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© L’Harmattan, 2015 5-7, rue de l’Ecole-Polytechnique, 75005 Paris http://www.harmattan.fr diffusion.harmattan@wanadoo.fr harmattan1@wanadoo.fr ISBN : 978-2-343-07969-1 9782343 91EAN : 0796
Ambash AffairL’Affaire Ambashשʡמʠטפשמ
Quête du sens Collection dirigée par Georges-Elia Sarfati « Quête du sens » participe d’une réévaluation de l’éthique et de l’accomplissement des fins humaines, considérant que l’émancipation des sujets est indissociable des luttes pour l’émancipation collective. Fondée en référence à la pensée de Viktor Frankl, philosophe et pionner de la thérapie existentielle, cette collection accueille des textes narratifs, des essais critiques, des entretiens, des collectifs dont les auteurs sont soucieux de témoigner de la recherche du sensé, et de l’affirmation persistante de l’action et de la liberté humaines dans une histoire en proie aux conflits des significations. Ses perspectives questionnent la condition humaine – compte tenu de ses dimensions tragiques : souffrance, culpabilité, finitude- dans les trois registres de la création, de l’expérience et de l’attitude. Ses contributions – de la clinique à la politique- ouvrent sur la possibilité d’un remaniement discret des idées reçues, comprises comme des héritages actifs du conformisme et des totalitarismes, privilégiant ainsi l’expression de l’expérience immédiate et concrète d’une pensée de rupture avec l’air du temps. Dernières parutions Léo Michel Abrami,La recherche du sens en analyse existentielle et logothérapie, 2015. Mohamed Yahya Ould Ciré,La Mauritanie, Entre l’esclavage et le racisme,2014. Sarah Bensaïd,Bénéfices secondaires, 2013.
AMBASHPréface d’Emmanuel Athanasiou Introduction de Georges-Elia Sarfati Ambash AffairL’Affaire Ambashשʡמʠטפשמ
“Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Article 14 of the International Covenant 1 on Civil and Political Rights (ICCPR) The right to a fair hearing, the right to due process of law is the corner stone of democracy. It is the basic pillar of a modern State respecting, protecting and promoting human rights. What many have the tendency to forget is that this particular right, consecrated by international human rights law has a major purpose: to protect the liberty and the security of the person, under any circumstances. Indeed, it is the right to due process of law that guarantees people their right to live freely, to exercise other liberties and rights freely, not to
1  International Covenant on Civil and Political Rights, UN General Assembly resolution 2200A (XXI), December 16, 1966, entered into force March 23, 1976 [hereinafter ICCPR]. The Article 14 statesinter alia: “1.All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.
be afraid of human rights violations such as arbitrary detention, police violence, such as confession under torture, and many other types of violations that we have observed across the world. The fundamental importance of this particular right was recognized under international human rights instruments adopted not only at the global level of the United Nations but also in many regional human rights treaties like the European Convention for the Protection of Human Rights and Fundamental Freedoms (article 6), adopted in the framework of the Council of Europe or the American Convention on Human Rights (article 8) adopted by the Organization of American States. At the international level, the major role of this particular right to a fair trial or due process of law was highlighted by its inclusion as 2 a non-derogable right provided for in Article 4(2) of the ICCPR . That means that this special category of rights is considered so crucial that they cannot be taken away or compromised under any circumstances, not even when a State is at war or facing internal conflict or social unrest. The right to a fair trial can be violated in many ways, but as a general principle it must always be kept in mind that the accused person must at all times be given a genuine opportunity to answer the charges, challenge evidence and cross-examine witnesses, and to do so in a dignified atmosphere. Needless to say, that all information gathered during my own independent investigation on this landmark case, which became a media experiment and a barometer of social attitude, showed clearly that in spite of the grave accusations and extremely serious character of the case, the Israeli judicial system did not guarantee the right to due process of law in a dignified way. Media and judges behaved as if the accused was already guilty of all the
2 Article 4. 1:In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
charges. Taking into account that the major charge was slavery, one of the worst human rights violations and a major criminal offence, one would expect of the Israeli police and judicial system to deal with such case with the utmost professionalism. This was clearly not the case, as proved during the trial several times and stated even in the judgement, from the very first paragraphs. Except if one considers that the loss of investigation videos, threatening the accused and witnesses, promising gifts or exercising physical and verbal violence are part of normal professional police conduct in a modern State. Interrogations taking place in hotel rooms and coercing or torturing persons under investigation is what we call “miscarriage of justice”. The guidelines of the Office of the United Nations High Commissioner for Human Rights (OHCHR) clearly underline: “Failures and shortcomings at the stage of the criminal investigation may seriously jeopardize the right to fair trial proceedings and thereby 3 also prejudice the right to be presumed innocent” . In the mini – ratio (reasoning) part of the judgement of Daniel Ambash, the 3 judges of the Jerusalem District Court state clearly that “some of the investigations were not documented, but these are negligible, especially at the beginning of the investigation, often due to error and sometimes due to a lack of care and attention. Though they were some investigation failures or violence, they are not significant and cannot cause us to discard the nature of the investigation and its results.” This is quite a surprising appreciation, to say the least as regards legal analysis, when a Court of justice, composed of 3 judges, passes so rapidly from clearly demarked red lines regarding police misconduct in such an important case – well documented misconduct and relevant violations, so shocking that in any other legal system of a modern so-called “democratic State” there would have been an institutional response – to admit the police failures not only at the stage of investigation but also with respect to all the other parts of the legal proceedings. As a human rights activist and lawyer, I was extremely surprised, even before coming to Israel and meeting different actors involved in this case that a court simply dismissed, in one phrase, violations that would have invalidated the process in any other 3 http://search.ohchr.org/results.aspx?k=right%20to%20a%20fair%20trial.