On this subject, the data shows reasonable lengths of time until an indictment was served and the process concluded, in most cases. The military prosecution does not take advantage of all the days at its disposal under the laws of detention. In 79% of cases, the indictment was served within one-two weeks from arrest, in about 47% of cases the proceeding was concluded within three months, and another 35% were concluded within 6 months.
However, one must keep in mind the relatively light and minor nature of the charges, and the fact that most of the files end in plea bargains without hearing witnesses, as will be detailed below. Yet, more than a month before serving an indictment and more than six months until delivering a verdict concerning boys is a very long and exceptional time, and occurred in four of the cases that were checked.
5. Reliance on confessions and incrimination
In the vast majority of cases, the indictments submitted were based on the defendants' confessions of guilt during the interrogation stage immediately after arrest and before meeting a lawyer. The indictments were also based on incrimination by other boys who were arrested and interrogated just like their accused friends. In 65 of the 70 files, the testimonies of other witnesses, usually boys, served as evidence of guilt.
The fact that in so many cases defendants admitted guilt even before the legal procedure began indicates the minor importance of this procedure compared to the interrogation, where the suspect's fate is determined in most cases.
Even though the observations did not include the period of detention and interrogation, the testimonies heard in the few cases in which admissibility of the defendants' admissions or weight of the witnesses' testimonies were challenged, provide us with a glimpse into what goes on in the interrogation rooms and into how testimonies and confessions are collected from witnesses and defendants.
Confessions given in police interrogations outside court are considered particularly problematic evidence.[37] According to the rules of evidence in Israel, which are valid in the military courts as well, the confession of a defendant given to the police is not admissible as evidence if not given freely and willingly.[38]
Furthermore, violation of a defendant's rights in the interrogation stage can also lead to disqualification of a confession so extracted as inadmissible.[39] The testimony of a witness not given of their free will, or given under duress or involved denial of rights, may be rejected by the court or may receive only minor weight.[40]
If the defendant claims his confession was not given of his free will, and should be deemed inadmissible, he must conduct a "trial within a trial" in which the prosecution has to present the testimonies of the interrogators in order to persuade the court that the confession was given out of free will.
The impression that emerged from observing the hearings is that in a great many cases the boys' rights in the interrogation were not respected.
However, only in a few cases did the question of admissibility of confessions come up, at the initiative of the defendants' lawyers, and a "trial within a trial" ensued. As we shall see henceforth, plea bargains are the preferred practice. In many cases even though the defendants do not conduct trial within a trial, their claims of pressure exerted on them during the interrogation and violation of their rights come up as arguments for release from detention or to the punishment, in order to explain the plea bargain.
In other words, these arguments come up in court not as part of a trial within a trial. Of the 71 cases checked, there was not a single trial within a trial. In one case the defence lawyer argued against admissibility of the confessions, but before the trial within a trial began the sides reached a plea bargain.
M., 16 at the time of the offence, resident of Nahalin (file 1189/11) was arrested on January 9, 2011.
He was charged with two counts of stone throwing: at a moving bus, with the intention of hitting it or a person traveling in it, and at settlers traveling on the road near his home with the intention of hitting them. In one case the stone hit the car's wheel. His partner was arrested and incriminated him in his testimony.
In the court hearing on February 14, 2011 M. denied the charges. His lawyer asked to conduct a trial within a trial, claiming that the defendant's admission had been extracted from him after he was beaten by his interrogators. M. was interrogated twice on the day of his arrest,
January 9, 2011: at 06:44 by the interrogator E. A., at which time he did not admit guilt,
and at 14:00 by the interrogator E. Z., at which time he did admit guilt.
The lawyer claimed that, before extracting the confession, M. was beaten by E. Z., who put him in the bathroom, handcuffed him and beat him hard all over his body, with the policeman's foot placed between the defendant's cuffed hands.
M. told the court that he understood the charges against him and denied them, and in response to the court's question he confirmed his lawyer's statement.
On March 7, 2011 the military prosecutor announced that the sides had reached a plea bargain and M. was convicted on the basis of his confession of two counts of throwing stones at a moving vehicle, and sentenced to five months in prison.
M.A., 15 at the time of the offence (file 3906/10) refused in the beginning to plead guilty to throwing Molotov Cocktails, and even claimed "I don't know fire bottles and don't know what that is." He even changed the lawyer who represented him, with his father's help, because he did not want to accept the plea bargain offered by the first lawyer.
After seven months of detention and a number of delays in obtaining documents about his medical condition, the sides presented a plea bargain in which the defendant ultimately admitted guilt to an amended indictment. The claims against his interrogation came up as part of the arguments for the punishment:
"The defendant in his last statement:
When I was arrested I was hit in the testicles, thrown on the floor, beaten on my head and had headaches. They did not let me do anything at the military base and sprayed water on me until my right eye began to hurt.
They took me to the bathroom and started to photograph me with a cell phone in the bathroom and started to laugh at me. Your Honor, when I was arrested, when they brought me to Offer, I asked them to release me from my handcuffs because my eye hurt and they did not listen to me and pushed me." (To the court's question), "it was at Beit Horon." (To another question by the court), "it was the IDF, not the Border Police. I went to the doctor and he didn't do anything, he just looked at me." (To the court's question), "the doctor was from Offer and he was a warden."
The sentence: "The defendant was convicted on his plea of guilt of throwing Molotov Cocktails on two different occasions at Israeli vehicles on Highway 443. The sides presented me with a plea bargain and argued for it on the grounds of the defendant's clean record, his plea of guilty and saving of the court's time. It should also be noted that the defendant is a minor, born in 1994, and the offences were committed in July 2009 and September 2010.
"The defendant added arguments relating to his medical condition and the beating he allegedly got during his arrest. The defendant's description was detailed and merits further inquiry. The offences the defendant committed are serious and normally he ought to be given a heavier sentence, but the court agrees with the sides on the special circumstances: his young age, his evident medical problems and the level of punishments apparently set in this case. Under the circumstances of this matter I decided to respect the plea bargain and I sentence the defendant to the following:
7 months in prison to be served from the day of arrest
6 months suspended prison sentence for three years
A NIS 4000 fine or four months prison in exchange.
A.S., 16 at the time of the offence, resident Abu Dis, (file 4701/10) was arrested on October 27, 2010.
A selection from this case trial protocol is included in Appendix C to the report.
In this case the defence lawyer challenged the veracity of the witnesses' statements given to the police and conducted a trial about the way the witnesses were interrogated. A.S. was charged with 12 counts including:
participation in a procession without a license (a demonstration in the village of Abu Dis), throwing stones at a moving military jeep, throwing paint bottles at a military jeep, throwing Molotov Cocktails at military vehicles, all with the intent to cause death or damage to the military vehicles or the soldiers therein.
The witnesses for the prosecution were two boys the defendant's age who were on trial for the very same offences, Y.A. and M.A. Their testimony in court completely contradicted the testimony collected from them by the police in which they incriminated the defendant of the offences. As a result they were declared hostile witnesses.
The policemen's testimonies indicate no dispute that the minors were interrogated in the middle of the night, including by interrogators who were not juvenile interrogators. In some cases there was audiovisual documentation of the interrogation, with which the defence lawyer could demonstrate that the boy was not given notice of his right to remain silent, even though the interrogators testified that they did give him warning.
In the second case the documentation of the interrogation was lost. The confession was written in the Hebrew language, which they did not understand, and the boys were asked to sign it.
They were told they had the right to consult a lawyer but, considering the hour when the interrogation took place, that right could not and was not realized.
The interrogation took place without the presence of a family member. The interrogators admit that the interrogation was conducted differently than it would have been conducted in Israel, and that the boy was in distress. The boys themselves described their distress and fear, their helplessness, and describe beatings even before the interrogation and threats during the interrogation.
At the end of the hearing, the military prosecutor asked to summon two other police interrogators to testify. The defence lawyer announced that if the prosecution did not bring the juvenile officer to testify he would consider summoning him as a defence witness. Ultimately no additional police officers were summoned to testify.
