This conclusion stands in the middle of the possible approaches to this case. On the one hand, I do not believe that there is a full causal connection between the negligence of the police and the entire arrest of the respondent. On the other hand, I do not believe that a causal connection between the negligence and the arrest has not been proven at all. Nor do I believe that it has been proven that the respondent was forced to masturbate in front of his interrogators, although it has been proven in my opinion that he was required to do so. My opinion is that the difficult experience of detention that the respondent underwent, and not only the mere time in detention, is the cause of the emotional damage caused to him.
In view of this conclusion, my opinion is that the respondent's compensation rate should be set at NIS 1,200,000. This sum reflects, on the one hand, the damage caused to the respondent due to the conduct of the police and the difficult experience of detention that he underwent which left him with emotional damage, and on the other hand, the conclusion that not the entire period of the respondent's detention was caused by this conduct. This conclusion, together with the determination that in fact the respondent did not masturbate to his interrogators, has implications for the amount of compensation for the pain and suffering. At the same time, compensation must be granted for the violence and the demand that the respondent be orchestrated before his interrogators. It should be noted that the amount of pecuniary damage was not a matter of dispute between the parties. The total compensation determined will apply from the date determined by the District Court. I also accept a 20% rent rate, together with a tax appeal as per law, plus the other expenses that have been determined.
After these things
- After writing my opinion, my colleague Justice Amit addressed a number of points that are in dispute between us. Although it seems that there is an answer in the above text, I have found it appropriate – in order to clarify the matter – to clarify my position with respect to the points raised by him.
- Between the respondent's request for compensation under section 80 and his tort claim – my colleague noted that there is "an anomaly" in the combined result of rejecting a request for compensation under section 80 of the Penal Law together with the acceptance of the tort claim. It should be noted, in this context, that the appeal against the District Court's decision regarding compensation under section 80 was not heard and was in fact consolidated with the claim for damages. This is in accordance with the decision of this court. The result of the request for compensation under section 80 is not a final decision in the present case, and the right to appeal such a decision should not be taken lightly. To this, it should be added that, naturally, a tort claim includes a track of hearing evidence, which is not the case with a request for compensation under the Penal Law. Therefore, there is the possibility of expanding the presentation of the factual picture in all its shades. As it was held in the Yosef case:
"In view of the special and shortened nature of the proceeding, there is no basis for saying that the existence of a proceeding under section 80 is sufficient to establish a company estoppel in relation to the arguments raised and decided in the framework thereof... Conducting a proceeding under section 80 of the Penal Law does not provide the defendant with the proper opportunity – which is available to him in a civil action proceeding – for a full and comprehensive investigation of his entitlement to compensation for the damages caused to him as a result of his indictment and arrest."
- The output of the conversations – the examination regarding the effect of the investigative failures on the respondent's continued detention will be done – as with any examination of the existence of negligence – in real time, and not with the wisdom after the fact. My colleague emphasizes the alibi version given by the respondent at the time, which turned out to be incorrect. This can be answered, even while ignoring the fact that the respondent had difficulty knowing what he had done at the relevant time (also due to another failure of investigation in the form of not presenting the diary), as follows: In any event, the police – and rightly so – do not accept an alibi from a defendant in the sense of "such a saw and sanctified". Obtaining additional information entails additional investigative actions, including the interrogation of the accused. The relevant question for examining the failures of the investigation in real time is not whether the respondent gave the correct alibi detail at each stage, but how – if at all – actions that were not taken would have affected the investigation and its conclusions. An examination of the call output would show a conversation that left on the day of the rape at 17:23 from the respondent's home to the camper's home. This detail of information, which was apparently already in the possession of the police on July 20, 1999 – i.e., in real time – did not reconcile with the respondent's version (according to which he was with the trainee at the time), nor with the picture of the world constructed by the police itself. After all, according to the line she presented at that time, the respondent had been at the camper's home as early as 3:30 p.m. This creates the need to confront the view that has taken root in the police and the unusual individual, a confrontation that took place only at a much later stage with the seizure of cellular outputs and the location of the device. The lack of an examination at an earlier stage prevented the police from examining the respondent's whereabouts at the relevant hours – whether with the camper or near the scene of the rape. As for the cellular phone, as I emphasized, the moment the respondent was arrested, he provided the relevant cellular number as the device he was using.
- The diary - for the purpose of the hearing, I was willing to limit the District Court's ruling, and make do with the fact that the mother begged the police to take the diary. To this must be added the fact that the respondent mentioned the matter of the diary as early as July 18, 1999, and in addition, he emphasized a large number of times that he had difficulty remembering what happened on the day of the rape (which took place three months before the arrest). The combination of all the details clarifies why the police were required to receive the diary from the mother and present it to the respondent. As mentioned, on the same page of the diary of the day of the rape – five days before the incident – it is written: "Father – what is happening about the cell phone debt / rent?" This sentence is clear and speaks for itself. As I mentioned, the square that day consisted of only four rows. Most days the page doesn't have a listing, or a list of a row or two. The respondent knows that he is not guilty of the offense attributed to him. In this situation, he would probably have looked at the diary over and over again, to find information that could have indicated his whereabouts on the day of the incident. There is a line on the word "rent," which even ostensibly indicates that the action was carried out. The material shows that the father rented one apartment, and the situation in which the son paid for him was a one-time event. This is evidenced by the words of the owner of the pension, who immediately mentioned the matter when he was interrogated by the police and explained it on the occasion. Even if the respondent had not recalled with certainty that he had paid the owner of the pension on the very day of the rape, there is great reason to believe that he would have at least directed the investigators to a new channel of investigation – locating the owner of the pension. It will be mentioned again: this direction ultimately led to the respondent's release. It stands to reason, therefore, that the presentation of the diary to the respondent would have accelerated the pace of the development of the investigation until the respondent's release (for a scanned copy of the diary page – see paragraph 86 of Justice Amit's opinion).
- Evidentiary damage - My colleague raised the concern that copying the use of the inherent evidentiary damage doctrine to criminal investigation failures would lead to the unjustified overacquittal of defendants. In fact, a twofold reservation was presented: both from inherent evidentiary damage and from the use of evidentiary damage in relation to investigative failures in criminal law.
In my opinion, the use of a legal tool that is anchored and rooted in case law – and which leads to a just result in a concrete case – should not be canceled because of the concern that it will be used inappropriately in another case.