Protecting Your Rights in the Army

Regularizing military status for Israelis who live abroad and preparing a soldier for a military police interrogation; Adv. Avi Finarsky, who specializes in military law, explains why it is important to receive the best legal advice possible during IDF service

Daniel Dotan
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Military attorney Avi Finarsky: Long service as a military advocateCredit: Max Goch
Daniel Dotan
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When it comes to criminal law, many people tend to think that the best time to contact a lawyer is at the beginning of or after the investigation. But in the case of an investigation during military service, many people mistakenly think that a lawyer cannot influence or intervene during the police or military police investigation.

“People who are suspected of a criminal offense, certainly someone for whom it is a first investigation, for the most part do not know that the lawyer who enters the picture during the stage of the investigation can change the final results of the case already at an early stage,” says military attorney, Avi Finarsky. “For soldiers who are suspected of a criminal offense, it is advisable to consult a military attorney as soon as possible. Even before the investigation stage, already from the moment that they know that they are suspected of having carried out a criminal offense and are afraid of conviction.”

He adds that before the stage of the investigation, and also during representation in court, an experienced military attorney can make a significant difference to the final result in favor of the client, to the level of acquittal from punishment or from an offense altogether.

Avi Finarsky specializes in military law, with emphasis on consulting in military police investigations, representation in military courts and regularizing the status of Israelis who live abroad regarding the IDF. For 13 years Adv. Avi Finarsky has been accompanying and representing soldiers in regular service, the standing army and the reserves. He began to acquire his expertise in this field in 2008, when he was enlisted to the Military Advocate’s Office and served in the Military District Defense Attorney’s Office and in the Chief Military Defense Attorney’s Office. During his service he also represented officers of senior ranks in the most sensitive cases. In addition, he has appeared over the years in legal proceedings and represented clients in hundreds of cases including severe cases of sex offenses, drug offenses, weapons offenses, offenses in operational activity and even cases of death. Since 2014 he has represented soldiers privately, and all his work and experience are dedicated to representing clients in military and criminal cases.

What does your work as a military attorney involve?
“Today I am mainly involved in criminal military cases – military police cases. I provide legal guidance and advice before and during the investigation and representation before the military court. Our other main field has to do with regularizing military status, mainly for people who live abroad or intend to leave the country whose status vis-à-vis the army is not defined, and also additional military procedures such as medical capability, exemption from military service, etc.”

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What about regularizing status with the army?
“Today there are many Israelis who live abroad and their status is unresolved. so that if they come to Israel they cannot leave or will even be arrested when they enter the country.” Their legal status varies according to the age at which they left Israel and other factors.

“In many cases, the status of Israelis as ‘children of migrants,’ who can come to Israel for visits of 120 days a year and usually once for up to a year – depends on their parents’ status. That is, their status is given as long as they live abroad, but also as long as their parents are not in Israel. This leads to a situation where sometimes their status is liable to be revoked also in the case of someone who still lives abroad, but their parents have returned to Israel. However, in many cases it is possible to receive recognition even if they don’t meet the conditions, for exceptional reasons and according to the internal procedures of the recruitment office.”

What are the most common criminal offenses in the IDF?
“Drug offenses, including ‘minor’ ones that in civilian life would not develop into a conviction, but in the IDF are taken seriously, and also serious drug dealing offenses. The Military Advocate’s office invests a great deal of effort in the subject of drugs, for example assigning an agent to the case and bugging the phones of the people suspected of these offenses. There are also sex offenses, including cases that relate to the field of privacy such as filming and distributing videos without permission and indecent acts and also serious crimes, such as rape. Additional offenses are selling and trading in weapons, and investigations of operational incidents such as deviation from the rules of engagement, looting, and everything connected to operational activity.”

What are the main differences between military law and civilian law in how they relate to offenses?
“The level of punishment and the enforcement policy are very different from the civilian system. The legal procedures are sometimes different from the civilian system. In the army, evidence is presented by force of specific clauses in the military jurisdiction that do not have a civilian equivalent. The appeal times are also different.”

However, adds Adv. Avi Finarsky, there are also similar procedures in civilian and military law. For example, a new policy in the IDF enables a conditional order – an instrument that exists in civil law, in drug offenses and others. In this procedure, the soldier can sign a conditional order and instead of facing a conviction, he has to carry out regular tests in order to ensure that he is clear of drugs and to undertake not to get involved in significant or criminal offenses. An additional procedure is a suspension order in which a criminal charge is presented; however, the criminal procedure is frozen in order to ensure that the soldier keeps to the conditions set and thus it will also be possible to cancel the criminal charge.

What are the consequences of a military criminal record in civilian life?
“In most crimes, such as drug offenses, the military conviction is a civilian criminal record for all purposes. It is recorded in the police records like any crime in civilian life, and in certain cases it depends on the crime and the punishment. There is a concept called ‘reduced criminal record’ which is recorded as a crime that has expired in the civilian criminal record. Similar to non-conviction in civilian life.

“It happens, for example, in the case of a soldier who is convicted of an offense of absence from service with a punishment of up to 90 days unless the court rules otherwise, or a misdemeanor in which he receives a punishment of up to 60 days imprisonment or 30 days of military work. These cases are translated into a reduced criminal record. A greater punishment or conviction for a felony results in a full criminal record.”

Adv. Avi FinarskyCredit: Peleg Elkalay

He adds that the work of a military attorney, among other things, is to convert felonies to misdemeanors and to reduce the punishment so that the impact on civilian life will not be a criminal record or will be a reduced criminal record that hardly affects the soldier’s civilian life at all.

What is the role of a military criminal attorney?
“The most important role of the military attorney is to prepare the soldier for military police investigations, which can bring the best results. For this purpose, it is necessary to consult an experienced professional military attorney who knows the system from the inside. When I am asked to advise a soldier who is suspected of a criminal offense because I have extensive in-depth knowledge of military police investigations, I prepare the soldier well in advance for the investigation. I explain to him what questions he will be asked; what tests he will have to do, such as, for example, urine tests when there is suspicion of a drugs offense; whether an undercover investigation is expected, which includes bugging and examining his cellphone, etc. I advise how to answer the investigators’ questions so that his version will be the most accurate and even what not to say, in order not to complicate the process. Of course, the attorney’s role is also to represent the soldier in the military court and to appeal against the ruling if necessary.”

On this matter Adv. Finarsky adds that in the military field familiarity with the military system, military law and the main players in the system are critical for success in legal proceedings.

“This is a complex system, with laws, orders, professional instructions and legal provisions and someone who comes from the military defense attorney’s office has a significant advantage in understanding them in depth, as well as a permanent connection to the entities that need to be contacted to solve the problem,” he explains. “There is no substitute for the experience of someone who grew up in the system as a defense attorney in tactical management of hundreds of cases. Today, too, I serve in the reserves as a major in the military defense attorney’s office, representing complex and unique cases.

In conclusion, Adv. Finarsky says that it is important to consult a professional attorney in the field, as there are criteria that can assist the request and those that can harm it. "An experienced lawyer can assess and inform you of the chance of the request and ensure that no argument that can help is left out.”

Avi Finarsky Law Firm
Address 154 Menachem Begin St., Tel Aviv
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Telephone: 053-3373105