These testimonies did lead to a substantial reduction in the number of charges in the plea bargain, but did not lead to any comment by the court as to appropriate norms of interrogation. The prosecution and the defence reached a plea bargain in which the defendant admitted to an amended indictment in which, instead of the 12 charges, only two remained:
1. Throwing objects at a moving vehicle, in violation of Section 212(3) of the Security Provisions Order
2. Throwing an incendiary object, in violation of Regulation 58b of the Defence Regulations
Among the arguments for a plea bargain presented by the military prosecution were "evidential difficulties that arose in the course of the trial, concerning the defendant's interrogation, relevant not only to the defendant but also to his accomplices. The difficulties led to the amendment of the indictment."
The defence lawyer wished to stress that the difficulties that arose during the testimonies concerned the credibility of the interrogators and their functioning during the interrogations, and that these were matters of great concern.
In her sentence, the judge repeated the prosecution's arguments for the plea bargain but ignored the serious matters arising from the testimonies concerning the minors' interrogation. The defendant was sentenced (on March 7, 2011, more than four months after his arrest) to:
14 months imprisonment to be served actively from the day of his arrest
10 month suspended imprisonment on condition that for four years after his release he would not commit the offence of which he was convicted or any other offence risking human life.
A NIS 2000 fine or two months prison in exchange.
The manner in which Palestinian minors are interrogated also emerges from the following case, which is not one of the 71 cases fully checked, but parts of which we nonetheless chose to present, because it is the only case in which there was an actual trial within a trial as to admissibility of confessions given to the police.
We stress that the interrogation as conducted in this case was exceptional only in the opinion of the minor's lawyers. As far as the police were concerned the interrogation was completely routine, and was even characterized by a good, positive and warm atmosphere.
A.S., 14 at the time of the offence, from the village of Nebi Salah (file 1367/11), was accused of throwing stones and participating in demonstrations in the village.
A selection from this case trial protocol is included in Appendix D to the report.
Because of the flaws in his interrogation, at first it was decided to release A.S. from detention, but since no suitable guarantor was found he remained in detention (see details in section about detention and release).
In his interrogation he admitted the charges against him but his lawyers challenged the admissibility of his confession, on the grounds that it was not "free and voluntary" as the law requires, but given under pressure and in violation of his rights. Later in the trial, the policemen involved in his interrogation were questioned.
In this case too the boy was arrested in the middle of the night and the interrogators testified that is a normal and common practice.
Interrogation without the presence of parents is also the norm.
In this case too the boy was not warned that he may remain silent, and that fact emerged only from the audiovisual documentation. The police testified that they warned the boy, and only the recording proved otherwise.
On the contrary, the boy was told that he had to speak in the interrogation.
The boy was interrogated by a number of interrogators simultaneously, some of whom were not juvenile interrogators. His interrogation began in the morning after many hours without sleep and the interrogators admitted that the boy was very tired during the interrogation but they did not see fit to stop it.
They also confirmed that he cried during the interrogation but they gave the crying an explanation that was allegedly unrelated to the pressure of the interrogation. They claimed that the interrogation took place in a good and supportive atmosphere.
Meanwhile, the boy's lawyer described him as exhausted and upset, after he burst out crying as soon as he met him. Since the interrogation began in the morning, the boy's lawyer tried to meet him before the interrogation or at its start, but that meeting was intentionally thwarted, when the interrogators issued an order prohibiting the boy to meet a lawyer, after the lawyer had already arrived at the interrogation facility.
To conclude this subject, the vast majority of cases were based on confessions and statements of boys, given to the police during interrogation.
In none on the 71 cases examined, was a trial within a trial conducted as to the admissibility of confessions, although serious allegations came up as to night arrests and interrogations, as well as beating, threats, and violation of the suspects' rights to silence and to meet counsel.
The police interrogators think there was nothing wrong with the two interrogations described here (See more on Appendix C, D).
Indeed that is the picture that emerges from the families' descriptions of arrests of children in the middle of the night and their complaints of beatings and threats (see Appendix B of the report), from decisions made during the stages of arrest as to "evidential problems concerning violation of the defendant's rights," as described in the section about detention and release, and from arguments made to justify plea bargains. We can therefore assume that many interrogations are conducted in a similar manner.
6. Appointment of defence lawyers and the parents' role
One of the innovations of amendment no. 109 is the authorizing of the court to appoint a defence attorney for a minor. In most cases the court did not use that power because the minors come to court already represented. The Palestinian community has a number of organizations that provide legal representation free of charge to all defendants in military courts, and therefore most of the defendants are represented by lawyers from those organizations.
In two cases the defendants were not represented in court and said they did not have defence lawyers. In both cases the judge appointed lawyers who were present in the courtroom and volunteered to represent the minors.
In one additional case the same defence attorney represented four minors who gave incriminating testimonies against each other, and the judge demanded that their representation be separate to prevent a conflict of interests.
The judge did not appoint other defence lawyers but rather the representing lawyer said he would take care of it. It can be assumed that in that case the organization where the lawyer works took care of appointing other lawyers.
The impression created by the fact that the defence lawyers appointed by the court were lawyers who happened to be in court at the time of the hearing is that there is no established mechanism for appointing defence lawyers, but it is done rather arbitrarily. It is not clear whether the defence lawyers appointed by the court were going to be paid by the court or the state, as they should be when court appointed, or whether they were going to represent their clients as part of their work for the organization that employs them.
Parents participated in the proceedings in only a few cases. The arrangement that allows parental participation is new, and since the normal instructions in the courtroom are that parents are not allowed to talk to their children in court, it might create the impression that they are not allowed to speak at all.
The court does not inform the parents of their right to participate in the proceedings and therefore parents do not know they have such a right. This may also be attributed to the fact that all of the minors are represented by lawyers.
In only one case did the parents refuse to accept the plea bargain offered to their son by the defence attorney and asked to replace the lawyer. We observed no cases of the court preventing parents from interfering, and in all cases the court accepted the parents' participation willingly. In order to realize parental participation in the procedure, the court ought to inform them, in one way or another, of their right to participate.
7. Welfare Officer Reports
The possibility of receiving a report from a staff officer, who is a welfare professional supposed to give the court a social and therapeutic assessment of the child and make therapeutic recommendations, was one of the main innovations of the amendment by which the military juvenile court was established.
Nonetheless it is used infrequently. In only three of the 71 cases checked were reports submitted to the court by the welfare staff officers. In one case the defence asked for a welfare report but the prosecution objected because the minor was over 16 at the time of the request, even though at the time of the offence he was under 16.
F.A., 15 years old, born 1994 (file 4706/10) was arrested on September 28, 2010 and charged with throwing Molotov Cocktails was arrested about a month before he turned 16.
The prosecutor informed the court that the parties reached a plea bargain in which the indictment would be amended so that the defendant would be charged with complicity in throwing Molotov Cocktails, the defendant would plead guilty and the sides would argue for punishment at the following hearing.
The defendant was convicted on his admission of complicity in throwing an incendiary object, The punishment set forth in the Defence (Emergency) Regulations for these offences is death penalty or life imprisonment, or a lesser punishment to be determined by the court.[41]
Defence lawyer: "I request to send the defendant for a welfare report before the arguments for punishment. The defendant is a minor and the court must be allowed to receive the full picture of his personal circumstances."
Military prosecutor: "He is not a minor. The defendant has passed the age of 16 and therefore the court is not authorized to send him. However, considering his age at the time of the offence I will ask for a two-day stay to consult my supervisor before we give our position."
At the rescheduled hearing the prosecution reiterated its objection:
Military prosecutor: "I repeat the prosecution's position submitted in writing that this case is not suitable for a welfare report."
Defence lawyer: "I ask the court to exercise its power under section 136 and 148( a) according to which it is allowed to send the defendant to receive a welfare report and to order submission of a report."
The court's decision: "Pursuant to my decision in file 4704/10 in the matter of M.A. and for the same reasons I order a welfare staff officer's report to be submitted in the matter of the defendant."
