Israel
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Legal Resources for Israel
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Background
Israel is located in the Southern Levant in West Asia. It is bordered by the Mediterranean Sea and shares borders with Lebanon, Syria, Jordan, and Egypt’s Sinai Peninsula.
The Legal system
The legal system in Israel is primarily based on a system of common law, but contains aspects of civil law. In the opening of the Declaration of Independence of Israel it was stated that a formal constitution would be produced, however the document has been continuously postponed through the Harari Decision of 1950. In which the Knesset set out that the constitution would be set out chapter by chapter. Each chapter has the status of ‘Basic Law’, and once all chapters are completed, would make up the constitution. Today there are a total of 14 Basic laws which act as the de facto constitution.
Structure of the Courts: The judicial branch in Israel is formed by three court levels; the Magistrates courts, the District courts, and the Supreme Court. Due to Israel being centrally governed, the criminal justice system is based on the national division of the six legal regions across Israel; Jerusalem, Haifa, Tel Aviv, and then the Northern, Central and Southern Districts. Each District has its own District Court and equally its own District State Attorney. Finally, the Magistrates Courts are scattered across each District’s towns in the regions. The criminal system in Israel is adversarial, there are no juries and all cases are decided by the prosecuting Judges. Defendants may be represented by state or personal attorneys during the criminal procedure, and representation may also be appointed by the Court in cases of serious offences.
It must be noted, that Israel maintains a dual legal system, the one described above which applies to Israeli citizens, and another which applies to Palestinians across both Israeli and occupied territories. The focus of this article will be on the Israeli system as it stands for Israeli citizens.
Governance of Israel: Israel’s parliamentary system functions within the three branches of government; executive, legislative and judicial. The executive is headed by Prime Minister, answerable to the Parliament, known as the Knesset. Israel also elects a President of State for a term of 5 years, but the role of the President is mainly ceremonial such as pardoning offenders, forming new governments and appointing judges. The Knesset is made up of 120 members who are elected on a national basis through ballot list, the normal term is 4 years, however the Knesset may order new elections at any time. Finally, the Israeli State Comptroller is the authority which supervises the Knesset’s activities.
Legal Aid
Source of Defendants Rights
- Basic Law: Human Dignity and Liberty 1992 - Article 2 - One should not violate the life, body, or dignity of a human being as such.
- Basic Law: Human Dignity and Liberty 1992 - Article 4 - Every human being is entitled to protection of his life, body and dignity.
- Basic Law: Human Dignity and Liberty 1992 - Article 5 - The liberty of a human being shall not be taken or restricted, by means of imprisonment, detention, extradition, or in any other manner.
Rights of the Accused
The Rights of the Accused, due to the status of Israel’s constitution, are fragmented, largely uncodified. The Basic Law on Human Dignity and Liberty outlines some general human rights, however the majority of procedural rights and principles concerning the rights of the accused are found in the Penal law 1996.
- Basic Law: Human Dignity and Liberty 1992 - Article 5 - The liberty of a human being shall not be taken or restricted, by means of imprisonment, detention, extradition, or in any other manner.
- Basic Law: Human Dignity and Liberty 1992 - Article 7
(A) Every person has a right to privacy and to intimacy in his life.
(B) There shall be no entry into the private premises of a person, without his permission.
(C) No search shall be held on the private premises of a person, upon his body, in his body, or among his private effects.
- Penal Law 1996 - Article 72 - (A) A police officer may conduct a limited search of the body of a person who is detained, upon entering a vehicle used by the Israel Police or an ambulance, accompanied by a police officer, in order to seize a weapon or other object that may endanger the safety of a person or public security or that may assist in his escape, even without suspicion that the person is holding such an object, and the police officer may seize the object discovered during the search.
- ‘Limited body search’ defined at the end of Article 72: - "A search of a person's body that does not include the removal of clothing that reveals body parts that were covered, except for removing a covering from the face or head or removing shoes, as well as a search of a person's clothing or belongings that he is carrying on his body or that are in his immediate vicinity and under his control, and excluding an external search or internal search as defined in the Criminal Procedure Law”
- Penal Law 1996 - Article 1 - (A) There is no arrest or detention except by law or by virtue of an express authorization therein.
- Penal Law 1996 - Article 7 - (A) No person or vehicle shall be detained for more than the reasonable time necessary, in the circumstances of the case, to carry out the action for which the authority to detain was granted.
(A) A detainee will be held in appropriate conditions that will not harm his health or dignity.
