Poet Dareen Tatour’s trial: Despite objections – another prosecution summary

(This article first appeared in “+972”. Different Hebrew versions appeared in “Local Call” and “Haifa Ha-Hofshit”).

Like a cartoon character who runs over a cliff but continues to run in the air, or like Achilles who thought he could pass the tortoise easily but each time he got close, the turtle moved a bit further away, so is the trial of Dareen Tatour, a Palestinian poet who has been detained since October 2015 — defying gravity, looking like it will never end.

Dareen Tatour and supporters after trial 18 Feb 2018

Dareen Tatour, Gaby Lasky and supporters after the hearing

After the last witness testified, back in April 2017, Judge Adi Bambiliya-Einstein decided that the parties should submit written summaries within three months. In September, Tatour’s defense attorney, Gaby Lasky, asked to present new evidence, and the issue was brought before the judge on November 15. On that occasion, the judge accepted a request by the prosecutor, attorney Alina Hardak, to supplement the written summaries with oral closing arguments.

After several postponements, a court hearing was scheduled for the additional summaries on Sunday, February 18. In response to Lasky’s request to set the hearing a little late, considering that she must arrive from Tel Aviv to Nazareth, the judge set it to 8:30 am. On Sunday morning, at 8:30, Tatour arrived with her father, the defense attorney and about fifteen of her supporters at the courtroom’s door, which finally opened at 8:45.

The prosecution’s extra show

The prosecution submitted 43 pages of written summaries. The defense managed to shorten its arguments and squeeze them into 83 pages. The initial justification for the extra hearing had been the new evidence.

And yet there was not much new evidence.

The prosecution convinced the court not to accept as evidence a screenshot from Tatour’s Facebook page showing that she initially published the profile picture with the caption “I am the next martyr” in July 2014, as a response to the murder of the teen Muhammad Abu Khdeir. It was rejected on technical grounds — the absence of a witness corroborating the authenticity of the image.

The second piece of new evidence related to the publication of a video accompanied by the lyrics of Tatour’s poem, “Resist My People.” The defense brought evidence that the same video was later posted by Israeli Culture Minister Miri Regev on her own Facebook page. That no legal steps have been taken against Regev, the defense argued, constitutes proof of discriminatory prosecution. The arguments on this matter lasted less than a minute, out of an hour and a quarter of the prosecution’s closing arguments.

On the other hand, the prosecutor used the event to repeat that which she had already detailed at length in the written summaries. She tried to present the poem, “Resist My People,” as part of the wave of attacks by Palestinians in October 2015.

The defense insisted that the poem is a legitimate expression of protest, which speaks about the occupation’s violence against innocent Palestinians. The defense based its arguments on specific events that were mentioned in the poem: the children who were burned; Hadeel, who was shot; the settler’s robbery; and the violence of the army’s special undercover units.

The prosecutor focused on what she thought was clear to every “average person”—the Israeli worldview that sees every Arab, and especially whoever opposes the occupation, as a dangerous terrorist. During the trial the prosecution screened gory videos of Palestinian attacks, under the pretext of checking the skill and objectivity of the defense’s translator. This time, to refresh the judge’s memory, the prosecutor began to read aloud in court a list of attacks by Palestinians that took place in October 2015. Defense Attorney Gaby Lasky objected, which the judge accepted — a rare occasion in this court.

According to the prosecution, the publication of the photo “I am the next Martyr” was part of a systematic pattern of encouraging suicide attacks. The fact that the picture was first published in response to the burning of young Abu Khdeir, of course, should have been conclusive proof that Tatour speaks of the martyr in the sense of a victim rather than an attacker. However, as mentioned, the prosecutor managed to have that evidence stricken. Now she wanted “to prove” that this image was first published in October 2015.  During the trial, the prosecution claimed (and Tatour consistently denied) that this picture first appeared next to the picture of Israa Abed, who was shot at the central bus station in Afula on October 9, 2015, after she was wrongfully suspected of intending to carry out an attack. The prosecution used this false claim as proof that it couldn’t have been published by Tatour earlier. On the basis of this circular argument, the prosecutor even dramatically declared that Tatour was “lying brazenly,” which led to another objection by Lasky.