In the matter of M.A. (file 4704/10) cited by the judge in her decision (but not part of our review files) the military prosecution objected to giving a welfare report even though the minor in that case was 15 years old, because of the severity of the charges against him which he admitted: throwing Molotov Cocktails on five occasions.
The judge ordered the report to be submitted despite the prosecution's objection, noting that in Israel a welfare report is given for every minor put on trial.
The arguments for punishment in F.A.'s case were heard on March 28, 2011, six months after the minor was arrested:
Military prosecutor: "The defendant was convicted after admitting he was an accomplice in throwing Molotov Cocktails at military vehicles, on three occasions from mid-August 2010 until the day of his arrest…
I would like to note at this point that despite the argument that could be raised by the defence as to the defendant's young age at the time of committing the offences, it should be noted on this matter that the defendant was very close to 16, which is the age of minority according to the order.
The level of punishment for this kind of offence ranges from 22 months to 24… in file 3838/08 this level of punishment was established.
It should also be noted that even though the defendant was convicted of complicity in throwing the fire bottles, the prosecution opines that no leniency towards the defendant should be deduced from it because we all know that the punishment of an accomplice should be identical to the other accomplices in the offence out of the principle of uniformity of punishment… considering the aforesaid I would ask to sentence the defendant to a deterrent and appropriate prison term, a suspended prison term and a monetary fine."
Defence lawyer: "The defendant was not even 16 at the time of the offence. The Youth Law may not apply to this area but it is an established ruling that the court should act in the spirit of the Youth Law.
Furthermore, in section 10a of the new Youth Law the court is required to examine the minor's circumstances and the influence of the detention on the minor, both emotionally and physically. The same section says that detention is the last resort. According to the Israeli Youth Law the defendant is a minor and not close to the age of majority.
The defendant in question has no criminal record at all, and has been in detention since September 28, 2010. A welfare report of him has been submitted detailing his personal circumstances and noting that the time of his detention with an appropriate monetary fine could suffice, and that he belongs to a normative family that is willing to supervise him and return him to his routine.
The defendant in question did not plan the offences but it is a case of complicity that can be explained by the defendant… in conclusion I ask the court to be considerate of the defendant's circumstances, to be considerate of the circumstances of the offence. He was not accused of throwing but of complicity."
The defendant's last statement: "I beg forgiveness, I made a mistake and I will not repeat it. I go to school, I was arrested in the ninth grade. We don't study in jail. I am at Offer Prison."
The defendant's uncle: "I tell you he is a child and he made a mistake. We will take responsibility for him and return him to school and send him to a boarding school."
The sentence has been scheduled for a subsequent hearing and we were not able to collect it before the completion of the report.
One of the reports was given in the matter of the only girl included in the files that were checked. H.T., 15 years old at the time of her arrest (file 4953/10), was arrested on charges of possessing a knife, after arriving at an IDF checkpoint with a knife in her possession.
A year and a half earlier, when she was only 14, she was arrested for the first time on suspicion of the very same offence. The background for both actions was family problems and her wish to run away from home.
The first time she was sentenced to one year suspended imprisonment, but the court noted that it was illegal because at the age of 14 only half a year of prison sentence may be ruled.
The welfare staff officer who met the girl twice recommended her being moved to a shelter for girls at risk and, with the defendant's agreement, it was decided she would be. She was sentenced to 60 days imprisonment that overlapped her served detention time, so that she would be released on the day of her sentence, and ten months suspended imprisonment for five years.
In file of M.M. from Beit Ummar, 15 at the time of arrest, (file 4571/10) a welfare report was submitted after the defendant entered a guilty plea in the first hearing without a plea bargain (see details in section about plea-bargain). The welfare officer recommended releasing the boy to his home and the judge sentenced him to a prison term overlapping with the dates of his detention so that he was released following the sentence.
It is regrettable that welfare reports are only used so rarely and in such extreme cases, even though the court is aware and noted in one of its rulings that in Israel a welfare report is received for every minor who stands trial.
8. Convictions and plea bargains
Of the 71 cases observed, there was not a single acquittal. All cases ended in convictions. 100% of defendants plead guilty in court and were convicted accordingly. Four defendants, who initially plead innocent, retracted and plead guilty after a plea bargain was concluded.
The vast majority of files ended in plea bargains: 69 of the 70 trials that were concluded. In 100% of the cases the judge respected the plea bargains and did not interfere with them. In most cases no testimonies were heard at all. In only two cases out of the 71 were plea bargains reached after some of the witnesses had testified. No testimonies at all were heard in any of the other cases.
In all of the plea bargains the same reasons were repeated: "The defendant's clean record, his guilty plea, the saving of judicial time, his young age".
Sometimes there was emphasis on saving judicial time thanks to confession of guilt in an early stage of the interrogation. In some cases additional mitigating circumstances were noted, such as the large distance from the target at which the stones were thrown and the fact that no actual damage was done.
In every legal procedure that ended with a plea bargain the juvenile judge noted that: "the court clarified to the parties that it is not bound by the plea bargain reached between them." But that statement did not prevent sentencing to an active prison sentence in even one single case we observed, even in cases when the judge harshly criticized the system's treatment of Palestinian minors in general and the absence of alternatives to prison sentences.
Despite the court's criticism. its indecision whether to accept the plea bargain or not focused on the question of whether to hand down a longer prison sentence, since the agreed upon prison term was relatively short compared to the accepted standard of punishment. Imposing active prison sentences in each and every case was not the subject of any real doubt.
N., 15 at the time of the offence, resident of Hebron (file 4103/10) was arrested on October 4, 2010
N. 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.
According to the charge, the stone hit the right side of the windshield of the car traveling on the road. Despite the decision to release him he remained in detention for 15 days until the hearing in which his sentence was given by plea bargain, because his family could not raise the money for bail.
The military prosecution's reasons for the plea bargain were his clean record, his (ultimate) plead of guilt, saving the court's precious time and his young age. In addition, "it is an exceptional case in which we cannot rule out the defendant's claim that the car's driver provoked him, as well as the fact that only a single stone was thrown." The boy himself was not consistent in admitting the charge but the court ignored that.
After the main points of the indictment were read out, the defendant said:
"The court read to me what I am accused of in the indictment. I understood. I do not plead guilty, I did not throw a stone, I was made to sign something I did not understand."
The court explained to the defendant that there is also a recording of his interrogation.
The defendant retracted and said: "After the court and my lawyer explained to me again the plea bargain and the charges against me, it is true and I did throw one stone." In his last words before sentencing the defendant said: "I only threw gravel."
In this case, the boy's father intervened in the preceding and said: "What you are convicting him of is too much for a minor. He is civilized, well-bred and has no intention to harm. If he was sitting with his friend and the Jewish lady that was there cursed them and his friend who was with him stood up for him and enticed him to throw a little piece of gravel, it was unplanned, there was no intention to throw anything at a soldier or at any other Jew. And I also want to say that we live in a place that is surrounded by Jews, we have had problems with them and they beat up our children and I go to them and file complaints and I noticed that nobody does anything about it and nobody gets punished. Innocence becomes guilt and vice versa."
The judge sentenced the defendant to the following:
The 15 days served in detention would be considered active prison time.
Six-months suspended imprisonment on condition that for three years he would not commit the offence of which he was convicted or any other offence aimed at bodily harm.
A NIS 2000 fine or alternatively two months in prison.
A.H., 13 at the time of the offence, from Beit Ur-A-Tahta (file 3994/10) was arrested on 18.9.10, sentenced on November 3, 2010:
"It is clear that the level of punishment that the sides are pursuing is very far from the appropriate and accepted level of punishment concerning such serious and dangerous offences as those of which the defendant was convicted (throwing stones and Molotov Cocktails at the road).
It is also clear that when it comes to a boy as young as the defendant (15), the considerations of deterrence and appropriateness give way to considerations of rehabilitation, because it is clear that the public interest will benefit by the boy rehabilitating his life and returning to normative life with his family.
