9. Sentences
a. Imprisonment terms
In 70 of the 71 cases in which a sentence was handed down, the defendants were sentenced to active imprisonment terms. In all cases a suspended prison terms was imposed, and fines were imposed in all but four cases.
The only case in which no prison term was imposed was of a defendant who was released on bail very soon after his arrest.
In all cases in which defendants were released on bail during their trials (see details in section about release from detention) the sentence ultimately given overlapped the days served. In these cases, at least, the detention dictated the punishment.
In all other cases the defendants were still in detention when sentenced.
Despite the judge criticizing the absence of alternatives to imprisonment, the court never refrained from imposing an active prison term when the defendant was in detention.
The court's statement about imposing imprisonment - from the sentence in file 3905/10 on the matter of M. A., 14 years old:
"The sides argued for the plea bargain on the grounds of the defendant's clean record, his plea of guilty and the saving of judicial time.
I was also told that his confession during police interrogation was taken into account, his very young age, 14 at the time of the offence, and the distance from which the offences were committed (of stone throwing) - a large distance from the road.
"The defence lawyer added that he does not wholeheartedly support the plea bargain because he feels it doubtful that the public interest supports keeping young children in jail for a long time: they should be handled in different ways than by serving active prison time. I have frequently faced the difficulty of sentencing children who committed serious and life-threatening crimes.
There is no doubt that the suggested punishment is much lower than the customary level of punishment for crimes such as this. On the other hand, there is also no doubt that the considerations in punishing minors, especially when it comes to very young ages, are different.
The Supreme Court has recently ruled that when punishing minors the following factors should be taken into consideration: the lesser responsibility that should be attributed to a minor whose personality is not yet fully formed, the damage caused to the minor by actual imprisonment, damage that is ultimately against the public interest, and on the other hand the severity of the crime.
"The situation in the Region is even worse than in Israel in such cases, because the juvenile court does not have any rehabilitation instruments such as: ordered stays in locked facilities, parole officers and so on.
The military courts have often opined that every effort should be made, subject to the special circumstances in the Region, to equalize as much as possible the situation concerning minors in the Region with the situation in Israel. It is clear that creating rehabilitation instruments in the Region is not easy, especially when the crimes in question are often committed for ideological reasons and supported by the community surrounding the minor.
In any case, I believe that the legislator in the Region cannot avoid addressing this issue and finding creative ways to allow minors to be treated outside of the framework of actual prison.
"Furthermore, the Supreme Court has often expressed its discontent over the fact that security offenders in general and minors in particular do not receive rehabilitation treatment during incarceration, and I can only add my humble voice to call for change in that situation."
Despite her criticism, the judge decided to respect the plea bargain and sentenced the defendant to:
8 months imprisonment to be served actively from the day of his arrest
12 months suspended imprisonment on condition that for four years from the day of his release the defendant does not commit the offence of which he was convicted
A NIS 2000 fine or two months prison in exchange.
Actual imprisonment is therefore the default sentence and is imposed as a first rather than last resort. Despite the judge's criticism over the lack of alternatives to imprisonment, and her statements that it goes against the public interest and the child's best interest, not even in a single case where the defendant was detained, did she refrain from such punishment.
She paid lip service to the need to change the legislation and establish alternatives to prison and left it at that. But no rule requires the court to impose prison terms, and in many cases it ought to be satisfied with suspended prison terms or fines, which put the emphasis on future deterrence.
Again, it seems that the detention dictates the punishment which is imposed so that the detention can be retroactively justified as prison term to which the defendant was sentenced. The abundance of detention in fact violates the presumption of innocence and frequently it dictates conviction and imprisonment.
"Detention is not an advance payment on the punishment", so it has been ruled in Israel, though in the military juvenile court it appears to be just that.
b. Fines
In 68 of the 71 cases observed, a fine was imposed in addition to the active and suspended prison terms. In one case where no fine was imposed (file 1947/10), the boy's father argued in court that he was the only breadwinner for a family of 14.