A whole section of the defense summaries focused on the importance of preserving freedom of expression, especially political and artistic expression. On top of many legal precedents, the defense also quoted international conventions to which Israel is a signatory. One of the cited documents was a joint declaration of 57 countries issued in September 2015, before the 30th session of the UN Human Rights Council, which relates to the freedom of artistic expression. The prosecutor claimed that this declaration is not legally binding and that, in fact, Israel’s support of it has no practical value. She even said that this was the position of the State Attorney’s Office Department of International Law. Lasky requested to see this legal opinion. It may be time that Israel’s partners to this statement also begin asking questions.

Was the prosecution authorized to file the indictment?

The indictment accuses Tatour of two crimes: incitement to violence and support for a terrorist organization. These two articles, by nature, restrict freedom of expression, and therefore such indictments require the approval of the attorney general. In practice, the prosecution only submitted to the court approval from the attorney general for prosecuting Tatour for “incitement to violence.”

It is worth noting that the excessive sensitivity to freedom of expression in Israel’s legal system is applied mainly to the freedom of expression of settlers and other anti-Arab extremists. Therefore, in cases of this type, the defense often quotes cases of right-wing activists who were acquitted despite serious violent statements. The judges, for some reason, have no difficulty telling the difference; when the accused is Arab, they use entirely different criteria.

Lasky argued in her written summaries that in the absence of the required authorization, the part of the indictment that deals with support for a terrorist organization should be considered null and void. She cited precedents of indictments that were dismissed due to lack of such authorization, and showed that such decisions can be made even in the late stages of a trial.

In response to these claims, the prosecutor drew a rabbit from her hat. She presented to the judge a letter which, she claimed, proved that a deputy state attorney approved indicting Tatour for supporting a terrorist organization. Lasky was furious at how the prosecutor suddenly presented a document that had not been submitted to the defense as part of the investigation materials. The prosecutor explained that this was an internal correspondence with the State Attorney’s Office that was not part of the investigation materials. The judge gave Lasky the letter so she could look at it, but the prosecutor snatched it from her hands, claiming Lasky was not allowed to see it.

For a few minutes, a dramatic struggle took place between the prosecutor and the defense attorney, partly as a shouting match and partly by dictating arguments for the court’s records.

Lasky argued that the accused could not be convicted on the basis of materials she had not been allowed to see. The prosecutor gradually withdrew, saying she was ready for Lasky to see the letter but not photograph it. The judge made it clear that if the letter was indeed attached to the case, it would be scanned and accessible for the defense. The prosecutor sought to consult with her superiors, and argued that the entire issue of the necessary approval is an internal procedure that does not oblige her to present approval to the court, and that the court should be satisfied with her declaration that the indictment was submitted with the necessary authority.

Finally, the same letter was presented again to the judge. It was clear that it was not actually an authorization by the attorney general. The judge announced that it would also be given to the defense, which would probably refer to it in her response to the prosecution’s summaries.

Five minutes

Dareen Tatour and supporters waiting for trial 18 Feb 2018

At 8:30 Dareen, Lasky and 15 supporters were already waiting at the court’s door

The hearing was supposed to last an hour and a half. Starting 15 minutes late, after an hour and a quarter of the prosecutor’s summaries, it was already 10 o’clock. Some litigants that were scheduled to appear before the same judge were already waiting in the courtroom. The judge told Lasky: “You have five minutes to summarize.” I still wonder whether she meant this seriously or in jest.

Lasky used the few minutes she had to object to the whole procedure of the supplementary summaries. She reviewed the sequence of events, how it was decided that the summaries would be delivered in writing, followed by the verdict, with no room for further summaries. The nature of the criminal proceeding, she said, citing from legal textbooks, is such that the prosecutor summarizes first, then the defendant is given the right to the last word. There was justification for supplementary summaries because of the additional evidence, but that is not what happened. Lasky demanded to cancel the entire procedure.