It should also be noted that the legislator limited the punishment that can be imposed on boys under the age of 14 and this should be taken into consideration especially concerning boys who committed the offences on the border of criminal responsibility."
The judge decided to respect the plea bargain and sentence the defendant to the following:
45 days prison to be served actively from the day of his arrest.
4 months prison suspended on condition that for three years from his release the defendant would not commit the offence of which he was convicted or any other offence aimed at bodily harm.
A NIS 1500 fine or alternatively a month and a half in prison.
M.A., 15 years old at the time of the offence, from Beit-Omar (file 4571/10) was sentenced on December 5, 2010, without a plea bargain:
"Much has been written about the offence of stone throwing. There is no doubt that it is a serious offence that poses a threat to life and property.
Nor is there any dispute that this offence is usually committed by young people.… in the last years the courts have put a greater emphasis on the aspects of rehabilitation and personal circumstances when it comes to minors, on the assumption that a minor's return to the bosom of his family and the supervision of his family serve the public interest sometimes better than long imprisonment in the company of criminals.
This case concerns a minor aged 15, who immediately after committing the crime was punished severely by his father.
When he was interrogated a few days later he immediately admitted his actions, expressed his regret and at the first arraignment session immediately plead guilty to the indictment as is without being promised a particular punishment.
All of those circumstances should be taken into consideration. It should be noted that the defendant admitted to throwing one stone, albeit on two different occasions. But the circumstances of the incident did not suggest a special severity such as hitting vehicles or a person or their proximity.
"Under these circumstances, I rule that an emphasis can be put on the considerations of rehabilitation, an emphasis can be put on a severe suspended punishment and a significant fine, and the defendant should be allowed to put the events for which he paid the price behind him, and to return to his studies and normative life in the bosom of his family."
The judge sentenced the defendant to:
61 days in prison to be served actively from the day of his arrest
12 months suspended prison term on condition that for four years from the day of his release the defendant did not commit the offence of which he was convicted.
A NIS 3000 monetary fine or three months prison in exchange.
As mentioned, 100% of cases end with convictions. 98% of cases were concluded with a plea bargain without any testimonies being heard.
The court respected all plea bargains and sentenced the defendants to the previously agreed sentence. Since most of the legal hearings end with plea bargains, which are respected by the court, and they all end with active prison sentences, this raises the question of what the role of the juvenile military court is in determining the fate of the boys who were arrested and prosecuted.
Dropping charges in plea bargains
In half of the trials we observed, the defendants were convicted at the end of the procedure of the same charges that appeared in the indictment. In those cases the number of charges was usually two or three and most concerned repeated offences of throwing objects at moving vehicles or at a person or property.
In the other half, substantial amendments were made to the writ of indictment to achieve a plea bargain and the number of charges was reduced.
Of the 35 files in question, proof hearings were held and witnesses testified only in two. In the other files no testimonies were given that could have changed the prosecution's impression from the written testimonies. In other words, agreement to drop charges was reached on the basis of the same material that was available to the prosecution when it submitted the indictment.
M.A., 16 at the time of the offence, from Abu Dis (file 2450/10) was arrested on May 6, 2010
Nine charges were specified in the indictment against him: throwing stones, manufacture of an incendiary object, teaching others to manufacture incendiary objects, throwing Molotov Cocktails on many occasions at military vehicles and at a military camp with the intent of causing death or damage to a person or damage to property, serving as a lookout when his friends threw Molotov Cocktails.
The detailed indictment relied on four incriminating witnesses for the prosecution from among the defendant's friends.
On December 13, 2010, (eight months after his arrest) and after the court read him the indictment, the defendant said: "I understand the amended indictment and deny it."
On February 28, 2011 the military prosecutor presented a plea bargain in court, in which an amended indictment was submitted with only one charge: three offences of throwing an incendiary object.
The judge allowed the prosecution to submit an amended indictment and the defendant to retract his denial, and the sides argued for the punishment.
Here too the arguments for the plea bargain were the defendant's clean record, his plea of guilty, saving judicial time and the defendant's being a minor under the age of 16 at the time of the offence.
On the basis of the guilty plea, the judge convicted the defendant of the three counts of throwing an incendiary object, for serving as a lookout when his friends threw Molotov Cocktails.
The judge sentenced the defendant to the following:
24 months imprisonment to be served actively from the day of his arrest.
12 months suspended imprisonment on condition that for four years after his release he would not commit the offence of which he was convicted or other offences concerning throwing objects or weapons offences.
A NIS 2000 fine or two months prison in exchange.
A. 15 at the time of the offence, resident of Umm al-Sharayet (file 2847/10) was arrested on June 10, 2010
A. was charged with 12 charges: membership and activity in an unlawful association; throwing objects at a person or property on a large number of occasions; manufacture of an explosive object (two Molotov Cocktails); throwing an incendiary object at a military tank and 15 military jeeps; manufacturing a bomb - purchasing raw materials to manufacture bombs and, with the members of the cell, manufacturing eight bombs; attempting to throw an incendiary object -- coming with his friends to the separation fence with four Molotov Cocktails they planned to throw at IDF soldiers and start a fire; throwing an incendiary object -- four Molotov Cocktails and stones on additional occasions at IDF forces with the intention of causing death or damage to a person or property; manufacture of an explosive object - Molotov Cocktails; throwing incendiary object - throwing same Molotov Cocktails at a military watchtower; manufacturing an explosive object - three Molotov Cocktails; throwing an incendiary object - throwing the three Molotov Cocktails; conspiracy to trade in military equipment - a plan to buy an improvised rifle that did not materialize.
The witnesses for the prosecution, were the interrogator who collected and translated the defendant's statement, and other five members of the cell of which he was an alleged member.
A. denied all the charges.
During the trial, the prosecution wanted to add a witness detailing a number of additional occasions in which the defendant committed crimes. On November 17, 2010, after five delays of the judicial hearing and eight months in detention, without any testimony being heard, the military prosecution and the defence reached a plea bargain.
The indictment was amended, the defendant retracted his not guilty plea and admitted five charges:
1. Membership and activity in an unauthorized association.
2. Throwing objects at a person or property.
3. Three counts of throwing an incendiary object.
The arguments for the plea bargain according to the military prosecutor were (from the court record): "The arguments for the bargain are the defendant's clean record, his plea of guilty and the saving of judicial time.
Likewise, the defendant already admitted the charges in his interrogation and combined with his confession it constitutes an assumption of responsibility and that is a central consideration. The defendant committed the offences when he was 15. He joined the cell when he was 14. It was also taken into account that the fire bottles were thrown at a watchtower and this reduces their danger…"
The judge sentenced him to the following:
20 months imprisonment to be served actively from the day of his arrest
12 months suspended imprisonment for four years
A NIS 2000 fine or two months prison in exchange
Y.F., 17 at the time, from Beit Ummar (file 1352/11) was charged with three counts of stone throwing.
A plea bargain was presented in which two charges were dropped so that one charge of throwing two stones remained, and the sides agreed on a punishment of 45 days in prison and a NIS 1500 fine or one and a half months in prison in exchange.
After the defendant's mother claimed she could not pay the fine, the judge intervened and pressured the prosecutor to reduce the fine.
In response the prosecutor said: "Considering the defendant's mother's statement, I am willing to be lenient towards the defendant and amend the indictment again so that he is charged with one count of stone throwing on January 19, 2011. I am willing to reduce the fine to NIS 1000."
The change of the indictment and dropping of one offence in order to reduce the fine creates the impression that there is a fixed rate that requires prosecutors to impose a fine according to the number of incidents. The ease of dropping the charge further suggests that the prosecution's position is not objective and is not based on the evidence in the case but on ulterior motives.
Such a substantial reduction in charges in such a large number of files, with no change in the evidential material, raises a serious question as to the military prosecution's discretion when it submits indictments.
If there is not sufficient evidence for all of the charges, then they should not have been included in the indictment in the first place.
