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The Shelving of Complaints of Torture by the Israel Security Agency: HCJ 1265/11 Public Committee Against Torture v. Attorney General; HCJ 9061/11 Hutari v. Attorney General (Partial Judgment of August 6, 2012)
Court Watch | 9061/11 | 1.9.2012 | Adv. Keren Michaeli
Criticism

The subject of these petitions is the Attorney General’s procedure for handling complaints made by detainees regarding torture and ill-treatment during their interrogations by agents of the Israel Security Agency (ISA, formerly also known as the Shin Beit, or General Security Services, the GSS). About 600 complaints of this kind have been filed in the past decade[1] and all of them, to the very last one, were filed away without a single criminal investigation having been ordered. The complaints were shelved on the basis of a preliminary investigation by the ISA Inspector of Interrogee Complaints (the Inspector), who is an ISA staffer. In addition to the arguments in principle against the lack of authority and reasonability of this system, the petition included arguments against the shelving of complaints by specific interrogees; who were named as individual petitioners.[2] The court rejected most of the arguments in principle against the procedure by which the complaints were shelved. Regarding the individual petitioners, rather than handing down a final judgment, the deadline for filing an appeal against the shelving of the complaints was extended.


The story unfolded in this petition is bleak. It contains claims of severe torture of detainees along with charges regarding cover-ups and arbitrary conduct not only on the part of the security forces but also of the justice system, which almost offhandedly dismissed hundreds of complaints by victims. However, in Justice Rubinstein’s judgment, this story is only vaguely alluded to. On the contrary, a reading of the judgment provides a completely different experience, that of an intrepid security agency and a justice system that is a light unto the nations: a system of transparency, balanced values and courage. The petitioners’ dark story being swallowed up into surprising optimism is the central motif of the judgment.


What is the story here? The current procedure for processing complaints against ISA personnel is as follows: Complaints submitted to the Attorney General or the police are transferred to the State Attorney’s Office. A senior attorney there holds the office of Supervisor of the Inspector of Interrogee Complaints (the Supervisor). The Supervisor refers the complaints to the Inspector, who conducts a preliminary investigation and hands over the results to the Supervisor. If the Supervisor decides that the complaint should not be criminally investigated, it is filed away. If the Supervisor decides that an investigation is warranted, the complaint will be transferred to the competent officials, lawyers from the State Attorney’s Office who have been delegated the authority to do so by the Attorney General. There are two problems with this procedure. First of all, the Supervisor has no legal authority to close files. Secondly, there has never been a case in which a criminal investigation was ordered due to a complaint. In legal terminology, we have here a system operating without legal authority and, furthermore, it seems, without reasonability.


These were the petitioners’ main arguments. The charge regarding lack of authority was based on Section 49 (9.1) of the Police Ordinance which determines that suspected violations by ISA personnel will be investigated by the Department for the Investigation of Police (DIP), should the Attorney General decide to investigate. Regarding this provision, the petitioners argued that it establishes a parallel power for the attorney general and the police to open an investigation against ISA staff members without detracting from the general arrangement stipulated in Section 59 of the Criminal Procedure Law which obliges the police to open an investigation if they are aware that an offense classified as a crime has been committed. The current procedure, by which complaints are shelved without criminal investigation by either the police or the DIP – is tainted by lack of authority. Furthermore, it was argued that, according to the section, the decision on the fate of the complaint rests with the attorney general or those to whom that power has been delegated (the state attorney and deputy state attorneys only). In practise, how complaints are processed is determined by the Supervisor, who has not been delegated the power to do so.


The argument that the police have a parallel power to open investigations was rejected in the judgment, based on the legislative purpose of the arrangement stipulated in Section 49 (9.1), which was to remove the power of the police to investigate ISA personnel, with whom the police have a close working relationship. There is no disputing the fact that the court’s interpretation of the section as meant to preserve the integrity of the investigative process was appropriate. However, the deliberation did not address the petitioners’ argument that in practice, this interpretation makes matters worse for complainants, which contradicts the very purpose of the legislation.


