In an op-ed in Haaretz, IDI Vice President Prof. Mordechai Kremnitzer and Dr. Guy Lurie call for reform that will abolish the Police Prosecution Department, leaving the Police to investigate and the Public Prosecution to bring criminal charges.
The publication of the Attorney General's ruling to stop the criminal proceedings against Daphni Leef and other activists of the social protest movement (February 13, 2014) was a wake-up call. First of all, we should congratulate the Attorney General for righting the wrong done by the Police Prosecution Department by prosecuting the case and proceeding with the indictment. In so doing, the Attorney General fulfilled his role as head of the prosecution and his responsibility to maintain its integrity. As High Court Justice Daphne Barak-Erez recently ruled:
"The duty of fairness, which is binding on all prosecutorial authorities, like all administrative authorities, obligates the prosecutors to examine their position regarding any indictment they bring, and to withdraw an indictment when appropriate, whether partially or in full... It is inappropriate to take the view that the prosecutorial authorities must adhere to the 'prosecutorial' position at any cost. The prosecutor represents the public interest, and must not try to get a conviction 'at any cost'; rather, the prosecutor must strive to convict only the guilty and to uncover the truth."
Again, however, we must wonder why there was any need whatsoever for the Attorney General to intervene in order to return the prosecution to its proper path. Why didn't the Police Prosecution Department itself realize that the prosecution should be stopped? Why did the Police Prosecution institute criminal proceedings in the first place in cases of legitimate protest? Why did it insist on presenting evidence that led Justice Shamai Becker to question their relevance? (Ha'aretz, January 26, 2014) Why did the Police Prosecution Department demand that 14 protest activists be detained until the end of the proceedings? This request elicited the following response from Judge Tzachi Uziel at the time: "the police should have ordered their release, whether conditional or unconditional, at the police station, and should not have brought them to court while requesting that they be held in custody until the conclusion of the proceedings."
The Police Prosecution Department initiates some 87% of criminal prosecutions in Israel. Ever since the early days of the State, doubts have been raised regarding the need for the institution of the police prosecution, which is an inheritance from the British Mandate. In a Knesset debate in 1950, Member of Knesset (and later judge) Yosef-Michael Lamm criticized the existence of the Police Prosecution, noted that British practice preferred the police to conduct criminal proceedings for the "natives." Since then, both Israel and England (where the Police Prosecution was abolished some 30 years ago) realized that criminal prosecution should not be undertaken by the investigating body—i.e., the police. Since the end of the 1990s, there have been repeated recommendations by public and professional committees, as well as by the State Comptroller, to separate the police prosecution department from the Police, and merge it with the State Prosecutor's office. The government decided, as far back as 2001, to combine the Police Prosecution and the State Prosecution. This decision was also intended for the benefit of the Police, who should focus on conducting investigations, the important role that has been entrusted to it. Despite this decision, however, the Police Prosecution Department continues to initiate most of the criminal prosecutions in Israel.
The current case illustrates the fundamental problem of the very existence of a criminal prosecution system that is subordinate to the Police. The subordination of the Police Prosecution Department to the investigative body creates an increased tendency to obtain convictions, as in the case at hand, at the expense of the true role of the prosecution: to represent the public interest. Subsequent intervention by the Attorney General is relatively rare, and cannot right the wrong done to a person who has been accused of criminal behavior and who has been forced to live in the shadow of charges that should never have been brought in the first place.
Furthermore, such intervention cannot repair the damage this kind of case causes to the public's confidence in the police. Without such confidence, the Police cannot properly fulfill its role in the area of investigations. This case should spur the Attorney General and the new State Attorney, as well as all other government authorities, to take urgent and far-reaching action. What is needed here is not a single, specific corrective decision, but rather a deep-rooted effort of system-wide reform. Israel needs a prosecution service that will work for the benefit of its citizens. These matters must be set straight and parted separation is necessary: The Police will conduct investigations and the Public Prosecution will be responsible for bringing criminal charges.
Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute. Dr. Guy Lurie is a Researcher at the Institute.
This article was originally published in Hebrew in Haaretz on February 10, 2014.