The dropping of charges is a key achievement a defendant can gain as part of plea bargaining, and the common practice of a significant reduction in indictments raises the possibility that the charges are included in the indictment in advance only as bargaining chips for anticipated plea bargains.
However, one must keep in mind the relatively light and minor nature of the charges, and the fact that most of the files end in plea bargains without hearing witnesses, as will be detailed below. Yet, more than a month before serving an indictment and more than six months until delivering a verdict concerning boys is a very long and exceptional time, and occurred in four of the cases that were checked.
5. Reliance on confessions and incrimination
In the vast majority of cases, the indictments submitted were based on the defendants' confessions of guilt during the interrogation stage immediately after arrest and before meeting a lawyer. The indictments were also based on incrimination by other boys who were arrested and interrogated just like their accused friends. In 65 of the 70 files, the testimonies of other witnesses, usually boys, served as evidence of guilt.
The fact that in so many cases defendants admitted guilt even before the legal procedure began indicates the minor importance of this procedure compared to the interrogation, where the suspect's fate is determined in most cases.
Even though the observations did not include the period of detention and interrogation, the testimonies heard in the few cases in which admissibility of the defendants' admissions or weight of the witnesses' testimonies were challenged, provide us with a glimpse into what goes on in the interrogation rooms and into how testimonies and confessions are collected from witnesses and defendants.
Confessions given in police interrogations outside court are considered particularly problematic evidence.[37] According to the rules of evidence in Israel, which are valid in the military courts as well, the confession of a defendant given to the police is not admissible as evidence if not given freely and willingly.[38]
Furthermore, violation of a defendant's rights in the interrogation stage can also lead to disqualification of a confession so extracted as inadmissible.[39] The testimony of a witness not given of their free will, or given under duress or involved denial of rights, may be rejected by the court or may receive only minor weight.[40]
If the defendant claims his confession was not given of his free will, and should be deemed inadmissible, he must conduct a "trial within a trial" in which the prosecution has to present the testimonies of the interrogators in order to persuade the court that the confession was given out of free will.
The impression that emerged from observing the hearings is that in a great many cases the boys' rights in the interrogation were not respected.
However, only in a few cases did the question of admissibility of confessions come up, at the initiative of the defendants' lawyers, and a "trial within a trial" ensued. As we shall see henceforth, plea bargains are the preferred practice. In many cases even though the defendants do not conduct trial within a trial, their claims of pressure exerted on them during the interrogation and violation of their rights come up as arguments for release from detention or to the punishment, in order to explain the plea bargain.
In other words, these arguments come up in court not as part of a trial within a trial. Of the 71 cases checked, there was not a single trial within a trial. In one case the defence lawyer argued against admissibility of the confessions, but before the trial within a trial began the sides reached a plea bargain.
M., 16 at the time of the offence, resident of Nahalin (file 1189/11) was arrested on January 9, 2011.
He was charged with two counts of stone throwing: at a moving bus, with the intention of hitting it or a person traveling in it, and at settlers traveling on the road near his home with the intention of hitting them. In one case the stone hit the car's wheel. His partner was arrested and incriminated him in his testimony.
In the court hearing on February 14, 2011 M. denied the charges. His lawyer asked to conduct a trial within a trial, claiming that the defendant's admission had been extracted from him after he was beaten by his interrogators. M. was interrogated twice on the day of his arrest,
January 9, 2011: at 06:44 by the interrogator E. A., at which time he did not admit guilt,
and at 14:00 by the interrogator E. Z., at which time he did admit guilt.
The lawyer claimed that, before extracting the confession, M. was beaten by E. Z., who put him in the bathroom, handcuffed him and beat him hard all over his body, with the policeman's foot placed between the defendant's cuffed hands.
M. told the court that he understood the charges against him and denied them, and in response to the court's question he confirmed his lawyer's statement.
On March 7, 2011 the military prosecutor announced that the sides had reached a plea bargain and M. was convicted on the basis of his confession of two counts of throwing stones at a moving vehicle, and sentenced to five months in prison.
M.A., 15 at the time of the offence (file 3906/10) refused in the beginning to plead guilty to throwing Molotov Cocktails, and even claimed "I don't know fire bottles and don't know what that is." He even changed the lawyer who represented him, with his father's help, because he did not want to accept the plea bargain offered by the first lawyer.
After seven months of detention and a number of delays in obtaining documents about his medical condition, the sides presented a plea bargain in which the defendant ultimately admitted guilt to an amended indictment. The claims against his interrogation came up as part of the arguments for the punishment:
"The defendant in his last statement:
When I was arrested I was hit in the testicles, thrown on the floor, beaten on my head and had headaches. They did not let me do anything at the military base and sprayed water on me until my right eye began to hurt.
They took me to the bathroom and started to photograph me with a cell phone in the bathroom and started to laugh at me. Your Honor, when I was arrested, when they brought me to Offer, I asked them to release me from my handcuffs because my eye hurt and they did not listen to me and pushed me." (To the court's question), "it was at Beit Horon." (To another question by the court), "it was the IDF, not the Border Police. I went to the doctor and he didn't do anything, he just looked at me." (To the court's question), "the doctor was from Offer and he was a warden."
The sentence: "The defendant was convicted on his plea of guilt of throwing Molotov Cocktails on two different occasions at Israeli vehicles on Highway 443. The sides presented me with a plea bargain and argued for it on the grounds of the defendant's clean record, his plea of guilty and saving of the court's time. It should also be noted that the defendant is a minor, born in 1994, and the offences were committed in July 2009 and September 2010.
"The defendant added arguments relating to his medical condition and the beating he allegedly got during his arrest. The defendant's description was detailed and merits further inquiry. The offences the defendant committed are serious and normally he ought to be given a heavier sentence, but the court agrees with the sides on the special circumstances: his young age, his evident medical problems and the level of punishments apparently set in this case. Under the circumstances of this matter I decided to respect the plea bargain and I sentence the defendant to the following:
7 months in prison to be served from the day of arrest
6 months suspended prison sentence for three years
A NIS 4000 fine or four months prison in exchange.
A.S., 16 at the time of the offence, resident Abu Dis, (file 4701/10) was arrested on October 27, 2010.
A selection from this case trial protocol is included in Appendix C to the report.
In this case the defence lawyer challenged the veracity of the witnesses' statements given to the police and conducted a trial about the way the witnesses were interrogated. A.S. was charged with 12 counts including:
participation in a procession without a license (a demonstration in the village of Abu Dis), throwing stones at a moving military jeep, throwing paint bottles at a military jeep, throwing Molotov Cocktails at military vehicles, all with the intent to cause death or damage to the military vehicles or the soldiers therein.
The witnesses for the prosecution were two boys the defendant's age who were on trial for the very same offences, Y.A. and M.A. Their testimony in court completely contradicted the testimony collected from them by the police in which they incriminated the defendant of the offences. As a result they were declared hostile witnesses.
The policemen's testimonies indicate no dispute that the minors were interrogated in the middle of the night, including by interrogators who were not juvenile interrogators. In some cases there was audiovisual documentation of the interrogation, with which the defence lawyer could demonstrate that the boy was not given notice of his right to remain silent, even though the interrogators testified that they did give him warning.
In the second case the documentation of the interrogation was lost. The confession was written in the Hebrew language, which they did not understand, and the boys were asked to sign it.
They were told they had the right to consult a lawyer but, considering the hour when the interrogation took place, that right could not and was not realized.
The interrogation took place without the presence of a family member. The interrogators admit that the interrogation was conducted differently than it would have been conducted in Israel, and that the boy was in distress. The boys themselves described their distress and fear, their helplessness, and describe beatings even before the interrogation and threats during the interrogation.
At the end of the hearing, the military prosecutor asked to summon two other police interrogators to testify. The defence lawyer announced that if the prosecution did not bring the juvenile officer to testify he would consider summoning him as a defence witness. Ultimately no additional police officers were summoned to testify.
