Israel's courts must do more to protect the vulnerable - opinion

The coalition and opposition are throwing mud at each other, as each side claims to be the protector of Israeli democracy. The supporters of the losing side in the most recent of our frequent elections have been gathering weekly in Tel Aviv and other cities with chants about the fragile democracy.

The pundits correctly point out that an essential feature of a democracy is not just the rule of the majority, but a solid protection of the rights of minorities and the helpless. Lists of such vulnerable populations, whose rights are supposedly at risk have been proffered. In a democracy, the judicial branch of the government is entrusted with ensuring that these rights are safeguarded.

Drowned out by the clamor, are the cries of a helpless population whose rights already seem to be neglected by the courts. This vulnerable group are the citizens who are detained, interrogated and then often released by the police or Shabak (General Security Service (GSS)). The legislative branch under all governments has drafted numerous laws designed to protect this vulnerable population. And it can be anyone.

Israel's vulnerable population can be arrested for any reason and nothing has stopped this

Every day individuals are taken in and interrogated by the police for various reasons. The situation is one in which there is a marked imbalance of power, and the individual is defenseless and at the mercy of the police. Through legislation, the Knesset has attempted to protect the citizenry. But does it work? Unfortunately, thanks to the cooperation of the legal system, the average man on the street, if detained, may have his rights violated with no recourse at that time or subsequently.

In addition to the general laws guaranteeing the suspect’s basic rights, there are laws specifically designed to protect minors. Yet a month ago another egregious example of police indifference to these laws occurred.

As described in the suit filed on behalf of the minor by Attorney Eladi Weisel, a 14-year-old boy was taking part in a demonstration in Jerusalem when police began shoving demonstrators. The young man tripped and fell and in the ensuing bedlam, a policewoman tripped and tumbled on him. Before he even knew what was happening, he was accused of tripping her.

Due to the chaos and uncertainty, it may be reasonable that he be investigated. But what transpired next is that his rights were one by one trampled and ignored by the police, who clearly are fully aware of the law, and yet also know that they can essentially do whatever they want with the unfortunate detainee.

The lawsuit continues to describe how several policemen jumped on him, bent his arm, and forcefully led him to a police car. He was body searched, his hands were secured behind his back with a plastic cable tie, and he was loaded into the police vehicle.

Eventually, he was taken to a police station where the police acted as if they have never learned the ABCs of the rights of a minor detainee. Again he was body searched and then, after a long wait, handcuffed, leg-cuffed, and taken for interrogation. He was shackled for hours on end, including when he was taken to court and being led through the corridors of the courthouse.

In a second detention center he was strip-searched! Every step of the way the police humiliated the impressionable, vulnerable minor in a manner that the legislature has deemed beyond the scope of police authority and thus against the law. And the police later admitted in court that they know what they did was wrong, but they did it as a deterrent to further protests!

THE STATEMENT is mind-boggling. In an attempt to squelch protests in a democracy, the police trample the rights of a helpless population, in this case an innocent, minor detainee who was then released. 

And the courts?

The courts will likely fine the police department a few thousand shekels that we, the taxpayers will fork out, just as they have done countless times in the past. The senior officers seem to have no liability and the average cop on the street is merely following instructions and has no personal liability.

A similar ‘game’ takes place with the Shabak. How many of those concerned with our democracy are aware that according to his lawyers, a young man was recently held for over a week in a Shabak detention center? Allegedly, during that time, the Shabak violated his rights as granted under the law; at times he was illegally denied access to legal counsel, shackled for hours on end, and subjected to illegal physical contact by his interrogators.

Whether in this particular case these methods should or should not have been used is not for us, nor for the Shabak interrogators to decide, rather, legislation has determined what is legal. In this incident as well, the rights of this detainee – rights granted to protect a vulnerable individual – were ignored and trampled.

And while in similar cases the courts have given a written slap on the wrist to the Shabak, they do not demand any change in the operation and none of the personnel involved with be held personally liable. The Shabak operatives all, obviously, know the laws and yet they all know that they can flagrantly violate the law and there is no deterrent enforced by the courts.

This is not a call to “defund the police” nor tie the hands of the police or the Shabak in the critical work that they do. There is no doubt that when ambiguous or tense situations arise, our law enforcement personnel need to know we have their backs. But when they flagrantly violate the rights of detainees, as clearly defined in the law, that should not be acceptable and certainly not as a modus operandi.

These are merely two recent examples of the police and Shabak simply ignoring the fundamental rights granted by the legislature. The police and the Shabak are highly trained and thus would appear to be not only ignoring, but flouting the law. The point here is not whether these suspects are innocent or not, or whether the methods used are moral, humane, or effective.

The police and the Shabak are highly trained and thus would appear to be not only ignoring, but flouting the law. The point is not whether these suspects are innocent or not or whether the methods used are moral, humane, or effective.

The point at issue is that the police and Shabak routinely act in flagrant violation of the law as enacted by the elected legislature. And the courts, rather than standing for the rights of the helpless, do not hold accountable those who knowingly disrespect and trample the law.

Israel indeed needs to be concerned about democracy; we can start with the courts demanding that the rights of the powerless who daily come before them are indeed protected by the laws that the courts have been given the power to uphold.

The writer is a professor of neuroscience at Bar-Ilan University.