The court ruled that Palestinians are people, too
Ahmed Debasa was awarded maximum compensation for the two years he was jailed. But nothing can make up for his loss.
Ahmed Debasa sits on a mattress on the floor of his bare home in the village of Carmel. He has a hard time talking. Debasa, 54 and a father of nine, feels crushed and lost. He has been unable to get back into his routine, does not work, hardly goes out and is depressed. He has a blank look and his speech is terse. Sometimes his voice gets stronger, for a moment matching his large proportions, but then it immediately breaks in despair and succumbs to silence. Even the translator, a relative who is eager to transmit his story and encourages Debasa to talk comes up against a wall of silence. His silence, which contains within it much pain, silences his audience.
In September 2002, Debasa was accused of murdering Dov Driben, the founder of Maon Farm in southern Mount Hebron. Four and a half years after Driben was shot to death on April 19, 1998, police investigators arrived late at night at the home of Debasa, who owns a grocery store, woke him up and accused him of intentionally causing a death - a crime of murder according to military law - and of attacking two other settlers, Yehoshaphat Tor and Ephraim Perl, who were with Driben at the scene of the murder.
Debasa was taken for questioning to the Gush Etzion police station and was detained there for six months. From there he was transferred to the Be'er Sheva prison and the Ashkelon prison. He sat in jail for 23 months while the investigation and trial were underway.
He was released after a military court on August 2, 2004 acquitted him of murdering Driben and assaulting his two friends. A panel of three judges headed by Lieutenant Colonel Zvi Lekach issued the ruling. In the beginning of April 2006, around a year and a half after the acquittal, the military court headed by Lekach set a legal precedent in granting Debasa the maximum compensation of NIS 49,752 for the time he was in detention. The compensation was calculated based on the average daily wages of a resident of the territories - NIS 72 multiplied by 691 days of detention. In addition, the court decided to grant Debasa the maximum payment of NIS 21,876 to cover his defense expenses.
It seems that just as Debasa has trouble finding words to describe the Kafkaesque nightmare he went through, Judge Lekach had a hard time making do with dry, moderate legal language in the precedent-setting ruling.
"We felt in light of the real investigative shortcomings in this case and the prosecution's behavior that not only is the defendant entitled to compensation, but also that this compensation should be the maximum amount. The investigation's failures and the prosecution's behavior in this case were problematic by all accounts, and in our view, even beyond that ... the defendant was acquitted after spending a period of 23 months in jail, which is a tough and significant period whose impact on him, both emotionally and financially, are certainly severe."
The precedent set by Judge Lekach is dramatic given the military prosecution's attempts to prevent it. Lekach courageously questions the military prosecution's argument that the military court does not have the authority to award compensation: "Is it not fitting that the law permitting compensation for an acquitted defendant also apply in the region (the territories - V.L.)? Why should an accused Palestinian who is tried in Israel be entitled to compensation if acquitted while his friend, or even his partner, who is tried in the region, is not eligible to request compensation from the court? Is there relevant justification for such a substantial blow to the principle of equality? Is there justification for differentiating between Israel and the region when it comes to the law in principle?"
Lekach also wrote: "Care should be taken when it comes to the rights and dignity of man, whether he is accused in an Israeli court or in a military court in the region, whether he is Israeli or Palestinian. A person is a person is a person and there is no reason for discriminating between a man and his fellow man just because of the forum where he is being tried, or because of his religious or national affiliation."
The military prosecution reported that it was considering "appealing the decision regarding the compensation primarily because it raises questions about the court's authority to award compensation."
A hooligan and a noble person
The events on the day Driben was shot are unclear. A comprehensive report by Arnon Regular (Haaretz, February 14, 2003), which reviews the testimony and evidence from the investigation, creates the impression that this is a story in the southern Mount Hebron style. The numerous versions, the contradictions, the plot twists and the investigative shortcomings make it difficult to understand what exactly happened on April 19, 1998 next to Maon Farm, the illegal outpost set up in 1997 by Driben on territory designated as state lands and evacuated two years later under the Oslo Accords. Judge Lekach determines in his ruling that "a more vigorous and thorough investigation would have shed light on the circumstances of the incident and dispelled some of the fog shrouding the events of that day."
In a eulogy in the periodical Nekuda, Driben was referred to by Emmanuel Shiloh as "both a hooligan and a noble person." Debasa remembers him as "a big guy, riding a galloping horse, with a light trigger finger, who invaded land and constantly provoked with curses and shots in the air."
Debasa saw Driben's attempts to take over his land, and was afraid of clashing with him. He turned to the police and the Civil Administration in Hebron's central supervision department, and obtained written permits indicating this land was his.
The ruling indicates that the following course of events took place: on April 19, 1998 at 9 A.M. six members of the Debasa family (Ahmed's brothers: Isa, Moussa, Mahmoud and Ibrahim; and Ahmed's son Taleb; and Isa's son Mahmoud) brought their sheep to graze in the vicinity of Maon Farm, which they claim belongs to them. Some carried shepherds' staffs and one had a knife on him. Driben and his friends Tor and Perl, who were armed with two pistols, approached the shepherds to chase them off.
