It is possible to point out a number of differences between the compensation according to Section 80(a) as a reference to the criminal proceeding, and the compensation in the framework of a civil lawsuit, and we will discuss this later. We are dealing with two different arrangements – while the tort of negligence is based on fault, Section 80 The Penal Law establishes an arrangement outside of tort law, which is found At a certain point in the amplitude between imposing liability on the state by virtue of the laws of negligence and imposing liability without fault (see judgment 2Criminal Appeal 7770/10 Tori v. State of Israel (unpublished, September 20, 2011)). We find similar instruction In section 38 of the Criminal Procedure Law (Enforcement Powers - Arrests), 5756-1996 (hereinafter: The Arrests Law), according to which the court may award compensation for the arrest and defense expenses of a person who was arrested and released without being indicted if it finds "that there was no basis for the arrest" or because of "other circumstances that justify compensation."
The claimant may claim that conceptually, a person whose application was rejected according to Article 80 of the Penal Law, all the more so that his claim for tort will be rejected, and at the very least, that a kind of judgment will be established between the parties.
Such an argument was discussed in the case law and rejected:
"Section 80 provides a defendant who is acquitted of a shortened procedural format to clarify the question of his entitlement to compensation for his arrest and indemnification for his defense expenses, whether on the basis of the grounds that 'there was no basis for the accusation' or on the basis of the ground regarding the existence of 'other circumstances justifying it.' The decision in such a proceeding, which is only a minor appendage to the main criminal proceeding, is supposed to be based, as a rule, on the evidence presented in the criminal trial; and the possibility of bringing evidence to prove his claims, where the evidence presented in his criminal trial does not support his position, may be given to the defendant only in exceptional cases (see: 4466/98 Dabash v. State of Israel, at pp. 106-107, 109 in the judgment of Justice Cheshin). In view of the special and shortened nature of the proceeding, there is no basis to say that the existence of a proceeding under section 80 is sufficient to establish a company estoppel in relation to the claims raised and decided in the framework thereof. As a matter of principle, it can be said that the conduct of 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, and thus the basis of the rationale on which the doctrine of estoppel is based is omitted (cf. v. Salzman, Practice of the Tribunal in a Civil Proceeding, at p. 16). This does not mean that a decision made in the proceeding under section 80 will not be able in any case to establish a company estoppel in a civil action filed on behalf of the defendant. When in a proceeding under section 80 the defendant does not limit himself to the material in the file, but also brings evidence to prove the state's liability – and his civil claim is based on the same alleged basis – it is reasonable for the state to be able to claim that the criminal court's decision established a company estoppel. However, it appears that even in such a case, the state will be able to raise its argument not on the threshold of a hearing of the civil action, but only in the framework of an inquiry on its merits, while requiring concrete consideration of the substance of the finding that was determined on the basis of the evidence brought by the defendant before the criminal court in comparison with the evidence brought by him to prove his civil claim" (Civil Appeals Authority 7652/99 State of Israel v. Yosef, IsrSC 56(5) 493; 496-497 (2002) (hereinafter: the Yosef case)).