Background
The chair of the Central Elections Committee for the 26th Knesset had issued two decisions finding that National Security Minister Itamar Ben-Gvir used public assets for election propaganda in violation of section 2A of the Elections (Modes of Propaganda) Law, 1959. The first matter concerned a police boat, a Prison Service detention facility, and accompanying uniformed security personnel; the second concerned the Underground Prisoners Museum, which is administered by the Ministry of Defense and was then closed to the public.
The petitioners asked the High Court of Justice to require the Ministry of Defense and Ministry of National Security to explain why they should not order Ben-Gvir to repay the value of the benefit derived from that use. They argued that administrative law, fiduciary principles, unjust-enrichment law, and government financial directives required recovery. Although they named the Attorney General and the Accountant General as respondents, they had not approached either official before filing the petition.
The Court’s Holding
The Court dismissed the petition at the threshold for failure to exhaust remedies. Justice Khaled Kabub, writing for the Court, explained that a petitioner challenging an authority’s failure to exercise power ordinarily must first approach the official who possesses that power and allow the administrative process to run its course.
It was not clear that the ministries could demand repayment directly without bringing an appropriate civil proceeding. The authority to decide whether to institute and conduct a civil action in the State’s name, and what legal position to advance, belongs to the Attorney General and lies at the core of her discretion. The petitioners therefore had to ask the Attorney General to pursue an appropriate civil action before seeking judicial review. Because they had not done so, dismissal was required. The Court preserved the parties’ arguments and, because no response had been requested, made no order for costs.
The Court nevertheless observed that a later personal recovery action could serve as a long-term deterrent against unlawful use of public property in election campaigns. Such litigation would complement immediate measures, including interim orders removing unlawful propaganda, but would not substitute for them or remedy the speed with which online election content spreads.
Key Takeaways
- A petition challenging the State’s failure to seek civil recovery must ordinarily follow a prior request to the official empowered to authorize that litigation.
- The Attorney General, not the individual ministries acting alone, has authority to decide whether the State will bring and conduct a civil action of this kind.
- The Court did not decide whether Ben-Gvir must repay anything; it dismissed on exhaustion grounds while preserving the substantive arguments.
Why It Matters
The ruling identifies the proper procedural route for efforts to recover the value of public resources unlawfully used in election propaganda: advocates must first seek action from the Attorney General and may pursue judicial review only after that avenue has been exhausted.
Although the Court granted no recovery remedy, its discussion recognized that personal civil liability may deter elected officials from treating public assets as campaign resources. It also distinguished that backward-looking tool from urgent remedies designed to stop unlawful digital propaganda before widespread exposure makes the harm effectively irreversible.