Many people would no doubt be surprised to learn that the State Prosecutor’s
Office does not prosecute most criminal cases in Israel. That honor is reserved
for the prosecution department of the Israel Police, which handles about 87
percent of all Israel’s criminal cases.
At present, the division of labor
between the State Prosecutor’s Office and the Police Prosecution Department is
defined by an ad hoc provision that will expire in November.
this is a good opportunity to raise the question, once again, of whether the
time has come to end the subordination of the Prosecution Department to the
Police, and to merge the Police Prosecution Department with the State
This is not a new question. Since the late 1990s,
public and professional committees, as well as the State Comptroller, have
repeatedly recommended that the Prosecution Department be removed from the
Police. The subordination of the prosecution to the investigative body – that
is, the police – raises fundamental difficulties.
Whereas the Police are
expected to achieve results in the field of law enforcement, the prosecution is
expected to employ quasi-judicial discretion, to represent the public interest
and bring about justice, and to refrain from putting the innocent on trial. The
subordination of the police prosecution to the investigative body encourages a
tendency to pursue convictions and ignore possible mistakes made by the
It also undermines public trust in the judicial system, as
that trust is partially based on a perception of the prosecution as an
independent and impartial body that serves the public
Furthermore, the failure to distinguish between the
investigative body and the prosecution has a negative impact on the
The Police play a vital role in preventing and
discovering crime, apprehending lawbreakers, investigating crimes and gathering
evidence. To succeed, they must focus on matters that are related to their
essential and organic role as the investigative body, rather than on
In a 2001 report, the State Comptroller noted vast
differences in how the Police Prosecution Department and the State Prosecutor’s
Office operate. Today there is also evidence that we believe indicates that the
State Prosecutor’s Office exercises discretion better than the Prosecution
Department of the Police.
Beyond the matter of principle and the
problematic nature of allowing the prosecutors to continue to be subordinate to
the investigative body, this ongoing situation also reflects a failure of
government. As long ago as 2001, the government decided to “gradually merge the
Police Prosecution Department and the State Prosecutor’s Office.” The decision
was taken after a thorough study of the topic, with public input on the
professional and administrative level, as well as on the political
Although the government decided that merging the two prosecutorial
agencies, so as to maintain a division between investigation and prosecution, is
the appropriate model, that decision has not been implemented in the 12 years
that have passed since it was taken. Not only that, but in the years since the
decision was taken, various statements by senior officials in the Justice
Ministry and the Israel Police have indicated that there is no intention to
implement it whatsoever.
It is astonishing that those who are charged
with enforcing the law do not respect a binding government decision.
government is entitled, of course, to change its decision. But a situation in
which a valid decision is not implemented for so many years is intolerable and
is a sign of government incompetence.
Now is the time for the Knesset to
take action. It must set matters straight and make the Police responsible for
the investigation and the State Prosecutor responsible for the indictment and
trial. The Knesset must be particularly vigilant about this, since there seem to
be people who wish to prevent the very discussion of this matter.
Sunday, October 13, 2013, the government took a decision to try to pass, through
an exceptionally accelerated process, an ad hoc provision that would continue
the present situation.
We must not allow the government to continue
dragging its feet. Its plans to stifle public debate on such an important
matter, moreover, are clearly unacceptable.
Prof. Mordechai Kremnitzer is
vice president of research at the Israel Democracy Institute. Dr. Guy Lurie is a
researcher at the institute.