HCJ 7694/21, Daud al Rahman Abdallah Hassan et al v. State Attorney Amit Aisman et al.

Submission date: November 11, 2021

On November 11, 2021, Yesh Din with three Palestinian residents of the village Bidya petitioned the Israeli High Court of Justice (HCJ) against the State Attorney, Amit Aisman, the Appeals Unit at the Office of the State Attorney, Central District Attorney’s Office (Criminal) and five Israeli nationals. The petitioners appealed to the HCJ after the Israeli law enforcement system failed to enforce the law and prosecute offenders to the fullest extent of the law for harming the petitioners. The indictment, served against just one of the five Israeli nationals who violently attacked the petitioners, was entirely inexhaustive and failed to include charges concerning injury of the petitioners.

On July 5, 2020, residents of Bidya and the area were alerted that a group of Israeli nationals was on their privately-owned land. Approximately 30 Palestinian farmers and landowners went to their land, approximately ten of whom – including the three petitioners – approached the group of Israelis. The Israelis were armed with an M-16 rifle and three guns and accompanied by two large dogs. They began to argue over rights to the land.

During the argument, one of the two dogs began behaving violently and bit two of the Palestinian petitioners.

In addition to the canine biting, during the incident several shots were fired by the Israelis, who bore arms. One injured Mohannad ‘Aazi, a Palestinian farmer, and two additional shots struck and wounded Daud Hassan, one of the Palestinian petitioners.

Police opened an investigation on the day of the incident. Members of the Israeli group stated to police that the incident was an attempted lynching by the Palestinian farmers. In their statements, the Israelis claimed that the Palestinian were armed with bats and threw rocks at them, and that they had fired shots because they feared for their lives. In an extraordinary turn of events, the incident was captured on film by a drone operated by one of the Israeli nationals and the footage proved their claims were false and baseless.

After the police investigation, the decision was made to indict just one of the attackers; with regards to the other attackers, the decision was to close the investigation file due to lack of sufficient evidence. This lone indictment addressed only the wounding of Mohannad ‘Aazi and did not include any charges concerning the additional shooting that injured Daud Hassan or the role of the other Israeli rioters in assaulting and injuring the other petitioners. The indictment also did not include any charges referring to obstruction of the investigation by the Israeli group even though the suspects knowingly lied in their statements to police, attempted to incriminate the Palestinian farmers under false pretenses by claiming the Palestinians were endangering the Israelis’ lives – which led to investigation of the Palestinian farmers under warning – and although this lie was exposed in footage obtained from the drone and not because the Israelis retracted their statements.

On January 17, 2021, Yesh Din’s legal team appealed the decision to close the file against four of the Israelis who participated in the incident, arguing there is sufficient evidence to prosecute them for their role in the attack. Additionally, the appeal demanded that the inexhaustive indictment served against Eitan Ze’ev be amended (Ze’ev was the only Israeli indicted in this case) to include the offenses committed against the other three Palestinians wounded in the attack.

The Office of the State Attorney rejected the appeal, claiming that the right of appeal “does not apply once an indictment is served against some of the suspects and the investigation file was closed with regards to other suspects”. In its response to the appeal, the Office of the State Attorney Office noted that once an indictment was served against Eitan Ze’ev, the rest of the victims of the offense lack the right to appeal the decision not to prosecute the other suspects of the offenses committed against them. During subsequent events, it became clear that this decision is not anchored in legislation or jurisprudence and is based on the State Attorney’s independent interpretation.

On November 11, 2021, the three Palestinian farmers with Yesh Din petitioned the High Court, asking the Court to instruct the State Attorney to retract his extremely unreasonable policy whereby victims of offences are not afforded the right of appeal in cases when an indictment is served against some of the suspects yet the investigation file is closed against other suspects involved in the very same incidents, and when an indictment is served and refers only to offenses committed against some victims of the offense but not to other offences committed against additional victims involved the same incident. Additionally, the petition asks the Court to instruct the Office of the State Attorney to prosecute the four Israeli nationals involved in the assault, whose cases were closed without an indictment. It also demands that the single indictment served against Eitan Ze’ev be amended to include also the offenses concerning assault of the three Palestinian petitioners who were injured along with Mohannad ‘Aazi in this same incident.

The petition argues that revoking the petitioners’ right of appeal infringes on their right as victims of crimes to voice their objections to a decision and abolishes their status as victims of crime and the rights this status affords. This includes the right to receive information about ongoing proceedings; to information regarding whether a plea bargain is being arranged and to voice their position regarding such an arrangement insofar as it is undertaken; to receive damages insofar as the defendant is convicted and the sentence awards damages; to be heard by a parole board in cases of an active imprisonment sentence which enables one third of the sentence to be reduced; to receive copies of the indictment, protocols and decisions, and announcements regarding hearing dates, etc. This leads to an absurd situation in which two persons who were both injured by live ammunition in the same incident are not afforded the same status in the criminal proceeding.

The petition was written by Atty. Michal Ziv of Yesh Din’s legal team and includes extensive detail of each attacker’s role in this incident, and the body of evidence regarding the events. According to the petition, it “exposes another part of the criminal law enforcement system’s inadequacy in addressing violence by Israeli against Palestinians in the West Bank. The petitioners presented evidentiary tests that suggest that if respondents 5-8 are prosecuted, there is a reasonable likelihood of conviction. Such tests are supposed to be the basis for the decision taken by respondent 3 as to whether to prosecute a suspect or not. Respondent 3 seems to have made a decision contrary to this standard without offering a satisfactory explanation.

Petition status: In proceedings