy to throwing an incendiary object in 2007, through manufacturing a fire bomb in 2011, to throwing rocks from a distance of 100 meters at security forces during Operation Pillar of Cloud. In the last incident – the judge remarked – the army reacted by throwing gas grenades. I did not hear the judge ask the defendant if he accepted the charges. In any event, it was more like an interrogation than a trial. There was no defense attorney present and no family members in the court.
The judge asked the defendant if he had anything to say. Ahmad asked permission to use the phone to call his parents so they could get him a lawyer.
The trial was set for 23.3.13.
Judge: Sgt.-Major Sharon Rivlin-Ahai
Prosecutor: Lieut. Agranash Agniahu
Atty. Iyad Misk represents some of the underage detainees on behalf of DCI [Defense for Children International].
Muhanned Marshag Alzaakik, ID403898463 – Case 1079/13
The detainee is 14 years old (looks like 7). He is accused of throwing objects.
Atty. Misak requests a postponement due to the unusual circumstances of the case. It turns out that in the recent past Muhanned had been convicted and there is a suspended sentence in effect. When it is activated, he would be transferred to another prison. The family prefers to delay the court’s decision so he can stay at Ofer. Apparently, the conditions there are better.
Mahmoud Haled Mahmoud Ganimat, ID855077509 - Case 4557/12
Defense: Atty. Abu Omar
Mahmoud is 24 years old. He was arrested on 31.10.12 when a knife he had in his pocket was detected by the scanner at the Cave of the Fathers [in Hebron]. He is accused of an attempted homicide and intent to kill. He does not accept the charges and an evidentiary trial in progress. The defense claims that the evidence is inconclusive and the fact that he did not try to hide the knife raises doubt about his intent.
An agreement between the sides is presented to the judge.
Mahmoud agrees to accept a revised indictment that includes one charge: an attempt to attack a soldier.
The judge accepts the agreement. Her decision: 19 months in prison: 12 months suspended sentence for 4 years and 2000 shekel fine or 2 months in prison.
Judge: Lieut.-Col. Menahem Lieberman
Oudai Raed Ali Nasser,ID 853887156 -Case 2337/12 -a resident of Dir Al Kadis
The violations he is charged with were committed during different events and over years: throwing Molotov cocktails in 2008 while still a minor; rock throwing on two occasions in 2011. Oudai accepts the charges, and his attorney, Jamil Al Hatib, joins the prosecution in reaching a plea bargain, which is later accepted by the judge.
Decision: 12 months + one day in jail; 6 months suspended sentence for 4 (?) years; 4000 shekel fine or conversely 4 months in jail.
Judge: Lieut.-Col. Shmuel Kedar
All the cases involved remand extensions.
Caught while on a hunting expedition:
The first 4 hearings involved a group of 4 who were caught while hunting. They are charged, among others, with possession of arms.
Fares Jafaraa, ID902923333 – Case 1879/13
Defense: Atty. Ibrahim Nubani
Charge: Possession of combat materiel, carrying weapons, possession of military equipment, arms trading: he bought a hunting rifle for 2000 shekels.
Prosecution: The defendant was well aware of the severity of his acts.
She requests remand extension until the conclusion of the proceedings, due to the severity and the danger involved in the charges.
Defense: Does not contest the evidence, but contests the danger involved and the cause of arrest. The defendant did indeed buy the rifle, but not for trading purposes. The rifle belongs to him and was purchased only for the purpose of hunting. There is no indication of any other intent. The rifle was in his possession for 6 or 8 weeks.
The defense cites a decision by Supreme Court Justice Bach, which catalogues reasons for arrest according to severity: first category: membership in an organization and possession of arms derived from that membership, or using weapons to commit a crime. In this category detention in prison is mandatory. The second category: possession of weapons as a souvenir or for self-defense, or possession of a hunting rifle for the purpose of hunting. In this category an alternative to prison can be considered. This catalogue, the attorney maintained, has been the basis for courts’ decisions to date, even though the Supreme Court decision was handed down many years ago.
This case falls into the second category. In addition, the defendant has no prior record; he is married and has children. He is not a flight risk. The defense will accept any alternative to imprisonment, including third party guarantee. In addition, the attorney of the other hunting partners will later cite precedents, and the defense requests the court to consider these precedents.
The prosecutor retorts that this case involves “The Area” (i.e., not Israel, where Justice Bach’s ruling applies). The defendant was aware of the consequences of his acts. Had he not been arrested, who knows what the weapon could have been used for. At any rate, he had no permit for the rifle.
Judge: Who grants such permits?
Prosecutor: I don’t know (this was the first of several instances this morning where the prosecutor did not prove her claim).
Decision: The court is bound by a decision of the Military Court of Appeals that stipulates that possession of a hunting rifle constitute a risk that cannot be substituted by an alternative to imprisonment. Thus, Justice Bach’s decision cannot serve as basis for decision in this case. A decision regarding the Area is different than a decision regarding Israel, because of events that take place in the Area. Moreover, the defendant possessed stolen army property (two sleeping bags were found in the vehicle). The judge orders remand extension until the conclusion of the proceedings.