(B) A detainee will be entitled, among other things, to all of the following:
- 1. To adequate sanitary conditions, to conditions that will allow him to maintain his personal cleanliness, to medical care required to maintain his health, and to appropriate supervision conditions as required by a doctor;
2. A bed, mattress and blankets for his personal use, and for the storage of personal belongings as determined by regulations;
3. To drinking water and food in the quantity and composition appropriate to maintain one's health […]
- On the Presumption of Innocence and Due Process:
- Penal Law 1996 - Article 1 -
(A) There is no arrest or detention except by law or by virtue of an express authorization therein
(B) The arrest and detention of a person shall be in a manner that ensures maximum protection of human dignity and rights.
- Penal Law 1996 - Article 13 -
(A) A judge shall not order the arrest of a person unless he is satisfied that there is reasonable suspicion that the person has committed an offence, which is not a sin, and one of the following grounds exists:
1. There is reasonable basis for fear that the suspect's release or non-arrest will lead to disruption of investigation or trial proceedings, evasion from investigation or trial proceedings or serving a prison sentence, or will lead to the disappearance of property, influence on witnesses or damage to evidence in some other way;
2. There is reasonable basis for fearing that the suspect will endanger the safety of a person, public safety, or state security;
3. The court is convinced, for special reasons to be recorded, that it is necessary to take investigative procedures that cannot be carried out except when the suspect is in custody; the court will not order detention on this ground for a period exceeding 5 days; if the court is convinced that the investigative procedure cannot be carried out within the aforementioned period, it may order detention for a longer period or extend it, provided that the total of all periods does not exceed 15 days.
(B) A judge shall not order an arrest under subsection (a) if the purpose of the arrest can be achieved by setting bail and bail conditions that are less injurious to the suspect’s freedom.
- Penal Law 1996 - Article 31 - (B) If the detainee is not brought before a judge, as soon as possible, pursuant to subsection (a) or pursuant to section 29, as the case may be – the detainee shall be released.
- Penal Law 1996 - Article 32 - His right to be notified of his arrest, to a person close to him and to a lawyer, and his right to meet with a lawyer, all subject to the provisions of sections 34 to 36; as well as his right to be represented by a defense attorney as stated in section 15 of the Criminal Procedure Law or under the Public Defense Law […] - As seen above, Israel has no explicit enshrinements on the presumption of innocence, however as seen by article 13, arrests will not be ordered unless ‘reasonable suspicion’ exists on the defendant, further stating that the arrest must be based upon grounds of either trial disruption, public safety or the fact that the investigation cannot be conducted unless the defendant is in custody. It may be argued that this forms a semi-presumption of innocence, cemented further by article 31, in which it is enshrined to release detainees where they are unable to be presented to a judge as soon as possible. Due Process is equally not enshrined by Israeli law, however there are principles of due process that may be found throughout the Penal Law, notably seen through articles 31 and 32. It must be noted, that the Israeli Constitution, Law, and Justice Committee held an initial meeting in February 2005 to discuss the rights of due process[13] and the consequences from lack of enshrinement, these meetings then progressed to the creation of a draft legislation in 2021[14]. The proposal to create a basic law on due process remains a proposal today.
- Penal Law 1996 - Article 1 -
(A) There is no arrest or detention except by law or by virtue of an express authorization therein
(B) The arrest and detention of a person shall be in a manner that ensures maximum protection of human dignity and rights.
- On Self-Incrimination: Penal Law 1996 - Article 28 - (A)The officer in charge shall not decide on the arrest of a person, on the continuation of his arrest or on his release on bail, and shall not determine the type of bail, its amount and conditions, without first giving that person an opportunity to speak, after warning him that he is not obliged to say anything that may incriminate him, that anything he says may be used as evidence against him, and that his refusal to answer questions may strengthen the evidence against him.
- On Effective Counsel: Penal Law 1996 - Article 34 - (A) A detainee has the right to meet with and consult with a lawyer. (B) If a detainee requests to meet with a lawyer or a lawyer appointed by a person close to the detainee requests to meet with him, the person in charge of the investigation will allow this, without delay. (C) The detainee's meeting with the lawyer will be held in private and under conditions that ensure the confidentiality of the conversation, but in a manner that allows for monitoring of the detainee's movements.
(A) If a judge orders the release of a person on bail or imposes bail on him, he will determine the type of bail, the amount of bail, as well as the conditions of bail and their duration; all to an extent that does not exceed what is necessary to achieve the purposes of imposing bail.
(B) In his decision under subsection (a), the judge will also consider the following – 1. The nature of the offense; 2. The information held by the prosecution; 3. The person's criminal history; 4. The person's financial situation and ability to provide the required collateral; 5. The possibility that the person will be able to meet the bail conditions.
Although there is no explicit ‘right to bail’, the principle is set out through the procedures outlined above by the Penal Law, article 46.
