The right of notice as to a person's arrest and whereabouts is a basic right of both the detainee and his family. Moreover, recording the holding site wherein the detainee is kept is a vital prerequisite for the realization of his other rights, such as the rights to counsel, or intervention as to the conditions of holding. Although the obligations to record and notify the fact of arrest
have been established by legislation and judicial decisions, intermittently, Israel breaches these duties in cases of Palestinian detainees.
On April 8, 2012, soldiers entered the home of a Hebron resident and arrested him. After more than 24 hours had passed, without the military communicating his whereabouts, the concerned family requested HaMoked's assistance in finding where he was being held.
In its efforts to discover his whereabouts, HaMoked contacted the police, the military and the Israel Prison Service (IPS). Their replies were not reassuring: the detainee had been taken from his home to the Etzion temporary detention facility, from whence he was taken elsewhere for interrogation. None of these agencies in charge of detention and incarceration could identify the site of interrogation.
On April 10, 2012, as over 50 hours had passed without the man appearing in the records of any holding facility, HaMoked filed a
habeas corpus petition to the High Court of Justice to compel the authorities to disclose the man's whereabouts without delay, in accordance with statutory and judicial requirements.
Several hours after the petition was filed, the State's Attorney's Office informed HaMoked that the detainee was in the Russian Compound detention facility in Jerusalem.
In its response to the court, submitted on April 11, 2012, the state asserted that the failure to trace the detainee was due to "restructuring operations on the computer system of the IPS systems", and requested to strike out the petition. While the state was thus responding, the detainee was still not registered in the IPS computer system.
HaMoked insisted the petition should not be stuck out until the detainee was duly recorded in the IPS registration system, and that the state's response raised issues which must be explicated: initially, was the non-registration of the detainee due to these "restructuring operations" or was there another failure?; did the problem persist for several days?; did the IPS intend to register the detainee once the failure was fixed?; how was the state going to prevent this from recurring?
On April 15, 2012 – a week from the arrest and five days after the petition was filed – the IPS registered the man in the incarceration computer system. HaMoked then
requested to withdraw the petition and filed a motion to award costs.
Thereupon,
the state decided to revise its claims and – a whole month after the arrest and for the first time – argued that in fact, the detainee had been registered in the computer system on the day of arrest. The state now claimed that primarily, he had not been traced due to an error in recording his identity card number into the system.
The court determined that the petitioners should not bear the cost of the IPS failures, and ruled that the state must pay the cost of court proceedings.
