HaMoked and Yesh Din petition the HCJ: the procedure for processing requests to review MPIU investigation materials, violates the basic rights of OPT residents
By examining the case file of the Military Police Investigation Unit (MPIU), a victim of an offence committed by soldiers, can reveal how his complaint was handled, discover the circumstances surrounding the violation of his rights, and attempt to realize his right to compensation. Once the investigation files arrive – months, or more often, years after being requested – it is often revealed that the case was closed without basic investigation procedures being performed. In the past, complainants were allowed to examine case files, subject to military censorship, without any official disclosure procedure. The process for approving disclosure was protracted and cumbersome, liable to drag on months. In many cases, the military refused disclosure without explanation.
In 2008, HaMoked petitioned the High Court of Justice (HCJ) on behalf of Palestinians whose requests to review investigation materials concerning offences committed against them by soldiers, were rejected or remained unanswered for extended periods (the Al-Wardian
case). During proceedings, the Supreme Court instructed the military
to formulate an ordered procedure for the disclosure of investigation materials to complainants. In May 2010, the military publicized the procedure, including various provisions for the approval or rejection of a request for disclosure.
HaMoked responded with a critical commentary on the procedure
to point out its flaws, and argue it contained unreasonable provisions. Nothing came out of the lengthy correspondence which followed.
On September 7, 2011, HaMoked and Yesh Din petitioned the HCJ
to order the military to revise the "procedure for handling requests of an external party for the disclosure of investigation materials
". The organizations plead that the provisions of the procedure contradict the state's position in the Al-Wardian case, and should be invalidated as being most unreasonable, marred by extraneous considerations and injurious to basic rights.
The organizations demand the procedure be revised in such a way that a potential or pending civil claim against the state would not preclude the disclosure of MPIU investigation materials shortly after the closing of the investigation; that the schedules set in the procedure allow the victims of offences to exercise their rights effectively; that the Military Advocate General (MAG) would be the deciding authority on appeals against MPIU's disclosure decisions, rather than anyone at the Military Prosecutorial Division.
In the pleadings, the organizations stress the vital role of the victim's right to disclosure, integral to his rights to due process and access to the court. The organizations argue that the procedure sets unsuitable schedules with respect to the limitations period, and also requires the termination of the processing of the disclosure request upon submission of a notice of damage to the Ministry of defense, compliant with Amendment 4 to the Civil Wrongs (Liability of State) Law
– thus, the military effectively deprives all OPT residents of the right to examine investigation files shortly after the closing of the case
. Through a seemingly innocuous regulation, the military violates fundamental and protected rights, deprives victims of offences of the realization of their rights, and prevents the needed supervision of investigations.
Such is the state of affairs when those accountable are the authors of the procedure.