Thus we concluded the discussion at the first and main head of the respondent's claim, which revolves around his claim that the extension of his detention is due to the negligence of the state. We discussed this argument in its two parts: flaws in the conduct of the police and failures in the investigation. We found that the courts that heard the respondent's detention (detention for days and detention until the end of the proceedings) had before them a whole corpus of prima facie evidence, and that despite the police's misconduct and flaws in it – which we have discussed and which we will mention later – these did not lead to the respondent's arrest. The same is true of the alleged investigative failures, which I do not believe amount to negligence and are retroactive wisdom, and even in respect of them it cannot be determined that the respondent's detention was unlawfully prolonged.
From here we turn to the second head of the respondent's claim, which deals with the mental anguish and pain and suffering that he claimed, as a result of the conduct of the policemen, which included beatings, torture and humiliation.
Police Violence
- In his lawsuit in the trial court, the respondent raised harsh allegations against the police, according to which the interrogators treated him violently, humiliated him and even forced him to masturbate in front of their eyes, in order to see if he was spilling sperm or not.
On this last argument, the trial court noted that "the plaintiff [the respondent – Y.A.] This claim was not investigated, and therefore it must be concluded that it is true" (paragraph 18 of the judgment). This is the only reasoning that the court brought to substantiate its determination that the respondent was forced to masturbate in front of his interrogators. It seems that this determination, in turn, is what led the trial court to award the respondent a very substantial sum of NIS 1,100,000 as compensation for non-pecuniary damage (more than NIS 12,000 for each day of detention). This determination does apply on the factual level, but it is not based on the determination of findings of fact and reliability, but rather on the application of a rule in the laws of evidence, and in such a case, the trial court has no advantage over the appellate court.
- As a rule, we have a long-standing rule that refraining from investigating acts in accordance with the obligation of the abstainer. However, this is not a rule that is inseparable, and even where a party waives cross-examination of a witness, this does not obligate the court to accept the witness's version if there is a real reason for refraining (Yaakov Forward on the evidence part Wednesday 1953 (2009)). Thus, for example, where the litigant who refrained from cross-examination brings other evidence, then "it is not the duty of the judge to ignore these witnesses and evidence just because the aforementioned party did not exercise his right to cross-examine a witness in the cross-examination."Civil Appeal 110/78 Spiashvili v. Mor Shmuel, IsrSC 34(2), 589, 597-596 (1979)). In short, refraining from cross-examination is ordinarily attributable to the duty of the abstainer, but does not lead to the conclusion that the witness or declarant's version should be accepted as it is, regardless of the totality of the evidence. The state argued that since the respondent's affidavit spanned 81 pages and included 602 sections, it was not possible, and should not have been, to cross-examine him at every point.
In my opinion, in the face of the state's failure to cross-examine the respondent on this point, the respondent is obligated to delay considerably and suppress his testimony. The respondent's claim that he was forced to masturbate in front of the interrogators was raised by the respondent For the first time In the framework of the tort claim in the trial court, about two years after the application was filed under the Article 80 to the Penal Law, and about six years after the indictment against him was dropped. It is difficult to shock that in all the arrest proceedings, in which the respondent raised claims that he was beaten by the interrogators, he refrained from raising the most serious claim that he was forced to masturbate to his interrogators. But even assuming that the respondent is to be regarded as a victim of a sexual offense whose testimony is captured due to feelings of guilt, fear, shame, etc., it could be expected that in his request for compensation according to Article 80 The Penal Law, in which he raised all possible allegations, including allegations of police violence, will raise the issue. In view of all this, I do not believe that there was room to accept the respondent's only testimony that he was forced to masturbate in front of his interrogators.