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From the field

HCJ instructs MAG Corps and State Attorney’s Office to reach a decision in Samir ‘Awad case within three months

Justices criticize the lack of decision before the release of the soldiers involved from active duty

Yesterday (1 December 2014) the High Court of Justice instructed the MAG Corps and the State Attorney’s Office to reach a decision by 1 March 2015 with regard to the investigation of Samir ‘Awad’s death, and to notify the Court of the decision. The Court also added the Attorney General as a respondent in the petition since it was found at the court session that the soldiers suspected in the case have already been discharged from the military and are, therefore, are no longer subject to Military Justice Law.

Yesterday, Justices Melcer, Shoham and Barak-Erez presided over the first hearing in the petition by Ahmad ‘Awad whose 16-year-old son Samir was shot and killed by soldiers near the Separation Barrier in the village of Budrus. The petition, filed jointly by Mr. ‘Awad and B’Tselem, sought that the Military Advocate General (MAG) decide whether to charge the soldiers who killed Samir or close the case. At the hearing, counsel for the Petitioners, Adv. Gaby Lasky argued that although nearly two years have elapsed since the incident, and although the Palestinian eyewitnesses cooperated fully with the investigation and all relevant evidence had been provided, no decision has been made in the file to date. Lasky argued that the extreme delay in the process was unreasonable and that it exacerbated the harm to the family and to the rule of law. Adv. Lasky cited recommendation No. 10 in the yet-to-be-implemented Turkel Commission report, whereby a time limit must be imposed on the duration of investigations by the Military Police Investigation Unit (MPIU). Adv. Lasky added that the transparency of these investigations must also come under review. She said that, despite the ‘Awad family’s status as victims of crime, they were not apprised of the progress made in the investigation other than terse updates sent by the MAG Corps.

During the hearing, the justices expressed their dissatisfaction with the protraction of proceedings even while the soldiers who had fired were discharged from active military service. The justices were all the more displeased at finding that the two main suspects had completed their mandatory military service and were discharged six and 12 months ago, and that the MAG Corps had been aware of the projected dates of their discharge from service. Adv. Lasky explained that these circumstances complicated the case as Military Justice Law ceases to apply to discharged soldiers six months after their discharge from service, and the case must then be transferred to the State Attorney’s Office. Adv. Lasky, therefore, asked the Court to name the State Attorney’s Office as respondent in the petition with a view to preventing further delays in transferring the case to it. Justice Hanan Melcer asked State Counsel Adv. Avinoam Segal-Elad why the pace of the investigation had not been stepped-up when it became evident that the soldiers would be discharged shortly: “What happened here is not right. When I was [in the system], many years ago, when people were on the verge of being discharged, we ensured that investigations be completed”.

The issue of the MAG’s authority to make decisions in cases involving suspected offenses by soldiers who had been discharged and no longer come under the Military Justice Law also came up during the hearing. Adv. Segal-Elad said that according to current practice, if the MAG decides that the evidence does not substantiate an indictment, the MAG Corps is the entity that should decide to close the file. The justices did not accept this line of reasoning. Justice Dafna Barak-Erez said: “The decision to close a case must also be made [by an entity] with authority”. Justice Uri Shoham said: “What relevance does the MAG’S decision have? He is not the one who should be making the decision… they are not under his jurisdiction and he is not the deciding official. This requires further consideration”. Justice Melcer told State counsel: “In future, MAG Corps officials must know that when they are faced with something like this, they must complete all proceedings before the soldiers are discharged. There are also the Turkel Commission recommendations and you fail to meet the standard. Don’t push me into issuing an order nisi.”