- Right to a Trial by Jury:
Israel does not have a system of jury trial, as previously mentioned, all cases are decided by appointed judges. Israeli Judges are not elected but appointed by the Judicial Selection Committee, as set out by Article 4 (B) in the Basic Law on Judicature, is made up of nine members; the Minister of Justice, the President of the Supreme Court, two Supreme Court justices, two Members of the Knesset, two representatives of the Israeli Bar Association and finally another Cabinet Minister. These judges do not only decide on matters of law, but act equally also as fact finders. Serious criminal cases are heard by a panel of three such appointed Judges
- Right to a Speedy Trial:
Penal Law 1996 - Article 29
(A) A person arrested by the officer in charge under Section 27 shall be brought before a judge as soon as possible, and no later than 24 hours.
- Right to an Impartial Judge:
Basic Law: Judicature 1984 - Article 2
Whoever is vested with the power of adjudication shall not be subject to any authority regarding matters of adjudication, except for that of the law.
Basic Law: Judicature 1984 - Article 4
(A) A judge shall be appointed by the President of the State, in accordance with the selection of the Committee for the Selection of Judges
As previously mentioned, Israeli judges are not elected but instead appointed by the Judicial Selection Committee. The body of this Judicial Committee is made up of state actors which exclude the Prime Minister and the President, the aim of which is to avoid political appointment and maintain the impartiality of Judges (article 2).
- Right to Language Interpretation:
Penal Law 1996 - Article 32
If the officer in charge decides to arrest the suspect, he will immediately explain to him the arrest and the reason for the arrest in a language he understands, as far as possible, and –
1. His right to be notified of his arrest, to a person close to him and to a lawyer, and his right to meet with a lawyer, all subject to the provisions of sections 34 to 36; as well as his right to be represented by a defense attorney as stated in section 15 of the Criminal Procedure Law or under the Public Defense Law.
- Right to Habeas Corpus:
Basic Law: Judicature 1984 - Article 15 - (D) Without prejudice to the generalness of the provisions in clause (c), the Supreme Court sitting as High Court of Justice, is authorized:
- 1. To grant orders for the release of persons unlawfully detained or imprisoned […]
Although there is no explicit right to appeal in the context of defendants, the Basic law on Judicature provides that the Supreme Court shall hear and manage appeals, providing a definitive implication that Israel maintains a functioning appeals process.
Rights of Counsel
Pre-Trial Procedure
Police procedures
- Penal Law 1996 - Article 9 -
3. The Inspector General of the Police shall determine the types of detainees whose confinement requires the approval of a police officer even if the circumstances mentioned in subparagraphs (1) and (2) have been met; a determination under this paragraph may be made in Israel Police orders as defined in the Police Ordinance [New Version], 5731-1971, and may be made in procedures by the Inspector General or by a police officer authorized by him for this purpose;
4. A police officer shall notify the judge of a detainee who is in restraints and is present in the courtroom as stated in paragraphs (1) and (2); a judge may order the release of a detainee from restraints while the detainee is present in the courtroom;
- Penal Law 1996 - Article 15
(A) An arrest request will be submitted in writing by a police officer and will be supported by his statement after a warning or by an affidavit: (1)Please indicate –- (A) The facts that give the court jurisdiction;
(B) A summary of the facts and information on which the declarant bases the request for arrest;
(C) The reason for the arrest;
(D) Details of previous arrests and previous arrest requests concerning the same matter and relating to the suspect, and court decisions in them.
(2) The application will be accompanied by –
- (A) Copies of previous arrest requests in the same matter;
(B) The minutes of the court hearings on the previous detention requests;
(C) Confidential material, for the court's review only, including confidential material submitted in previous court hearings.
- Penal Law 1996 - Article 16 - The following provisions will also apply to a request to extend the detention of a suspect or defendant:
1. Notice of the date and place of the hearing will be given, without delay, by the police to the suspect, to his defense attorney, if he has a defense attorney, and, in the absence of a defense attorney, to the person closest to the suspect named by him
- Penal Law 1996 - Article 19 - (A) An arrest warrant issued without the suspect's presence will be executed by a police officer or a public servant authorized to do so.
