‘Incitement’ trial illustrates systemic discrimination against Palestinians citizens of Israel

The remand hearing in the trial of Raja Eghbarieh, former secretary-general of Abnaa al-Balad movement, who is accused of “incitement to terrorism” following publications on Facebook, has become a fascinating legal battle that raises fundamental questions about the policy of the Israeli police and prosecution regarding the freedom of expression of Palestinian citizens of Israel.

Eghbarieh was arrested on September 11 from his home in Umm Al-Fahm and charged with incitement and identification with a terrorist organization in the Haifa Magistrates Court. The indictment relates to 10 publications that appeared on his personal Facebook page between July 2017 and July 2018. On October 2, Judge Maria Pikus Bogdanov held a hearing on the prosecution’s request to keep Eghbarieh in detention until the end of the legal proceedings against him. The defense lawyers objected forcefully and the prosecutor could not answer many of their arguments. Finally, the judge ordered the prosecution to respond in writing and set an additional hearing for Sunday, October 7.

The hearing took place in the large hall on the “minus 2” basement floor, next to the detention cells, where remand hearings routinely takes place every day. The hall was crowded. Since the prosecution’s representatives have already submitted their arguments in writing, we first heard the defense team, headed by Attorney Hassan Jabareen, the founder and director of Adalah, and including also Attorneys Omar Khamaisi from the Mizan Center for Human Rights and Rabea Eghbariah and Afnan Khalifa from Adalah, responding to the prosecution’s arguments that we did not hear. The judge, who read them, apparently didn’t find answers to the questions she had asked the prosecutor at the previous hearing. After the defense finished, she once again tried to extract answers from the prosecutor, so that we finally understood what he could not answer.

Systematic discrimination in enforcement policy

The most important and fundamental issue raised by the defense was the discrimination in the prosecution’s policy regarding the filing of applications for detention until the end of proceedings in cases of incitement. In the previous session, the defense presented a large number of cases in which Jewish defendants were accused of incitement to violence against Arabs or calls to harm soldiers (against the background of the evacuation of illegal outposts). In all these cases, the prosecution did not even request the detention of the defendants until the end of the proceedings. Finally, the judge asked the prosecutor whether he could point to even one case in which the prosecution requested the detention of a Jewish defendant in incitement until the end of proceedings.

In the written answers submitted to the court, the prosecution mentioned one case in which a Jew who was charged with incitement was arrested until the end of proceedings. Adalah’s team, however, examined the facts, and Attorney Jabareen explained to the court that in this case, the charge of incitement was only a small part of what was attributed to the defendant, which included actual rioting and damage to property. The decision to detain him until the end of proceedings was explicitly based on his dangerousness as someone who caused actual damage, and not the theoretical danger stemming from the incitement.

The obvious conclusion from the State’s response, Jabareen stressed, from their failure to present even one case in which the detention of a Jewish defendant for incitement was requested, is that the claim of discrimination is now clearly and positively proved.

Never mind what is really written – it is incitement anyway

In the previous session, the defense presented a series of objections to the translation of the publications as they appear in the indictment in Hebrew. Since both the judge and the prosecution representative do not know Arabic, the judge requested the prosecutor to examine the matter. The prosecution’s response to those objections, which covers most of the seven pages of the document they submitted, can be summed up in four words: “It does not matter.” According to them, if the translation is correct or not, in any case it is incitement. In one specific case, regarding a post about the funerals of three young men from Umm Al-Fahm who killed two Israeli policemen in the Al-Aqsa compound and were later killed, the prosecution said it did not matter if the post said that “the martyr must be respected” or “we have to convey condolence to the families” – it is incitement anyway.

Attorney Jabareen stressed that the wording of the posts is the crux of the indictment, and in the absence of a reliable translation, the entire validity of the indictment is undermined. The judge, for her part, said that despite the defense’s reservations about the translation, some of the publications in the indictment appear to her as severe. But she didn’t accept the prosecution’s claim that “it does not matter” and asked the prosecutor whether the prosecution had examined the defense’s claims regarding the misleading translation. The prosecutor didn’t know what to answer and was requested to find out. After some time he came back with an answer. According to him, the translation was not reexamined following the defense’s arguments, since re-translation is an act of investigation and “you don’t carry out investigation operations after the filing of an indictment.”

Only one of the ten posts mentioned in the indictment can be seen, according to the quotes mentioned in the indictment, as direct support for violence. It is a video from the funeral of the three young men from Umm Al-Fahm, which Eghbarieh shared on the anniversary of their death. According to the prosecution, a song is playing in the background that includes the words “Spread bullets in the doors of Al-Aqsa”. Eghbarieh didn’t photograph and didn’t edit the video but only shared it like many others. He said he had never heard those words mentioned in the background. The judge asked the prosecutor whether there is a full transcription of the background song as part of the evidence. He could not answer. Finally the defense pulled a rabbit out of the hat. The volunteer lawyer Afnan Khalifa, who is working on the case in the Adalah team, found a memo from an Arab policeman who watched the video, describing “a background song whose words are hard to understand.”

Dangerous for the purpose of detention

The reasoning behind the prosecution’s request to extend the detention of Eghbarieh until the end of the proceedings is his claimed “dangerousness”. The danger, according to the prosecution, is that he might publish more “inciting” posts. According to them, the only way to prevent this is to hold him in custody and there is no need to even examine alternatives to full detention. The prosecution is used to the common practice where the very mention of the word “terrorism” in the indictment leads us to the fast track to unlimited detention without the need for lengthy arguments. The defense’s great battle in this case is to block the spread of the practice of automatic detention until the end of proceedings, so that it will not take over also the domain of “offenses” which are mainly about freedom of expression.

The defense attacked the police’s claim of “dangerousness” by using the behavior of the police during the investigation. They stressed the fact that since the investigation began in February 2018, and for months when the posts were public and known to the police, it took no action to remove the alleged “danger”, and postponed the detention of Eghbarieh until September 9. The judge asked for explanations on this matter, but in its written response the prosecution related to this issue by mere four and a half vague lines out of 7 pages. The judge asked the prosecutor again whether he could provide explanations, and he answered that “Madam knows, this is how the system works.”

Finally, the judge ordered the examination of the “alternative to detention” that the defense offers. The defense insisted that in her opinion there was no justification for detention until the end of proceedings, nor for an alternative to detention, but finally offered four members from Eghbarieh’s family who could “supervise” him under house arrest. From their interrogation in court we learned of a new procedure – to require the custodians to deposit their cell phones with the police before they appear for the job… this in addition to the house being cut off from any connection to the network.

On the way, we heard again about the health problems Eghbarieh, who is 66, suffers from. The Israel Prison Service refused to provide him with a blood pressure medication that he regularly took and gave him an inappropriate replacement drug that caused him to be hospitalized for one day.

Prior to the hearing itself, a protest vigil was held in front of the court building with the participation of about fifty Palestinian activists from all the local Arab parties demanding the release of Eghbarieh. They claimed that his arrest was part of a campaign of political persecutions intended to dangerously farther limit the freedom of expression and organization of Palestinian citizens of Israel as a whole.

Finally, after all the “victories” in proving the discrimination in the enforcement policy, exposing the clumsiness and contempt of the prosecution with regard to the translation and lack of explanations about the delays in the interrogation, it seemed that the greatest relief that could be hoped from this court was the extension of detention until the end of the proceedings, that might be substituted with house arrest under severe limitations. In any event, the judge postponed the decision for next Monday and sent Eghbarieh to another week in detention.