Military Court Denies IDF Demand to Imprison a Freed Palestinian for Third Time

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The Ofer military court.Credit: Daniel Bar-On

The Military Court at Ofer recently denied the IDF’s request to reimprison Mohammad Zdaka, who was freed as a gesture to Palestinian Authority President Mahmoud Abbas in 2008.

The court ruled that the army’s conduct was unjust and unjustifiable, and that the request to return Zdaka to prison was prompted by his filing for compensation for the four years he served in prison from 2010 to 2014.

Zdaka, a Fatah member, was arrested in 2002 and sentenced to 14 years in prison. He was freed in 2008 together with 190 prisoners on a decision of the Olmert government. Like the other released prisoners, he signed a commitment not to carry out other offenses, on pain of being returned to prison to serve the remainder of his sentence. Should he commit further offenses, the commitment said, he may be reimprisoned by an administrative procedure based on secret evidence.

In October 2010 Zdaka was arrested and charged with planning to buy a gun and bullets in a deal that didn’t go through. Zdaka was convicted, but acquitted on appeal. The appeals court ruled that the witness who had incriminated him wasn’t reliable.

After Zdaka’s acquittal he was arrested and the military prosecution said they would ask to return to him to prison in an administrative procedure. However, the prosecution eventually retracted its intention and he was freed.

But a month later, in May 2014, Zdaka filed for compensation for the four years he had spent in prison until his acquittal. The military prosecution ignored his suit.

In August 2014, Lt. Col. Morris Hirsh, the military prosecutor for the West Bank and a settler in Efrat, gave the order to arrest Zdaka again and demand he serve the remainder of his sentence in prison in an administrative procedure.

Zdaka said the procedure was vindictive and was brought about by his compensation suit. The prosecution submitted secret intelligence reports to the court to substantiate their demand. But it transpired that most of the information involved the charges on which Zdaka had been acquitted. The remaining two reports did not justify continuing the investigation, the court said, ordering Zdaka freed.

Military Judge Meir Vigiser said a man cannot be tried twice on the same evidence. “The prosecution decided to resort to the administrative procedure only after he asked for compensation following his acquittal. One way or another, even if the prosecution thought at first to try him on criminal charges and, failing that, to resort to an administrative procedure, they should have made that clear on his first arrest. Zdaka filed for compensation after he was acquitted, without expecting the chain reaction that would lead to renewing his arrest,” Vigiser said.

The judge said the prosecution’s conduct had “crossed the line” and the “administrative decision” was so flawed that it “cannot be legitimized and justified. The public interest requires annulling it. Justice and legal decency cannot accept it,” he ruled.

The IDF spokesman said in response that Zdaka had been sentenced in 2002 to 14 years for terrorist activity. “He was released in 2008 on condition he get involved with terror again. After his release the army gathered evidence that he tried, among other things, to buy a gun and munitions, and for this he was convicted in a military court in 2013.

“In April 2014 the military appeals court acquitted him on reasonable doubt. In these circumstances, the military prosecution asked that he serve the remainder of his sentence from 2002, since he had violated his release terms,” the spokesman said.

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