HCJ 6477/11 HaMoked: Center for the Defense of the Individual V Military Police Criminal Investigations Division Commander

Petition Submission Date: 7.9.11

In May 2010, the Military Police Criminal Investigations Division (MPCID) announced a new procedure that prohibits the transfer of investigative material for the purposes of appealing a decision to close an investigation, in the event that the Palestinian making the request also filed a damages claim. As a result Yesh Din and HaMoked petitioned the High Court to demand the procedure be terminated.

The significance of the procedure is that if a Palestinian is harmed by IDF soldiers’ actions and has notified that he or she intends to file a civil suit for damages, the MPCID will not provide the investigative material – which precludes the victim’s ability to appeal the decision to close the investigation. Furthermore, MPCID insisted on a timetable that Yesh Din and HaMoked consider unreasonable for providing the investigative material necessary for appealing the decision to close the investigation. Yesh Din’s examination demonstrated that the average time for receiving investigative material is 243 days, and in one case it was took 544 days.

Appeals allow for effective criticism of the investigative proceeding, but they require the investigative material. When the lawyer representing the victim files an appeal without gaining access to the investigative materials, it is very unlikely that the appeal will be accepted. As noted in the petition, in some cases that reached Yesh Din, it was evident that the investigation did not include basic investigation measures such as calling in witnesses that the complainant specified in his testimony, or additional witnesses.

An appeal enables the call for a second investigation, but the ability to carry it out decreases with time. Another challenge is the fact that application of military law on soldiers has a time limit. Yesh Din and Hamoked thus demanded that the investigative material be provided within a reasonable amount of time from the moment the case is closed.

In its response, the State claimed that the procedure for withholding investigative material to those who file a civil suit is not applied in every case, however it should be taken into consideration when deciding whether to enable access to investigate material. Regarding the timeframe for transferring materials, the claim is that even “the simplest cases” taken on by the MPCID may include confidential information. Therefore, it is necessary to conduct a thorough examination, which naturally takes time, before passing on the materials.

After filing the petition, the MPCID formulated an amended procedure regarding the transfer of investigative materials – however since it did not amend most of the flaws in the original procedure, a revised petition was submitted, which claimed that the new procedure allows for a “lengthy and non-binding” timetable for reaching a decision regarding the request for access to investigation material. The petition also claimed that the very option of not transferring material due to the filing of a civil suit is unacceptable.

In February 2015, both parties agreed to withdraw the petition in light of the improvement in the rate of access to cases, even though the procedure itself was not amended.

Petition Status: Withdrawn. Yesh Din and Hamoked maintain their right to file another petition in the matter, if necessary.