An army court of appeals in Tel Aviv on Sunday rejected an appeal by former IDF Sergeant Elor Azariya of a manslaughter conviction handed down in January over his shooting of a wounded Arab terrorist in March 2016.
In its decision Sunday, the appeals court also refused to reduce Azariya's sentence, saying that his 18-month jail term would remain in place pending an appeal from the prosecution, which has called for it to be increased, recommending three years imprisonment.
The military court read its verdict on the appeals in the case of soldier Elor Azariya.
President of the the court Doron Peles, who read the verdict, said, “"We allowed the defense to submit evidence in the appellate court from similar cases that happened in the past, and there is no evidence that the appellant sought to give weight that could change the outcome of the trial, and [the evidence submitted has] nothing to do with the questions in dispute."
The court rejected the video presented recently by Attorney Yoram Sheftel from the July 14 Temple Mount terror attack in which one of the terrorists was shown playing dead before continuing to attack.
“We reject the submission of the video on the Temple Mount as proof for the appeal,” Peles said.
The court also rejected the Defense’s questioning of the credibility of a soldier at the scene of the incident who testified against Azariya. “There is no proof of the claims of the Defense that words were planted in T.M.’s mouth. He repeated of his own initiative his version again and again. T.M., who served by Azariya’s side, testified that he heard Azariya say that the terrorist needs to die because ‘he tried to stab my friend.’” The court also said that it failed to find that the witnesses who testified against Azariya “had any ulterior motive.”
The court did, however, call into question the testimony of Azariya’s commander, which it said was “problematic and full of inconsistencies.”
It said that the Defense did not convincingly prove that the words of the IDF Chief of Staff following the incident influenced proceedings.
Judge Peles said that Azariya, himself, was inconsistent in his testimony throughout the proceedings. "Throughout the interrogation, the appellant found it difficult to present a single consistent position."
"The statements of the Appellant to [military investigators] showed that throughout the interrogation he found it difficult to present a single coherent version," Justice Peles noted.
The Judge added that Azariya's full version of his testimony came after a succession of changing versions. "This indicates its lack of credibility and strengthens the prosecution's evidence."
The court claimed that Azariya had not acted in a manner that one does when he feels danger to his life.
"He waited two minutes after he heard the calls of warning about a bomb until shooting. It was rightly determined that there was no justification for the shooting." The court added that "he acted coolly and slowly, and this behavior does not align with that of someone who feels threatened." In addition, the court said that Azariya had not acted in accordance with army firing protocol.
"The shooting of the terrorist was done out of vengeance," the court ruled. "The Appellant did not act out of a sense of fear or sense of danger.”
Dozens of demonstrators arrived at the square in front of the entrance to the Kirya base in Tel Aviv, where the verdict is being read in the appeal of soldier Elor Azariya. The demonstrators are carrying Israeli flags and calling for him to be acquitted of his conviction.
Later, Azariya himself entered the courtroom with his family.
"We have maintained restraint to this day, and I want to continue to maintain restraint," Azariya said after entering the courtroom and before the judges entered. "Whatever happens, we will deal with accepted procedures."
After Azariya’s Defense Attorney, Yoram Sheftel, appealed the sentence, military prosecution itself decided to appeal, calling on the judges to accept the minority opinion from the original sentence which had called for 2 years in prison.
Sheftel, for his part, focused in his appeal on precedents in which soldiers who had shot terrorists in various situations in the past - including situations in which there was no visible danger to their lives - had not been tried at all. Similarly, Sheftel focused on the inconsistencies of the central testimonies against Azariya, which claimed that Azariya had said the terrorist “deserved to die, he stabbed our friend.”
The court had also proposed that the sides seek mediation and come to a compromise, but such a process never came to fruition. Sheftel asserted that the prosecution’s submission of its appeal indicated its vengeful drive and put its sincerity into question. On the other hand, there were those who assessed that the prosecution’s appeal came to ensure that the court would leave the original sentence - 18 months - in place.
Azariya will be able to submit a special request to the Supreme Court or the IDF Chief of Staff.