Military Court Decision
On 5 October 2005, the military court ordered an administrative detention warrant issued against a person who had already been held in administrative detention for some four years be shortened. The judge ruled that the warrant would be shortened by one month and that the detention is not to be extended again in the absence of new, serious and substantial material against the detainee. The detainee is represented by an attorney with HaMoked.
In his decision, the military judge also addressed the practice of "postponement hearings" – hearings scheduled for the sole purpose of being postponed to a later date. These "postponement hearings" are scheduled only to give the appearance of adhering to the provisions of the Order on Administrative Detentions which instructs judicial review of the warrants must take place no later than eight days after an individual administrative detention warrant comes into force, otherwise the detainee is to be released. HaMoked has been battling this unacceptable practice for many years. The military judge ruled that "postponement hearings" contradict the letter of the law and its purpose. Bringing a detainee before a judge who does not review the information on which the detention is based, only to inform him that no hearing on his matter is to take place does not meet legal requirements.
The Decision of the Military Court of Appeals
The military prosecution appealed the decision to have the detainee released early. The military court of appeals accepted the appeal on 24 November 2005. It must be noted that the most recent substantive evidenceof the danger the detainee allegedly poses dates back to 2002. Nevertheless, the appeals judge ruled that considering the intent ascribed to the detainee – to carry out an attack four years earlier, his presence in prison along with other detainees held on suspicions related to security and the deterioration in the security situation in the Territories recently – he should remain in administrative detention.
However, the judge did leave the decision of the military court of first instance on "postponement hearings" as it was, ruling that:
"… if all that was required was a notice regarding the date of a future hearing, there would have been no need to bring the detainee before a judge… It is my opinion, that in this initial stage, the judge is not required to make a final decision, but he is supposed to examine whether there are prima facie grounds for administrative detention. If no such grounds exist, the judge must release the detainee forthwith. This is the reason the legislature required a detainee be brought before a judge promptly".
The Petition to the High Court of Justice and the Judgment
On 29 November 2005, considering the decision not to shorten the administrative detention warrant, HaMoked petitioned the HCJ to have the detainee released. In the petition, HaMoked claims, inter-alia, that in view of the protracted period of administrative detention, and of the fact that the most recent information relating to the alleged security risk the detainee poses is from 2002, the decision to keep him in detention is extremely unreasonable and disproportionate. This decision also does not meet the standards set by the HCJ for assessing the danger posed by an administrative detainee were he to be released.
On 22 December 2005, the HCJ released its judgment. In his opinion, President Aharon Barak ruled that the confidential intelligence material regarding the Petitioner reveals that prior to his detention; he intended to carry out a suicide attack. This is nothing new, yet other determinations in the judgment raise, at the very least, some questions. Thus for example, President Barak did not confine his statements to this but noted, in his opening words, that the Petitioner was taken into custody while on his way to carry out a suicide attack. This, in contrast, to the State's claims up to that point, which related only to an intent to carry out an attack. Another example: President Barak ruled that there was up-to-date material pointing to the fact that the Petitioner's intentions have remained the same. This determination contradicts the one made by the military appellate judge – which was based on the intelligence information presented to him – according to which, the most recent substantial information regarding his intentions was from 2002 at the latest.
The HCJ rejected the petition and ruled that the State's decision to keep the Petitioner in custody is reasonable, this despite the fact that he had been held in administrative detention for some four years.