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Judgment in HaMoked’s petition for information concerning three Palestinians’ bodies Israel has failed to locate: the court orders the state to disclose to HaMoked the burial locations that appeared in the original burial records

On August 10, 2016, HaMoked filed a Freedom-of-Information petition to the Jerusalem District Court, to order the National Center of Forensic Medicine to provide the information it held relating to three Palestinians’ bodies which Israel had been withholding since 2002, but had failed to locate where it had them buried. This came to light after the military opened several graves in southern Israel – following HaMoked’s petitions to return the bodies to their families – where it was thought two of the bodies were buried; but none of the exhumed bodies matched the bereaved relatives’ DNA; in the third case the body could not be located in the absence of any record on the exact burial place. Therefore, in November 2014, the state announced that “the possibilities of locating [the bodies] has been exhausted… it is not practically possible to return them to the families”. In its petition for disclosure, HaMoked stressed the unique importance of the information for the families, who had no choice but to continue seeking the missing bodies of their loved ones. HaMoked also noted the public importance of uncovering the authorities’ defective conduct which led to the disappearance of the three bodies.

Following the court’s recommendation, the state agreed to provide HaMoked with the requested forensic center materials, subject to prior approval of the relevant security organs. However, later on, the state clarified that in this framework, details relating to the places of burial would not be provided, due to the Israel Police’s objection to exposing this information.

In its response of May 16, 2017, HaMoked protested against the state’s outrageous conduct – given that until then HaMoked had received only the postmortem reports on the three bodies – and asked the court to order the state to submit its notice of response, if all the information requested by HaMoked was not promptly delivered. HaMoked also requested that the state reconsider its position on disclosing details about the burial locations of the three bodies.

On October 23, 2017, and after further foot-dragging, the state submitted its notice of response to the petition, raising a new claim that “the information available at the forensic medicine center concerning the said anonymous bodies… is information created entirely at the police’s request… and all of the said information is police investigative material…” to which “the Freedom of Information Law does not apply”. Therefore the state asked the court to dismiss the petition.

Following a court hearing held on November 15, 2017, HaMoked was given additional documents relating to the location of the graves – in all of them the places of burial were blacked out – including Ministry of Health burial licences, confirmations of “examination and release of a body”, and Ministry of Interior death certificates. This, after the police gave its consent – and despite the fact that these were standard forms and certificates issued ahead of any burial, and unrelated to police investigations.

On March 18, 2018, HaMoked asked the court to order the disclosure of the blacked out information relating to the burial locations, given that these were not classified or police documents. HaMoked reiterated that the graves in question had already been opened and examined and that the missing bodies were not buried there. Therefore, the claim about concerns that the burial grounds would become a “pilgrimage site” or “a means to retrieve bodies” was absurd, especially as in other cases, the state had disclosed to families the exact locations of their loved-ones’ graves without any problem.

In the judgment, issued March 27, 2018, Judge Shaham ruled that “the said documents are to be provided to the petitioners without any blacking out or omissions” by April 29, 2018, given that “they cannot be characterized, even by a stretch, as ‘information gathered or created for investigation purposes’”. The court also accepted HaMoked’s claim that “no real foundation was laid to substantiate the claim … that the precise details of the burial place should not be given out of concern that the burial grounds would become a place where disruptions of order or pilgrimage take place. Certainly no foundation has been laid, based on this claim, to invoke one of the exceptions for providing information listed in the Freedom of Information Law”.

The state was also ordered to pay HaMoked’s attorney fees in the sum of NIS 10,000. (02) 627 1698   (02) 627 6317

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