In another case (file for 4103/10), a 15-year-old defendant worked to support his family of eight, and to help his elder sister go to university because his father could not work. The boy was sentenced for a single case of stone throwing to four months in prison. The judge ruled that the family's economic situation was very bad and therefore she did not impose a fine.
In the third case, a girl was arrested at Hebron Checkpoint while in possession of a knife (file 4953/10). She had been charged with a similar offence a year and a half earlier, and had been sentenced to suspended imprisonment.
The incidents derived from the girl's desire to run away from home. She was sentenced to 60 days imprisonment, which she already served, one year suspended imprisonment, and no fine was imposed. and sent to a rehabilitation institute (see also under chapter 7, Welfare Officer Reports).
In all the other cases fines ranging from NIS 500 to NIS 6000 were imposed. A fine was imposed even for a boy who was not released from detention and stayed detained for 10 days (until sentenced and freed) because his family could not afford bail money.
When a fine is imposed, additional days of prison are also sentenced to be served if the fine is not paid, even though payment of the fine is not dependent on the children at all but on their parents' financial ability. In several cases observers of the organization heard children comforting their parents, still in the courtroom, that they would serve the extra time if the parents did not have money for the fine.
We have no way to know whether the boys did indeed serve extra detention time, but they may have. The court has decided so.
Y.F., 17 at the time of the offence, resident of Beit Ummar (file 1352/11) was charged with three counts of stone throwing.
A plea bargain was presented in which some charges were dropped and a punishment of 45 days imprisonment and a NIS 1500 fine, or a month and a half of jail in exchange, was agreed.
The defendant's mother said in court: "As for the fine, I cannot pay the fine because my husband is sick." The judge intervened and persuaded the prosecutor to reduce the fine, and in response the prosecutor amended the indictment again so that he is charged with a single incident of stone throwing and reduce the fine to NIS 1000.
Even in this case a NIS 1000 fine was ultimately imposed.
There was no visible correlation between economic damage caused by the offence and the fine. After all, in most offences no damage was done. It is not at all clear why, if active prison time is always imposed, there is justification for a fine in addition and what the justification is to impose alternative number of prison days in exchange for the fine in every case.
10. Proportionality between the offence and the punishment
M., 16 at the time of the offence, from Nahalin (file 1189/11) was arrested on January 9, 2011.
M. was charged with two counts of stone throwing. His lawyers stated he would conduct a trial within a trial since his client was beaten during interrogation (see more in the chapter about confessions). The sides had reached a plea bargain and M. was convicted on the basis of his plea of guilty of two counts of throwing stones at a moving vehicle.
The arguments for the plea bargain included the defendant's clean record, his plea of guilty and the saving of judicial time as well as his young age.
In his last statement the defendant said he would not repeat his mistake and would devote all of his time to school.
In her sentence the judge stressed the severity of the offences of which the defendant was convicted and that "hopefully the trial and the punishment will induce the defendant to go back to school and avoid repeating similar offences. Even though the punishment is light relative to the risk that was created and the severity of the act I decided to honor the agreement."
The judge sentenced him to the following:
Five months imprisonment be served actively
Six months suspended imprisonment for three years
A NIS 1000 fine or one month imprisonment in exchange.
Therefore, the 16-year-old defendant, who claimed to have been beaten by the police, was sentenced to five months for two cases of stone throwing.
A., 17 at the time of the offence, from Khirbet Musbah (file 2958/10) was arrested on June 17, 2010.
A. was charged with five counts of stone throwing at military vehicles with the intention of hitting them and/or passengers in them or causing damage to a person or property; throwing stones at a gas station and hitting a car standing in it; throwing stones at Israeli vehicles traveling on Highway 443 with the intent of hitting them/and or the passengers in them or causing damage to property; manufacturing Molotov Cocktails and throwing them at Highway 443 with the intent of causing death or damage to a person or damage to property.