These testimonies did lead to a substantial reduction in the number of charges in the plea bargain, but did not lead to any comment by the court as to appropriate norms of interrogation. The prosecution and the defence reached a plea bargain in which the defendant admitted to an amended indictment in which, instead of the 12 charges, only two remained:
1. Throwing objects at a moving vehicle, in violation of Section 212(3) of the Security Provisions Order
2. Throwing an incendiary object, in violation of Regulation 58b of the Defence Regulations
Among the arguments for a plea bargain presented by the military prosecution were "evidential difficulties that arose in the course of the trial, concerning the defendant's interrogation, relevant not only to the defendant but also to his accomplices. The difficulties led to the amendment of the indictment."
The defence lawyer wished to stress that the difficulties that arose during the testimonies concerned the credibility of the interrogators and their functioning during the interrogations, and that these were matters of great concern.
In her sentence, the judge repeated the prosecution's arguments for the plea bargain but ignored the serious matters arising from the testimonies concerning the minors' interrogation. The defendant was sentenced (on March 7, 2011, more than four months after his arrest) to:
14 months imprisonment to be served actively from the day of his arrest
10 month suspended imprisonment on condition that for four years after his release he would not commit the offence of which he was convicted or any other offence risking human life.
A NIS 2000 fine or two months prison in exchange.
The manner in which Palestinian minors are interrogated also emerges from the following case, which is not one of the 71 cases fully checked, but parts of which we nonetheless chose to present, because it is the only case in which there was an actual trial within a trial as to admissibility of confessions given to the police.
We stress that the interrogation as conducted in this case was exceptional only in the opinion of the minor's lawyers. As far as the police were concerned the interrogation was completely routine, and was even characterized by a good, positive and warm atmosphere.
A.S., 14 at the time of the offence, from the village of Nebi Salah (file 1367/11), was accused of throwing stones and participating in demonstrations in the village.
A selection from this case trial protocol is included in Appendix D to the report.
Because of the flaws in his interrogation, at first it was decided to release A.S. from detention, but since no suitable guarantor was found he remained in detention (see details in section about detention and release).
In his interrogation he admitted the charges against him but his lawyers challenged the admissibility of his confession, on the grounds that it was not "free and voluntary" as the law requires, but given under pressure and in violation of his rights. Later in the trial, the policemen involved in his interrogation were questioned.
In this case too the boy was arrested in the middle of the night and the interrogators testified that is a normal and common practice.
Interrogation without the presence of parents is also the norm.
In this case too the boy was not warned that he may remain silent, and that fact emerged only from the audiovisual documentation. The police testified that they warned the boy, and only the recording proved otherwise.
On the contrary, the boy was told that he had to speak in the interrogation.
The boy was interrogated by a number of interrogators simultaneously, some of whom were not juvenile interrogators. His interrogation began in the morning after many hours without sleep and the interrogators admitted that the boy was very tired during the interrogation but they did not see fit to stop it.
They also confirmed that he cried during the interrogation but they gave the crying an explanation that was allegedly unrelated to the pressure of the interrogation. They claimed that the interrogation took place in a good and supportive atmosphere.
Meanwhile, the boy's lawyer described him as exhausted and upset, after he burst out crying as soon as he met him. Since the interrogation began in the morning, the boy's lawyer tried to meet him before the interrogation or at its start, but that meeting was intentionally thwarted, when the interrogators issued an order prohibiting the boy to meet a lawyer, after the lawyer had already arrived at the interrogation facility.
To conclude this subject, the vast majority of cases were based on confessions and statements of boys, given to the police during interrogation.
In none on the 71 cases examined, was a trial within a trial conducted as to the admissibility of confessions, although serious allegations came up as to night arrests and interrogations, as well as beating, threats, and violation of the suspects' rights to silence and to meet counsel.
The police interrogators think there was nothing wrong with the two interrogations described here (See more on Appendix C, D).
Indeed that is the picture that emerges from the families' descriptions of arrests of children in the middle of the night and their complaints of beatings and threats (see Appendix B of the report), from decisions made during the stages of arrest as to "evidential problems concerning violation of the defendant's rights," as described in the section about detention and release, and from arguments made to justify plea bargains. We can therefore assume that many interrogations are conducted in a similar manner.
6. Appointment of defence lawyers and the parents' role
One of the innovations of amendment no. 109 is the authorizing of the court to appoint a defence attorney for a minor. In most cases the court did not use that power because the minors come to court already represented. The Palestinian community has a number of organizations that provide legal representation free of charge to all defendants in military courts, and therefore most of the defendants are represented by lawyers from those organizations.
In two cases the defendants were not represented in court and said they did not have defence lawyers. In both cases the judge appointed lawyers who were present in the courtroom and volunteered to represent the minors.
In one additional case the same defence attorney represented four minors who gave incriminating testimonies against each other, and the judge demanded that their representation be separate to prevent a conflict of interests.
The judge did not appoint other defence lawyers but rather the representing lawyer said he would take care of it. It can be assumed that in that case the organization where the lawyer works took care of appointing other lawyers.
The impression created by the fact that the defence lawyers appointed by the court were lawyers who happened to be in court at the time of the hearing is that there is no established mechanism for appointing defence lawyers, but it is done rather arbitrarily. It is not clear whether the defence lawyers appointed by the court were going to be paid by the court or the state, as they should be when court appointed, or whether they were going to represent their clients as part of their work for the organization that employs them.
Parents participated in the proceedings in only a few cases. The arrangement that allows parental participation is new, and since the normal instructions in the courtroom are that parents are not allowed to talk to their children in court, it might create the impression that they are not allowed to speak at all.
The court does not inform the parents of their right to participate in the proceedings and therefore parents do not know they have such a right. This may also be attributed to the fact that all of the minors are represented by lawyers.
In only one case did the parents refuse to accept the plea bargain offered to their son by the defence attorney and asked to replace the lawyer. We observed no cases of the court preventing parents from interfering, and in all cases the court accepted the parents' participation willingly. In order to realize parental participation in the procedure, the court ought to inform them, in one way or another, of their right to participate.
7. Welfare Officer Reports
The possibility of receiving a report from a staff officer, who is a welfare professional supposed to give the court a social and therapeutic assessment of the child and make therapeutic recommendations, was one of the main innovations of the amendment by which the military juvenile court was established.
Nonetheless it is used infrequently. In only three of the 71 cases checked were reports submitted to the court by the welfare staff officers. In one case the defence asked for a welfare report but the prosecution objected because the minor was over 16 at the time of the request, even though at the time of the offence he was under 16.
F.A., 15 years old, born 1994 (file 4706/10) was arrested on September 28, 2010 and charged with throwing Molotov Cocktails was arrested about a month before he turned 16.
The prosecutor informed the court that the parties reached a plea bargain in which the indictment would be amended so that the defendant would be charged with complicity in throwing Molotov Cocktails, the defendant would plead guilty and the sides would argue for punishment at the following hearing.
The defendant was convicted on his admission of complicity in throwing an incendiary object, The punishment set forth in the Defence (Emergency) Regulations for these offences is death penalty or life imprisonment, or a lesser punishment to be determined by the court.[41]
Defence lawyer: "I request to send the defendant for a welfare report before the arguments for punishment. The defendant is a minor and the court must be allowed to receive the full picture of his personal circumstances."
Military prosecutor: "He is not a minor. The defendant has passed the age of 16 and therefore the court is not authorized to send him. However, considering his age at the time of the offence I will ask for a two-day stay to consult my supervisor before we give our position."
At the rescheduled hearing the prosecution reiterated its objection:
Military prosecutor: "I repeat the prosecution's position submitted in writing that this case is not suitable for a welfare report."
Defence lawyer: "I ask the court to exercise its power under section 136 and 148( a) according to which it is allowed to send the defendant to receive a welfare report and to order submission of a report."
The court's decision: "Pursuant to my decision in file 4704/10 in the matter of M.A. and for the same reasons I order a welfare staff officer's report to be submitted in the matter of the defendant."
