Justice Minister Failed to Appoint Investigation Supervisor in Military Prosecutor Case: What Does This Mean?

Interview with our partner, Maxim Rakov.

This week, Justice Minister Yariv Levin finally abandoned his attempt to appoint a supervisor for the investigation into the Chief Military Prosecutor case. Those who could have taken the position didn’t want it. Those who wanted it were rejected by the Supreme Court. What does this tell us?

The entire procedure was very strange. If Levin had genuinely wanted someone independent, unconnected to the Legal Advisor, to supervise and oversee the investigation, he could have compromised. The Supreme Court initially offered a compromise: appoint a retired judge or, for example, the head of the Securities Authority — officials with investigative authority.

But Levin wanted to show who’s boss. So the court responded: if compromise isn’t possible, here are strict criteria. Levin couldn’t find suitable candidates because he was looking for someone who would accept him as boss. There weren’t many such people. People didn’t want to “get their hands dirty” because this was perceived not as an objective decision, but as a power struggle. Those who agreed were rejected by the court: it noted they were judges without criminal case experience, specifically recruited for this project with an artificially created position.

Levin proposed Asher Kola as a candidate. He was willing to take a leave of absence from his position as head of the Judicial Complaints Authority. Wasn’t that sufficient?

No. A leave of absence is not a resignation. The purpose of appointing a supervisor is to ensure independence and eliminate conflicts of interest. By law, a person in that position cannot engage in any other work. If he’s on leave, he formally continues to hold the position. Only a full resignation would eliminate the conflict of interest. But Kola didn’t want to resign, knowing he would lose his position.

How does the absence of a supervisor affect the ability to complete the investigation and submit recommendations to the prosecution?

It doesn’t. By law, a supervisor isn’t required — it’s a practice that developed over the past 30 years. In serious cases, a prosecutor oversees the investigation. In this case, there was one too — as far as I know, it’s the head of the cybercrime unit in the prosecution, who wasn’t connected to previous stages of this matter. He has no formal authority, but he advises and guides the police. The police have stated that the investigation is nearly complete.

Who will decide whether to bring the case to court?

That’s an interesting question. The Government Legal Advisor and the Attorney General are disqualified from overseeing the investigation. By law, by default, the decision to bring a case to court is made by the Chief Military Prosecutor, since Efrat Tomer-Yerushalmi is an active military officer subject to military justice laws.

So the decision must be made by the new Chief Military Prosecutor? But he has no experience in criminal cases.

Correct. However, unlike the Government Legal Advisor, the Military Prosecution can call up reservists. The new Chief Military Prosecutor, who isn’t connected to this case, can bring in reserve specialists with criminal case experience. We’re talking about hundreds of professionals who previously served in the Military Prosecution or handled criminal matters.

It may not look ideal — the Military Prosecution handling the case of a former Chief Military Prosecutor. But someone has to make this decision.