On November 1, 2010, five months after his arrest, the sides reached a plea bargain in which the defendant pled guilty to an amended indictment and was convicted of two charges:
1. Throwing objects at a person or property.
2. Attempt to throw an incendiary object.
The prosecution argued for the plea bargain on the grounds of the defendant's clean record, his guilty plea and the saving of judicial time. "The defendant began the fire bottle incident as a lookout but left the site before it was thrown and there is no indication that the fire bottles were in fact thrown.
Ultimately, we took into account the defendant's minor role in the incident. Furthermore, the location of the stone throwing was relatively far and therefore the effectiveness of the stone throwing was correspondingly low."
Despite the relatively minor nature and few charges of which he was ultimately convicted, the judge sentenced the defendant to the following:
12 months prison to be served actively from the day of his arrest
10 months suspended imprisonment for four years
A NIS 5000 fine or five months prison in exchange.
So, the defendant in this case, 17 years old, was sentenced to an entire year in prison and a NIS 5000 fine because of two incidents. In one, stones were thrown at the road from a far distance, and in the other the defendant served as a lookout for an event that was supposed to happen after he left the site.
S., 15 at the time of the offence, from Hebron, (file 4016/10), arrested on September 27, 2010.
S. was charged with throwing a stone at an IDF soldier on the day he was arrested, along with many others who also threw stones at IDF soldiers.
His arrest was based on his identification by an incriminating witness. The prosecution and defence reached a plea bargain without hearing evidence, and S. pled guilty. The prosecutor noted in her arguments that there is an evidential difficulty surrounding the defendant's identification by the witness.
The judge respected the plea bargain and sentenced the defendant to:
45 days imprisonment to be served from the day of his arrest
6 months suspended imprisonment for four years
A NIS 2000 fine or two months prison in exchange.
The 15-year-old defendant was therefore sentenced to a month and a half in prison and a NIS 2000 fine for throwing a single stone, even though problems with the evidence in this case would have made it difficult to prove even that charge.
K., 16 at the time of the offence, from Abu Dis (file 4574/09) was arrested on October 7, 2009.
He was charged with two counts:
1. Throwing a fire bottle at security forces on three different occasions.
2. Throwing stones at a person or property with the intent of hitting the person or property in one case during a demonstration.
In a plea bargain the indictment was amended and he admitted to throwing an incendiary object (a Molotov Cocktail) and throwing one stone. The sentence was given on December 6, 2010, 10 months after his arrest.
The punishment given by the judge:
18 months imprisonment to be served from the day of his arrest.
12 months suspended imprisonment for four years
A NIS 3000 fine or three months imprisonment in exchange.
The prosecutor noted in her arguments that his accomplices were convicted and received similar punishments (one witness whose actions were lesser was given 16 months in prison. A witness whose actions were graver was given 20 months in prison). Since he served as a lookout, the punishment he received was between the other two.
The 16-year-old defendant was sentenced for throwing a Molotov cocktail and a stone to a year and a half in prison. He would be released after he turns seventeen and a half.
The punishment is heavy in absolute terms. In addition, Other defendants in similar circumstances were given much shorter prison terms. In all cases the punishment is not proportional because of the double use of imprisonment, fines and additional imprisonment in exchange for the fine.
Conclusions
We shall summarize the findings presented in this report in the light of two main questions we posed at its outset:
1. To what extent are the rights of minors protected in the military juvenile court?
2. To what extent does the military juvenile court contribute to promoting the best interest of minors standing trial?
The functioning of the court and the military prosecution were found to be satisfactory only in regard to a small number of the subjects examined: the separation of the trials of minors up to 16 years of age from trials of adults; the prosecution of children over the age of 16 in the military juvenile court in some cases and the prompt serving of indictments. We also found that all the minors were represented in court by lawyers.
However, we found that the military juvenile justice system does not meet most accepted standards for a juvenile justice system in essential and important respects. Furthermore, there are essential differences between the provisions of the Youth Law in Israel and the provisions of the Security Provisions Order that applies to the Occupied Territories.
