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Last update - 00:00 10/02/2005
State must pay damages to Palestinian said hurt by IDF in 1991
By Yuval Yoaz, Haaretz Correspondent

The Supreme Court set precedent Thursday when it ruled that the burden of proof can be shifted to the state when its investigative bodies fail to fully examine a case, and obligated the state to pay damages to a Palestinian who said he was wounded by Israel Defense Forces gunfire in 1991.
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Until now, the concept that the burden of proof can be shifted to the defendant due to his negligence has been applied only in cases involving claims of medical negligence.

The case was returned to a lower court to set the amount of compensation due Azam Dahar, from the West Bank city of Jenin. The state must pay Dahar's court costs up to NIS 40,000.

Dahar sued the state and an IDF captain identified only as Capt. Yoav. According to the prosecution, the captain commanded troops at the scene when Dahar was shot in the head by a rubber bullet while he was traveling in a car in Jenin during the first intifada. Dahar was hospitalized with serious injuries and lost his ability to speak, the prosecution said.

Dahar argued that Capt. Yoav and the state must prove that the shooting did not take place because they were negligent in collecting evidence that could have proven Dahar's case.

Capt. Yoav argued that he and his troops were using acceptable means to disperse hundreds of rioting Palestinians who were throwing stones and burning tires, and that he fired several rubber bullets at the rioters' legs, but not at a car. The state said that even if Dahar had been wounded by the troops' firing, the shooting was not negligent and constituted a "military action," which does not entail responsibility for damages.

Police did not investigate the car in which Dahar was traveling, Dahar said. An expert witness testified that "if police and Military Police investigators had used routine scientific means to investigate the shooting incidents, it would have been possible to corroborate or contradict the arguments."

In a 2-1 decision, the Supreme Court found in favor of Dahar regarding the state, but did not require Capt. Yoav to pay damages.

"Supreme Court verdicts have so far applied the law only to cases claiming medical negligence," wrote Justice Mishael Cheshin on behalf of the court. "But there is no relevant justification for limiting it to a medical context. In its failure to send a crime scene investigator to examine the car, the police have removed from Dahar the central evidence he needs to prove his claim that he was wounded by a rubber bullet fired by Capt. Yoav."
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