In the event that this request is rejected, Lasky explained that she cannot respond without preparation and examination of the prosecution’s new claims, which include references to different court rulings and minutes of Knesset deliberations designated to clarify the legislator’s intention. She said she would prefer to submit a written response.

The judge and the audience

This prolonged and absurd trial always leads to new surprises.

At a certain stage, during the stormy debate over the submission of the letter ostensibly proving that the indictment had been approved, journalist Ofra Yeshua-Lyth, who was sitting next to Tatour, remarked out loud: “Write it down, it was not recorded in the protocol.”

The judge stopped the hearing and asked: “Who said that?”

There was silence in the courtroom and then Ofra said “I”, already prepared to be thrown out of the hall for disturbing the hearing.

However, in lieu of the expected scolding, the judge told Ofra that she should not worry and that the trial was conducted with great fairness.

Since discussion between the judge and the public had been legitimized, Ofra added that she had examined the minutes of the trial and that not everything that was said in the courtroom was recorded.

The judge patiently explained her policy regarding writing the protocol: She explained that there was a heated debate between the prosecution and the defense, and that only what was of legal value was recorded. When some of the audience repeatedly argued that important things were not recorded, the judge replied that if something important was missing in the protocol, the defense could file an official request for its amendment.

Toward the end of the hearing, another activist, Bilha Golan, remarked: “this is a political trial”. In response the judge resumed the rare dialogue with the public. It was, in essence, a lecture by the judge – not to be mentioned in the protocol, of course – designed to prove that this was a fair process whose sole purpose was to enable her to judge objectively, according to the facts presented to her.

“Everyone is here to examine the truth”, the judge claimed. She explained patiently – again – and even said she was talking to us as she sometimes spoke to her children. She even claimed that we were hurting Tatour. According to her, by our one-sided approach, we made Tatour feel that the process was unfair and that she had been wronged!

Activist Hana Safran took the opportunity to remind the judge that while the trial was being held, Tatour’s life had been put on hold for more than two years. Even if she is eventually acquitted, she has suffered greatly – and no one can undo that suffering. The judge replied that the matter of house arrest was not her responsibility, but was rather determined in another proceeding by different judges. The audience remarked that in both processes there is the same prosecutor, but the judge replied that the prosecutor did not rule. She said that anyone who wants Tatour to be released should apply for it in the parallel procedure. Perhaps this judge is unaware that judge Idris, who is responsible for Tatour’s detention, rejected the latest request to revoke her house arrest — without even scheduling a hearing.

What next?

As expected, the judge rejected the defense’s objection to the proceedings.

She told Lasky to choose between summarizing on the spot, and promised that she would stay until the middle of the night to hear her arguments, and presenting written summaries. In the end, she gave Lasky seven days to submit a written response.

Only after receiving these summaries will the judge set a date for announcing the verdict. Until it is given, Dareen Tatour will have lost more than two and a half years of her life to prison and house arrest.

 

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Israeli court refuses (again) to release poet Dareen Tatour

(The following report was published in +972. It was initially published in Hebrew in “Local Call” and Haifa Ha-Hofshit. All photos courtesy of Oren Ziv of Activestills.org.)

The media calm in recent months could have fooled the casual reader into thinking that the trial of Dareen Tatour for her poetry has already ended. After all, how much can the state abuse the poet for one poem and two statuses on Facebook?

IMG-2017 11 20-Dareen in courtroom

Dareen Tatour in court, Nov 20, 2017

The silence is misleading. More than two years and two months after her arrest in October 2015, Tatour’s trial drags on languidly in the Nazareth court with no end in sight. On Monday, December 4, the remand judge once again rejected her request to be released from the house arrest imposed on her “until the end of legal proceedings.”