These differences are reflected in the interrogation and prosecution of minors, as follows:
a. The age of majority under military legislation is 16 instead of 18.
b. The detention of minors is not under the jurisdiction of a juvenile court and the legal provisions that apply to their detention are the same that apply to adults.
c. The detention of minors is not used as a last resort and for the shortest time possible. On the contrary, it is the rule rather than the exception, and refraining from it is very rare.
d. The widespread use of detention undermines the presumption of innocence and in many cases dictates conviction and punishment by imprisonment.
e. The main evidence is confessions given by the minors during their police interrogations, very often conducted in the middle of the night, violating their rights to avoid self-incrimination and to consult a lawyer.
Minors sometimes claim that other pressures are exerted on them as well. Despite all these defects, the military prosecution bases the indictments on the confessions obtained by police interrogation and the court bases convictions on them without conducting an in-depth examination of the admissibility of the confessions.
f. This common practice also violates the minors' rights as part of the legal process not to be forced to plead guilty. Furthermore, some of the minors are pressured to plead guilty and agree to plea bargains.
g. The child's best interest is not the main consideration in the legal process and in fact receives little attention. This can be learned from the small number of cases in which a welfare staff officer's report is submitted and in which the parents' position is heard at the trial.
h. The criminal procedure does not promote the minors' rehabilitation and integration in society and no alternatives to the legal procedures or educational or therapeutic programs are offered.
i. The imprisonment of minors is not pursued as a last resort but is the rule. Punishments are severe and disproportionate because in nearly all cases they include active imprisonment plus a suspended prison term and a fine, with days of imprisonment in exchange.
In conclusion, we can state that the establishment of the military juvenile court merely led to a marginal change in the legal process against minors. The Youth Law passed in Israel does not apply to the territories and this is reflected in all stages, from arrest through interrogation all the way to the conclusion of the legal process.
The interrogation and detention, which are the critical stages that actually determine outcome of the entire legal process, are executed with no differential treatment of minors.
The establishment of the juvenile court had no effect on them at all. The role of the court begins only after those stages, and its impact on the legal process is actually almost negligible.
In light of the interrogators' success in obtaining confessions at the preliminary stages, the trials are actually decided by plea bargains following negotiations between the prosecution and the defence, while the court plays almost no role. Nor does the juvenile court use the discretion vested in it, in relation to the plea bargains.
In every legal procedure that ended with a plea bargain, the juvenile judge at the military court in the Ofer Camp, Lt.-Col. Sharon Rivlin-Achai, states: "The court clarifies to the sides that it is not bound by the plea bargain reached between them." But in none of the cases we observed did that statement prevent the court from respecting the plea bargain and imposing punishments that are severe and unacceptable for minors, consisting of imprisonment, suspended prison sentences and fines in nearly every single case.
These severe punishments were imposed even in cases when the judge voiced harsh criticism of the system's treatment of Palestinian minors in general, and sending them to prison in particular, and despite her statement that imprisonment causes grave harm to the minors themselves and ultimately to the public interest.
Thus, in the military juvenile court neither evidence nor the court's own discretion carry much weight. The departure point in plea bargains is the presumption of guilt, and all that remains to be decided is the appropriate punishment.
The observations in the military juvenile court present a harsh and complex picture. Young boys ages 13-18 are sent wholesale, after summary trials - concluded without hearing witnesses in most cases - to serve long months in prison for acts whose severity does not necessarily justify that.
On the other hand – the punishment is agreed upon. The boys plead guilty, represented by a lawyer giving them legal aid, and accept the punishment agreed between the prosecution and the defence. The court hardly intervenes in the process at all.
We must not forget for a minute that the system in question is a military justice system that is not judging its own citizens and by definition is based on inequality between the military prosecution on the one hand and the boys and their lawyers on the other hand.
Detention is the rule and the way out of it necessarily involves accepting a plea bargain. Under these circumstances, the minors standing trial are being pressed to accept plea bargains and sometimes even admit to acts they did not commit, because the plea bargain is their best chance of getting out of jail as soon as possible.
a. Imprisonment terms
In 70 of the 71 cases in which a sentence was handed down, the defendants were sentenced to active imprisonment terms. In all cases a suspended prison terms was imposed, and fines were imposed in all but four cases.
