The military court accepted the military’s request to hold a Palestinian police officer in custody pending completion of proceedings: the Military Advocate’s Office served an indictment against him one day before a hearing in an HCJ petition filed by HaMoked against his forcible transfer to the Gaza Strip due to “illegal presence” in the West Bank המוקד להגנת הפרט
19.08.2009
The military court accepted the military’s request to hold a Palestinian police officer in custody pending completion of proceedings: the Military Advocate’s Office served an indictment against him one day before a hearing in an HCJ petition filed by HaMoked against his forcible transfer to the Gaza Strip due to “illegal presence” in the West Bank
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A Palestinian police officer from the Gaza Strip was stationed in the West Bank as part of his work in 1995. He moved from the Gaza Strip to Beit Sahur in the West Bank to work and live along with many other police officers with Israel’s authorization and approval. Over the years, the man married and started a family. On 26 March 2009, Israeli soldiers arrived at his home and arrested him for “illegal presence” in the West Bank. HaMoked contacted the office of the legal advisor for the Judea and Samaria Area on the family’s behalf and was informed that the Petitioner was to be removed to the Gaza Strip within a few days. HaMoked urgently petitioned the HCJ in an attempt to prevent the police officer’s forcible transfer to Gaza.

In the petition, HaMoked emphasized, inter alia, that the decision to remove the Petitioner to the Gaza Strip is an extreme and unreasonable decision which tears away a family man, father of young children from his loved ones and from the place he has chosen as the center of his life. The Petitioners also stressed their concern that the Petitioner’s forcible transfer to the Hamas controlled Gaza Strip may cost him his life, due to his service as a police officer in the Palestinian Authority.

The legal basis for holding the police officer in detention is the Order regarding Prevention of Infiltration from 1972 which defines infiltration as entry into the Territories from one of the neighboring Arab countries without a permit. HaMoked filed a request for a writ of habeas corpus for the police officer’s release due to his unlawful detention, as the man did not arrive in the Territories from one of the neighboring Arab countries at all but rather travelled from one part of the occupied territory to the other part thereof, with Israel’s authorization and approval.

On 22 June 2009, in an unexpected move, the Military Advocate’s Office announced that it intends to indict the Petitioner and request he remains in custody pending completion of proceedings. As a result, the prosecution requested the hearings regarding the Petitioner’s removal to Gaza be postponed. HaMoked is concerned that the decision to serve an indictment which lacks real evidence against the Petitioner stems from the fact that the State Attorney's office have been convinced by HaMoked’s claims that the Petitioner’s arrest as an infiltrator and his forcible transfer to the Gaza Strip on the basis of the Order regarding Infiltration will not stand judicial review.

In the indictment, the State claims that the officer is allegedly a member of an “illegal military organization” and has allegedly performed services for this organization. However, the indictment itself indicates that this constitutes at most a failed attempt to establish a “cell” some five years ago, whose purposes are unknown and unclear.  Moreover, the indictment is based solely on the statements of one person who himself claims that it was a short lived attempt that never materialized. It shall be emphasized that the officer himself flatly denies the claims and, moreover, claims that he himself, in his capacity as a police officer, was involved in the arrest of the very man who reported the attempt to establish a cell. The State also claims that the police officer has allegedly violated the Order regarding Closed Zones and thus transfers the decision on the matter from the Supreme Court to the military court.

On 16 July 2009, the military court accepted the request of the military prosecution for remand until completion of proceedings. The court ignored the problematic nature of the source and content of the testimonies on which the indictment is based. In his decision the judge surpassed himself and in complete contravention of the defendant’s plea of not guilty to the charge of illegal presence in the West Bank, put words in his mouth as if he had admitted to illegal presence in the West Bank. HaMoked filed a notice of appeal against the decision with the military appeals court.

The State and the military’s conduct in all the proceedings against the police officer from the day of his arrest raise many questions. It seems that the State is doing everything in its power to keep him in detention for reasons which are unclear. The deportation order was issued after HaMoked presented arguments contradicting the claim regarding the officer’s alleged illegal presence in the West Bank and after the Court issued a temporary injunction prohibiting the deportation. The arguments raised by HaMoked against the deportation order and the accusations of infiltration were not reviewed by the HCJ as the State hastened to serve an indictment on the very same charges for which it sought to deport him just a short time previously. Graver still, the arguments raised by the State in the indictment were already raised at the time of the arrest – why did the State not serve an indictment then? Why was it necessary to hold the officer in custody for three months prior to serving the indictment?

Now, after a military judge has ruled that the officer is to remain in custody pending completion of proceedings, the State Attorney’s Office has notified the HCJ that the deportation order issued against him will indeed be revoked. However, as soon as the criminal proceedings against him terminate the State will again seek to remove him to the Gaza Strip. 

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