The right to appeal decisions made by government authorities is one of the mechanisms meant to check and balance the power vested in the authorities and prevent the arbitrary exercise of the powers given to them. The right of appeal allows a certain degree of transparency, oversight and criticism of the authorities’ actions and decisions and serves as a means of restraining and supervising their actions. It contributes to the public’s trust of them.
In August 2002, the State Attorney’s Office issued a directive on respect for complainants’ rights to review investigation material in order to file an appeal or petition the High Court of Justice against the decision to close an investigation file, because “the citizen requires this material in order to exercise a right explicitly granted by law explicitly.” However, it the directive also specified additional considerations besides the complainant’s right, which should be considered before he or she is allowed to review the material. The directive recognized that reviewing the investigation material by the complainant is necessary in order to consider the decision by the investigation and prosecution bodies.
As a result of the directive, Yesh Din’s legal advisors have since reviewed hundreds of investigation files that were closed concerning complainants Yesh Din represents. As of publication of this position paper, review of the materials in these investigation files led to the submission of 185 appeals. Most addressed the closure of investigation files without investigating or without completing the investigation, while some addressed closure of investigations without serving indictments even when the file contained evidence that justify filing an indictment.
Appeals regarding completing an investigation or opening an investigation were submitted only in cases where there seemed to be a reasonable chance that additional investigative actions would lead to serving an indictment. In many cases in which the investigation was not exhausted, appeals were not filed because of the long period that elapsed since the crime was committed, assuming that completing the investigation by actions such as collecting evidence on the ground, investigating witnesses, conducting identification lineups and so on, would no longer be effective.
However, in June 2010, then State Prosecutor Moshe Lador published new directives concerning the right to review case files. The directives led to a situation in which only few could exercise their right and challenge a decision to close an investigation file. Among other things, the directive determined that investigation files closed due to lack of evidence would could not be reviewed.
In the position paper, Yesh Din recommended that the previous directive be restored to enable complainants to review material contained in investigation files. Yesh Din also recommended establishing procedures to guarantee that complainants and/or their representative receive notice when an investigation of their complaint is closed, and that such notice be delivered close to the time of the closure of the file.
Yesh Din petitioned the High Court with the Association of Rape Crisis Centers in Israel and Noga Legal Center for Victims of Crime asking the Court ensure victims’ right to review investigation files. Following the petition and the Court’s criticism, it was decided that a complainant who seeks to appeal the decision to close an investigation file should be able to review the investigation material, taking into account that this may weaken the weight of his or her testimony and of the additional evidence.