The only case in which no prison term was imposed was of a defendant who was released on bail very soon after his arrest.
In all cases in which defendants were released on bail during their trials (see details in section about release from detention) the sentence ultimately given overlapped the days served. In these cases, at least, the detention dictated the punishment.
In all other cases the defendants were still in detention when sentenced.
Despite the judge criticizing the absence of alternatives to imprisonment, the court never refrained from imposing an active prison term when the defendant was in detention.
The court's statement about imposing imprisonment - from the sentence in file 3905/10 on the matter of M. A., 14 years old:
"The sides argued for the plea bargain on the grounds of the defendant's clean record, his plea of guilty and the saving of judicial time.
I was also told that his confession during police interrogation was taken into account, his very young age, 14 at the time of the offence, and the distance from which the offences were committed (of stone throwing) - a large distance from the road.
"The defence lawyer added that he does not wholeheartedly support the plea bargain because he feels it doubtful that the public interest supports keeping young children in jail for a long time: they should be handled in different ways than by serving active prison time. I have frequently faced the difficulty of sentencing children who committed serious and life-threatening crimes.
There is no doubt that the suggested punishment is much lower than the customary level of punishment for crimes such as this. On the other hand, there is also no doubt that the considerations in punishing minors, especially when it comes to very young ages, are different.
The Supreme Court has recently ruled that when punishing minors the following factors should be taken into consideration: the lesser responsibility that should be attributed to a minor whose personality is not yet fully formed, the damage caused to the minor by actual imprisonment, damage that is ultimately against the public interest, and on the other hand the severity of the crime.
"The situation in the Region is even worse than in Israel in such cases, because the juvenile court does not have any rehabilitation instruments such as: ordered stays in locked facilities, parole officers and so on.
The military courts have often opined that every effort should be made, subject to the special circumstances in the Region, to equalize as much as possible the situation concerning minors in the Region with the situation in Israel. It is clear that creating rehabilitation instruments in the Region is not easy, especially when the crimes in question are often committed for ideological reasons and supported by the community surrounding the minor.
In any case, I believe that the legislator in the Region cannot avoid addressing this issue and finding creative ways to allow minors to be treated outside of the framework of actual prison.
"Furthermore, the Supreme Court has often expressed its discontent over the fact that security offenders in general and minors in particular do not receive rehabilitation treatment during incarceration, and I can only add my humble voice to call for change in that situation."
Despite her criticism, the judge decided to respect the plea bargain and sentenced the defendant to:
8 months imprisonment to be served actively from the day of his arrest
12 months suspended imprisonment on condition that for four years from the day of his release the defendant does not commit the offence of which he was convicted
A NIS 2000 fine or two months prison in exchange.
Actual imprisonment is therefore the default sentence and is imposed as a first rather than last resort. Despite the judge's criticism over the lack of alternatives to imprisonment, and her statements that it goes against the public interest and the child's best interest, not even in a single case where the defendant was detained, did she refrain from such punishment.
She paid lip service to the need to change the legislation and establish alternatives to prison and left it at that. But no rule requires the court to impose prison terms, and in many cases it ought to be satisfied with suspended prison terms or fines, which put the emphasis on future deterrence.
Again, it seems that the detention dictates the punishment which is imposed so that the detention can be retroactively justified as prison term to which the defendant was sentenced. The abundance of detention in fact violates the presumption of innocence and frequently it dictates conviction and imprisonment.
"Detention is not an advance payment on the punishment", so it has been ruled in Israel, though in the military juvenile court it appears to be just that.
b. Fines
In 68 of the 71 cases observed, a fine was imposed in addition to the active and suspended prison terms. In one case where no fine was imposed (file 1947/10), the boy's father argued in court that he was the only breadwinner for a family of 14.