In the matter of M.A. (file 4704/10) cited by the judge in her decision (but not part of our review files) the military prosecution objected to giving a welfare report even though the minor in that case was 15 years old, because of the severity of the charges against him which he admitted: throwing Molotov Cocktails on five occasions.
The judge ordered the report to be submitted despite the prosecution's objection, noting that in Israel a welfare report is given for every minor put on trial.
The arguments for punishment in F.A.'s case were heard on March 28, 2011, six months after the minor was arrested:
Military prosecutor: "The defendant was convicted after admitting he was an accomplice in throwing Molotov Cocktails at military vehicles, on three occasions from mid-August 2010 until the day of his arrest…
I would like to note at this point that despite the argument that could be raised by the defence as to the defendant's young age at the time of committing the offences, it should be noted on this matter that the defendant was very close to 16, which is the age of minority according to the order.
The level of punishment for this kind of offence ranges from 22 months to 24… in file 3838/08 this level of punishment was established.
It should also be noted that even though the defendant was convicted of complicity in throwing the fire bottles, the prosecution opines that no leniency towards the defendant should be deduced from it because we all know that the punishment of an accomplice should be identical to the other accomplices in the offence out of the principle of uniformity of punishment… considering the aforesaid I would ask to sentence the defendant to a deterrent and appropriate prison term, a suspended prison term and a monetary fine."
Defence lawyer: "The defendant was not even 16 at the time of the offence. The Youth Law may not apply to this area but it is an established ruling that the court should act in the spirit of the Youth Law.
Furthermore, in section 10a of the new Youth Law the court is required to examine the minor's circumstances and the influence of the detention on the minor, both emotionally and physically. The same section says that detention is the last resort. According to the Israeli Youth Law the defendant is a minor and not close to the age of majority.
The defendant in question has no criminal record at all, and has been in detention since September 28, 2010. A welfare report of him has been submitted detailing his personal circumstances and noting that the time of his detention with an appropriate monetary fine could suffice, and that he belongs to a normative family that is willing to supervise him and return him to his routine.
The defendant in question did not plan the offences but it is a case of complicity that can be explained by the defendant… in conclusion I ask the court to be considerate of the defendant's circumstances, to be considerate of the circumstances of the offence. He was not accused of throwing but of complicity."
The defendant's last statement: "I beg forgiveness, I made a mistake and I will not repeat it. I go to school, I was arrested in the ninth grade. We don't study in jail. I am at Offer Prison."
The defendant's uncle: "I tell you he is a child and he made a mistake. We will take responsibility for him and return him to school and send him to a boarding school."
The sentence has been scheduled for a subsequent hearing and we were not able to collect it before the completion of the report.
One of the reports was given in the matter of the only girl included in the files that were checked. H.T., 15 years old at the time of her arrest (file 4953/10), was arrested on charges of possessing a knife, after arriving at an IDF checkpoint with a knife in her possession.
A year and a half earlier, when she was only 14, she was arrested for the first time on suspicion of the very same offence. The background for both actions was family problems and her wish to run away from home.
The first time she was sentenced to one year suspended imprisonment, but the court noted that it was illegal because at the age of 14 only half a year of prison sentence may be ruled.
The welfare staff officer who met the girl twice recommended her being moved to a shelter for girls at risk and, with the defendant's agreement, it was decided she would be. She was sentenced to 60 days imprisonment that overlapped her served detention time, so that she would be released on the day of her sentence, and ten months suspended imprisonment for five years.
In file of M.M. from Beit Ummar, 15 at the time of arrest, (file 4571/10) a welfare report was submitted after the defendant entered a guilty plea in the first hearing without a plea bargain (see details in section about plea-bargain). The welfare officer recommended releasing the boy to his home and the judge sentenced him to a prison term overlapping with the dates of his detention so that he was released following the sentence.
It is regrettable that welfare reports are only used so rarely and in such extreme cases, even though the court is aware and noted in one of its rulings that in Israel a welfare report is received for every minor who stands trial.
8. Convictions and plea bargains
Of the 71 cases observed, there was not a single acquittal. All cases ended in convictions. 100% of defendants plead guilty in court and were convicted accordingly. Four defendants, who initially plead innocent, retracted and plead guilty after a plea bargain was concluded.
The vast majority of files ended in plea bargains: 69 of the 70 trials that were concluded. In 100% of the cases the judge respected the plea bargains and did not interfere with them. In most cases no testimonies were heard at all. In only two cases out of the 71 were plea bargains reached after some of the witnesses had testified. No testimonies at all were heard in any of the other cases.
In all of the plea bargains the same reasons were repeated: "The defendant's clean record, his guilty plea, the saving of judicial time, his young age".
Sometimes there was emphasis on saving judicial time thanks to confession of guilt in an early stage of the interrogation. In some cases additional mitigating circumstances were noted, such as the large distance from the target at which the stones were thrown and the fact that no actual damage was done.
In every legal procedure that ended with a plea bargain the juvenile judge noted that: "the court clarified to the parties that it is not bound by the plea bargain reached between them." But that statement did not prevent sentencing to an active prison sentence in even one single case we observed, even in cases when the judge harshly criticized the system's treatment of Palestinian minors in general and the absence of alternatives to prison sentences.
Despite the court's criticism. its indecision whether to accept the plea bargain or not focused on the question of whether to hand down a longer prison sentence, since the agreed upon prison term was relatively short compared to the accepted standard of punishment. Imposing active prison sentences in each and every case was not the subject of any real doubt.
N., 15 at the time of the offence, resident of Hebron (file 4103/10) was arrested on October 4, 2010
N. 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.
According to the charge, the stone hit the right side of the windshield of the car traveling on the road. Despite the decision to release him he remained in detention for 15 days until the hearing in which his sentence was given by plea bargain, because his family could not raise the money for bail.
The military prosecution's reasons for the plea bargain were his clean record, his (ultimate) plead of guilt, saving the court's precious time and his young age. In addition, "it is an exceptional case in which we cannot rule out the defendant's claim that the car's driver provoked him, as well as the fact that only a single stone was thrown." The boy himself was not consistent in admitting the charge but the court ignored that.
After the main points of the indictment were read out, the defendant said:
"The court read to me what I am accused of in the indictment. I understood. I do not plead guilty, I did not throw a stone, I was made to sign something I did not understand."
The court explained to the defendant that there is also a recording of his interrogation.
The defendant retracted and said: "After the court and my lawyer explained to me again the plea bargain and the charges against me, it is true and I did throw one stone." In his last words before sentencing the defendant said: "I only threw gravel."
In this case, the boy's father intervened in the preceding and said: "What you are convicting him of is too much for a minor. He is civilized, well-bred and has no intention to harm. If he was sitting with his friend and the Jewish lady that was there cursed them and his friend who was with him stood up for him and enticed him to throw a little piece of gravel, it was unplanned, there was no intention to throw anything at a soldier or at any other Jew. And I also want to say that we live in a place that is surrounded by Jews, we have had problems with them and they beat up our children and I go to them and file complaints and I noticed that nobody does anything about it and nobody gets punished. Innocence becomes guilt and vice versa."
The judge sentenced the defendant to the following:
The 15 days served in detention would be considered active prison time.
Six-months suspended imprisonment on condition that for three years he would not commit the offence of which he was convicted or any other offence aimed at bodily harm.
A NIS 2000 fine or alternatively two months in prison.
A.H., 13 at the time of the offence, from Beit Ur-A-Tahta (file 3994/10) was arrested on 18.9.10, sentenced on November 3, 2010:
"It is clear that the level of punishment that the sides are pursuing is very far from the appropriate and accepted level of punishment concerning such serious and dangerous offences as those of which the defendant was convicted (throwing stones and Molotov Cocktails at the road).
It is also clear that when it comes to a boy as young as the defendant (15), the considerations of deterrence and appropriateness give way to considerations of rehabilitation, because it is clear that the public interest will benefit by the boy rehabilitating his life and returning to normative life with his family.
It should also be noted that the legislator limited the punishment that can be imposed on boys under the age of 14 and this should be taken into consideration especially concerning boys who committed the offences on the border of criminal responsibility."
