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.