- Penal Law 1996 - Article 23 - (A) A police officer is authorized to arrest a person if he has reasonable grounds to suspect that that person has committed an arrestable offense and one of the following has occurred:
- (1) The person is currently committing or has recently committed an arrestable offense, and he believes, as a result, that he may endanger the safety of a person, the safety of the public, or the security of the state;
(2) He has reasonable grounds to fear that the suspect will not appear for interrogation;
(3) He has reasonable grounds to fear that the suspect's release or non-arrest will lead to disruption of legal proceedings, including the disappearance of property, influencing witnesses, or otherwise damaging evidence;
(4) He has reasonable grounds to fear that the suspect will endanger the safety of a person, public safety, or state security;
- Penal Law 1996 - Article 24 - (A) The arresting person shall first identify himself to the suspect, stating his name or official title and, being a police officer or public servant, shall immediately inform him that he is under arrest and shall explain to him the reason for the arrest as soon as possible during the execution of the arrest; a police officer shall also identify himself in accordance with the provisions of Section 5A of the Police Ordinance [New Version], 5731-1971 (hereinafter – the Police Ordinance), and a public servant shall also identify himself by presenting a certificate attesting to his authorities. If the arrest is pursuant to a judge's order, the person carrying out the arrest shall provide the detainee with a copy of the order.
- Penal Law 1996 - Article 26 - (A) Once a detainee has been brought to the station and handed over to the officer in charge, the police officer who arrested him will, as soon as possible, prepare a written report detailing the circumstances and reason for the arrest, including the facts that served as a basis for suspicion of committing an offense, his actions under Section 24, the reasons for his actions under Section 25 – if any, and the names of the other police officers who participated in the arrest.
- Penal Law 1996 - Article 27
(A) If a person is arrested without an arrest warrant and brought to the police station, the officer in charge will determine whether one of the conditions in section 23 has been met.
(B) If the officer in charge finds that one of the conditions stated in Section 23 has not been met, he will release the detainee on site, unless there is a reason for arrest under Section 13.
(C) If the officer in charge finds that there is a reason for arrest under Section 13, he may, after explaining his considerations to the suspect, arrest him or release him on bail.
(D) If a person comes to the police station or is brought there when he is not under arrest, and the officer in charge finds that there is a reason for arrest under Section 13, he may, after explaining his considerations to the suspect, arrest him or impose bail on him.
(E) A detainee for whom there is reasonable basis to believe that he has escaped from legal custody will be detained without the possibility of release on bail
- Penal Law 1996 - Article 28
(A) The officer in charge shall not decide on the arrest of a person, on the continuation of his arrest or on his release on bail, and shall not determine the type of bail, its amount and conditions, without first giving that person an opportunity to speak, after warning him that he is not obliged to say anything that may incriminate him, that anything he says may be used as evidence against him, and that his refusal to answer questions may strengthen the evidence against him.
(B) If the suspect's defense attorney is present at the police station, during the decision of the designated officer, the designated officer will hear him before issuing his decision if he wishes to be heard; the provisions of this subsection do not require the designated officer to wait for the defense attorney to arrive or to allow a meeting between the suspect and his defense attorney in violation of the decision under sections 34 and 35.
- Stops and Frisks:
Penal Law 1996 - Article 9 -
(A) A detainee shall not be restrained in a public place except in accordance with these instructions:
1. A police officer believed that there was reasonable concern that the detainee might do one of the following:
A. To escape or assist another to escape;
B. Cause harm to body or property;
C. To damage or conceal evidence;
D. To receive or deliver an object that may be used in the commission of an offense or to disrupt the order of the place of detention;
2. The detainee is suspected of, or has been indicted for, an offense under the provisions of Section 23(a)(5), unless a police officer believes that in the circumstances of the case there is no concern as stated in subparagraphs (a) to (d) of paragraph (1);
- Arrests:
- Penal Law 1996 - Article 1
(A) There is no arrest or detention except by law or by virtue of an express authorization therein
(B) The arrest and detention of a person shall be in a manner that ensures maximum protection of human dignity and rights.
- Penal Law 1996 - Article 4
A person's arrest shall be by order of a judge (hereinafter – an arrest warrant), unless the law grants authority to arrest without a warrant.
- Penal Law 1996 - Article 13
(A) A judge shall not order the arrest of a person unless he is satisfied that there is reasonable suspicion that the person has committed an offense, which is not a sin, and one of the following grounds exists:
1. There is reasonable basis for fear that the suspect's release or non-arrest will lead to disruption of investigation or trial proceedings, evasion from investigation or trial proceedings or serving a prison sentence, or will lead to the disappearance of property, influence on witnesses or damage to evidence in some other way;
2. There is reasonable basis for fearing that the suspect will endanger the safety of a person, public safety, or state security;
3. The court is convinced, for special reasons to be recorded, that it is necessary to take investigative procedures that cannot be carried out except when the suspect is in custody; the court will not order detention on this ground for a period exceeding 5 days; if the court is convinced that the investigative procedure cannot be carried out within the aforementioned period, it may order detention for a longer period or extend it, provided that the total of all periods does not exceed 15 days.
(B) A judge shall not order an arrest under subsection (a) if the purpose of the arrest can be achieved by setting bail and bail conditions that are less injurious to the suspect's freedom.
