Case Number
HCJ 9018/17
Date Decided
11-26-2018
Decision Type
Original
Document Type
Full Opinion
Abstract
The Petitioner claimed that he was tortured in the course of interrogation by the Israel Security Agency (ISA) (formerly the General Security Service (GSS)), and petitioned the Court to order the Attorney General to rescind his decision not to open a criminal investigation of the interrogators, and to annul the Attorney General’s guidelines entitled: “ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion” (hereinafter: the AG’s Guidelines) that provide the basis for the Internal Guidelines of the ISA (hereinafter: the Guidelines). The Petitioners argued that the Guidelines unlawfully permit interrogators to consult with more senior officials in regard to employing “special means” in the course of interrogations.
Facts:
The Petitioner was interrogated by the Israel Security Service on the suspicion of hostile terrorist activity in the military wing of the Hamas. According to intelligence, the Petitioner knew the location of a substantial arms cache that had been used in the perpetration of several terrorist attacks. Additionally, there was a suspicion that the terrorist network of which the Petitioner was a member, intended to carry out another terrorist attack with those weapons. In light of the Petitioner’s denial of the suspicions, and in view of the ISA interrogators’ opinion that he had information about a planned attack that would endanger human lives, the ISA employed what the Respondents termed “special means of interrogation” against the Petitioner. In the course of his interrogation, the Petitioner provided information about weapons that he had received and had transferred to other Hamas activists, as well as information that aided in the interrogation of other members of the terrorist network, one of whom admitted to planning a kidnapping attack and to “setting in motion additional terrorist activity.
Upon conclusion of the investigation, an information was filed against the Petitioner in the Military Court in Judea. The Petitioner pled guilty under a plea agreement, and was convicted of membership and activity in an unlawful association and of commerce in military ordnance.
While the case was pending in the trial court, the Petitioner filed a complaint asking that the Attorney General immediately open a criminal investigation against the Petitioner’s interrogators, and against the members of the Prison Service’s medical staff. The Petitioner’s complaint was sent to the Department for Complaints Against the Israel Security Agency. The findings of the Department were sent to the Director responsible for Complaints against the Israel Security Agency in the State Attorney’s Office, who – with the approval of the Attorney General and the State Attorney – decided to close the investigation in regard to the Petitioner’s complaint because she was of the opinion that the investigation’s findings did not justify criminal, disciplinary, or other proceedings against the interrogators.
Held:
The prosecution enjoys broad discretion in deciding upon the opening of an investigation and in deciding upon filing criminal charges. It is decided law that the Court does not intervene in the manner of the exercise of that discretion, except in exceptional cases in which it is convinced of a substantive flaw in the exercise of discretion or the resulting decision.
Evaluating the adequacy of the evidence is distinctively a matter for the expertise of the prosecution. Therefore, intervention into a decision not to open an investigation for lack of adequate evidence is even more restricted.
Examining the reasonableness of the decision must be in accordance with the criteria of the Court in regard to the authority of ISA interrogators to employ physical means of interrogation and the circumstances in which such means may be permitted.
Prior to the Court’s decision in HCJ 5100/94 Public Committee against Torture v. State of Israel, the necessity defense formed the basis for the ISA guidelines in regard to the use of interrogation methods that, in the absence of any alternative, permitted the use of physical means where necessary to save human life. Those guidelines were declared unlawful and void in HCJ 5100/94. However, that decision also comprised two holdings of importance to the matters addressed by this petition.
It was held that the necessity defense might be available to an interrogator who employed physical means of interrogation in “ticking bomb” circumstances, and who was subsequently charged with an offense. It was further held that the demand for “immediacy” under sec. 34K of the Penal Law refers to the imminent nature of the act rather than of the danger. Thus, the imminence criteria is satisfied even if the threat will be realized in a few days, or even in a few weeks, provided that it is certain to materialize and there is no alternative means of preventing it.
It was further held that guidelines for the use of physical force in interrogations must be based upon express authority under statute, and not upon defenses to criminal responsibility. No general authority could be founded upon the necessity defense alone. However, the Court added: “The Attorney General can instruct himself regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ‘necessity’”.
The circumstances of the Petitioner’s interrogation clearly show that the interrogation was intended to prevent a concrete threat to human life of a high degree of certainty. There was no alternative to the means employed for obtaining the information. Those means were proportionate to the severity of the threat they were meant to prevent. The Director’s finding that the use of those means falls within the scope of the necessity defense was grounded.
The Petitioner’s claim that resort can only be made to the necessity defense in the course of a trial lacks systematic logic and is contrary to the efficient and proper administration of criminal proceedings. Where the prosecution is convinced that a suspect can claim necessity, there is no justification for conducting criminal proceedings that will lead to a result that is clear from the outset.
The Attorney General’s Directives and the ISA’s classified internal guidelines do not contradict what was held in HCJ 5100/94.
Keywords
Constitutional Law -- Prisoners’ Rights
