Background
Tami Malka and Avi Ohana petitioned over the death of their brother, Adi Ohana, an Israel Electric Corporation employee who was mistakenly shot by Israeli police on October 7, 2023. After finishing his shift at the Rutenberg power station near Ashkelon and receiving permission to leave at approximately 9:00 p.m., Ohana encountered a police ambush and was killed when eleven officers opened fire on him. He left behind a daughter who was approximately ten years old.
In an earlier proceeding, HCJ 30929-08-24, the petitioners sought materials from the investigation file after receiving no response from the Department for Investigation of Police Officers. Once the Department provided the requested materials, the Court dismissed that proceeding because the remaining requests—for explanations and additional investigative measures—exceeded its scope and should first be raised directly with the Department.
The petitioners subsequently requested further materials and investigative steps concerning, among other matters, officers’ body cameras, evidence taken from the scene, the conditions at the scene, travel reconstructions, and mechanical and traffic-examiner inspections of Ohana’s vehicle. The Department reported that some officers had no body cameras and others had not activated theirs, supplied requested police procedures and certain property belonging to Ohana, and declined further investigation on the ground that the proposed measures would not affect the charging decision. The petitioners then sought an order compelling those measures and reconsideration of possible charges.
The Court’s Holding
The Supreme Court unanimously dismissed the petition. President Isaac Amit, joined by Justices Yael Wilner and Yechiel Kasher, held that judicial intervention in investigative and prosecutorial discretion is reserved for rare cases involving improper considerations, extreme unreasonableness, or a substantial risk of miscarriage of justice. That restraint is especially strong where authorities are evaluating evidence and prospects of conviction, matters at the core of the Department’s professional judgment.
The requested relief would effectively require the Court to assume the role of the investigative authorities and direct particular investigative acts. The Court emphasized that it does not replace law-enforcement agencies or act as a “super-prosecutor” or “investigating judge.” The Department had conducted an extensive inquiry that included witness statements, ballistic examinations of Ohana’s vehicle, and review of forensic medical information, and it had considered most of the issues raised by the petitioners.
The Court found the decision not to pursue further investigation within the bounds of reasonableness. It stressed that the shooting occurred amid the extraordinary chaos of October 7, when security forces in southern Israel were operating at night under extreme pressure, responding to numerous casualties and reports of infiltrating terrorists, including rumors of attackers disguised as police officers or soldiers. Those circumstances directly affected both the assessment of the officers’ conduct and the practical value of additional investigation or criminal proceedings. The Court made no costs order.
Key Takeaways
- Israeli courts will interfere with investigative or prosecutorial discretion only in exceptional circumstances, such as extreme unreasonableness, improper considerations, or a substantial risk of miscarriage of justice.
- A petition seeking court-ordered investigative steps cannot turn the High Court of Justice into a substitute investigator, “super-prosecutor,” or investigating judge.
- The unprecedented operational conditions of October 7 were relevant to assessing the officers’ conduct, the available documentation, the usefulness of further investigative measures, and the prospects of conviction.
Why It Matters
The decision illustrates the narrow scope of judicial review over decisions by Israel’s police-investigations authority, even where an innocent civilian’s death is undisputed and the family identifies specific investigative gaps. The Court’s role is to review the legality and reasonableness of the authority’s decision, not to choose individual investigative techniques.
It also shows how the exceptional battlefield-like conditions of October 7 can influence charging assessments in mistaken-identity shootings. The Court did not approve the officers’ conduct or determine that they complied with police procedures; it held only that the Department’s decision not to conduct further investigation did not meet the demanding standard for judicial intervention.