- Penal Law 1996 - Article 23
(A) A police officer is authorized to arrest a person if he has reasonable grounds to suspect that that person has committed an arrestable offense and one of the following has occurred:
1. The person is currently committing or has recently committed an arrestable offense, and he believes, as a result, that he may endanger the safety of a person, the safety of the public, or the security of the state;
2. He has reasonable grounds to fear that the suspect will not appear for interrogation;
3. He has reasonable grounds to fear that the suspect's release or non-arrest will lead to disruption of legal proceedings, including the disappearance of property, influencing witnesses, or otherwise damaging evidence;
4. He has reasonable grounds to fear that the suspect will endanger the safety of a person, public safety, or state security;
5. The person is suspected of having committed one of the following:
A. An offense punishable by death or life imprisonment;
B. A security offense as stated in Section 35(b);
C. An offense under the Dangerous Drugs Ordinance [New Version], 5733-1973, except for an offense relating to the use of a drug or the possession of a drug for personal use;
D. An offense committed with serious violence or cruelty or using a firearm or cold weapon;
E. The offense of violence against a family member as defined in the Domestic Violence Prevention Law, 5751-1991;
6. The person is released on bail, and there is reasonable basis to believe that he has violated a condition of his release or that he is about to flee from justice, or he is detained under electronic monitoring, and there is reasonable basis to believe that he has violated a condition of his supervision program, or there is reasonable basis to believe that he has escaped from lawful custody;
(B) A police officer is authorized to arrest a person and bring him to the police station for the purpose for which he requested to detain him, if the person does not obey his instructions given under the powers of detention granted to him by law, or if he obstructs him from exercising the powers of detention.
(C) A person shall not be arrested under this section if a delay can be sufficient.
- Penal Law 1996 - Article 24 (A) The arresting person shall first identify himself to the suspect, stating his name or official title and, being a police officer or public servant, shall immediately inform him that he is under arrest and shall explain to him the reason for the arrest as soon as possible during the execution of the arrest; a police officer shall also identify himself in accordance with the provisions of Section 5A of the Police Ordinance […] and a public servant shall also identify himself by presenting a certificate attesting to his authorities. If the arrest is pursuant to a judge's order, the person carrying out the arrest shall provide the detainee with a copy of the order. (B) The provisions of subsection (a), except for the obligation to notify the suspect of the arrest and to provide him with a copy of the warrant, shall not apply – 1. If it is clear from the circumstances of the case that the identity of the police officer and the reason for the arrest are known to the arresting officer; 2. If fulfilling them may thwart the execution of the arrest; 3. If fulfilling them may result in harm to the security of the arresting party at the time of the arrest or in the disappearance of evidence; (C) Fulfillment of the obligations stated in subsections (a) and (b) is a condition for the legality of the arrest.
- Penal Law 1996 - Article 1
(A) There is no arrest or detention except by law or by virtue of an express authorization therein
(B) The arrest and detention of a person shall be in a manner that ensures maximum protection of human dignity and rights.
- Pre-trial detention:
- Penal Law 1996 - Article 7
A detainee will be held in one of the following:
1. In a place of detention, under the responsibility of the Israel Police or the Prison Service, which the Minister of Public Security has declared as a place of detention; a declaration under this section shall be published in Reshumot.
- Penal Law 1996 - Article 25
(A) A police officer who arrests a person without an arrest warrant will bring him, without delay, to a police station (hereinafter referred to as the station), and hand him over to the officer in charge of investigations at the station, in his absence – to the station commander, and in their absence – to the officer in charge of the station (hereinafter referred to as the officer in charge), unless he finds, after the arrest, that he can be released.
(B) Notwithstanding the provisions of subsection (a), the police officer may –
1. Bring the detainee to another location so that the detainee can receive the medical treatment he urgently needs;
2. Leave the detainee where he was arrested or bring him to a place where the police presence is required –
3. When the policeman's presence in that place is necessary to prevent harm to a person, public safety, or state security;
4. For the purpose of continuing the investigation when the police officer is unable to bring the detainee to the station himself or through another police officer;
5. Remain with the detainee at the place of arrest or bring him to the scene of the incident, when the interests of the investigation require urgent action there, in the presence of the detainee;
6. Bring the detainee to another place when his presence is required there, in order to prevent immediate and serious harm to public safety or state security, or death or serious bodily harm to a person;
7. Bring the detainee to another location, with his consent, in order to seize evidence or prevent its destruction.
(C) If the circumstances that prevented the detainee from being brought to the station have passed, the detainee will be brought to the station without delay.
