A/HRC/37/42
without seeing a judge, lawyer or family member and at the mercy of interrogators. Not
only can incommunicado detention in itself amount to torture 51 but it also increases the risk
of torture and ill-treatment due to isolation.52
30.
During his interrogation, Mr. El Halabi was allegedly exposed to ill-treatment that
may amount to torture. He was also reportedly exposed to threats by undercover informers
acting as inmates and inducing detainees to confess. Acquisition of evidence under pressure
or duress is of concern, as it notably undermines the fairness of the trial. OHCHR further
observed how some detainees from Gaza testifying as witnesses in Mr. El Halabi’s trial
asserted that they had at some point confessed to allegations in similar circumstances.
Although Israeli law provides for the audio and video recording of interrogations of
detainees suspected of serious offences, the police and security agencies have been
exempted from this requirement as regards Palestinians suspected of security offences since
2002, an exemption made permanent in 2017. The exemption has removed a key safeguard
against the use of torture and ill-treatment to obtain confessions. According to international
human rights law, any information obtained as a result of torture or other cruel, inhuman or
degrading treatment shall not be invoked as evidence in proceedings. 53
31.
Mr. El Halabi’s first hearing took place on 30 August 2016. The trial initially took
place behind closed doors and the case was initially subject to a gagging order that also
precluded the lawyer from sharing any information. The ongoing trial is public, except for
the cross-examination of certain witnesses for alleged security reasons. In addition, an
important part of the evidence is being kept secret by the prosecution. The use of privileged
evidence, to which not even the detainee’s lawyer has access, is of great concern in trials
involving Palestinians. In view of the right of defence under international law, the detaining
authority should provide all relevant information to the judge and the defence, including
exculpatory information.54 Mr. El Halabi’s lawyers challenged the use of secret evidence in
front of the Supreme Court, which — on 12 January 2017 — ordered part of the nondisclosed evidence to be shared with the defence. However, almost one and a half years
after the arrest of Mr. El Halabi, the defence lawyer has still not managed to see all of the
unprivileged evidence against his client, raising serious concerns as to his right to defence
and to a fair trial.55
32.
Since the beginning of Mr. El Halabi’s trial, several additional charges have been
brought against him as a part of the same case, following unsuccessful offers of plea
bargains by the prosecution. The deals pertain to a few years of imprisonment, on the
condition that the accused gives his agreement in that regard before the court starts
examining classified evidence. The pressure exercised on suspects to agree to plea bargains
— that imply pleading guilty to certain charges in return for what is usually a more lenient
sentence — is extremely high.56 In view of the minimal rate of acquittals of Palestinians
before Israeli courts, lawyers encourage their clients to accept such deals, in order to get a
lower sentence and avoid custody during lengthy trials. 57 Defendants who have
continuously pleaded not guilty eventually concede to charges through a plea bargain, as
51
52
53
54
55
56
57
8
See www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf.
A/HRC/6/17/Add.4, para. 24; See also http://stoptorture.org.il/wp-content/uploads/2015/10/Whenthe-Exception-Becomes-the-Rule-2010.pdf.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15;
and United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of their Liberty to Bring Proceedings Before a Court, guideline 12.
The disclosure of information may be restricted to protect national security but has to be necessary
and proportional to the end sought. See United Nations Basic Principles and Guidelines on Remedies
and Procedures on the Right of Anyone Deprived of their Liberty to Bring Proceedings Before a
Court, guideline 13.
According to the Working Group on Arbitrary Detention, the use of secret evidence might affect the
right to a fair trial to such extent as to render the detention arbitrary. Communication provided by the
Working Group to OHCHR, dated 5 January 2018.
According to the Israeli State Attorney’s 2016 report, 77 per cent of convictions were based on a plea
bargain. Available from www.justice.gov.il/Units/StateAttorney/Documents/Annual-Report-2016.pdf
(in Hebrew).
See www.btselem.org/download/201506_presumed_guilty_eng.pdf.
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