The High Court of Justice ordered the state on Monday night to better explain a
new policy of discouraging complainants’ access to the state’s evidentiary file
in cases the state has closed for “lack of evidence.”
On June 14, 2010,
State Attorney Moshe Lador issued a directive that discouraged providing such
evidentiary material to complainants, on the general grounds that disclosing the
evidence could undermine any later efforts by the state to reopen the cases and
file charges.
In July 2011, Yesh Din and two other groups representing
victims’ rights, filed a petition demanding the state disclose its evidentiary
files in 33 specific cases, and reverse the general policy of discouraging such
disclosure.
The petition also asked that any evidence relating to cases
closed for reasons other than lack of evidence, such as lack of public interest,
be immediately handed over to those requesting it.
In response, on July
20, 2011, the state said it had revised its directives on sharing evidentiary
material from closed cases. Now any evidence relating to cases closed for
reasons besides lack of evidence would generally be handed over to complainants,
absent some special reason not to, the response said.
Regarding cases
closed for lack of evidence, the revised directives stated that the state’s
initial position should still be to avoid disclosure, but that if a complainant
persisted, a prosecutor could decide to provide the evidence if convinced that
disclosure would not harm potential future efforts to reopen the
case.
The petitioners, while acknowledging that this revision slightly
improved the situation, did not believe it was sufficient.
The court
ordered the state to provide some basic information to the petitioners within 21
days to allow them to further pursue the petition and possible appeals to reopen
the 33 cases.
In addition, the court directed the state to provide
evidence relating to the 33 closed cases at least to the complainants’
attorneys, in the event that the state objected to showing the evidence to the
complainants themselves.
Another possibility the court suggested was
giving the complainants a summary of the evidence in the closed cases, without
having to produce all of the evidence.
The goal of the decision, said the
court, was to balance the rights of the complainants to have sufficient
information to appeal the closure of their cases properly, with the competing
value of preventing anything that could contaminate the evidence.