Most criminal cases in Israel are prosecuted by the Israel Police rather than by the State Prosecutor. Prof. Mordechai Kremnitzer and Dr. Guy Lurie call for a division that would make the Police responsible for investigations and the State Prosecutor responsible for indictments and trials.
Many people would no doubt be surprised to learn that the State Prosecutor's Office does not prosecute most criminal cases in Israel. That honor is reserved for the prosecution department of the Israel Police, which handles about 87% of all of Israel's criminal cases. At present, the division of labor between the State Prosecutor's Office and the Police Prosecution Department is defined by an ad hoc provision that will expire in November. Accordingly, this is a good opportunity to raise the question, once again, of whether the time has come to end the subordination of the Prosecution Department to the Police and to merge the Police Prosecution Department with the State Prosecutor's Office.
This is not a new question. Since the late 1990s, public and professional committees, as well as the State Comptroller, have repeatedly recommended that the Prosecution Department be removed from the Police. The subordination of the prosecution to the investigative body—that is, the police—raises fundamental difficulties. Whereas the Police are expected to achieve results in the field of law enforcement, the prosecution is expected to employ quasi-judicial discretion, to represent the public interest and bring about justice, and to refrain from putting the innocent on trial.
The subordination of the police prosecution to the investigative body encourages a tendency to pursue convictions and ignore possible mistakes made by the investigators. It also undermines public trust in the judicial system, as that trust is partially based on a perception of the prosecution as an independent and impartial body that serves the public interest. Furthermore, the failure to distinguish between the investigative body and the prosecution has a negative impact on the investigation itself. The Police play a vital role in preventing and discovering crime, apprehending lawbreakers, investigating crimes, and gathering evidence. To succeed, they must focus on matters that are related to their essential and organic role as the investigative body, rather than on prosecution.
In a 2001 report, the State Comptroller noted vast differences in how the Police Prosecution Department and the State Prosecutor's Office operate. Today there is also evidence that we believe indicates that the State Prosecutor's Office exercises discretion better than the Prosecution Department of the Police. Beyond the matter of principle and the problematic nature of allowing the prosecutors to continue to be subordinate to the investigative body, this ongoing situation also reflects a failure of government. As long ago as 2001, the government decided to "gradually merge the Police Prosecution Department and the State Prosecutor's Office." The decision was taken after a thorough study of the topic, with public input on the professional and administrative level as well as on the political level.
Although the government decided that merging the two prosecutorial agencies, so as to maintain a division between investigation and prosecution, is the appropriate model, that decision has not been implemented in the 12 years that have passed since it was taken. Not only that, but in the years since the decision was taken, various statements by senior officials in the Justice Ministry and the Israel Police have indicated that there is no intention to implement it whatsoever. It is astonishing that those who are charged with enforcing the law do not respect a binding government decision. The government is entitled, of course, to change its decision. But a situation in which a valid decision is not implemented for so many years is intolerable and is a sign of government incompetence.
Now is the time for the Knesset to take action. It must set matters straight and make the Police responsible for the investigation and the State Prosecutor responsible for the indictment and trial. The Knesset must be particularly vigilant about this, since there seem to be people who wish to prevent the very discussion of this matter. On Sunday October 13, 2013, the government took a decision to try to pass, through an exceptionally accelerated process, an ad hoc provision that would continue the present situation. We must not allow the government to continue dragging its feet. Its plans to stifle public debate on such an important matter, moreover, are clearly unacceptable.
Related Legal Opinion
On October 13, 2013, Prof. Mordechai Kremnitzer and Dr. Guy Lurie sent a detailed legal opinion on the need to separate the prosecution of criminal cases from the Police to MK David Rotem, Chairman of the Knesset Constitution, Law, and Justice Committee.
Prof. Mordechai Kremnitzer is Vice President of Research of the Israel Democracy Institute. Dr. Guy Lurie is a researcher at the Institute.
This article was published in The Jerusalem Post on October 28, 2013.