New testimony regarding “The Next Martyr”

Tatour, 35, from Reineh near Nazareth, was arrested by Israeli police on October 11th, 2015, and later indicted of incitement to violence and support of a terrorist organization, all for publishing a poem, “Resist my people, resist them”, and two Facebook statuses. The prosecution claimed that her publications at the beginning of October 2015 should be read in the context of the Palestinian “third intifada”, which

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Dareen Tatour prepared a handmade gift to her lawyers, Gaby Lasky (left) and Haya Abu-Wardeh (right)

was characterized by attacks by unorganized individuals. Tatour replied that in all her publication there is no call for violence, to which she objects, and that they express legitimate protest and call for struggle against Israeli restrictions on the right of Muslims to pray in Al-Aqsa and against the crimes of the occupation and in particular the killing of innocent Palestinians. She also claimed, and brought experts to prove this claim, that the police both mistranslated and misinterpreted her poem.

Following her arrest, Tatour was jailed for three months in three different prisons. She was later released to strict house arrest, forced to wear an ankle monitor. As the authorities demanded that she will be distanced from the Nazareth region, her family had to rent an apartment in Kiryat Ono, just outside Tel Aviv, to hold her there. She was forbidden from using the Internet.

Gradually, through many appeals and legal battles, which met stiff resistance from the prosecution, the conditions of the house arrest were somewhat eased. In July 2016 she was allowed to continue her house arrest at her home, and in November of that year the ankle was removed. Gradually she was allowed to get out of the house for limited hours, but she should be accompanied by custodians at every step.

The last witness in the case was heard on April 27, and the judge gave each of the parties 45 days to submit written summaries. The prosecution requested a postponement and finally submitted its summaries at the end of June.

While working on the defense summaries, the team from Attorney Gabi Lasky’s office came upon an important piece of evidence concerning one of the main points of the indictment, the publication of a profile picture with the text “I’m the next martyr” (the word was written in its masculine form, “shaheed”, in Arabic). In fact, as we learned from the testimonies of the police officers during the trial, the

I am the next martyr

“I’m the next martyr” – the profile picture that started the whole affair. It is designed as an obituary. Facebook shows the publication date – July 2014. The court refused to accept this evidence.

publication of this picture was the immediate trigger for the night raid on the poet’s home and her “military style” detention. Dumb “police intelligence” interpreted this status as a declaration of her intention to carry out an attack. Only after the arrest did officers search through Tatour’s Facebook and found the other publications that are mentioned in the indictment.

Tatour explained during both her police interrogations and testimony in court that she, along with many others, shared this profile picture to protest the killing of innocent Palestinians. It was published, for example, after the burning alive of Muhammad Abu Khdeir in Jerusalem in July 2014, and as a response to the police killing of Kheir Hamdan in Kafr Kana (just near Reineh) in November of that year.

The prosecutor claimed in her summaries that Tatour had lied about the publication date of this picture. As evidence she mentioned that it was found on Tatour’s phone as a file dated just prior to her detention. The police computer expert was asked during cross-examination whether he had checked when Tatour first published the picture. He said he did not know whether there was any way to check it.

The defense found the picture on Tatour’s Facebook page, and Facebook itself clearly shows the date of its first publication in July 2014, as she originally claimed. Moreover, the publication of the picture in the context of protests against Abu Khdeir’s murder also shows the context in which Tatour uses the word shaheed as a “martyr” or “victim” of Israeli violence, rather than as an attacker, a subject that has been at the center of much of the trial.

Evidence of discriminatory enforcement

From the beginning of the trial, the defense argued that Tatour’s arrest and trial constituted discriminatory enforcement, while others who had published far more “offensive” material were neither investigated nor tried. In particular, the defense argued that the attitude of the police and the prosecution is biased against the Arab public. However, the prevailing atmosphere in Israeli courts, which view every Arab protesting against the regime as a security risk, makes this claim difficult to prove. It can always be argued that every publication has special circumstances that are taken into account.

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Tatour and supporters after the court hearing on December 4, 2017

In an unexpected coincidence, the defense found a golden opportunity to strengthen its argument when Israel’s Culture Minister, Miri Regev, published the exact same video on her Facebook page for which Tatour was indicted, in which she reads “Resist My People, Resist Them.” The minister did so in response to the screening of the video as part of reading Tatour’s trial protocols during solidarity event in Jaffa last August. This is no longer a comparison between various publications, since both Regev and Tatour published the very same video. The rough Hebrew translation added by the minister, as well as the new title of the video (“where do you think this video was screened?”) cannot change the “severity” of the publication, had it really been an offense in the first place.