- Penal Law 1996 - Article 75 (A) Any person may detain another person until a police officer arrives if one of the following occurs: 1. The person is suspected of having committed a violent offense, crime, theft, or offense that caused substantial damage to property; 2. Another person calling for help points to a person suspected of having committed an offense against him, as stated in paragraph (1), 3. And all this if there is a fear that the suspect will escape or his identity is unknown.
- Penal Law 1996 - Article 7
A detainee will be held in one of the following:
1. In a place of detention, under the responsibility of the Israel Police or the Prison Service, which the Minister of Public Security has declared as a place of detention; a declaration under this section shall be published in Reshumot.
- Searches: Penal Law Article 72 - (A) A police officer may conduct a limited search of the body of a person who is detained, upon entering a vehicle used by the Israel Police or an ambulance, accompanied by a police officer, in order to seize a weapon or other object that may endanger the safety of a person or public security or that may assist in his escape, even without suspicion that the person is holding such an object, and the police officer may seize the object discovered during the search. (B) If the person detained is suspected of an offense and resists conducting a limited search of his person according to the provisions of subsection (a), the police officer may use reasonable force to conduct the search.
- Penal Law Article 67 -
(B) A police officer may require a person to accompany him to the police station or to bring him to the police station at another time to be determined, if the following two conditions are met:
1. There is reasonable basis for suspecting that he has committed an offense or there is a high probability that he is about to commit an offense as stated in subsection (a);
2. The identification was insufficient, or it was not possible to investigate him at his location.
- Penal Law Article 68 (A) If a police officer has reasonable grounds to suspect that an offense has been committed, he may detain a person who can provide him with information relating to that offense, in order to ascertain his identity and address and to question him at his place of residence; he may also summon him to a nearby police station at another reasonable time to be determined for the purpose of carrying out those actions. (B) If the identification is insufficient, or there is a fear that the person will not appear for questioning on time, the police officer may ask that person to accompany him to the police station in order to collect testimony.
- Before formal charge in court:
- Penal Law 1996 - Article 17 (A) If a judge orders the arrest of a suspect in his presence, the period of detention shall not exceed 15 days; however, a judge may extend the detention from time to time for periods not exceeding 15 days; the provisions of this subsection shall not prejudice the provisions of section 13(a)(3) in its entirety. (B) A suspect will not be held in custody in one continuous period in connection with the same incident, including detention without a warrant, for a period exceeding 30 days, unless the request for additional detention was submitted with the approval of the Attorney General. (C) If a judge orders the arrest of a suspect in his absence, including an arrest under Section 14, and the suspect has not been released beforehand under Section 20, the suspect shall be brought before a judge as soon as possible and no later than 24 hours from the time of his arrest; if the detainee is brought before a judge, the provisions of Subsection (a) shall apply. (D) If a person is arrested and his interrogation is completed, he will be released from detention, however, if a prosecutor has declared that an indictment is about to be filed against him and the court is convinced that there is prima facie cause to request his detention until the end of the proceedings, a judge may extend the detention, for this reason, for a period not exceeding 5 days, subject to the provisions of subsection (b).
- After Defendant is formally charged:
- Penal Law 1996 - Article 21
(A) If an indictment has been filed, the court before which the indictment was filed may order the arrest of the defendant until the end of the legal proceedings, including his arrest under electronic monitoring, if one of the following occurs:
1. The court believes, based on material submitted to it, that one of the following will occur:
(A) There is reasonable basis for fear that the defendant's release or non-arrest will lead to obstruction of justice, evasion of trial proceedings or serving a prison sentence, or will lead to the disappearance of property, influence on witnesses or damage to evidence in some other way;
(B) There is reasonable basis for fearing that the defendant will endanger the safety of a person, the safety of the public, or the security of the state;
(C) The defendant was charged with one of the following:
1. An offense punishable by death or life imprisonment;
2. A security offense as stated in Section 35(b);
3. An offense under the Dangerous Drugs Ordinance [New Version], 5733-1973, except for an offense relating to the use of a drug or the possession of a drug for personal use;
4. An offense committed with serious violence or cruelty or using a cold or hot weapon;
5. The offense of violence against a family member as defined in the Domestic Violence Prevention Law, 5751-1991,
(B) The court shall not issue an arrest warrant under subsection (a) unless it is satisfied, after hearing the parties, that there is prima facie evidence to prove the guilt, and with regard to subsection (a)(1), the court shall not issue such an order unless the following are also met:
1. The purpose of the arrest cannot be achieved by means of bail and release conditions that are less detrimental to the defendant's freedom;
2. The defendant has a defense attorney, or the defendant has announced that he does not wish to be represented by a defense attorney.
