En banc Supreme Court hearing requested for Ben Uliel
Updated: Jan 9
Since the July 2015 arson attack on the Dawabshe family’s house in Kfar Duma, Honenu has assisted many Jews accused of involvement with the crime. For a selection of posts describing Honenu Attorneys’ representation of defendants and GSS interrogees, click here. To familiarize our readers with the case, Honenu has gathered – click here – various articles and short videos on the subject.
Thursday, October 27, 2022, 8:11 Attorney Avigdor Feldman, who is representing Amiram Ben Uliel, turned to the Supreme Court with Attorneys Yehoshua Reznik and Asher Ohayon with a request to judge Ben Uliel's case again, this time in an extended panel of justices (en banc). The reason for the request is a question regarding the admissibility of the torture used to extract a confession from Amiram Ben Uliel and consequently, his conviction, which is based solely on his confession.
The request follows the ruling by a panel of three Supreme Court Justices on the appeal filed by Ben Uliel. For the first time in Israel, a ruling authorized in practice extracting a confession from an interrogatee under torture, and thus Ben Uliel's conviction was left standing.
In a 32-page request, Attorney Feldman details the series of torture sessions Ben Uliel underwent, the jurisprudence over the years in Israel that has forbidden torture, and also the ramifications of extracting a confession from an interrogatee by means of violence and against his free will. Attorney Feldman's conclusion in the closing of his request is that "beyond the legal rights that were trampled, there is a genuine, horrifying possibility that the petitioner is innocent, that the crime was committed by another or others."
Attorney Feldman opens his request with the difficult questions that arose from the justices' decision in Ben Uliel's case, which in his opinion necessitate an additional Supreme Court hearing. "At the center of the ruling, a question that has been haunting Israeli law arose: the authority of the General Security Service to use violent, torturous, and painful interrogations to elicit information from interrogatees suspected of serious crimes against the security of the State. What is the value of confessions that were given after torturous interrogations, what is the juridical 'price' of someone who carries out or who gives the order to carry out torturous interrogations? What is the significance to the judicial system of allowing the use of torturous means without legal consent?"
In Attorney Feldman's opinion, these questions lead to an additional question: "[What is] the significance of a Supreme Court ruling that turns a blind eye to the use of torture? Does this not render the Supreme Court a court that does not defend the law but rather consciously participates in an extreme violation of prohibitions in a legal setting?"
Attorney Feldman claims that the ruling handed down by the justices should be examined again by an extended panel of justices, because it violates fundamental principles of the right of every individual, including someone suspected of crimes against the security of the State, to the protection of bodily and mental integrity. Attorney Feldman states that the court also emphasized the complexity of this matter as it is an extreme case in its severity and cited the ruling:
"The case before us is indeed complex and raises legal and ethical issues of great importance," wrote the justices in their decision. "[We] admit, the decision on the appeal was not easy and was even accompanied by serious doubts with regard to the admissibility of the confessions [given after torture]. This was an extreme case … both as far as the severity of the means [of torture] applied to the appellant is concerned and as far as the objective development of the torture over the first days of the interrogation of the appellant is concerned," added the justices.
Further on in the request, Attorney Feldman expands on the series of torturous interrogations that Ben Uliel underwent, which included severe violence. The request brings testimony from Ben Uliel, who described his interrogations in anguish: "I gave them a confession, but the entire time they demanded that I cooperate with them again, and again. And I tried to do so as little as I could, and every time they convinced me with threats, saying 'It's a shame [referring to his lack of cooperation],' and that I only understand the hard way. Every time they showed me that the interrogation would end either well or badly, and that badly is to return to interrogation. It was in effect a matter of survival… If I changed my mind about the testimony, I would return to the torture because the torture was only for my testimony… I didn't see the possibility that I could say that actually, everything that I had told them was a lie and that they would accept it quietly, without torture, without returning me to torture."
Additionally, the attorneys bring segments from the testimonies of two of Ben Uliel's interrogators to the district court in which they detail the use of torture and violence. In their testimony, the interrogators admitted that violence was used on Ben Uliel. Under interrogation, one of them admitted that the purpose of the slap to Ben Uliel's face during one of his interrogations was not the pain, but rather the awareness of the individual being tortured that an interrogation with questions and answers can suddenly, without warning, turn into a slap to the face. The other interrogator also admitted that torture was used during Ben Uliel's interrogation. He also claimed that Ben Uliel had confessed between interrogations and not immediately after an interrogation.
In conclusion, Attorney Feldman writes strong criticism of the judicial system in the event that the Supreme Court ruling that permits torture is left standing: "The ruling radically departs from the fundamental principles of Israeli law, from the principles that turn the law from an arbitrary system lacking an ethical soul, of orders and prohibitions, to a legal system that classifies fundamental rights and grants them a preferable legal status. Absolute preference of supposedly genuine investigation of the truth, with all means, with every method, causes the judicial system to deteriorate into a system of organized crime lacking safeguards and limits."
The closing also states that there is no evidence connecting Ben Uliel to the crime of which he was convicted other than the confession that was extracted under torture: "The reliance of the court on 'concealed information' is not convincing at all. We must remember, the appellant was under interrogation by the GSS – not recorded, not filmed, in the absence of any opportunity to meet with an attorney, and there is no way of knowing what information the interrogators fed to the appellant. In contrast to the 'concealed information' stand testimonies stating that more than one man participated in the murder, a presumption with which the General Security Service agrees. Other evidence points to the perpetrators not being Jewish. The facts are that the confession has no external support. The graffiti at the scene is not in the handwriting of the appellant, the footprints do not match his shoes, and there is no forensic evidence connecting him in any way to the scene of the terrible crime."
Attorney Feldman adds, "In closing, [I would like to add] a personal note: The undersigned represented the Public Committee Against Torture in Israel in 1994, represented the Israel Bar Association as a friend of the court in the [Raphael] Issacharov case, and appeared in security cases that dealt with GSS interrogations such as the case of the terrorist in the terror attack on the Park Hotel, [Abba] al-Sayyid, who is mentioned in the ruling. And here, the legal structure that was built, brick by brick, pieced together from an absolute prohibition of torture and including the jurisprudential disqualification doctrine, and Section 12 of the Evidence Ordinance collapses before my eyes. The court grants the GSS carte blanche to continue to torture, as long as they succeed in convincing [the court] that, inexplicably and despite the linkage to unacceptable means, the interrogatee succeeded in regaining free will, free from the influence of the torture."
The final conclusion in the request for an en banc hearing is that "beyond the legal rights that were trampled, there is a genuine, horrifying possibility that the petitioner is innocent, that the crime was committed by another or others."