E/CN.4/1993/26
page 67
Israel
Information transmitted to the Government and replies received thereon
284. By letter dated 21 August 1992 the Special Rapporteur transmitted to the
Government of Israel a summary of the main allegations received with regard to
the practice of torture in the country as well as a number of individual
cases. In addition to this, the Special Rapporteur made urgent appeals on
behalf of persons who, according to the information received, were at risk of
being tortured.
(a)
Information transmitted to the Government with regard to the practice of
torture in general.
285. According to the information received, the Israeli authorities in the
Occupied Territories systematically use interrogation practices which amount
to torture or ill-treatment. Methods include beatings, forced postures
(shabeh), sensory disorientation (primarily through hooding, sleep and food
deprivation, and isolation), and the use of sensory stress (through chilling
and confinement in small cells, often called "coffin-cells" or khazayen by
detainees). It was also reported that under the Israeli military justice
system in the Occupied Territories, detainees' access to judges is routinely
withheld for 18 days, and access to lawyers and family for much longer
periods.
286. In theory, protection against the use of confessions obtained by duress
exists in the military courts of the Occupied Territories. If a defendant
maintains that a confession was so obtained, the defendant's lawyer can
challenge the confession in a so-called "trial within a trial" or
"mini-trial". In this proceeding, generally held in camera, the prosecutor is
meant to prove the voluntary nature of the confession. The prosecutor calls
witnesses involved in obtaining the confession and the defendant in turn gives
evidence of the alleged abuses used to coerce a confession. If the
prosecution fails to prove that the confession was made voluntarily, it
becomes inadmissible and must be disregarded by the court in the subsequent
full trial.
287. This safeguard, however, reportedly fails to operate effectively in
practice. Lawyers maintain that in a "trial within a trial", judges often
automatically accept the testimony of witnesses of the prosecution and reject
that of defendants. Defendants who have often been held in prolonged
incommunicado detention have no witnesses to call on their behalf. Other
factors deter lawyers from seeking "trials within trials". The invocation of
such a proceeding necessarily delays the hearing of a case. For a defendant
charged with a relatively minor offence, therefore, the choice of a "trial
within a trial" may mean that he or she will be kept in detention awaiting
such a procedure for a longer period than might be expected to be served as a
sentence were a guilty plea entered from the start. In addition judges, as
well as prosecutors, reportedly often remind defendants and their lawyers that
pleading guilty and saving the court the time and effort of a "trial within a
trial" would be considered a mitigating factor of sentencing.
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