(B) If the accused did not have a defense attorney and did not notify as stated in subsection (b)(2), the court shall appoint a defense attorney for him and the provisions of Chapter Two of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter – the Criminal Procedure Law), or the provisions of the Public Defender Law, 5756-1995 (hereinafter – the Public Defender Law), as the case may be, shall apply to this matter; as long as a defense attorney is not appointed, the court may order the arrest of the accused for periods not exceeding 7 days at a time, provided that the total of all periods does not exceed 30 days.
(C) Notwithstanding the provisions of subsection (b), the court may, at the request of the accused or his defense attorney, adjourn the hearing to allow the accused or his defense attorney to review the investigation material and order that the accused be detained for a period not exceeding 30 days.
- Penal Law 1996 - Article 22 (A) If a guilty verdict is given against a defendant who was held in custody until the end of the proceedings and was not sentenced to actual imprisonment, and the prosecutor has announced that he intends to appeal the sentence and request actual imprisonment, the court that convicted the defendant may release him on bail or, if it is convinced that there is a risk that he will escape, order his detention for a period not exceeding 72 hours for the purpose of filing a notice of appeal. (B) If a notice of appeal against a judgment has been filed by a prosecutor, the court of appeal may order the arrest of the defendant in accordance with the provisions of Section 21.
- Penal Law 1996 - Article 21
(A) If an indictment has been filed, the court before which the indictment was filed may order the arrest of the defendant until the end of the legal proceedings, including his arrest under electronic monitoring, if one of the following occurs:
1. The court believes, based on material submitted to it, that one of the following will occur:
(A) There is reasonable basis for fear that the defendant's release or non-arrest will lead to obstruction of justice, evasion of trial proceedings or serving a prison sentence, or will lead to the disappearance of property, influence on witnesses or damage to evidence in some other way;
(B) There is reasonable basis for fearing that the defendant will endanger the safety of a person, the safety of the public, or the security of the state;
(C) The defendant was charged with one of the following:
1. An offense punishable by death or life imprisonment;
2. A security offense as stated in Section 35(b);
3. An offense under the Dangerous Drugs Ordinance [New Version], 5733-1973, except for an offense relating to the use of a drug or the possession of a drug for personal use;
4. An offense committed with serious violence or cruelty or using a cold or hot weapon;
5. The offense of violence against a family member as defined in the Domestic Violence Prevention Law, 5751-1991,
(B) The court shall not issue an arrest warrant under subsection (a) unless it is satisfied, after hearing the parties, that there is prima facie evidence to prove the guilt, and with regard to subsection (a)(1), the court shall not issue such an order unless the following are also met:
1. The purpose of the arrest cannot be achieved by means of bail and release conditions that are less detrimental to the defendant's freedom;
2. The defendant has a defense attorney, or the defendant has announced that he does not wish to be represented by a defense attorney.
(B) If the accused did not have a defense attorney and did not notify as stated in subsection (b)(2), the court shall appoint a defense attorney for him and the provisions of Chapter Two of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter – the Criminal Procedure Law), or the provisions of the Public Defender Law, 5756-1995 (hereinafter – the Public Defender Law), as the case may be, shall apply to this matter; as long as a defense attorney is not appointed, the court may order the arrest of the accused for periods not exceeding 7 days at a time, provided that the total of all periods does not exceed 30 days.
(C) Notwithstanding the provisions of subsection (b), the court may, at the request of the accused or his defense attorney, adjourn the hearing to allow the accused or his defense attorney to review the investigation material and order that the accused be detained for a period not exceeding 30 days.
Court Procedures
- Initial Court Appearance: Penal Law 1996 - Article 29 (A) A person arrested by the officer in charge under Section 27 shall be brought before a judge as soon as possible, and no later than 24 hours. (B) If the time for bringing a detainee before a judge falls on a Sabbath or holiday, the detainee will be brought before a judge before the Sabbath or holiday begins. (C) If the time for bringing a detainee before a judge has expired as stated in subsection (b) and a police officer of the rank of deputy superintendent has confirmed that the detainee cannot be brought before a judge before the start of the Sabbath or holiday due to special investigative needs, the detainee will be brought before a judge no later than four hours after the end of the Sabbath or holiday. (D) If the arrest was made less than four hours before the start of the Sabbath or holiday, or during the Sabbath or holiday, the detainee will be brought before a judge no later than four hours after the end of the Sabbath or holiday, or 24 hours after his arrest, whichever is later.
