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Israel: Knesset Passes Law Authorizing Virtual Hearings with Participation of Prisoners and Detainees

(Aug. 25, 2020) On August 10, 2020, the Knesset (Israel’s parliament) passed the Law on Holding Virtual Hearings with the Participation of Prisoners and Detainees during the Period of the Spread of the Novel Coronavirus (Temporary Provision) 5780-2020 (Virtual Hearings Law). The Virtual Hearings Law regulates the operation of virtual court hearings in Israeli civilian courts and provides for similar rules, as relevant, to be applied in military courts.

Grounds for Declaring Restrictions on Physical Presence of Prisoners and Detainees

The Virtual Hearings Law authorizes the minister of justice and the minister of public security to issue a joint declaration that only part of the court hearings held for prisoners or detainees will be conducted in their physical presence (partial restriction). Such a declaration may be issued if the ministers have determined, on the basis of an opinion issued by the Ministry of Health (MOH), that grounds for genuine concern about the spread of the coronavirus in prisons and detention centers and from transporting detainees and prisoners to and from courts exist. (§ 2(a), (b).) In addition, the MOH opinion must include the following documentation:

(1) Data on morbidity due to the coronavirus at that time in the country, its characteristics and trends;

(2) A reference to the degree of danger to public health caused by the coronavirus at that time;

(3) An assessment of the level of risk of the virus spreading in places of detention and in prisons that is based on the morbidity data in general, and on the inherent risk in detainees and prisoners being brought to courts, staying in them, and being returned to [their] places of detention and prisons in particular;

(4) Guidelines for taking action and using measures to reduce the risk of spreading the virus, considering the level and type of risk. (§ 2(b).)

Instead of a partial restriction, the ministers may also issue a declaration that all hearings throughout the country or in certain locations will be held virtually (full restriction). A full restriction requires the receipt of an MOH opinion supported by all of the documentation mentioned except for the guidelines referred to in point number 4. The opinion must conclude “that the coronavirus has spread widely in the country and, because of this, there is an increased risk of it spreading in places of detention and in prisons or that such spreading in places of detention and in prisons has occurred.” (§ 2(c–d).) When declaring a full or partial restriction, the ministers must balance the need for stopping the spread of the coronavirus with the harm the restriction may cause to the rights of detainees and prisoners. (§ 2(e).)

Duration of Restrictions

Periods of partial restriction may extend for up to 28 days, and periods of full restriction for up to 14 days. Both may be further extended on the basis of an updated MOH opinion. A declaration of either full or partial restriction must be submitted to the Constitution, Law and Justice Committee (CLJC) as soon as possible after the ministers have decided on it, along with justifications and substantiating evidence. The declaration may be cancelled by the CLJC or the ministers at any time if they conclude that the circumstances justifying the declaration have ceased to exist. Both the declaration and cancellation of a full or partial restriction must be published in the official gazette. (§ 2(f–i).)

Prioritizing Physical and Virtual Presence at Hearings

During a period of partial restriction, the physical presence of prisoners and detainees at preliminary hearings on detention requests and at hearings where prosecution and defense cases and witnesses are presented is preferable to having them appear virtually. Exceptions apply to prisoners in isolation and to those who are suspected of having contracted the coronavirus and have not received negative test results within 96 hours since the suspicion arose. (§ 3(b) & (d); see § 4 for specific priorities.)

Virtual Hearing Requirements

The following requirements apply to virtual hearings:

(1) Hearings must be conducted in a way that would minimize, to the extent possible, the harm to the detainee or prisoner and to public interest resulting from their absence in the courtroom;

(2) All parties, including the detainee, prisoner, judge, defense attorney, prosecutor, police officer, or any other person whose presence is required, should be able to hear and see each other during the hearing to the extent possible in accordance with the technological device through which the hearing will take place;

(3) The detainee or prisoner must be able to have a privileged conversation with his/her attorney before the hearing for purposes of legal consultation;

(4) The detainee’s or prisoner’s attorney, or in the absence of one, a court-appointed attorney, must be present in certain types of hearings, including criminal proceedings, detention hearings, hearings before a release committee, etc.

(5) Persons with disabilities who participate in virtual hearings must be afforded accommodations required under law. (§ 5.)