This investigation can be stopped - Haaretz

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Tue., December 11, 2007 Tevet 2, 5768

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Last update - 22:42 10/12/2007

This investigation can be stopped

By Ze'ev Segal

Tags: enemy states, court

The profusion of criminal offenses determined in the penal code, both serious and minor ones, attributes great importance to the decisions of the authorities who interrogate and prosecute, with respect to what to investigate and when to bring a case to trial. It is not without reason that, as early as the 1960s, a committee of jurists headed by then justice Shimon Agranat quoted an English jurist, who said that the decision of what to investigate is much more significant than the very existence of a certain crime in the law books.

Bearing this in mind, as well as the harm that is being done to freedom of information and the public's right to know, it seems peculiar indeed that the police are conducting an investigation against three journalists on suspicion that they tried to harm state security. The trio - Ron Ben-Yishai, Lisa Goldman and Tsur Shezaf, who have reported their impressions from trips to Syria and Lebanon - is being investigated on suspicion of contravening the law passed by the Knesset in 1954 that prevents infiltration into enemy countries.

To this law, intended to prevent infiltration from Arab countries into Israel, an instruction was added, like a patch, according to which anyone who intentionally and illegally traveled to hostile countries like Syria and Lebanon would be liable to a maximum sentence of four years' imprisonment. It is this directive that underlies the suspicions that are currently being investigated. Since it is criminal law that we are talking about, it is reasonable to assume that in order to convict the journalists of this offense, the prosecution will have to prove "criminal intent" on their part and the intention of harming state security.

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Since no one apparently plans to claim this, the conclusion seems to be that this interrogation is nothing more than an attempt to bother the threesome who thought, in their innocence, that they were carrying out a journalistic mission. The use of a foreign passport by two of the journalists, according to reports, does not testify in any way to any kind of intention to harm to the interests of the State of Israel.

On the face of it, we can assume that the police's investigation of the journalists who "infiltrated" was not a matter of their own initiative, but rather came at the behest of the present state prosecutor, Eran Shendar - and perhaps also with the knowledge of the attorney general. That at least is what the case has been with various investigations against journalists, with regard to issues relating to their profession; these inquiries did not evolve into an indictment at all, but were rather a kind of "game" in the hands of the investigatory and prosecuting authorities.

Interrogations of journalists, including appeals to the court to demand that their sources be revealed, have become well-known phenomena with repercussions concerning the right of journalists to keep their sources confidential, which has been recognized by the High Court of Justice in its rulings. The investigation of journalists has more than once turned into a demonstration of the power of the police. When this happens with the approval of the heads of the general prosecution, which is naturally subject to public and journalistic criticism - difficult questions arise as to the degree to which the freedom of expression is recognized.

As has been stressed more than once in rulings of the Supreme Court, recognition of freedom of the press and freedom of expression is tested not by rhetoric, but in practice. The present investigation, which reflects an unsuitable kind of practice, can be halted by a decision by the state prosecutor or the attorney general. The penal code makes it possible to stop such an inquiry and to prevent an indictment in a case where there is "no public interest." This means that, in the case we are referring to, that serving an indictment would harm the public interest concerning the freedom of information to a much larger extent than an investigation of the journalists would "benefit" the public.

Last May, the Knesset approved a directive of great importance, according to which the court is authorized to adopt a principle whereby an indictment can be invalidated if it seems to the court that a criminal process would be in substantive contradiction to the principles of justice and legal decency. The basic intention of this instruction is that the authorities involved in the prosecution should not investigate people or bring them to trial in cases where there is not a reasonable chance that they have harmed the public interest.

The new state prosecutor, Moshe Lador, is due to take office in a few days. He has shown the ability at times to make inappropriate decisions to operate the criminal mechanism - when there is a lack of evidence or a lack of public interest. Strengthening freedom of information in a democratic society and preventing its restriction by means of investigation and prosecution are extremely valuable in terms of the public interest. The test of the prosecution authorities will be seen in how they carry these processes out.

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