Rights in Prison
- Penal Law 1996 - Article 9 (A) A detainee will be held in appropriate conditions that will not harm his health or dignity. (B) A detainee will be entitled, among other things, to all of the following: 1. To adequate sanitary conditions, to conditions that will allow him to maintain his personal cleanliness, to medical care required to maintain his health, and to appropriate supervision conditions as required by a doctor; 2. A bed, mattress and blankets for his personal use, and for the storage of personal belongings as determined by regulations; 3. To drinking water and food in the quantity and composition appropriate to maintain one's health; 4. For reasonable lighting and ventilation conditions in the cabin; 5. To take a daily walk in the open air, if the conditions of the place allow it, under the conditions and at the times to be determined by regulations; this right may be restricted for reasons of the interest of the investigation or to protect the safety of the detainee; 6. To receive visitors and to maintain telephone contact; a detainee who has not yet been indicted will be entitled to these, only if the person in charge of the investigation has confirmed that this will not harm the investigation; 7. To send letters or receive letters in accordance with the provisions of sections 47A to 47D, of the Prisons Ordinance [New Version], 5732-1971, with the required changes; a detainee against whom an indictment has not yet been filed will be entitled to these, only if the person in charge of the investigation has confirmed that this will not prejudice the investigation. (C) A detainee shall maintain order and property in the place of detention, he shall maintain cleanliness in his cell and follow the instructions regarding the daily routine and the manners of conduct customary in the place of detention. (D) The main rights of detainees and their obligations in a place of detention will be posted in a prominent place in the place of detention.
There are no specific provisions concerning the rights of immigrants while detained in Israel, however, according to the Hotline for Refugees and Migrants (HRM) in Israel, the following rights exist for migrants whilst detained: 1. To have reasonable access to a telephone 2. To meet with representatives of the UNHCR, an attorney, and volunteers of the Hotline for Refugees and Migrants. 3. To receive three nutritious meals a day; hygiene products such as soap, shampoo, and toothpaste; appropriate clothing for the season (if you do not have your own); and blankets. 4. To receive medical care as necessary. 5. To be held separately from Israeli criminal prisoners. 6. To be allowed outside your cell into the prison yard for at least one hour once a day. 7. To receive all your personal belongings and documents upon your release.
The HRM works largely with migrants and vulnerable persons in the context of immigrant detention, with recent achievements including the abolition of the ‘binding law’ which bonded migrants to their employers, along with advocacy for the children of migrant workers to receive legal status.
- Prisons Ordinance (New Version), 1971 - Article 6 (A) Every prisoner shall, as soon as possible after his admission, be separately examined by the physician, and until so examined such prisoner shall so far as is possible be kept apart from other prisoners. (B) The physician shall record the state of health of the prisoner and such other particulars as prescribed.
- Prisons Ordinance (New Version), 1971 - Article 16 (A) in the case of the illness of a prisoner confined in a prison in which there is no suitable accommodations for such a prisoner, the prison warden may, on the certificate of a government medical officer, direct that he be removed to a government hospital, and so long as he remains there and his sentence has not expired, he shall be deemed to be in lawful custody. (B) The government medical officer of the hospital shall, at the end of every month, transmit to the prison warden a certificate signed by him that it is in his opinion necessary that such prisoner should remain in the hospital.
- Prisons Ordinance (New Version), 1971 - Article 12 (B) Every prisoner shall be medically examined before transfer to another prison.
- Women:
- Prisons Ordinance (New Version), 1971 - Article 2
No person shall be admitted into a prison unless accompanied by a warrant of imprisonment or warrant of arrest; however, the child of a female prisoner may be admitted into a prison with its mother if it is at the breast and less than two years old.
- Prisons Ordinance (New Version), 1971 - Article 10 (A) Male and female prisoners shall be confined in separate parts of the prison in such manner as to prevent their seeing or conversing or holding any intercourse with each other.
- Prisons Ordinance (New Version), 1971 - Article 2
No person shall be admitted into a prison unless accompanied by a warrant of imprisonment or warrant of arrest; however, the child of a female prisoner may be admitted into a prison with its mother if it is at the breast and less than two years old.
- Mentally Ill Prisoners: Prisons Ordinance (New Version), 1971 - Article 14 The minister may appoint fit places, either within any prison or elsewhere, for custody and treatment of mentally ill persons.
- Juveniles:
- Prisons Ordinance (New Version), 1971 - Article 10 (A) 1. Minor prisoners shall be separated from adult prisoners pursuant to the provisions of Section B34 of the Youth Law 1971.
- Penal Law 1996 - Article 46 (C) In determining the bail conditions of a minor, the judge will consider, among other things, his special needs as a minor.
- The age of criminal responsibility in Isreal is unclear, as children may be criminally prosecuted once they reach the age of 12, but minors are still considered to be anyone under the age of 18. The result of this is that all cases concerning minors (those between the ages of 12 to 18) are specifically dealt through Juvenile Courts, heard by judges trained in juvenile judgements. These judges are appointed specifically to the position by the Supreme Court President on approval of the Minister of Justice. The focus of the Juvenile System is primarily rehabilitation, rather than punishment.
Resources
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