In another case (file for 4103/10), a 15-year-old defendant worked to support his family of eight, and to help his elder sister go to university because his father could not work. The boy was sentenced for a single case of stone throwing to four months in prison. The judge ruled that the family's economic situation was very bad and therefore she did not impose a fine.
In the third case, a girl was arrested at Hebron Checkpoint while in possession of a knife (file 4953/10). She had been charged with a similar offence a year and a half earlier, and had been sentenced to suspended imprisonment.
The incidents derived from the girl's desire to run away from home. She was sentenced to 60 days imprisonment, which she already served, one year suspended imprisonment, and no fine was imposed. and sent to a rehabilitation institute (see also under chapter 7, Welfare Officer Reports).
In all the other cases fines ranging from NIS 500 to NIS 6000 were imposed. A fine was imposed even for a boy who was not released from detention and stayed detained for 10 days (until sentenced and freed) because his family could not afford bail money.
When a fine is imposed, additional days of prison are also sentenced to be served if the fine is not paid, even though payment of the fine is not dependent on the children at all but on their parents' financial ability. In several cases observers of the organization heard children comforting their parents, still in the courtroom, that they would serve the extra time if the parents did not have money for the fine.
We have no way to know whether the boys did indeed serve extra detention time, but they may have. The court has decided so.
Y.F., 17 at the time of the offence, resident of Beit Ummar (file 1352/11) was charged with three counts of stone throwing.
A plea bargain was presented in which some charges were dropped and a punishment of 45 days imprisonment and a NIS 1500 fine, or a month and a half of jail in exchange, was agreed.
The defendant's mother said in court: "As for the fine, I cannot pay the fine because my husband is sick." The judge intervened and persuaded the prosecutor to reduce the fine, and in response the prosecutor amended the indictment again so that he is charged with a single incident of stone throwing and reduce the fine to NIS 1000.
Even in this case a NIS 1000 fine was ultimately imposed.
There was no visible correlation between economic damage caused by the offence and the fine. After all, in most offences no damage was done. It is not at all clear why, if active prison time is always imposed, there is justification for a fine in addition and what the justification is to impose alternative number of prison days in exchange for the fine in every case.
10. Proportionality between the offence and the punishment
M., 16 at the time of the offence, from Nahalin (file 1189/11) was arrested on January 9, 2011.
M. was charged with two counts of stone throwing. His lawyers stated he would conduct a trial within a trial since his client was beaten during interrogation (see more in the chapter about confessions). The sides had reached a plea bargain and M. was convicted on the basis of his plea of guilty of two counts of throwing stones at a moving vehicle.
The arguments for the plea bargain included the defendant's clean record, his plea of guilty and the saving of judicial time as well as his young age.
In his last statement the defendant said he would not repeat his mistake and would devote all of his time to school.
In her sentence the judge stressed the severity of the offences of which the defendant was convicted and that "hopefully the trial and the punishment will induce the defendant to go back to school and avoid repeating similar offences. Even though the punishment is light relative to the risk that was created and the severity of the act I decided to honor the agreement."
The judge sentenced him to the following:
Five months imprisonment be served actively
Six months suspended imprisonment for three years
A NIS 1000 fine or one month imprisonment in exchange.
Therefore, the 16-year-old defendant, who claimed to have been beaten by the police, was sentenced to five months for two cases of stone throwing.
A., 17 at the time of the offence, from Khirbet Musbah (file 2958/10) was arrested on June 17, 2010.
A. was charged with five counts of stone throwing at military vehicles with the intention of hitting them and/or passengers in them or causing damage to a person or property; throwing stones at a gas station and hitting a car standing in it; throwing stones at Israeli vehicles traveling on Highway 443 with the intent of hitting them/and or the passengers in them or causing damage to property; manufacturing Molotov Cocktails and throwing them at Highway 443 with the intent of causing death or damage to a person or damage to property.