Another important detail is the scope of audience reached by the video. The indictment states that up to a few days after Tatour’s detention, her video was viewed 153 times (according to YouTube’s count, which includes some views by the interrogators themselves). In her summary, the prosecutor speaks of the “enormous potential for exposure” of Tatour publications on the Internet. On the other hand, the same video had tens of thousands of views on Regev’s Facebook page. Surprisingly, the minister was neither arrested nor interrogated, and apparently was not even requested to remove the dangerous video.

Evidence rejected and evidence accepted

Attorney Lasky submitted a request to the court to add the two new pieces of evidence to the case. It should have been a simple technical procedure.

However, in this specific case, the prosecution is conducting a war of attrition on every detail. After lengthy negotiations, an additional hearing of the trial was scheduled for November 15 to discuss the admissibility of the new evidence. In this hearing, the prosecutor demanded that whoever took the screenshot from Tatour’s Facebook page be cross-examined as a condition for its submission. This meant allowing the prosecutor to interrogate either Tatour herself or her attorney, Haya Abu Warda. Finally, the defense team decided not to agree to such an interrogation, which could have opened the door for the prosecutor to raise additional issues, giving up the opportunity to submit the new evidence.

Regarding the video from Regev’s Facebook page, however, the prosecution took a different line. It agreed to submit the video as evidence if the prosecution would also be allowed to submit other videos from Regev’s Facebook page in which she rails against Tatour and those in solidarity with her. For some reason, it was suddenly possible to submit videos from Facebook without the need to interrogate witnesses. Apparently the prosecutor was convinced that Regev’s incitement against Tatour would affect the judge more than the legal argument of discriminatory enforcement.

Oral summaries after written summaries

The prosecutor used the presentation of the additional evidence for yet another procedural victory. When the testimonies stage came to an end, the prosecutor requested to move to oral summaries, while the defense insisted on its right to submit written summaries. When the judge accepted the defense’s request, the prosecutor requested the opportunity to respond to the defense summaries. She explained that during verbal summaries, she could interrupt the defense’s statement, which would not be possible during written summaries. The judge ignored this unusual request.

Now, because of the additional evidence, the judge has scheduled a round of oral summaries to be heard on December 28, after the written summaries are submitted.

Legal struggle over the house arrest

By now it has been over two years and two months since Tatour’s arrest. Even when she is allowed to leave her house during the day, she must be accompanied at all times by a court-authorized custodian. Under such conditions it is clear that she cannot work or live a normal life.

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Full courtroom – November 20, 2017

In most cases, the conditions of detention are relieved with the passage of time with the consent of the prosecution. But in Tatour’s case, the prosecution continues to stress the poet’s supposed dangerousness and opposes any relief. In view of the prolonged trial with no clear end date, Lasky filed an application to cancel Tatour’s house arrest. The request was heard on November 20 before Judge Naaman Idris, the same judge who, two years ago, ordered Tatour’s detention until the end of legal proceedings. The hall was full of friends who came to support the poet, hoping that the show of support would encourage the judge rethink the case. The prosecutor repeated her objection to granting Tatour any relief without even bothering to explain.

The judge delayed his judgment to December 4. When we arrived at the appointed time, about ten friends and family, the judge allowed us “dry” in his room for about an hour and a half while he was handling many other cases. Finally, he was kind enough to make a short statement, which required less than a minute, announcing that he had rejected the request to cancel the detention. The judgment itself was already written before the hearing. In order to show that he does not ignore the lengthening of the detention for such a long period of time, he extended the period during which Tatour is allowed to leave the house, to between 9 a.m. and 10 p.m., but  she still must be accompanied by a custodian, which means that the relief is only symbolic.

You may read details about all the hearings in Dareen Tatour’s trial and follow the latest updates in http://FreeDareenTatour.org/trial