Arraignment session set for 19.3.13.
Muhanned Jafaraa, ID910917681 - Case 1880/13
Abed Alsalam Uadi, ID853610947 - Case 1881/13
Defense: Shahdi Jaber (private attorney – this is his first court appearance in the Military Court.)
It was decided that the two cases would be heard together, since the defendants collaborated in the alleged crime and its circumstances.
Charge: possession of arms.
Prosecutor: Muhaened tried to conceal the weapon in a car when caught by the police, which proves that the defendants knew they were committing a violation. Thus, the risk they pose does not warrant an alternative to detention in prison.
Defense: The defendants do not contest the facts of the charge, but there is no ground for imprisonment. They can be released under limiting conditions and not pose a risk. The court should distinguish between the defendants and the others who took part in the hunting trip: in his clients’ case there is a single violation. The Appellate Court distinguishes between someone who possesses a weapon for a short time and someone who possesses weapons and ammunition – “multiple weapons”.
The defendants joined the hunting trip, and their possession of the weapon was negligible. They held it for a short time. During the interrogation they were not asked about awareness of arm possession. They realized there were weapons only when they reached the hunting ground. Both defendants have ‘a clean record’.
The defense cites prior decisions stating that arms possession is no ground for imprisonment, except in special cases. This case should end in their release under limiting conditions. They are not flight risks. Punishment for such violations is not strict. In addition, the father of one of the defendants is in court and offered to vouch for them.
The judge points out that there is no indication which one of the two used the gun.
The prosecutor reiterates that Muhanned tried to hide the gun when they were caught.
Atty. Nubani points out that this behavior falls under the category of self-defense.
Decision: There is a distinction between these two defendants and Fares Jafaraa, since their participation in the hunting trip was limited: one shot and possession of arms for a short time. Thus, they can be released on limiting conditions, provided they post a 4000 shekel each as bond and provide a third party guarantee (by a person with an Israeli ID or entry permit into Israel) for each of them separately.
Arraignment hearing set for 19.3.13
Implementation of the decision is delayed by 29 hours, until 16:00 the next day. The prosecution has to inform the defense by 10:00 tomorrow if it intends to appeal.
Hassan Kahala, ID 948357116 – Case 1882/13
Defense: Atty. Ibrahim Nubani
Charge: driving a disqualified vehicle without a driver’s license. A hunting rifle was found in the car.
Prosecutor: Driving without a registration license and a driver’s license endangers passersby. There is also the charge of possession of arms. Request: remand extension until the conclusion of the proceedings.
Atty. Nubani moves to dismiss the violation of driving without a driver’s license. He presents a valid license. During his interrogation, the defendant was not asked about a driver’s license (another failure of the prosecutor).
Decision: In view of the fact that the defendant does possess a valid driver’s license, there is no ground for endangerment and an alternative to imprisonment can be mandated. He has to post a 5000-shekel bail and a person with an Israeli ID or entry permit into Israel must vouch for him (it can be the same person vouching for the other defendants).
Implementation of the decision is delayed by 29 hours, until 16:00 tomorrow. The prosecution has to inform the defense of its decision to appeal by 10:00 tomorrow.
Fadi Aljaradat, Id 999825672 - Case 1863/13
Defense: Atty. Shadfan (arguing in Arabic).
Charge: carrying, possessing and manufacturing arms.
Prosecution: remand extension until the conclusion of the proceedings. Moves to deny alternative to imprisonment by dint of endangerment.
The defendant does not accept the charges. In 2007 he bought a gun from a Hebron resident, but when he realized it was defective, he returned it after 2 hours. He admitted as much in his interrogation, but nothing else. The investigator says that the authorities have information about him, which means that there is no concrete evidence, just some reports. Prosecution Witness No. 2 testified that the defendant owns a weapon of the type ‘U.C’, which does not exist. Had the prosecution caught him with the weapon, they would have taken photos of it and put it in the file, but this did not happen.
The indictment is based on testimony by prosecution witnesses 3 and 4, but their testimonies are not found in the file. The Prosecutor went out to look for the testimony (failure No. 3), while the court waited. Twenty minutes later, another prosecutor walked in: she is responsible for the testimonies in the file. The testimony of Witnesses 3 and 4 have not been found.
One witness reported that during a procession another witness carried a weapon, and he is the one who incriminated the defendant.
(At this point I could no longer follow the sequence of the witnesses).
Decision: According to other testimonies, the defendant possessed an Uzi. The only time ‘U.C.’ was mentioned, must have been a slip of the pen. We are talking here about real weapons, capable of killing. This proves that the defendant poses risk and cannot therefore be released. Thus, remand extension is warranted.
Arraignment session is set for 19.3.13