2. The common charges in the indictments
The most common charges in the Military Juvenile Court concern throwing objects: throwing stones at a moving vehicle, throwing stones at a transportation route and throwing objects (paint bottles, "incendiary objects" – fire bottles (Molotov Cocktails) at a person or property. In many cases stones and fire bottles were thrown at security forces during patrols or demonstrations where the boys live. In some cases, the thrown objects were aimed at vehicles traveling on roads. Even someone who served as a lookout, for example, or whose presence at the site was passive, is charged with committing the full offence.
The most common charges in the Military Juvenile Court concern throwing objects: throwing stones at a moving vehicle, throwing stones at a transportation route and throwing objects (paint bottles, "incendiary objects" – fire bottles (Molotov Cocktails) at a person or property. In many cases stones and fire bottles were thrown at security forces during patrols or demonstrations where the boys live. In some cases, the thrown objects were aimed at vehicles traveling on roads. Even someone who served as a lookout, for example, or whose presence at the site was passive, is charged with committing the full offence.
In many cases the boys did not ultimately carry out the act, changed their minds or were caught before throwing an incendiary object, and were subsequently charged with attempt.
Many boys were also accused of manufacturing Molotov Cocktails. In some cases boys were charged with burning tires and explosives in order to create smoke and draw the security forces to their area in order to later pelt them with stones or other objects.
Many boys were also accused of manufacturing Molotov Cocktails. In some cases boys were charged with burning tires and explosives in order to create smoke and draw the security forces to their area in order to later pelt them with stones or other objects.
Of all the 89 acts of stone and object throwing in the 71 cases we checked, physical injury was caused in one case to a passenger in a vehicle at which stones had been thrown. Actual damage to a vehicle (smashed windshield) was caused in only three cases. In one case a 15-year-old boy was accused of attempting to solicit a friend to kidnap a Jewish merchant, but the plan did not materialize because the friend did not cooperate.
One of the most serious cases was of a 15-year-old boy accused of planning a suicide operation, and participating in the preparation of an explosive belt.
To summarize this subject, without undermining the potential danger posed by throwing stones and Molotov Cocktails, which can cause serious harm to human life and property, the harm actually caused in these offences is in fact very minor and in a small number of cases. The more serious cases were mainly attempts that were not completed. This picture is consistent with the boys' young age. Since the severity of these offences lies in their potential to cause harm, it seems that the main purpose of punishment should be deterrence rather than retribution. We should keep this in mind later on when we consider the punishments imposed on the boys.
3. Detention and Release on Bail
The observations summarized in this report did not include monitoring of detention files, because these are not heard by the Military Juvenile Court. However, decisions to detain or release were reflected in the court hearings that we observed and have a far-reaching impact on the trial stage.
The stage definable as the most critical in the trial occurs in the general military court, according to provisions that apply to adults, without special treatment for youth, before judges who are not juvenile judges and in hearings that are held along with adults. According to the Security Provisions Order, there are no special provisions concerning the detention of minors, nor is there a general provision establishing the use of detention as a last resort.
As the observations showed, detention is used almost as a default option. Of the 71 cases we observed, only five boys were released from detention on bail until the end of proceedings with the help of their lawyers, and were not held in detention during their trials. We found no correlation at all between the age of the defendants and their release from detention. The 13 and 14-year-olds were all detained until the completion of the legal proceedings despite their young age. All those released were 15 years old.
M., 15 at the time of his arrest, a resident of Bil'in going into the 10th grade (file 3346/10) was arrested on August 2, 2010
M. was accused along with others of throwing stones towards the Separation Wall, from May 2010 until his arrest, on three separate occasions, with the intent of hurting a person or causing damage to property. He was arrested with two friends who incriminated him in the statements they gave to the police. He was released from detention a few days later on NIS 1500 bail.
In the trial M. pled guilty as part of a plea bargain and it was agreed that he would be sentenced to a suspended prison term and a fine. The defence attorney noted in his arguments for punishment that according to the indictment, the stones were thrown at the border fence and did not hit their target.
