As for the head of the second damage, my colleague is of the opinion that the respondent's claim that he was forced to masturbate in front of his interrogators should not be accepted, nor should his claim that he was severely abused by his interrogators be accepted. This, inter alia, in view of the long delay and the suppression of the respondent's testimony on the matter for many years. On the other hand, my colleague is of the opinion that the respondent's argument that acts of violence and threats were made against him by the police during his arrest and interrogation should be accepted.
In conclusion, my colleague is of the opinion that the State's appeal should be accepted in two respects: First, the conclusion of the trial court that the respondent sat in detention for 88 days due to the state's negligence will be annulled, and thus the head of the first damage will be completely erased. Second, the trial court's conclusion that the respondent suffered severe abuse and violence and was forced to masturbate in front of his interrogators will be annulled, thus partially erasing the head of the second damage. At the same time, my colleague is of the opinion that the State's appeal should be dismissed insofar as it relates to the violence and threats made against the respondent during his interrogation – and thus the head of the second damage was partially accepted.
- My opinion is different. After reviewing the in-depth and comprehensive opinion of my colleague, the judicial decisions that have been made in various incarnations in the matter before us, and the arguments of the parties (both before this court and in previous instances) – I have come to the conclusion that the amount of compensation due to the respondent should be set at the sum of NIS 1.2 million, plus fees and expenses.
Before I clarify the reasons I have brought to this conclusion, I will emphasize that the inquiry will focus on questions of causal connection and negligence. There is no dispute as to the very existence of damage, although the State disagrees with the extent of the non-pecuniary damage in relation to the respondent's arrest itself. It should be noted that even the state's expert agreed that the respondent suffered a temporary disability of 10%. Of course, the existence of damage does not indicate that a party is legally responsible for the damage. For this purpose, it is necessary to examine the extent of the negligence, and of a causal connection between it and the damage. But in this case, defining the nature of the damage – and not just its extent – will help to answer questions of negligence and causal connection: the damage was caused to the respondent not only because of the length of the detention period – 88 days. We are also dealing with the experience of detention, and not only with the fact of the arrest. I will expand on this point below. At this stage, I will refer only to what was stated in the opinion of the expert on behalf of the court, which addressed, among other things, to "the unreliable identification that led to [the respondent] being classified as a rapist" and "the experiences of the police interrogation, which were harsh and physical." In other words, the respondent suffered damage as a result of From the arrest and the experience of detention.