A State Prosecutor’s Office directive restricting the criminal prosecution of demonstrators was issued Wednesday, stating that caution must be exercised and criminal charges should only be filed in extreme circumstances, in light of the escalations in arrests and violence at anti-Netanyahu protests in recent weeks.
Thirty people were arrested as 10,000 demonstrated Saturday night in front of Prime Minister Benjamin Netanyahu’s official residence in Jerusalem demanding his resignation, in the latest in a series of arrests at anti-government protests that have been ongoing for the past two months.
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The directive states that spontaneously blocking roads during demonstrations, which is described as “spilling over into the street,” will not be prosecuted unless it is a main thoroughfare that is closed for a considerable period. It also limits the prosecution of protesters who fail to obey police orders to disperse, as opposed to cases in which the protesters are violent in their refusal or disruptive.
It also states that violence against police officers will be strictly enforced, and said that to the extent possible, protests outside the homes of public officials will be shifted to their offices. Prosecution for unruly behavior will as a rule be pursued only in cases involving demonstrations that include personal injury or property damage committed by the protesters.
Following publication of the directive, members of Prime Minister Benjamin Netanyahu's Likud party were directed to attack the State Prosecutor's Office. The message said the directive was hypocritical and motivated by the justice system's hounding of the prime minister, who is facing a criminal trial in three corruption cases.
The right to protest "is one of the most central human rights in Israel, a fundamental right that shapes the country’s democratic character,” the directive issued by Deputy State Prosecutor Nurit Litman states.
“Demonstrating enables the citizen or resident to actively participate in political and social developments and teaches positive social-civic involvement that is appropriate to encourage. Demonstrating constitutes a central tool in raising issues onto the public agenda and exposing claims of political and social injustice. It enables demonstrators to express their opinions and to try to democratically influence Israeli decision-makers.”
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A message sent to Likud ministers and lawmakers said the directive was "unprecedented, hypocritical and scandalous," and that they were encouraged to give media interviews on the matter. "During this period in which national unity is needed, the prosecution political party and attorney general are encouraging anarchy because of their obsessive persecution of Prime Minister Netanyahu," read the party's statement.
"The right to protest does not include the right to blocking roads and violating police regulations. This is not democracy and the rule of law, this is violent anarchy. Apparently all is kosher when attempting to topple Prime Minister Netanyahu."
The message accused the prosecution of being hypocritical, claiming that right-wing demonstrators protesting against the Oslo Accords with the Palestine Liberation Organization in the 90s and the Israeli disengagement from Gaza in 2005 were treated harshly.
"How can the public be expected to obey the law and health regulations during the coronavirus crisis and in general when crowds are being permitted to ignore police orders?" the Likud statement asked.
Public Security Minister Amir Ohana attacked the directive, even though the police and senior members of their legal team contributed to the formulation of the new guidelines and were involved in the discussions, a source in the State Prosecutor's Office claimed.
However, according to a police source, the guidance issued has effectively been a police policy in recent years that prosecutes protesters only when an event becomes extremely violent, or involves road blocks and public disorder.
"The arrest policy is clear: Any incident of active violence by demonstrators will lead to arrest and even indictments," said a police source.
However, according to another police source, as the procedure has been formulated over the past few years, police charges for rioting in demonstrations that evolved into indictment have decreased, mainly due to the State Prosecutor's order to refrain from prosecution over passive resistance to police orders during protests.
Former Tel Aviv District Commander David Tzur dismissed senior Likud officials’ claims that the directive is political in nature. "This is nonsense. There is no comparison to be made between these protests and those that took place during the disengagement" from Gaza in 2005, said the retired officer.
"People forget that following the evacuation of Gush Katif, hundreds of indictments against people who were interrogated for riots, roadblocks and violent incidents were dropped. This includes an indictment against MK Bezalel Smotrich, so the comparison is completely out of place."
“As a rule, in cases involving participation in protests of a violent character that confront the police with a difficulty in maintaining public order, there is a basis for considering indictments against the participants in the demonstration, including rioting charges. In addition, however, due to the harm that it causes to freedom of expression and protest, particular caution should be exercised when involving such an offense,” the directive states.
Examples are given in the directive of violence against the police that would justify criminal charges. The directive cites the widespread social justice protests in Israel in 2011 and 2012, when criminal cases were opened against protesters for offenses such as throwing objects at the police, including eggs, bottles and garbage, pouring water on the police or pushing crowd-control barriers at them.
It notes that, on reviewing the cases, the attorney general took the position that these were relatively serious acts that justified pursuing criminal charges.
The new directive makes a distinction between verbal assaults on the police and physical violence and cautions against invoking the offense of insulting a public servant in cases involving only verbal acts against the police.
“Prosecution for such an offense is a complex matter both in light of the court ruling on the issue and the potential infringement on freedom of expression. Great caution should be exercised in invoking this offense,” the directive states.
Interfering with a police officer in the line of duty will be considered only if it is active conduct on the demonstrator’s part and the circumstances must also be considered. A distinction should be made between active behavior such as pushing a police officer or pulling a detainee away and passive situations such as sit-downs and refusing to accompany an officer.
“As a rule, when it involves active interference, the inclination will be to file an indictment,” the directive explains.
Blocking roads has become a common tactic of protesters, the prosecutor’s office noted, but only the intentional closure of main thoroughfares for a sustained period of time justifies criminal charges as opposed to cases in which protesters spilling out into the street in the passion of the moment and clear the street when asked to do so by police.
Deliberately blocking a main road for a considerable period of time can justify criminal charges, particularly if there are other criminal acts involved, and each case should be judged on its own merits, the directive states.