The phenomenon of video-linked (or conference) court hearings has gained very subliminal momentum, which had been paralysed very fast and did not reproduce itself as much until its more recent recurrences of which the following will discuss two, one from the UK and one from occupied Palestinian territories.
Just yesterday, on 14 July, 2008, the Israeli High Court of Justice (Supreme Court) ruled, in the case of HCJ 1548/07 The Bar Association v The Minister of Defence (In Hebrew) that the conduction of court hearing for the extension of administrative detainee control orders can be done with the help of video-linking equipment – in other words, in the physical absence of the individual concerned. It held that the new system for video-conference hearings does not effect the detainee’s full enjoyment of the right to a fair trial (viz. an explicit right guaranteed equally by the Israeli Basic, or constitutional, Laws).
This development in administrative detention law in the context of the Palestine/Yisrael conflict and the jurisdiction of the Military Courts in the occupied Palestinian territories, resonates and recalls vividly the arrangement made by Asylum and Immigration Tribunal (AIT) in the UK in bail hearings for immigration detainees held in Immigration Removal Centres (IRC) across the country. This also was a marginal matter handled forcefully by NGOs working in the field but overlooked heavily by the media and scholarly community.
The crucial question at hand in both cases is whether this arrangement violates an accused person’s fundamental procedural ‘due process’ human right to a fair hearing in the presence of a judge in an impartial and independent court? In the former case of the Israeli Court, the judges rejected a petition lodged by the Israeli Bar Association of lawyers against a new law that permits the conduction of video-linked hearings in proceedings for the extension of control orders for detainees held in administrative detention.
In support of this, Sandell (in “Liberty, fairness and the UK control order cases: two steps forward, two steps”, EHRLR, 2008. 120-131) notes that with secret evidence being used against defendants, and special lawyers called to facilitate legal representation, control orders are the boldest example for the present day concessions granted to the enjoyment of procedural human rights. Nevertheless, questioning what level of procedural protection would commensurate with the gravity of the potential consequences of any particular control order is a riddle in and of itself.
The case of administrative detention can normatively be argued to produce graver consequences in regards to the violation of due process rights than that of the immigration detainee held under immigration laws. This is however a misconception of the factual situation of immigration detention laws and the practice of detaining failed asylum seekers by a growing number of European countries.
At the beginning of 2008, the AIT launched its new system of video-linked bail hearings for immigration detainees who wish to challenge their detention under immigration law, following a decision of the Secretary of State (which can be made if the presumption of the right to liberty is rebutted – in circumstances where the person is likely to abscond or his removal from the country is imminent). Bail for Immigration Detainees (BID) and Refugee Council produced a report based on a segment of empirical research that expresses the alerting concerning that surround the arbitrary denial of the right to appear in person during hearings without their prior consultation (regardless of the fact that a small percentage would prefer for their bail hearings to be heard by video link. The relevant authorities in the UK have yet to respond substantively and practically to the concerns with which they were presented.
The right to appear in court in person is an alarming limitation for administrative detainees who can, under the Military legislation in the oPt, be detained for up to 90 days without seeing the inside of a court room or even a lawyer. This augmentation in the barriers to the full enjoyment of fundamental procedural human rights in such cases is unthinkable. It is yet to be seen, with much hope, what challenges this legal development will face both from the Palestinian and Israeli NGO forums but also, and more eminently, from the international community.