The judge wrote in her sentence that as part of the decision to release the defendant from detention, she noted that there were problems with the evidence and doubt as to the fairness of the interrogation and protection of the detainee's basic rights. She sentenced the defendant to:
Three months suspended imprisonment, conditional on his refraining for two years from committing the offence of which he was convicted, or any offence of hurling objects.
A NIS 1000 fine.
M. was the only one of the 71 defendants who was not sentenced to an actual prison term.
B., 15 at the time of the offence and 18 at the time of the trial, resident of Jaba (file 3521/10) was arrested on August 9, 2010.
B. was accused of throwing stones and Molotov Cocktails at moving vehicles on a number of occasions during 2008-2009. He was released on bail after being detained for 17 days.
His defence lawyer said the release on bail was due to an evidential problem in the file that made it difficult for the prosecution to prove his guilt. The defendant denied guilt when he was investigated by the police. Of the two other boys arrested with him only one testified that he committed the alleged offences, whereas the other supported his version.
Even the incriminating testimony was problematic. The other boys were meanwhile released. After the release the sides reached a plea bargain, B. retracted his not guilty plea and pled guilty to an amended indictment. The judge sentenced him to the following:
The 17 days served would be considered actual prison time.
Three-month suspended prison term conditional on not committing the offence of which he was charged for two years.
A NIS 1500 fine.
B., 15 at the time of the alleged offence, resident of Qalandia (file 2728/10) was arrested on June 12, 2010.
M., 15 at the time of the alleged offence, resident of Anata (file 2731/10) was also arrested on June 12, 2010.
The two boys were released on bail because it turned out that they had both come to the checkpoint with the goal of getting arrested carrying Molotov Cocktails, of which the prosecutor said: "The nature of the fire bottle in the possession of the defendant is unknown." That is to say, the bottle may not have been real.
B. was detained for 10 days, after which he was released on bail.
M. was detained for 18 days and released on bail.
The two boys were charged with two counts:
1. Manufacture of two Molotov Cocktails without a permit from a military commander.
2. Possession of the aforesaid two fire bottles.
In a plea bargain between the military prosecutor and the defence attorney, the second charge was dropped and the defendants were convicted, each separately in identical indictments, on their admission of the charge of "manufacture of fire bottles." As part of the plea bargain, B. was sentenced to the following:
The 10 days of time served would be considered active prison time.
Six months suspended prison term, on condition that for three years he would not commit the crime of which he was convicted or any other offence concerning weapons.
NIS 1500 monetary fine.
M. was sentenced to the following:
18 days of time served would be considered active prison time.
Six months suspended prison term, conditional on not committing the crime of which he was convicted or any other offence concerning weapons for three years.
NIS 1000 monetary fine.
Even though these two defendants were accomplices in the same offence, convicted of identical indictments and without different profiles, they received different sentences according to the number of days in detention, so their sentence would coincide the detention period.
N., 15 at the time of the alleged offence, resident of Hebron (file 4103/10) was arrested on October 4, 2010
N. was not released because of his inability to pay the charged bail.
He was accused, together with a friend, of throwing a single stone at a moving Israeli vehicle with the intention of hitting it or a person traveling in it. The stone hit the right side of the windshield of a passing car. Following an appeal against his detention to the Military Court of Appeals, the court decided to release the boy from detention.
In its decision the appeals court ruled that it was an exceptional case in which no harm was done, and the boy's claim to have acted in response to a provocation by settlers could not be ruled out.
However, the appeals court decided that the boy had to deposit monetary bail. Since his family could not deposit the amount, N. ultimately remained in detention for 15 days until a hearing of his case at the Military Juvenile Court, where, as part of a plea bargain, he was sentenced to 15 days' imprisonment - the number of days already served.
