State Prosecutor Shai Nitzan asked the Supreme Court to reconsider its decision to demand a police officer be tried for shooting to death a resident of the Arab town of Kafr Kana. The prosecution had previously declined to prosecute the officer, because it did not find enough evidence of a crime.
Nitzan asked that the case be heard again before an expanded bench of five or more justices in the hope of changing the ruling. Nitzan said that if the ruling were allowed to stand it would deter the police from using force even when justified and necessary.
The court ruled that the officer, Naor Yitzhak, a member of the riot police unit, should be tried for the fatal shooting of Kafr Kana resident Bakhir Hamdan during an arrest sweep in the town in November 2014. In the incident, which was recorded on a security camera, Hamdan is seen attacking a police vehicle with a knife while shouting “Allah akbar.” Hamdan is then shown moving away from the vehicle, at which point Yitzhak fired one bullet at Hamdan, killing him. Yitzhak had previously fired in the air, but this did not deter Hamdan.
The Justice Ministry unit that investigates police misconduct looked into the case, but did not summon Yitzhak or members of his team for questioning under warning, meaning they could be accused of a crime. The attorney general then decided to close the case, having found no evidence of guilt on Yitzhak’s part.
After a petition by Hamdan’s father, two out of the three justices, Ofer Grosskopf and George Kara, ruled that in borderline cases the state should try the officer, with Justice Noam Sohlberg dissenting. The justices said their ruling was for “appearances sake” – the poor optic of the prosecution deciding a case against a police officer without bringing the matter to court.
The ruling was roundly criticized by the prosecution, leading to Nitzan’s petition to hold another hearing by an expanded bench. If the ruling was not reversed, the petition stated police officers would be at greater risk for lawsuits by citizens. Nitzan called the Supreme Court’s ruling “new and harsh,” and argued that it took from the prosecution the ability to decide whether a case should be brought to trial.
“In the case at hand, the prosecutor was not persuaded that there was a reasonable chance of conviction,” and in such cases, the prosecution could find itself conducting a criminal proceeding against a suspect although it had not concluded that the proceeding had a sufficient foundation. This must not be accepted,” Nitzan wrote. He added that the ruling would require the prosecution to indict in borderline cases because of their complexities, although decisions whether or not to prosecute in complex cases was “at the heart of the role of the prosecution.”
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Nitzan said the ruling would “erode the public’s faith in the prosecution with regard to decisions involving law enforcement authorities, and public and elected officials. The idea of the requirement to prosecute for “appearances sake” could be applied in all such cases. Nitzan noted that Yitzhak had not been questioned under warning nor given a hearing. “How can the prosecution conduct proceedings according to law when the result is a foregone conclusion,” he wrote.