The Russian Compound, 11 Jan 2007Observers: Idith and Gad N.Translator: Eldad KischWa’il Mustafa – Case # P 004054/05Wa’il Mustafa, charged by the security forces with three offences in the Jerusalem area during 2005. He is 35 years old, lives in Nahalin and is the sole provider for six children and a sick father. He had a permit to work in the Adam settlement (near Ramallah) and apparently on his way to work and back he passed through the Jerusalem area instead of traveling around it, through the many checkpoints. The last time was on 6.9.2005, when, according to him, he visited Jewish Israeli friends who lived in Giv’at Massuah. They drove him back in their car, and he was arrested at the tunnel checkpoint at 20:00. He was in detention for seven days and had posted bail of 5000 NIS in order to appear at the trial. In addition, 2 friends gave guarantees for him. Since then he is “prohibited” by the police. Apparently he gave the police a statement. His friend from Giv’at Massuah testified at some point (apparently Wa’il worked for him – but there is no information on the character of this testimony).At a previous hearing, which was held before Judge Oded Shaham on 13.7.2006, the defendant was represented by attorney Vered Birger of the military legal defense. At this hearing it was clarified that the parties did not come to an agreement and the defendant did not admit to the charge. It should be noted that he did have a permit to work in Adam, and it made sense to him to get to work and back by the shortest route. Attorney Birger asked to show proof, to give the defendant the opportunity to explain himself and present his permits. The court set a date for testimony on 16.11.06, and then deferred to 22.11.06, when the summations will be heard. By agreement between the parties the prosecution will then submit all the material pertaining to the case and hear the testimony of the defendant. Hearing on 22.11.06 The session was held in the chambers of the judge Oded Shaham between 10:30 and 11:30. Present were, in addition to the judge and the defendant, advocate Hasson for the prosecution, advocate Vered Berger (for the defendant), the court’s translator, and Gad Nathan (an observer for Machsomwatch). The prosecutor (Hasson) points out that because of the strike of Government workers, it is impossible to receive documentation of the proofs and therefore the hearings must be deferred. A hearing was held anyway regarding the admission of guilt. The prosecution holds that it is impossible to drop some of the charges if the defendant does not admit to at least one of them. The judge advises the defendant to admit the facts without admitting the charge, and after consultation the defendant accepted the advice. Because of the strike the continuation of the hearing was deferred to 21.12.06 at 10:30 – 11:30. The judge responded favorably to hearing testimony from the Machsomwatch representative. After the session Attorney Birger said that in her opinion a conviction cannot be averted, and it might be possible only to minimize the verdict. Hearing on 21.12.06 Before the session the prosecutor, advocate Frankenbergor, presented a plea-bargain – if Wa’il were to admit the facts in two out of the three charges, he would eliminate charge # 1. After consulting with Attorney Birger, Wa’il agreed to the deal, hoping for a mitigation of the verdict, since a conviction was unavoidable. The plea bargain was accepted at the opening of the session, before the judge Oded Shoham, and the both the prosecution and the defense articulated their arguments for the conviction. The prosecutor said it was technically impossible not to charge the defendant and also not to impose upon him a punishment of public service, him being an inhabitant of the Territories. He stressed the danger of illegal entry of residents of the Territories and the fact that the offense was committed several times. He said that entry was not just for passage, but also in order to work or look for in. He asked for a sentence of actual imprisonment and also a conditional prison sentence.The representative of the accused acknowledge the justification of the law which served the security needs of the citizens, but emphsized the defendant’s difficult humanitarian conditions, which force him to seek work to generate income. She pointed out that the defendant had no prior convictions and that he owned a valid permit to work in the Adam settlement. The short and direct route to his work goes through Jerusalem and takes half an hour, as opposed to 4-5 hours via the bypass route, including delays at checkpoints. She stressed the fact that on two occasions, when he was apprehended, he passed through other checkpoints in Jerusalem with the work permit he possessed. His conviction would have very serious consequences because of the orders from the police commissioner to prevent entry of convicted persons (shabach) for five years. A conviction would result in hunger for the family of the defendant. She suggested not to convict him and instead to donate his bail money to a humanitarian institution. The accused brought affidavits regarding medical problems and asked to be given an opportunity to support his family.Verdict on 21.01.07.The judge made clear that by legal standards he cannot avoid a conviction, but even if he could he was not sure that there is cause for it, according to those legal principlesd. He recognizes the harsh effects of a conviction on the financial situation of the defendant, due to the ensuing difficulty in getting an permit for entry into Israel. He dismisses the prosecution’s claims regarding recurrent offences, in the absence of proof. He accepted the arguments of the defendant’s representative to mitigate the sentence because there were no prior offences and because he was a regular person supporting a large family. He rejected the option to impose a prison term on the accused and in the end pronounced the verdict:A. 4 months conditional prison term, to be implemented should the defendant commit an offence according to the laws of entry into Israel, for a period of 24 months from the day of handing down the verdict. B. A fine of 3,000 NIS, to be paid from the amount that had been deposited in the court’s coffers during his arrest. The remainder will be returned to the defendant.SummaryNotwithstanding the serious repercussions of Wa’il’s conviction on his ability to get a permit to enter Israel in the future, it should be pointed out that under the circumstances the sentence was relatively mild. Several legal figures expressed their amazement that no actual prison term was meted out and maintained that the matter was absolutely extraordinary. We applaud the devotion of the defense attorney, advocate Vered Birger. No doubt the fervor and the depth of her arguments weighed significantly in the relative lightness of the verdict. The linkage between a conviction and blocking entry, mandated by the commissioner of police, should be examined, as prima facie it has no legal basis.