Considering the recurring coincidence between the length of the detention prior to sentencing and the sentence ultimately handed down, it seems likely that had N. been released his sentence would have been shorter. The boy was also sentenced to a NIS 2000 fine or two months imprisonment in exchange if the fine were not paid.
A.S., 14 (file 1367/11) is not one of the 71 files we examined but still deserves attention because he too failed to realize the decision to release him.
A.S. is a fourteen-and-a-half-year-old minor, arrested on January 23, 2011, charged with a number of counts of stone throwing in the village of Nebi Saleh.
In the detention hearing four days after his arrest, it was decided to release him on bail because of prima facie flaws in his interrogation. His family thought it could present a guarantor who would see to it that the accused would temporarily reside in Ramallah far from the village, but eventually failed to find such a guarantor. The court decided that there was no room for any other alternative and therefore he remained in detention.
A.S. was released later, after some witnesses in his trial testified, in a motion for review only on March 22, 2011, after two months of detention (see further account of this case in the chapter about confessions and incriminations, and in Appendix D).
W.A. (file no. 3964/10), also not one of the 71 files that were checked, raises an interesting question about the boy's arrest.
W.A. was charged with stealing from the pharmacy checkpoint in Hebron, entering the position, attacking soldiers and stealing five grenades. It was his second offense to which he confessed as part of a plea bargain even though his lawyer said in court (see below) that it did not happen.
The background for his actions was that his father beat him. He was in detention for almost six months, after which the sides reached a plea bargain including imprisonment and a fine, but the judge (the deputy presiding judge, in the absence of Judge Rivlin-Achai) refused to sentence the defendant at the same hearing and thought that imprisonment was not a solution in this boy's case.
He asked for a report by a welfare staff officer, and until the report was submitted he ordered the boy's release on bail (the following segment is from an observation in court and is not a quote from the court records):
Judge: There was a promise to enroll the boy in some kind of rehabilitation process. The father admitted he beats him. Last time, without treatment, he went back to breaking in again within a week.
Lawyer: The family is in bad shape. I ask for his release this very day.
Judge: The fine is for his father and because of it he will beat him. So what should we do?
Lawyer: There is a certain problem. We don't have rehabilitation institutions and bodies here.
Judge: What's the point of the fine? Either he will rob to pay or his father will pay.
Lawyer: I hope prison taught him a lesson. No other way will help. If we had state institutions we would talk differently. Leaving him in prison is not a solution.
Military prosecutor: There is cause to give him another chance. His young age was taken into consideration.
Judge: Leaving him in prison is not a solution.
Lawyer: What it says in the indictment didn't even happen. Because of privacy I do not want to go into the boy's condition. I ask for a one-week continuance so that his imprisonment reaches six months and the fine is reduced. The suspended term is also too long. For theft he got one year suspended which the prosecution wants to activate. The bargain today is appropriate...
Father: I ask the court for leniency on the suspended term. We are in Israeli territory and he can be reached and arrested. I am afraid he will fall victim to the actions of others and the suspended term will be activated against him. We are not happy with these actions and we will prevent him from committing them.
Judge: How will you prevent him?
Father: We will talk to him, a few talks...
Judge: Who are you getting help from?
Father: The whole family, mother, father, brothers and sisters.
Judge: In previous minutes you said the same things. It turns out it didn't work. You need to try something different and not the same way you know, but to go to professionals to give you tools to deal with your son. Sometimes the parents are not enough.
Father: The family has a business. My eldest son works there. He will be under his supervision and get himself a profession.
Judge: That is not enough. Do you know the welfare staff officer? Go talk to her and she will explain you what you can do with your son. Come back to me and tell me what your intention is. I will release him today but I will not sentence him until the next hearing.
The boy was released after almost six months in prison and considering the facts of the case it looks like the court should have ordered his release and therapeutic intervention at an earlier stage. There certainly is cause to question the prosecution's discretion in demanding prison and a fine for a boy in such a condition.
To summarize this issue, it is clear from the data that detention does not serve as a last resort and is not used for the shortest time possible, as it ought to be for minors. Detention serves as the default option and is exercised in 94% of the cases.
