Saving the state prosecution
The State Attorney’s Office possesses immense power to ruin ordinary citizens’ lives.
Lador Photo: Ariel Jerozolimski
The acquittal of Ehud Olmert on most of the serious charges levied against him
while in office undermines public confidence in the State Attorney’s Office.
When the people no longer have confidence in their legal system, its ability to
protect them, whether against graft in high office or more ordinary crimes on
the streets, is compromised.
The Olmert case merely underscores the
steady erosion of public confidence in Israel’s law enforcement system and the
rising tide of criticism levied against it. A series of polls conducted by the
Israel Democracy Institute found that the percentage of citizens expressing
confidence in the State Attorney’s Office fell by over half between 2004 and
2008, from 66 percent to 32%. The percentage recovered somewhat by 2010, but the
Olmert episode will likely send the figure south again.
the State Attorney’s Office are mostly anecdotal, because this organization is
extremely secretive. Requests for information under Israel’s Freedom of
Information Act, and even court orders to produce information, are met by
Scores of public defenders and private defense attorneys
have their horror stories of inflated charge sheets and pretrial remand granted
on the basis of unsubstantiated affidavits submitted by prosecutors to the
Plea-bargain negotiations are particularly notorious. Many of
them would be labeled blackmail if conducted by private citizens. About 90% of
prosecutions in Israel end in plea bargains in which defendants, hoping to avoid
costly trials and time in jail, plead guilty to lesser charges. Court oversight
of these bargains is pro-forma, a policy based on decisions of the Supreme Court
itself. Were the original, serious charges justified? Could convictions actually
have been obtained on the lesser charges? UNLESS ONE is an Ehud Olmert, with
deep pockets and nothing but money to lose, most people prefer not to find
Occasionally the State Comptroller investigates the State Attorney’s
Office, usually with harsh results. One conclusion arising from the
Comptroller’s reports is that the state prosecution is incapable of fixing
itself. A 2011 report recounts the story of a decade and a half of harsh
reports, followed by the promises of three different attorneysgeneral to correct
the same faults, followed by... nothing.
The State Attorney’s Office
possesses immense power to ruin ordinary citizens’ lives. An indictment destroys
one’s reputation. One can be remanded to jail for months before one’s case is
heard. Just hiring a defense attorney costs tens of thousands of shekels; if one
is charged with a crime that will be heard by a district court, the cost rises
to six figures. This immense power is exercised today without oversight or
transparency. The attorney-general issues policy directives to the state
attorney, but nobody knows whether the directives are actually followed in
individual cases, because no comprehensive records are kept.
would appear to be obvious.
Israel’s State Attorney’s Office will only
improve, and public confidence in it restored, if it is exposed to the lash of
independent, systematic criticism, conducted in public.
inspectorate should be set up to oversee the work of the State Attorney’s
Office. It should have the right to demand any document and question any
employee of the State Prosecution Service. It should be able to compel the State
Attorney’s Office to keep orderly, computerized records of all investigations in
order to facilitate oversight. It should accept and investigate complaints
against prosecutors from the general public. It should not have the power to
interfere in ongoing investigations or prosecutions, but the past should be an
open book. Its findings should be public and accessible to all.
PROFESSIONAL consensus regarding the need for such a body is broad. Prof.
Mordechai Kremnitzer of the Israel Democracy Institute and former justice
minister Daniel Friedman have penned separate proposals to establish such an
inspectorate. Dr. Aviad Bakshi, Atty. Moran Nagid and this author, of the
Kohelet Policy Forum, are working on another.
There are precedents. In
Britain, the Crown Prosecution Service Inspectorate (HMCPSI) is an independent
body charged with overseeing the work of the Crown Prosecution. It can obtain
any document from the Crown Prosecution and examine the professional judgment
exercised by prosecutors in pressing charges or closing a case. Is reports are
made to Parliament and are public.
When established, the HMCPSI was not
independent but rather a review board set up within the Crown Prosecution
Service. Its reports were anemic and its impact limited. In the wake of a report
by a judge, Sir Iain Glidewell, the HMCPSI was set up as an independent
authority. Since then its hardhitting reports have led to a significant
improvement in the performance of the Crown Prosecution.
The HMCPSI does
not receive complaints from ordinary citizens. However, in the US the Office of
Professional Responsibility (OPR) within the Department of Justice does
investigate complaints lodged against individual prosecutors, though it is not
independent of the department.
For the past two and a half years the
Knesset’s Committee for State Control has been pressing the state prosecution to
establish an internal oversight committee. Attorney-General Weinstein has
responded by retreating into bunker mentality. He has done everything possible
to drag his feet, to buy time, making promises and failing to keep them. His
latest promise was to establish an internal oversight committee within a
That was in May.
By now, an internal oversight committee
will not be enough. It cannot restore the public confidence that the state
prosecution has lost, not only in the Olmert fiasco but through a decade and a
half of exercising power without restraint or transparency.
independent inspectorate empowered to investigate all the state prosecution’s
functions, and to report its findings in public, will do. From now on, the state
attorney’s business must be conducted in public, criticized in public, and
corrected in public. That is the only way to save the State Attorney’s Office
The writer is director of Policy Research at the Kohelet