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Justice Denied: Dutch Court Denies Appeal Petition in Ayalon Torture Case

Ref: 111/2009


Date: 30 October 2009


Time: 16:00 GMT



Justice Denied: Dutch Court Denies Appeal Petition in Ayalon Torture Case

On 26 October 2009, the Court of Appeal in the Netherlands denied a complaint taken against Ami Ayalon, former head of the Israeli General Security Services (Shin Bet). Sufficient evidence was presented to allow the Court to find Mr. Ayalon guilty of torture. However, despite the denial of the complaint, some of the Court’s findings represent a victory with respect to the future prosecution of alleged torturers. The Court established that the accused’s presence is sufficient to establish jurisdiction, and that in principle no action from the prosecutor is required.

This decision came as a shock to Mr. Al-Shami, a Palestinian victim of torture on whose behalf the case was taken, and to his legal representatives. All those concerned have placed their faith in the rule of law, and in the integrity of the Dutch judicial system. Despite this setback, the Palestinian Centre for Human Rights (PCHR) and their legal partners will continue to work for the prosecution of those suspected of committing torture, war crimes, and other violations of international law. It has been proven that the Israeli legal system is biased against Palestinian victims, and that justice within this system is unattainable. It is for this reason that recourse was had to foreign national courts operating under the principle of universal jurisdiction.

Significantly, the Court of Appeals ruled that a suspect’s presence on Dutch territory is sufficient for the establishment of jurisdiction. However, in order to actually establish jurisdiction in a specific case, the Court held that the prosecutor must establish whether the individual in question could be identified as a suspect under the Convention against Torture and the Dutch implementing law. In light of the evidence presented to the Prosecutor regarding Mr. Ayalon’s involvement in the torture of Mr. Al-Shami, it is believed that this consideration was added by the Court in order to address the politically difficult situation it found itself in. Ultimately, the Prosecutor’s inaction during Mr. Ayalon’s original visit was decisive.

It is believed that the Dutch authorities, and the Prosecutor’s office, may have been motivated by political considerations. Mr. Al-Shami’s legal team are currently considering all available legal options. Mr. Al-Shami’s rights to an effective judicial remedy and the equal protection of the law must be upheld. Those accused of committing torture must be held to account.

The appeal related to the Public Prosecutor’s failure to initiate an investigation during Mr. Ayalon’s visit to the Netherlands last year, 16-20 May 2008. The Public Prosecutor’s inaction was the result of a delayed decision by the College of Procurators-General regarding the status of Mr. Ayalon with respect to diplomatic immunity. The College eventually held that Mr. Ayalon lacked immunity, but by the time they reached their decision (21 May), Mr. Ayalon had already left the country.

The case in the Netherlands was brought on behalf of Mr. Al-Shami by Dutch law firm BFKW acting in conjunction with the Palestinian Centre for Human Rights (PCHR), and Hickman & Rose (UK).


On 31 December 1999, Mr AI Shami was arrested by Israeli soldiers and taken to Ashkelon prison, where he was interrogated for 20 days, in sessions ranging between 20 to 40 hours, with an interval of 2 to 3 hours in the seclusion of a 2 x 2 m. cell. In addition, he alleges that he was exposed to low temperatures, stretching and being bound to a small chair by his hands and feet for long periods. After 20 days he was brought before a military court, without legal representation, where his arrest was extended by thirty more days. He spent a week in solitary confinement and alleges further ill-treatment, this time at the hand of collaborators, who forced him to make a written confession. Mr Al-Shami has been left with permanent disabilities by this alleged torture.


In the Netherlands:

Mr AI-Shami’s lawyer: Prof. Dr. Liesbeth Zegveld, Bohler Franken Koppe Wijngaarden (BFKW), Attorneys. Add ress: Keizersg racht 560- 562, Amsterda m 1017 EM.

Tel.: +31 20 – 3446200; Fax: +3120 – 3446201; E-mail: Info@bfkw.nl

In Gaza:

Raji Sourani, Lawyer and Director of the Palestinian Centre for Human Rights Phone: 00 972 (0)599608811 or 00 972 (0) 82824776

Daragh Murray, Legal Officer, Palestinian Centre for Human Rights, Phone 00972 599468828

E-mail: pchr@pchrgaza.org; daragh@pchrgaza.org Website: http://www.pchrgaza.org

PCHR is an independent human rights organisation working on human rights violations perpetrated by both Israel and the Palestinian National Authority

In the UK:

Daniel Machover, Partner,      phone: 0044 (0)7773 341096    OR

Kate Maynard, solicitor,          phone: 0044 (0)7899 982977

Hickman & Rose solicitors      Website: http://www.hickmanandrose.co.uk