In all cases where defendants were released, their sentence coincided their time served in detention, even when this resulted in different sentences to the same offence.
One of the most serious cases was of a 15-year-old boy accused of planning a suicide operation, and participating in the preparation of an explosive belt.
To summarize this subject, without undermining the potential danger posed by throwing stones and Molotov Cocktails, which can cause serious harm to human life and property, the harm actually caused in these offences is in fact very minor and in a small number of cases. The more serious cases were mainly attempts that were not completed. This picture is consistent with the boys' young age. Since the severity of these offences lies in their potential to cause harm, it seems that the main purpose of punishment should be deterrence rather than retribution. We should keep this in mind later on when we consider the punishments imposed on the boys.
3. Detention and Release on Bail
The observations summarized in this report did not include monitoring of detention files, because these are not heard by the Military Juvenile Court. However, decisions to detain or release were reflected in the court hearings that we observed and have a far-reaching impact on the trial stage.
The stage definable as the most critical in the trial occurs in the general military court, according to provisions that apply to adults, without special treatment for youth, before judges who are not juvenile judges and in hearings that are held along with adults. According to the Security Provisions Order, there are no special provisions concerning the detention of minors, nor is there a general provision establishing the use of detention as a last resort.
As the observations showed, detention is used almost as a default option. Of the 71 cases we observed, only five boys were released from detention on bail until the end of proceedings with the help of their lawyers, and were not held in detention during their trials. We found no correlation at all between the age of the defendants and their release from detention. The 13 and 14-year-olds were all detained until the completion of the legal proceedings despite their young age. All those released were 15 years old.
M., 15 at the time of his arrest, a resident of Bil'in going into the 10th grade (file 3346/10) was arrested on August 2, 2010
M. was accused along with others of throwing stones towards the Separation Wall, from May 2010 until his arrest, on three separate occasions, with the intent of hurting a person or causing damage to property. He was arrested with two friends who incriminated him in the statements they gave to the police. He was released from detention a few days later on NIS 1500 bail.
In the trial M. pled guilty as part of a plea bargain and it was agreed that he would be sentenced to a suspended prison term and a fine. The defence attorney noted in his arguments for punishment that according to the indictment, the stones were thrown at the border fence and did not hit their target.
The judge wrote in her sentence that as part of the decision to release the defendant from detention, she noted that there were problems with the evidence and doubt as to the fairness of the interrogation and protection of the detainee's basic rights. She sentenced the defendant to:
Three months suspended imprisonment, conditional on his refraining for two years from committing the offence of which he was convicted, or any offence of hurling objects.
A NIS 1000 fine.
M. was the only one of the 71 defendants who was not sentenced to an actual prison term.
B., 15 at the time of the offence and 18 at the time of the trial, resident of Jaba (file 3521/10) was arrested on August 9, 2010.
B. was accused of throwing stones and Molotov Cocktails at moving vehicles on a number of occasions during 2008-2009. He was released on bail after being detained for 17 days.
His defence lawyer said the release on bail was due to an evidential problem in the file that made it difficult for the prosecution to prove his guilt. The defendant denied guilt when he was investigated by the police. Of the two other boys arrested with him only one testified that he committed the alleged offences, whereas the other supported his version.
Even the incriminating testimony was problematic. The other boys were meanwhile released. After the release the sides reached a plea bargain, B. retracted his not guilty plea and pled guilty to an amended indictment. The judge sentenced him to the following:
The 17 days served would be considered actual prison time.
Three-month suspended prison term conditional on not committing the offence of which he was charged for two years.
A NIS 1500 fine.
B., 15 at the time of the alleged offence, resident of Qalandia (file 2728/10) was arrested on June 12, 2010.
M., 15 at the time of the alleged offence, resident of Anata (file 2731/10) was also arrested on June 12, 2010.