Regarding the argument about the fact that the Supervisor lacks the authority to determine the fate of the complaints, Justice Rubinstein wrote that:


I myself am of the opinion that in order to best express the legislature's intent, each complaint file the Supervisor had recommended be closed shall be brought to the Respondent, or an official acting on his behalf and to whom the power to launch an investigation has been delegated, such that a decision to close a case shall have the approval of the official who is competent to launch an investigation.[3]

This weak wording, merely recommending that the official competent to open an investigation against ISA staff members will also be the one to close it is problematic in and of itself. It does not include any criticism of the way the respondent has operated until now nor does it put any emphasis on the importance of having these complaints brought before the respondent for a decision, in terms of both the rule of law and the importance to the public. On the contrary: Justice Rubinstein adds a recommendation to make the existing situation permanent by amending Article 49 (9.1) such that it authorizes the Supervisor not only to close investigations but also to open them. Justice Rubinstein completely overlooked the Supervisor’s poor track record in handling complaints and the importance of looking into allegations of serious abuse by ISA interrogators.


The judgment goes on to determine that in principle there is no question of lack authority in holding a preliminary investigation of a complaint by the Inspector as a condition for opening a criminal investigation. Israeli law contains no automatic duty to open a criminal investigation – even of an offense classified as a crime – without a satisfactory evidentiary foundation revealed by a preliminary investigation.


At this point, Justice Rubinstein turns to discuss the question of the reasonableness of the way the system handles complaints. Here too, the same manoeuvre that detaches judicial review from the reality described in the petition is repeated. The discussion completely ignores how the procedure for examining complaints has been and continues to be conducted in actual fact, and looks only at how the system will work in the future, after a planned structural change that would see the post of Inspector transferred from the ISA to the Ministry of Justice.[4] Specifically, in 2010, the state decided that the Inspector would no longer be an ISA staffer, but a Justice Ministry official. In January 2012, the court was informed that the tender for the post was to be published in a few weeks. But up until the time the judgment was handed down, no further progress on this matter was reported. The fact that this arrangement did not yet exist and there was no way of knowing how it would work once established, made no difference to Justice Rubinstein, who determined that given the structural change “the mechanism for reviewing complaints filed by ISA interrogees meets legal standards and that it is reasonable on its merits".[5]


In other words, the petitioners’ charge that the fact that hundreds of complaints about torture by ISA interrogators were shelved by the Supervisor clearly demonstrates that the procedure for examining the complaints is unreasonable, was never addressed in the judgment. Justice Rubinstein did not see fit to address this point or even hint at criticism of the existing mechanism. This disregard for the heart of the petition is what the reader finds outrageous. It is what makes the judgment irrelevant and unjust. Irrelevant because it does not fit reality – where the procedure in effect is entirely different from the one imagined in the judgment, a procedure no one knows when might come into effect. It is unjust because it fails to consider the real question of the petition, which is the conduct of the State Attorney’s Office. True, the decisions of Supervisor were based on the examination conducted by the Inspector, who is an ISA official. However, that fact that does not fully explain why the Supervisor dismissed all the complaints filed by interrogees. After a decade, a reasonable Supervisor would have stopped relying on hundreds of preliminary investigations which found no evidence in a single complaint. The responsibility in this matter falls on the Supervisor, the very office Justice Rubinstein recommended should be authorized by law to decide on all aspects of investigating complaints! The fact that the preliminary investigation is to be transferred to the Justice Ministry makes no difference. It is unclear how this move justifies completely ignoring the way the Supervisor’s discretion has been used over the years.


However, the judgment is unjust for another reason as well. Ignoring the record of the Supervisor and the respondent’s office reduces to nothing the people on whose behalf the petition was submitted and leaves the hundreds of interrogees who claimed they were severely tortured by the ISA out of the story told in the judgment – as if they never existed.



Adv. Keren Michaeli

The author is a lecturer on international law at the College of Management Academic Studies.



[1] 
The petitioners noted that more than 650 complaints against ISA interrogators were filed over the last decade, see first petition, HCJ 1265/11 Public Committee Against Torture in Israel v. Attorney General, petition of February 14, 2011, para. 2.
[2] 
See ibid. and also second petition, HCJ 9061/11 Hutari v. Attorney General, petition of December 7, 2011 (in Hebrew),
[3] 
See above note 1, HCJ 1265/11, judgment of August 6, 2012, para. 28 of the opinion of Justice Rubinstein; emphasis added, K.M.
[4] 
See, e.g., HCJ 6138/10 HaMoked: Center for the Defence of the Individual v. Attorney General (2011), para. 10 of Preliminary Response on Behalf of the Respondent of January 9, 2011.
[5] 
See above note 1, para. 35 of the opinion of Justice Rubinstein.
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