The judge decided to respect the plea bargain and sentence the defendant to the following:
45 days prison to be served actively from the day of his arrest.
4 months prison suspended on condition that for three years from his release the defendant would not commit the offence of which he was convicted or any other offence aimed at bodily harm.
A NIS 1500 fine or alternatively a month and a half in prison.
M.A., 15 years old at the time of the offence, from Beit-Omar (file 4571/10) was sentenced on December 5, 2010, without a plea bargain:
"Much has been written about the offence of stone throwing. There is no doubt that it is a serious offence that poses a threat to life and property.
Nor is there any dispute that this offence is usually committed by young people.… in the last years the courts have put a greater emphasis on the aspects of rehabilitation and personal circumstances when it comes to minors, on the assumption that a minor's return to the bosom of his family and the supervision of his family serve the public interest sometimes better than long imprisonment in the company of criminals.
This case concerns a minor aged 15, who immediately after committing the crime was punished severely by his father.
When he was interrogated a few days later he immediately admitted his actions, expressed his regret and at the first arraignment session immediately plead guilty to the indictment as is without being promised a particular punishment.
All of those circumstances should be taken into consideration. It should be noted that the defendant admitted to throwing one stone, albeit on two different occasions. But the circumstances of the incident did not suggest a special severity such as hitting vehicles or a person or their proximity.
"Under these circumstances, I rule that an emphasis can be put on the considerations of rehabilitation, an emphasis can be put on a severe suspended punishment and a significant fine, and the defendant should be allowed to put the events for which he paid the price behind him, and to return to his studies and normative life in the bosom of his family."
The judge sentenced the defendant to:
61 days in prison to be served actively from the day of his arrest
12 months suspended prison term on condition that for four years from the day of his release the defendant did not commit the offence of which he was convicted.
A NIS 3000 monetary fine or three months prison in exchange.
As mentioned, 100% of cases end with convictions. 98% of cases were concluded with a plea bargain without any testimonies being heard.
The court respected all plea bargains and sentenced the defendants to the previously agreed sentence. Since most of the legal hearings end with plea bargains, which are respected by the court, and they all end with active prison sentences, this raises the question of what the role of the juvenile military court is in determining the fate of the boys who were arrested and prosecuted.
Dropping charges in plea bargains
In half of the trials we observed, the defendants were convicted at the end of the procedure of the same charges that appeared in the indictment. In those cases the number of charges was usually two or three and most concerned repeated offences of throwing objects at moving vehicles or at a person or property.
In the other half, substantial amendments were made to the writ of indictment to achieve a plea bargain and the number of charges was reduced.
Of the 35 files in question, proof hearings were held and witnesses testified only in two. In the other files no testimonies were given that could have changed the prosecution's impression from the written testimonies. In other words, agreement to drop charges was reached on the basis of the same material that was available to the prosecution when it submitted the indictment.
M.A., 16 at the time of the offence, from Abu Dis (file 2450/10) was arrested on May 6, 2010
Nine charges were specified in the indictment against him: throwing stones, manufacture of an incendiary object, teaching others to manufacture incendiary objects, throwing Molotov Cocktails on many occasions at military vehicles and at a military camp with the intent of causing death or damage to a person or damage to property, serving as a lookout when his friends threw Molotov Cocktails.
The detailed indictment relied on four incriminating witnesses for the prosecution from among the defendant's friends.
On December 13, 2010, (eight months after his arrest) and after the court read him the indictment, the defendant said: "I understand the amended indictment and deny it."
On February 28, 2011 the military prosecutor presented a plea bargain in court, in which an amended indictment was submitted with only one charge: three offences of throwing an incendiary object.
The judge allowed the prosecution to submit an amended indictment and the defendant to retract his denial, and the sides argued for the punishment.
Here too the arguments for the plea bargain were the defendant's clean record, his plea of guilty, saving judicial time and the defendant's being a minor under the age of 16 at the time of the offence.
On the basis of the guilty plea, the judge convicted the defendant of the three counts of throwing an incendiary object, for serving as a lookout when his friends threw Molotov Cocktails.
The judge sentenced the defendant to the following:
24 months imprisonment to be served actively from the day of his arrest.
12 months suspended imprisonment on condition that for four years after his release he would not commit the offence of which he was convicted or other offences concerning throwing objects or weapons offences.
A NIS 2000 fine or two months prison in exchange.
A. 15 at the time of the offence, resident of Umm al-Sharayet (file 2847/10) was arrested on June 10, 2010
A. was charged with 12 charges: membership and activity in an unlawful association; throwing objects at a person or property on a large number of occasions; manufacture of an explosive object (two Molotov Cocktails); throwing an incendiary object at a military tank and 15 military jeeps; manufacturing a bomb - purchasing raw materials to manufacture bombs and, with the members of the cell, manufacturing eight bombs; attempting to throw an incendiary object -- coming with his friends to the separation fence with four Molotov Cocktails they planned to throw at IDF soldiers and start a fire; throwing an incendiary object -- four Molotov Cocktails and stones on additional occasions at IDF forces with the intention of causing death or damage to a person or property; manufacture of an explosive object - Molotov Cocktails; throwing incendiary object - throwing same Molotov Cocktails at a military watchtower; manufacturing an explosive object - three Molotov Cocktails; throwing an incendiary object - throwing the three Molotov Cocktails; conspiracy to trade in military equipment - a plan to buy an improvised rifle that did not materialize.
The witnesses for the prosecution, were the interrogator who collected and translated the defendant's statement, and other five members of the cell of which he was an alleged member.
A. denied all the charges.
During the trial, the prosecution wanted to add a witness detailing a number of additional occasions in which the defendant committed crimes. On November 17, 2010, after five delays of the judicial hearing and eight months in detention, without any testimony being heard, the military prosecution and the defence reached a plea bargain.
The indictment was amended, the defendant retracted his not guilty plea and admitted five charges:
1. Membership and activity in an unauthorized association.
2. Throwing objects at a person or property.
3. Three counts of throwing an incendiary object.
The arguments for the plea bargain according to the military prosecutor were (from the court record): "The arguments for the bargain are the defendant's clean record, his plea of guilty and the saving of judicial time.
Likewise, the defendant already admitted the charges in his interrogation and combined with his confession it constitutes an assumption of responsibility and that is a central consideration. The defendant committed the offences when he was 15. He joined the cell when he was 14. It was also taken into account that the fire bottles were thrown at a watchtower and this reduces their danger…"
The judge sentenced him to the following:
20 months imprisonment to be served actively from the day of his arrest
12 months suspended imprisonment for four years
A NIS 2000 fine or two months prison in exchange
Y.F., 17 at the time, from Beit Ummar (file 1352/11) was charged with three counts of stone throwing.
A plea bargain was presented in which two charges were dropped so that one charge of throwing two stones remained, and the sides agreed on a punishment of 45 days in prison and a NIS 1500 fine or one and a half months in prison in exchange.
After the defendant's mother claimed she could not pay the fine, the judge intervened and pressured the prosecutor to reduce the fine.
In response the prosecutor said: "Considering the defendant's mother's statement, I am willing to be lenient towards the defendant and amend the indictment again so that he is charged with one count of stone throwing on January 19, 2011. I am willing to reduce the fine to NIS 1000."
The change of the indictment and dropping of one offence in order to reduce the fine creates the impression that there is a fixed rate that requires prosecutors to impose a fine according to the number of incidents. The ease of dropping the charge further suggests that the prosecution's position is not objective and is not based on the evidence in the case but on ulterior motives.
Such a substantial reduction in charges in such a large number of files, with no change in the evidential material, raises a serious question as to the military prosecution's discretion when it submits indictments.
If there is not sufficient evidence for all of the charges, then they should not have been included in the indictment in the first place.
The dropping of charges is a key achievement a defendant can gain as part of plea bargaining, and the common practice of a significant reduction in indictments raises the possibility that the charges are included in the indictment in advance only as bargaining chips for anticipated plea bargains.