The two boys were released on bail because it turned out that they had both come to the checkpoint with the goal of getting arrested carrying Molotov Cocktails, of which the prosecutor said: "The nature of the fire bottle in the possession of the defendant is unknown." That is to say, the bottle may not have been real.
B. was detained for 10 days, after which he was released on bail.
M. was detained for 18 days and released on bail.
The two boys were charged with two counts:
1. Manufacture of two Molotov Cocktails without a permit from a military commander.
2. Possession of the aforesaid two fire bottles.
In a plea bargain between the military prosecutor and the defence attorney, the second charge was dropped and the defendants were convicted, each separately in identical indictments, on their admission of the charge of "manufacture of fire bottles." As part of the plea bargain, B. was sentenced to the following:
The 10 days of time served would be considered active prison time.
Six months suspended prison term, on condition that for three years he would not commit the crime of which he was convicted or any other offence concerning weapons.
NIS 1500 monetary fine.
M. was sentenced to the following:
18 days of time served would be considered active prison time.
Six months suspended prison term, conditional on not committing the crime of which he was convicted or any other offence concerning weapons for three years.
NIS 1000 monetary fine.
Even though these two defendants were accomplices in the same offence, convicted of identical indictments and without different profiles, they received different sentences according to the number of days in detention, so their sentence would coincide the detention period.
N., 15 at the time of the alleged offence, resident of Hebron (file 4103/10) was arrested on October 4, 2010
N. was not released because of his inability to pay the charged bail.
He was accused, together with a friend, of throwing a single stone at a moving Israeli vehicle with the intention of hitting it or a person traveling in it. The stone hit the right side of the windshield of a passing car. Following an appeal against his detention to the Military Court of Appeals, the court decided to release the boy from detention.
In its decision the appeals court ruled that it was an exceptional case in which no harm was done, and the boy's claim to have acted in response to a provocation by settlers could not be ruled out.
However, the appeals court decided that the boy had to deposit monetary bail. Since his family could not deposit the amount, N. ultimately remained in detention for 15 days until a hearing of his case at the Military Juvenile Court, where, as part of a plea bargain, he was sentenced to 15 days' imprisonment - the number of days already served.
Considering the recurring coincidence between the length of the detention prior to sentencing and the sentence ultimately handed down, it seems likely that had N. been released his sentence would have been shorter. The boy was also sentenced to a NIS 2000 fine or two months imprisonment in exchange if the fine were not paid.
A.S., 14 (file 1367/11) is not one of the 71 files we examined but still deserves attention because he too failed to realize the decision to release him.
A.S. is a fourteen-and-a-half-year-old minor, arrested on January 23, 2011, charged with a number of counts of stone throwing in the village of Nebi Saleh.
In the detention hearing four days after his arrest, it was decided to release him on bail because of prima facie flaws in his interrogation. His family thought it could present a guarantor who would see to it that the accused would temporarily reside in Ramallah far from the village, but eventually failed to find such a guarantor. The court decided that there was no room for any other alternative and therefore he remained in detention.
A.S. was released later, after some witnesses in his trial testified, in a motion for review only on March 22, 2011, after two months of detention (see further account of this case in the chapter about confessions and incriminations, and in Appendix D).
W.A. (file no. 3964/10), also not one of the 71 files that were checked, raises an interesting question about the boy's arrest.
W.A. was charged with stealing from the pharmacy checkpoint in Hebron, entering the position, attacking soldiers and stealing five grenades. It was his second offense to which he confessed as part of a plea bargain even though his lawyer said in court (see below) that it did not happen.
The background for his actions was that his father beat him. He was in detention for almost six months, after which the sides reached a plea bargain including imprisonment and a fine, but the judge (the deputy presiding judge, in the absence of Judge Rivlin-Achai) refused to sentence the defendant at the same hearing and thought that imprisonment was not a solution in this boy's case.
He asked for a report by a welfare staff officer, and until the report was submitted he ordered the boy's release on bail (the following segment is from an observation in court and is not a quote from the court records):
Judge: There was a promise to enroll the boy in some kind of rehabilitation process. The father admitted he beats him. Last time, without treatment, he went back to breaking in again within a week.