On November 1, 2010, five months after his arrest, the sides reached a plea bargain in which the defendant pled guilty to an amended indictment and was convicted of two charges:
1. Throwing objects at a person or property.
2. Attempt to throw an incendiary object.
The prosecution argued for the plea bargain on the grounds of the defendant's clean record, his guilty plea and the saving of judicial time. "The defendant began the fire bottle incident as a lookout but left the site before it was thrown and there is no indication that the fire bottles were in fact thrown.
Ultimately, we took into account the defendant's minor role in the incident. Furthermore, the location of the stone throwing was relatively far and therefore the effectiveness of the stone throwing was correspondingly low."
Despite the relatively minor nature and few charges of which he was ultimately convicted, the judge sentenced the defendant to the following:
12 months prison to be served actively from the day of his arrest
10 months suspended imprisonment for four years
A NIS 5000 fine or five months prison in exchange.
So, the defendant in this case, 17 years old, was sentenced to an entire year in prison and a NIS 5000 fine because of two incidents. In one, stones were thrown at the road from a far distance, and in the other the defendant served as a lookout for an event that was supposed to happen after he left the site.
S., 15 at the time of the offence, from Hebron, (file 4016/10), arrested on September 27, 2010.
S. was charged with throwing a stone at an IDF soldier on the day he was arrested, along with many others who also threw stones at IDF soldiers.
His arrest was based on his identification by an incriminating witness. The prosecution and defence reached a plea bargain without hearing evidence, and S. pled guilty. The prosecutor noted in her arguments that there is an evidential difficulty surrounding the defendant's identification by the witness.
The judge respected the plea bargain and sentenced the defendant to:
45 days imprisonment to be served from the day of his arrest
6 months suspended imprisonment for four years
A NIS 2000 fine or two months prison in exchange.
The 15-year-old defendant was therefore sentenced to a month and a half in prison and a NIS 2000 fine for throwing a single stone, even though problems with the evidence in this case would have made it difficult to prove even that charge.
K., 16 at the time of the offence, from Abu Dis (file 4574/09) was arrested on October 7, 2009.
He was charged with two counts:
1. Throwing a fire bottle at security forces on three different occasions.
2. Throwing stones at a person or property with the intent of hitting the person or property in one case during a demonstration.
In a plea bargain the indictment was amended and he admitted to throwing an incendiary object (a Molotov Cocktail) and throwing one stone. The sentence was given on December 6, 2010, 10 months after his arrest.
The punishment given by the judge:
18 months imprisonment to be served from the day of his arrest.
12 months suspended imprisonment for four years
A NIS 3000 fine or three months imprisonment in exchange.
The prosecutor noted in her arguments that his accomplices were convicted and received similar punishments (one witness whose actions were lesser was given 16 months in prison. A witness whose actions were graver was given 20 months in prison). Since he served as a lookout, the punishment he received was between the other two.
The 16-year-old defendant was sentenced for throwing a Molotov cocktail and a stone to a year and a half in prison. He would be released after he turns seventeen and a half.
The punishment is heavy in absolute terms. In addition, Other defendants in similar circumstances were given much shorter prison terms. In all cases the punishment is not proportional because of the double use of imprisonment, fines and additional imprisonment in exchange for the fine.
Conclusions
We shall summarize the findings presented in this report in the light of two main questions we posed at its outset:
1. To what extent are the rights of minors protected in the military juvenile court?
2. To what extent does the military juvenile court contribute to promoting the best interest of minors standing trial?
The functioning of the court and the military prosecution were found to be satisfactory only in regard to a small number of the subjects examined: the separation of the trials of minors up to 16 years of age from trials of adults; the prosecution of children over the age of 16 in the military juvenile court in some cases and the prompt serving of indictments. We also found that all the minors were represented in court by lawyers.
However, we found that the military juvenile justice system does not meet most accepted standards for a juvenile justice system in essential and important respects. Furthermore, there are essential differences between the provisions of the Youth Law in Israel and the provisions of the Security Provisions Order that applies to the Occupied Territories.
