I have moved a little earlier than the latest, and to the decision of the District Court according to Section 80(a) I will come back later.
A few introductory notes
- This affair, in its various incarnations, moves between criminal proceedings and civil proceedings. Since the criminal chapter ended with the cancellation of the indictment filed against the respondent, the affair has found its way to the courts in other ways. The respondent's case was brought before the courts several times in the framework of the proceeding under the Section 80(a) to the Penal Law (the decision in the District Court, the appeal against the decision that was rejected, the request for an additional hearing that was rejected, and the request for "reconsideration" that was rejected) and in addition, and at the same time, the tort claim that is the subject of our hearing.
Against this background, it is important to emphasize that when we come to hear the appeals before us, we must guard against "eruv techumin", and ensure that the merits of the hearing are limited to the tort material. With the cancellation of the indictment against the respondent, the hearing on the question of the respondent's guilt or innocence has ended, and it is no longer on the agenda. Nor are we dealing with a criminal proceeding or a disciplinary proceeding against the respondent's interrogators. The relevant slot in our case is tort law, and from this perspective we must examine the respondent's claim that the state was negligent in investigating the affair, and that as a result the respondent was detained for 88 days and an indictment was filed against him, which was ultimately dismissed by consent.
- I do not see the need to elaborate on the foundations of the tort of negligence and the issue of the state's liability in torts, all the more so since the parties do not dispute the existence of the state's conceptual duty of care, and there is no dispute today about the duty of the police and the prosecution to exercise the powers given to them skillfully and reasonably. This issue was comprehensively reviewed in Justice Procaccia's judgment in the Hagai Yosef I do not see the need to elaborate further. In a nutshell, alongside realizing the public interest in discovering offenses, acting to prevent them, and acting effectively to bring suspects and defendants to justice, the prosecuting authorities and the police are obligated to take reasonable precautions to prevent harm to interrogees, suspects, and defendants. All this, while maintaining their physical and mental well-being and taking special care against incriminating a person who was not involved in criminal activities.
- The respondent's claim can be divided into two separate heads, into two clusters of arguments.
The One Head About Prolongation of detention proceedingsand the main argument was that the state's negligence – whether in the manner in which the investigation materials and the alleged evidence were presented to the courts, or in the alleged investigative failures – was what led to the respondent's detention for 88 days. In the framework of this head of claim, the relationship between the tortfeasor (the police/State Attorney's Office) and the injured party (the respondent) is not direct, and a third party (the court) is involved in it. On the factual level, it was the decisions of the courts, which were given on the basis of the material submitted by the "tortfeasor", that led directly to the "damage" caused to the respondent. This is important for our case, since in order to establish negligence, it is necessary to point out a factual causal connection between the material presented to the courts in the various detention proceedings, and the courts' decisions to arrest the respondent and keep him in detention. On this question, the trial court has no advantage over the appellate court. This is because we are concerned with the conclusion that can be drawn from the material that was before the courts in the detention proceedings, and which is also before this court.