In response to ACRI’s request, the Supreme Court and the Central District Court have permitted the full publication of the details of proceedings conducted by ACRI in late 2010 and early 2011 against the sweeping gag order in the case of Prisoner X.
According to Attorney Dan Yakir, ACRI’s Chief Legal Counsel, “even in cases where there is a justification for imposing a gag order and conducting a trial in camera, there is no accepting secret detentions and secret trials in a democratic country. Courts can not be used to rubber stamp the requests of the security services. They must exercise their discretion independently in order to protect the public’s right to know and enable a minimum level of public review over the proceedings. Government authorities in general, and the security services in particular tend to conceal failures and oversights, and it falls to the courts to ensure that they do not use claims of national security to cover up abuses. Unfortunately, that is not how the courts operated in this case.”
For a full, chronological overview of ACRI’s contacts with the Israeli judicial system – please see here:
ACRI’s Chief Legal Counsel Dan Yakir first wrote to the Attorney General about the issue in May 2010, after an article on the Ynet website about a mystery prisoner detained in solitary confinement at Ayalon Prison was taken off the website. Attorney Yakir expressed concern about the article’s claim that a detainee was being held in isolation from the outside world in violation of his fundamental rights. He further noted that undisclosed detentions and secret trials contradict the basic tenets of a democratic country and damages the public’s right to knowledge.
Attorney Raz Nizri, who was then a senior assistant to the Attorney General (now the Deputy Attorney General), responded on July 13, 2010, explaining that a gag order had been applied to the affair by the Central District Court on March 4, 2010. Over a month later, the gag order was extended to cover the conditions of the detention, including details of the cell where the prisoner was being detained.
The gag order was particularly broad: it included a prohibition against publishing the fact that a gag order had been issued, and even prohibited publishing information on the affair based on information gained from foreign sources.
On December 15, 2010, Prisoner X was found dead in his cell. ACRI learned of his death a few days later which increased the level of concern as to the circumstances of his arrest and conditions of his incarceration. Accordingly, a few days later on December 22, 2010, ACRI filed a motion with the Central District Court to lift or narrow the gag order. According to the request, the principle of proportionality requires that where there is a necessity to prevent the release of specific details in relation to an arrest, it will be done without requiring a complete blackout.
Three days later, a response was filed by the Central District Attorney’s office, in which they refused to confirm any facts, even the death of the detainee, and argued against allowing the publication of any information whatsoever regarding the affair.
A hearing was set to take place before the President of the Central District Court in early January 2011, and shortly before the hearing was set to take place, an additional request was filed to remove the gag order by the daily newspapers Haaretz and by Yedioth Ahronot.
The hearing took place on January 3, 2011, at the Central District Court in Petah Tikva. Arguments were heard from the applicants, and the state’s security services provided information about the affair in an ex parte presentation before the court.
In a decision dated January 9, 2011, Judge Gerstel rejected both requests. She determined that the court had the authority to prohibit publication not only of facts relating to the court proceedings, but also facts relating to the conditions of the detention of the accused and the location of his imprisonment. She also ruled that “I have no doubt that we are dealing with a sensitive affair in which every detail, the case’s existence, the identity of the detainee, the conditions of his imprisonment, and the fact of his arrest – might harm the security of the state and its citizens.”
Ten days later (January 20, 2011), ACRI filed an appeal to the Supreme Court. The hearing for the appeal was set for early April 2011, but at ACRI’s request it was brought forward to the end of February. In a hearing on February 23, 2011, the arguments of the parties were heard at length. Supreme Court President Beinisch together with Judges Naor and Arbel heard an ex parte comprehensive report on the affair from representatives of the state’s security services. President Beinisch revealed that an investigation is underway, before a judge, to determine the causes of death and that a lawyer representing the family is participating. In light of the security information provided to the judges, they recommended to ACRI to rescind the appeal.
Three weeks later, on March 13, 2011, ACRI notified the Supreme Court that seeing as it is a proceeding that is taking place behind closed doors, that it involves the country’s most powerful security agencies, and in light of past experiences, ACRI is not satisfied. In light of the Court’s comments at the hearing, however, ACRI agreed to withdraw the appeal while at the same time requesting that the Supreme Court rule on a number of fundamental legal issues that arose in the hearing. It is important that the Supreme Court mark the boundaries of the authority and discretion of the courts in matters such as this and publicize the ruling.
In a short decision released on March 15, 2011, the Supreme Court ordered the withdrawal of the appeal together with a ruling that this case is not an appropriate framework for providing a judgment that can act as a guide regarding future gag orders.
Following the exposure of the affair on Australian television, and the permission given to publish reports on the affair based on foreign sources, ACRI wrote to Shai Nitzan, the Deputy Attorney-General, and requested to publish details of the arrest and the death of the prisoner. In the late evening, the Central District Court responded to an additional application by the State Attorney, and permitted the publication.
On Monday, the Central District Court permitted the publication of all the details of legal proceedings that had taken place before it, and on Tuesday night the Supreme Court granted its permission to publish the details of the entire appeals process that took place before the Supreme Court.
For more on this issue, please see here.