HaMoked petitions High Court of Justice demanding accountability in Palestinian minor’s complaint of brutality by prison wardens in 2018

On October 3, 2021, HaMoked petitioned the High Court of Justice (HCJ) on behalf of H.R., a Palestinian youth from East Jerusalem, against the closure of his complaint about his brutal beating by Nachshon Unit wardens three years earlier, when he was 15 years old. During the October 2018 incident, which took place at the end of a hearing in the boy’s case, inside the Jerusalem District Court building, Nachshon Unit wardens beat the boy – a diabetes patient – with their fists, and then left him cuffed in a painful posture for about an hour. In its petition, HaMoked demanded that the National Prison Wardens Investigation Unit (NPWIU), the State Attorney’s Office and the Israel Prison Service (IPS) reopen the investigation into HR’s complaint and also into the failures in the collection of sufficient evidence enabling indictment of the wardens involved. HaMoked also demanded the formulation of a procedure of investigation of IPS wardens’ violence towards inmates, particularly minors, and also the implementation of the existing ordinance requiring IPS staff to report and document on their own initiative incidents of wardens’ use of “unreasonable” force against inmates.    

In November 2018, about a month after the violent incident, HaMoked filed a complaint on behalf of HR to the NPWIU regarding the suspected abuse of the minor at the hands of wardens, and attached photographs showing some of the wardens with the minor, which were taken by his father before and after they entered the elevator, where the brutal attack began.

The complaint was shelved within three months on the grounds that “no basis was found for the commission of criminal offenses”. In May 2019, HaMoked appealed the decision to close the case. In October 2019, HaMoked was informed that the case had been closed at the time by an unauthorized entity and that consequently, it had been decided that the appeal would not be examined on its merits but transferred for decision by a competent entity at the Jerusalem District Attorney’s Office. But transfer of the file was delayed for almost a year. Therefore, HaMoked contacted the Jerusalem District Attorney’s Office, noting that the authorities’ handling of this severe and exceptional complaint reflected considerable and rooted contempt on their part. Only then, on September 17, 2020, HaMoked was informed that the file had finally reached the Jerusalem District Attorney’s Office, which hastened to shut it for “lack of sufficient evidence”.  

HaMoked examined the investigation materials which proved to be flimsy. Therefore, HaMoked submitted a second appeal to the Appeals Unit at the State Attorney’s Office. HaMoked argued that closing the file on the grounds of “lack of sufficient evidence” seemed to indicate that the investigation had been inadequate. HaMoked added that the investigative materials underlying the closure of the case suggested there were ingrained and systematic failures hampering the possibility of effective investigation of such cases: the file did not include medical records of the bruises or courthouse CCTV footage and apparently no attempt had been made to question the prison wardens who were present at the time of the incident; in fact, the entire file rested on operational reports from the day of the incident. On August 18, 2021, the State Attorney’s Office decided to reject the appeal for lack of substantiation for the appellant’s version.  

In its High Court petition, HaMoked asserted that IPS personnel have a heightened responsibility to ensure the safety and wellbeing of a minor in their custody, an obligation stemming directly from the overarching principle of the child’s best interests. Furthermore, wrote HaMoked, the protracted handling of the complaint, which lasted for some three years, and the loss of evidence in the duration, pointed to the authorities’ severe failure in dealing with such cases.  HaMoked added that a victim of an offence who is held in custody – particularly a Palestinian minor classified as a security inmate – who wants to complain about harm they suffered at the hands of an IPS employee, faces a string of systematic hurdles and legal and circumstantial obstacles in filing and substantiating their complaint. It is therefore clear that the authorities must take special care in gathering the evidence. HaMoked added that the authorities’ failure to conduct an effective inquiry undermined the absolute prohibition on torture and ill-treatment.

* The State submitted its response on February 28, 2022, and as could be expected, argued that the petition should be dismissed. At the July 28, 2022 hearing, the Justices noted that it was rare for them to intervene in a specific case and concluded that there was no room for their intervention here, "according to the practiced criteria for judicial review of the decisions of investigation bodies...". In light of the Court’s recommendation, HaMoked had no alternative but to withdraw the petition. In the judgment, the Court stressed that on the principled level, it was impossible to overstate the importance of the issue of safeguarding and protecting the rights of inmates from violence, and noted that the Respondents themselves expressed their continued commitment in this matter.