Last update - 03:03 06/02/2005
A revolution, in theory
The Basic Law on Human Dignity and Freedom was legislated in 1992, leading the Supreme Court president to declare that Israel had undergone a constitutional revolution. However, every time one examines a specific aspect of human rights, it appears that this constitutional revolution has not seeped deep enough, and that, surprisingly, it has not been adapted by the courts.
A prime example is the number of cases in Israel where suspects are being held in custody until the completion of the legal proceedings against them. The number of such cases almost doubled between 1994 and 2003. For example, if there were 2,500 such cases each year prior to the legislation, that number will now stand at 5,000 annually. In 1994, there were 2,988 such cases, and in 2002 a record 5,519; in 2003, the number dropped to 4,919. Last year's data have still not been published.
Being held in custody until the completion of legal proceedings means the suspect is being punished before he is convicted in court, at a time when his innocence is still presumed. Sometimes the suspect is acquitted after a long period in custody; sometimes the time spent in custody is longer than the actual punishment handed down by the court. The longer the trial, the greater the injustice.
Though current Supreme Court President Aharon Barak ruled that, following the constitutional revolution, "It is possible to limit human dignity and freedom on condition that the harm inflicted does not exceed the required degree," what actually takes place does not correspond to his vision.
In order for there to be cause to hold a suspect until the end of proceedings, it is necessary to convince a judge that there is a chance of a conviction, that the suspect's release constitutes a threat to society, that he may flee, or that there is sufficient evidence that he may meddle with the court proceedings. Even if all four criteria are present, it is still necessary for the judge to examine whether there is an alternative to imprisonment, such as house arrest, being placed under supervision or posting guarantees.
Supreme Court Justice Elyakim Rubinstein's decision to place Tali Fahima under arrest until the completion of proceedings against her is one of many examples of the overuse of the policy of such arrests. Another example is that of illegal aliens, who are caught by the police and then almost automatically held in custody until the end of the proceedings against them.
Tali Fahima is on trial for entering the city of Jenin in an illegal manner, for staying at the home of Palestinian fugitive Zacharia Zbeidi, and for allegedly translating for Zbeidi the contents of a secret Israel Defense Forces document he obtained while the IDF was conducting an operation to arrest him. One need not be a Supreme Court justice to comprehend that the danger posed by Fahima to the security of the state is minimal. There is also no claim by the prosecution that she sought to undermine the court proceedings. Fahima did sneak into Jenin dressed as a Palestinian woman, even though she was banned from doing so, and she may escape to Jenin once more fearing the court ruling, but that is precisely why the option of house arrest and guarantees exists. That is what Tel Aviv District Court Judge Zvi Gurfinkel thought in the Fahima case, but Rubinstein overturned his decision.
The decision to hold Fahima until the completion of her trial is unreasonable and disproportional, and suggests that in the matter of stripping an individual's freedom before he is convicted, the constitutional revolution still exists only on paper.