These differences are reflected in the interrogation and prosecution of minors, as follows:
a. The age of majority under military legislation is 16 instead of 18.
b. The detention of minors is not under the jurisdiction of a juvenile court and the legal provisions that apply to their detention are the same that apply to adults.
c. The detention of minors is not used as a last resort and for the shortest time possible. On the contrary, it is the rule rather than the exception, and refraining from it is very rare.
d. The widespread use of detention undermines the presumption of innocence and in many cases dictates conviction and punishment by imprisonment.
e. The main evidence is confessions given by the minors during their police interrogations, very often conducted in the middle of the night, violating their rights to avoid self-incrimination and to consult a lawyer.
Minors sometimes claim that other pressures are exerted on them as well. Despite all these defects, the military prosecution bases the indictments on the confessions obtained by police interrogation and the court bases convictions on them without conducting an in-depth examination of the admissibility of the confessions.
f. This common practice also violates the minors' rights as part of the legal process not to be forced to plead guilty. Furthermore, some of the minors are pressured to plead guilty and agree to plea bargains.
g. The child's best interest is not the main consideration in the legal process and in fact receives little attention. This can be learned from the small number of cases in which a welfare staff officer's report is submitted and in which the parents' position is heard at the trial.
h. The criminal procedure does not promote the minors' rehabilitation and integration in society and no alternatives to the legal procedures or educational or therapeutic programs are offered.
i. The imprisonment of minors is not pursued as a last resort but is the rule. Punishments are severe and disproportionate because in nearly all cases they include active imprisonment plus a suspended prison term and a fine, with days of imprisonment in exchange.
In conclusion, we can state that the establishment of the military juvenile court merely led to a marginal change in the legal process against minors. The Youth Law passed in Israel does not apply to the territories and this is reflected in all stages, from arrest through interrogation all the way to the conclusion of the legal process.
The interrogation and detention, which are the critical stages that actually determine outcome of the entire legal process, are executed with no differential treatment of minors.
The establishment of the juvenile court had no effect on them at all. The role of the court begins only after those stages, and its impact on the legal process is actually almost negligible.
In light of the interrogators' success in obtaining confessions at the preliminary stages, the trials are actually decided by plea bargains following negotiations between the prosecution and the defence, while the court plays almost no role. Nor does the juvenile court use the discretion vested in it, in relation to the plea bargains.
In every legal procedure that ended with a plea bargain, the juvenile judge at the military court in the Ofer Camp, Lt.-Col. Sharon Rivlin-Achai, states: "The court clarifies to the sides that it is not bound by the plea bargain reached between them." But in none of the cases we observed did that statement prevent the court from respecting the plea bargain and imposing punishments that are severe and unacceptable for minors, consisting of imprisonment, suspended prison sentences and fines in nearly every single case.
These severe punishments were imposed even in cases when the judge voiced harsh criticism of the system's treatment of Palestinian minors in general, and sending them to prison in particular, and despite her statement that imprisonment causes grave harm to the minors themselves and ultimately to the public interest.
Thus, in the military juvenile court neither evidence nor the court's own discretion carry much weight. The departure point in plea bargains is the presumption of guilt, and all that remains to be decided is the appropriate punishment.
The observations in the military juvenile court present a harsh and complex picture. Young boys ages 13-18 are sent wholesale, after summary trials - concluded without hearing witnesses in most cases - to serve long months in prison for acts whose severity does not necessarily justify that.
On the other hand – the punishment is agreed upon. The boys plead guilty, represented by a lawyer giving them legal aid, and accept the punishment agreed between the prosecution and the defence. The court hardly intervenes in the process at all.
We must not forget for a minute that the system in question is a military justice system that is not judging its own citizens and by definition is based on inequality between the military prosecution on the one hand and the boys and their lawyers on the other hand.
Detention is the rule and the way out of it necessarily involves accepting a plea bargain. Under these circumstances, the minors standing trial are being pressed to accept plea bargains and sometimes even admit to acts they did not commit, because the plea bargain is their best chance of getting out of jail as soon as possible.
