Israel Supreme Court overturns ruling on IDF soldier missing since 1982
Supreme Court overrules decision by Jerusalem District Court judge ruling that the IDF could declare dead Yehuda Katz, a soldier who went missing during the first Lebanon War.
The Supreme Court recently overruled a decision by Jerusalem District Court Judge Joseph Shapira ruling that the army could declare dead a soldier who had been missing in action in Lebanon since 1982. Shapira is the leading candidate to succeed Micha Lindenstrauss later this year as state comptroller and the family of the soldier claims that he mishandled the case. The sister of Yehuda Katz, the missing soldier, said she would work against Shapira's selection as the next state comptroller.
Judge Shapira ruled that Katz, who went missing in the battle of Sultan Yaqub in the first Lebanon War along with two other Israeli soldiers, Zechariah Baumel and Zvi Feldman, could be declared a casualty whose place of burial is unknown. Justices Miriam Naor, Esther Hayut and Neal Hendel, in a decision that was only recently unclassified, not only overruled Shapira, but also increased the amount of compensation to be paid by the IDF to Katz's family over its handling of the case from the NIS 60,000 Shapira awarded to NIS 250,000.
Ultimately, the IDF decided not to proceed with a declaration of Katz's death, but the family has contended that Katz's mother suffered a paralyzing stroke shortly after the army announced that it would consider her son dead.
The family claims the stroke was the result of negligent handling of the case by the army. Shapira had found there was no basis to the family's contention that they could have caused the army's decision to be overturned if they had been given a hearing on the issue. The army would therefore not be liable for any health problems experienced by Katz's family, he ruled.
As a practical matter, Shapira found that Katz indeed had died. He nonetheless ordered NIS 60,000 in compensation for the family for the failure to afford the family a hearing. The family claimed that in finding that their son had died, Shapira relied on testimony of a tank driver who had been in the battle even though the driver did not testify in court and was not cross-examined regarding his statements so his credibility could not be put to the test. They also claimed Shapira's ruling was riddled with factual errors.
Following the reversal of Judge Shapira's verdict, the sister of Yehuda Katz, Pirhiya Heiman-Kfir said she would stage a demonstration against Shapira's selection as the next state comptroller when the Knesset votes on the appointment.
His handling of the case reflected serious shortcomings in Shapira's conduct as a judge, Heiman-Kfir claimed. She said this included distortion of evidence and reliance on the testimony of witnesses who never appeared in court, adding that the family suspected that the judge had been influenced by someone to render the judgment he did, although this could not be proven. "Shapira is not fit to be state comptroller," she insisted.
The family claimed that the initial army determination that Katz had died in battle ignored all of the evidence that he had survived. They also claim that the judge procured an expert opinion on Jewish religious law related to the case that they did not have an opportunity to review until after his verdict was announced.
After the family learned, in 2004, that the IDF intended to declare Katz, Baumel and Feldman dead, they warned authorities that the prospect of such a move was causing members of the family serious medical problems and suggested that the army engage the family in dialogue. Several days after a meeting that year with former Chief Rabbi Mordechai Eliyahu on the issue, the missing soldier's mother suffered a serious stroke. Later that year, the state announced that it would not proceed with a declaration that declare Katz and his comrades in the battle of Sultan Yaqub had died.
In their lawsuit seeking compensation for the army's handling of the matter, the Katz family produced supporting affidavits from Maj. Gen (ret.) Uzi Dayan and Maj. Gen. (ret. ) Matan Vilnai, both of whom served as IDF deputy chief of staff, and an additional affidavit from Maj. Gen. (ret.) Yehuda Segev, who had headed the IDF's manpower branch. Shapira issued a gag order on most of the details of the case beyond his actual verdict. The family cited the IDF's decision to reverse course and not declare Katz dead as proof that the family may have prevailed if they had been given a hearing on the issue when the decision was being made.