I will also note that the fact that the District Court rejected the request for compensation under the Article 80 The Penal Law alone does not lead to the rejection of the appeal. First, in principle, the rejection of an application under Article 80 does not necessarily establish a company estoppel against a lawsuit by virtue of The Torts Ordinance (See: Civil Appeal Authority 7652/99 State of Israel v. Yosef, IsrSC 56(5) 493 (2002)). Second, as stated, the respondent appealed the decision to this court. The appeal that was filed was not dismissed on its merits by the Supreme Court. Instead, it was determined that the matter would be clarified in full within the scope of the tort claim, which was filed at the time with the District Court. This diminishes the weight of the District Court's decision in the matter Article 80, since the respondent has an appeal in his right that he did not exhaust in light of the aforementioned Supreme Court decision, according to which the respondent's claims will be clarified in the framework of the civil lawsuit he filed.
- After the framework of the damage and its nature have been presented, we will examine the behavior of the police, in order to ascertain whether it amounts to negligence and whether there is a causal connection between it and the damage. This examination will have implications for the question of whether, and to what extent, the respondent should be awarded compensation for the arrest and for the police's failures in the investigation. The conduct of the police is made up of three layers: first, the failure to capture the respondent's diary and the cell phone outputs that he had in his possession at the time. The second, violence and humiliation by police investigators. The third is the failure of the investigation and the erroneous presentation of the facts of the case before the court. I will examine each of the floors on its own.
(1) Failure to capture the diary and call outputs
- At the center of my colleague's opinion was the following question: Did the negligence of the police lead the courts to decide to extend the respondent's detention? My colleague's answer is an absolute no. The District Court's answer is an absolute "yes." My answer is in the middle, although it is much closer to that of the District Court. In my view, if the police had seized the diary, and if the call outputs and the location of the cellular device had been discovered at an earlier stage, it is reasonable to assume that a different dynamic would have developed that would have resulted in the respondent's early release. In order to establish my view, I will first outline the evolution of the alibi version presented by the respondent, which apparently ultimately led to his release.
- On the first day of his arrest, 16 July 1999, the respondent denied any connection to the rape. His statement from that day shows that he did not remember what his agenda was on the day of the rape, which had taken place about three months earlier: at first he explained that usually on Sundays, the day of the incident, he would study at home in the morning and in the afternoon he would visit a student he was mentoring as part of the Perach project (hereinafter: the camper). Afterwards, when asked specifically about the day of the incident, the respondent clarified that he did not remember what he did that day, and that he "thinks" that he went to his parents in the afternoon and that this was the only place he went to.
On July 17, 1999, during the hearing on the first extension of detention, the police representative stated that the respondent's hours of activity with the trainee did not correspond to the hours of the offense. This, apparently, is based on the assumption that the respondent's regular tutoring hours were 15:30-19:30 (an assumption that we will address later), while the rape took place at 20:00.