Driben sicced his dogs on the family. A fight broke out on the spot and Moussa was shot and wounded. The family members assaulted Tor and beat him. Ibrahim pulled the gun out of Tor's hand. Tor got up and then one of the family members - a boy of 20 or so, Tor testified to the police - pointed a gun and fired a shot at him.
In the meantime Isa jumped on Perl, and cousins Mahmoud and Taleb threw stones at him. Judge Lekach writes in his decision that "Isa snatched Ephraim Perl's weapon and fired 10-15 bullets at Driben, causing his death."
To the police Ahmed testified that he was not at the scene of the murder. In court Ahmed said he was working in a nearby field when the incident started, and rushed to the site after hearing conflict and shooting. He says that when he arrived, he found Isa holding a gun and rushed to take the gun out of his hands.
In the precedent-setting ruling, Judge Lekach resolves Ahmed's differing versions with the words: "The behavior of the accused in this case did not contribute to the investigation of the truth - but no significant weight should be attached to this fact. It should be remembered that the case involves a simple and unsophisticated person, who in addition to his attempt to distance himself in his court testimony from the crime, did not commit any act that may be seen as an attempt to try and gain a judiciary advantage. In the attempt of the accused to present a version that puts himself far away from the event, and nothing more, there are numerous investigative shortcomings, behavior on the part of the prosecution that borders on lack of fairness and an efficient handling of proceedings from the defendant's side in presenting almost all the evidence."
Everything comes from above
Judge Lekach was sharp in the verdict, and determined that the original indictment amended by the prosecution "included facts for which it may be clearly stated, based on the material before us, that they did not and do not have any connection to reality."
In addition, the judge criticizes the Hebron police's handling of the investigation and states: "There are indeed some questions that arise regarding the authorities' handling of the investigative affairs. Such handling is problematic, lacking and truly comes up short when it comes to uncovering the truth."
The investigative shortcomings referred to by Lekach include, among other things, failure to hold a lineup - Tor and Perl were not asked to identify their attackers; failure to investigate contradictions that arose in the testimony - Tor, for example, said the person who shot at him was a young man of around 20 or so, while the accused is older; failure to conduct essential checks at the scene, such as blood tests; and a failure to investigate who shot Moussa, Debasa's brother.
In addition, despite the fact that Isa was the main suspect in the killing of Driben, the prosecution chose to try the other members of the Debasa family. Mahmoud (Ahmed's son) and Taleb (Isa's son) were arrested, tried on suspicion of murder and spent five months in jail. Ibrahim was arrested in 2003, about a year after his brother Ahmed was arrested and acquitted. Moussa, who was wounded by gunfire during the incident, was arrested in 2004 and some six months later the indictment against him was canceled. Mohammed was arrested in 2002, had an indictment filed against him and was released after it was discovered that he was not present at the scene of the crime.
Furthermore in November 2001, IDF forces killed Isa Debasa in the village of Yata and injured his son Mahmoud, who lost a leg as a result. The IDF Spokesman reported after the incident that "a Border Police force sought to arrest Dov Driben's killer. During the course of the arrest, the armed terrorist pulled out his weapon with the aim of firing at the force. There was an exchange of fire, during which the terrorist was killed." In any case, even the death of the main suspect did not prevent the police from banging on Ahmed Debasa's door a year later and arresting him on suspicion of killing Driben.
"The investigation and the military prosecution were conducted scandalously, and they did things that border on criminal when it comes to all matters related to this case," says Attorney Shlomo Laker, who represents the Debasa family.
Attorney Shimon Dolan, a former director of the economic department in the State Prosecutor's Office, joined the case around a year ago and spearheaded the compensation issue. According to him, "I have spent close to 30 years in the State Prosecutor's Office and I can't recall an indictment being issued in direct contradiction to the evidence before the prosecution. It's hard to believe, but Palestinians who have been acquitted have yet to receive financial compensation. I see in this precedent a ray of light in the darkness, and I hope that it will be a positive signal for the military prosecution's appropriate handling of the Palestinian population, as is the practice in Israeli civil courts. It is distressing to see that when requesting givens for Palestinian defendants, i.e., that they be treated like any other person, regardless of who he is, the military prosecution prefers to dig in its heels and argue that the court does not have the authority to determine compensation."
Will other Palestinian defendants be able, thanks to the legal precedent, to demand retroactive financial compensation?
"This decision certainly may open a door for compensation requests from accused persons who were acquitted in similar situations," Dolan says.
A moment after he shows us the sores he still bears on his legs as a result of the imprisonment conditions in Gush Etzion, Debasa says with surprising grace: "Despite everything, despite the suffering I've been through, I respect the courts and the police. I respect the court for acquitting me and for allowing justice to start prevailing."
Of the unprecedented compensation, Debasa says despairingly that the amount awarded him cannot restore the loss of his livelihood and compensate for the physical and emotional injustice.
"I have no expectations," he says dryly, "everything is from above."