The Israel Prison Service refuses to hold a hearing before banning family visits to a prisoner: “visits are not a right, but merely a privilege”

The right to family visits in incarceration facilities is a basic right of both the inmate and his or her family, entrenched in an array of Israeli and international legal sources. Denial of family visits to Palestinians defined as security prisoners is especially significant given that such prisoners are placed under stringent restrictions that keep them largely cut off from the outside world, including the prohibition on visits by anyone who is not an immediate family member; prohibition on any telephone contact, even with family members; and prohibition on prison furloughs, even in special circumstances. Contrary to international law, Israel transfers prisoners from the OPT to prisons inside Israel, and further restricts the Palestinian prisoners’ right to family life by requiring that family members from the West Bank obtain a military permit to enter Israel for the purpose of visiting – permits which are given in limited numbers and after a long waiting period.

On August 24, 2021, HaMoked wrote to the Israel Prison Service (IPS) Commissioner to demand IPS ordinance 04.42.00 regulating visits to prisoners be amended to include a duty to hold a hearing with a prisoner or their relative before banning the relative’s visit to the prisoner. HaMoked noted that in its experience in facilitating family visits to prisoners, the IPS prevented the entry of visitors to prisons without allowing the prisoner and their prospective visitor to plead their case, and without even notifying them that the visit has been banned. This, wrote HaMoked, causes severe harm to the inmates and their relatives, especially in the case of those classified as “security inmates”. HaMoked asserted that the obligation to allow a person about to be harmed by an administrative decision to present their case emanated from the rules of natural justice and could also result in a better decision. HaMoked emphasized this obligation existed even when it was not expressly set out in legislation or a procedure. HaMoked also noted that the IPS must uphold its November 2015 undertaking to cancel the possibility established in the ordinance to ban a visit indefinitely.   

The letter was sent following a case handled by HaMoked in which for two years the IPS prevented a Palestinian “security” prisoner from the West Bank from receiving visits from his wife. The couple received no notice or explanation regarding the ban, and assumed that the military had issued it and that they could not challenge it. Once they realized the IPS was behind the ban (following a failed attempt to smuggle semen from prison to enable the couple to undergo fertility treatments), the prisoner applied to the prison commander under Section 23 of the said ordinance to allow his wife to visit him in prison. Only after HaMoked petitioned the Jerusalem Court for Administrative Affairs on their behalf (PP 56271-02-21), did the IPS relent and allow the wife to resume visiting her incarcerated spouse. In the judgment of March 17, 2021, Judge Mishnayot noted “… there is room to consider the possibility to allow a hearing for a person about to be harmed by a decision to deny visits when dealing with [a ban for] a period of over a year, as is customary in administrative decisions involving harm to civil rights…”.  

On October 14, 2021, the IPS responded by rejecting HaMoked’s demand, saying that despite the Court’s comment, “we did not see fit to alter the said mechanism”. The IPS also repeated its wrongful position that a “visit is not defined [by us] as a prisoner’s vested right but rather as a privilege to be granted or denied according to the discretion of the IPS…”. The IPS also claimed that banning a visitor’s entry to a prison was an “isolated decision based on weighty considerations given a reasonable foundation to suspect harm to the security of the state, public peace or order and discipline… regarding which usually a hearing cannot be held before [the decision] is made.” The IPS noted that Israeli case law permits the convening of a hearing after the fact rather than in advance. However, in HaMoked’s experience, the IPS does not in fact hold after-the-fact hearings, nor does it provide written and reasoned notice about a visit ban, as its response suggests.