Lawyer: The family is in bad shape. I ask for his release this very day.
Judge: The fine is for his father and because of it he will beat him. So what should we do?
Lawyer: There is a certain problem. We don't have rehabilitation institutions and bodies here.
Judge: What's the point of the fine? Either he will rob to pay or his father will pay.
Lawyer: I hope prison taught him a lesson. No other way will help. If we had state institutions we would talk differently. Leaving him in prison is not a solution.
Military prosecutor: There is cause to give him another chance. His young age was taken into consideration.
Judge: Leaving him in prison is not a solution.
Lawyer: What it says in the indictment didn't even happen. Because of privacy I do not want to go into the boy's condition. I ask for a one-week continuance so that his imprisonment reaches six months and the fine is reduced. The suspended term is also too long. For theft he got one year suspended which the prosecution wants to activate. The bargain today is appropriate...
Father: I ask the court for leniency on the suspended term. We are in Israeli territory and he can be reached and arrested. I am afraid he will fall victim to the actions of others and the suspended term will be activated against him. We are not happy with these actions and we will prevent him from committing them.
Judge: How will you prevent him?
Father: We will talk to him, a few talks...
Judge: Who are you getting help from?
Father: The whole family, mother, father, brothers and sisters.
Judge: In previous minutes you said the same things. It turns out it didn't work. You need to try something different and not the same way you know, but to go to professionals to give you tools to deal with your son. Sometimes the parents are not enough.
Father: The family has a business. My eldest son works there. He will be under his supervision and get himself a profession.
Judge: That is not enough. Do you know the welfare staff officer? Go talk to her and she will explain you what you can do with your son. Come back to me and tell me what your intention is. I will release him today but I will not sentence him until the next hearing.
The boy was released after almost six months in prison and considering the facts of the case it looks like the court should have ordered his release and therapeutic intervention at an earlier stage. There certainly is cause to question the prosecution's discretion in demanding prison and a fine for a boy in such a condition.
To summarize this issue, it is clear from the data that detention does not serve as a last resort and is not used for the shortest time possible, as it ought to be for minors. Detention serves as the default option and is exercised in 94% of the cases.
In all cases where defendants were released, their sentence coincided their time served in detention, even when this resulted in different sentences to the same offence.
4. The length of legal proceedings
On this matter we have figures for 62 of the 71 files. As the following graph illustrates, an indictment was served in most cases within one to two weeks of arrest (49 of the 62 files). In four exceptional cases a month and a half, two months, three months and six months had passed before an indictment was served. These cases probably involved more complex investigations and more serious charges.
In 47% of the cases the trial was completed within three months (29 out of 62 files). In these cases the prison time to which the defendants were sentenced did not substantially exceed the time of the legal process. In cases when a long prison term was ultimately given, the procedures also lasted longer, mainly because of numerous delays of court hearings until a plea bargain was reached that ended the case. Only in two cases, witness’ testimonies were heard. In one case, the trial of a boy arrested on April 20, 2009 had not ended by June 2011, which means that it lasted more than 26 months.
On this matter we have figures for 62 of the 71 files. As the following graph illustrates, an indictment was served in most cases within one to two weeks of arrest (49 of the 62 files). In four exceptional cases a month and a half, two months, three months and six months had passed before an indictment was served. These cases probably involved more complex investigations and more serious charges.
In 47% of the cases the trial was completed within three months (29 out of 62 files). In these cases the prison time to which the defendants were sentenced did not substantially exceed the time of the legal process. In cases when a long prison term was ultimately given, the procedures also lasted longer, mainly because of numerous delays of court hearings until a plea bargain was reached that ended the case. Only in two cases, witness’ testimonies were heard. In one case, the trial of a boy arrested on April 20, 2009 had not ended by June 2011, which means that it lasted more than 26 months.
