Does everyone get his or her day in court? Not if they are Palestinian.
Every year Yesh Din publishes data about police investigative failures regarding offenses carried out by Israelis towards Palestinians in the West Bank. They are usually quite similar: the police fails to investigate approximately 85 percent of complaints of Palestinians who report being harmed by Israelis. The rate becomes much higher when it comes to the destruction of Palestinian trees by Israeli civilians: then the police failure rate grows to 97.4 percent.
The average Israeli may not be surprised that the police failure rates are so high, but he or she still has some expectations of the courts. After all, we are told time and again that Israel is governed by the rule of law.
Okay, says the average citizen to himself, yes, we seem to have a problem in when it comes to investigations, and naturally if the investigation is a mess we are not likely to get to court. But once we step into the halls of justice, everything should be fine.
Our latest data sheet, which was released in tandem with an exhaustive report on the failure of law enforcement in the West Bank, examines for the first time what happens to the cases we follow once they leave the limbo of the prosecution and make it to court. The situation, to put it mildly, is not “okay.”
To begin with, the chance that a complaint by a Palestinian victim will bloom into a an indictment against an Israeli felon stands at a mere 7.4 percent. This means that the chances an Israeli felon will appear in court for a crime he is suspected of committing is about 1:14. Most often, cases are closed due to police investigative failures; in a majority of the cases, the specific reason is the inability of the police to find a suspect – what is known as the the unknown perpetrator clause.
The fact that a case makes it to court does not, of course, mean it will end in a conviction. The defendants have the right to representation and have access to attorneys — as a human rights organization we entirely support this. The problem lies elsewhere.
In 10.5 percent of the cases, the defendants are convicted of all charges; in 22.8 percent of the cases, only some of the defendants are convicted, or they are convicted of some of the charges – sometimes reduced charges as part of a plea bargain. The rate of acquittals is high relative to other cases in Israeli courts (8.8 percent). But what is truly high is the rate of “non-conviction” (24.6 percent) and the rate of indictment withdrawal (22.8 percent).
What is a non-conviction? It is a relatively rare practice, in which the court believes there is reason to avoid tarring him/her with a criminal conviction for one reason or another — despite the fact that the felon has been found guilt of the charges. This almost never happens in the Israeli courts: the percentage of defendants in the magistrates courts found guilty without conviction is 5.3 percent; in district courts the number stands at only 1.2% percent. This is true unless the victim is a Palestinian; then the rare of non-conviction jumps to 24.6 percent. That’s four times that of magistrates courts, and almost 20 times that of the district courts. What a coincidence.
In many of the cases in which indictments against Israelis charged with harming Palestinians were withdrawn, the reason was, once again, investigative failure. The prosecution re-examined the evidence, apparently after the response of the defendants’ attorneys, and reached the conclusion that it did not have enough evidence for a conviction. And that, we note, is a perfectly legitimate decision.
But in many of the indictment withdrawal cases, one of the reasons given was that the defendants did not even bother to show up for the hearings. In most of the cases the government took the required steps – a fine, issuing warrants for arrest and subpoenas – but the indictments were frozen until the defendant was found. In one of the cases, the prolonged freezing caused the police prosecution to say that the evidence has been degraded, to the point of cancelling the indictment.
At the end of the day, the chance that a Palestinian who lodged a complaint about being harmed by an Israeli civilian will see a conviction is only 1.9 percent. Again, most of the blame for this lies with the police – but the courts have their share, as seen by the unusual rate of non-conviction.
Rule of law? Rule of the violent.