The High Court of Justice instructed the Justice Ministry Legal Adviser, Yael Kotik, on Sunday to make a swift decision on who in the State Attorney’s Office should be empowered to make further decisions regarding the criminal investigation into the Sde Teiman leak affair.

Justice Daphne Barak Erez ordered Kotik to decide “who, according to her, is the appropriate official in the State Attorney’s Office and all its branches to whom the investigative material can be transferred in order to make a decision on the matter,” and told her to update the court on her decision by March 1.

The order follows a petition by the Movement for Quality Government in Israel to the High Court demanding that the case be handed over to the attorney general and the State Attorney’s Office.

In November last year, Military Advocate General Yifat Tomer-Yerushalmi was arrested on suspicion of having leaked security camera footage from the Sde Teiman military detention facility purporting to show Israeli soldiers beating and abusing a Palestinian detainee.

A criminal investigation was opened into the leak, but Justice Minister Yariv Levin and others insisted that Attorney General Gali Baharav-Miara and the State Attorney’s Office not have oversight over the investigation, as they usually would.

This was because Baharav-Miara had ultimate authority over an internal probe by the Military Advocate General’s Office into the leak, which concluded that no criminal investigation was necessary, and whose conclusions Baharav-Miara transmitted to the High Court.

When Baharav-Miara asked Kotik for a position paper as to whether she had a conflict of interest in the investigation, Kotik determined that she did and that she should recuse herself from the investigative stage of the case.

Critics nevertheless accused Levin of using the case to impugn Baharav-Miara, without evidence, due to the severe conflict between the minister, and indeed the entire government, and the attorney general.

On February 3, the police legal adviser Elazar Kahana sent a letter to Kotik saying that the police had completed their investigation into the matter. He further wrote that the police had not found any evidence to support claims that Baharav-Miara or any officials in her office were involved in the leak or its subsequent cover-up.

Kahana therefore asked Kotik to revisit the issue of Baharav-Miara’s conflict of interest, in order for the investigation to be handed back to the prosecution services for a decision regarding indictments over the affair.

Kotik, who reportedly has a close personal relationship with Levin, rejected Kahana’s request, however, and requested that he hand over to her the investigative materials, including testimony from officials in the Attorney General’s Office and State Attorney’s Office to enable her to make the decision.

She subsequently reiterated her request to the head of the police investigations and intelligence department, Boaz Blatt. Blatt sent a summary of the relevant testimonies to Kotik, but declined to transfer the actual investigative file, arguing she lacked the authority to receive it, Haaretz reported earlier this month.

The Movement for Quality Government filed its petition to the High Court against Kotik Sunday, leading to Barak-Erez’s order issued later that night.

The organization argued that after the police completed their investigation, the attorney general no longer had a conflict of interest and should therefore be able to take up the case again.

“The court’s decision makes it clear that we must not accept another delay in the criminal proceedings in the Sde Teiman case,” said the chairman of the Movement for Quality Government, Eliad Shraga.

“The police investigation has ended, the blocks [on Baharav-Miara] have been lifted, and now the case must be advanced…

“We will continue to monitor closely to ensure that this case is handled by the legally authorized body, without any political interference.”

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Yifat Tomer-Yerushalmi

IDF Military Advocate General MAG

Movement for Quality Government in Israel

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