Civil Appeal Authority 775/11 Avraham Flexer v. State of Israel – Israel Police - part 6

In immunity.  Another test adopted by the trial courts, and which Flexer also mentions in his arguments, is the test according to which a preliminary factual clarification is required in all questions relating to the fulfillment of the conditions of immunity (hereinafter: the preliminary clarification test).  According to Flexer, this test is the most probable of all the immunity provisions in the Ordinance and the Torts Regulations (Liability of Public Servants), 5766-2006 (hereinafter: the Torts Regulations), since, According to it, the court hears testimonies at the preliminary stage and determines factual findings at the prima facie level, for the purpose of deciding the question of the fulfillment of the conditions of immunity and the exception thereof.  In the case before us, Flexer argues, the District Court refused to hear testimonies and to hold a hearing on these questions, and therefore it did not establish any findings of fact, even at the prima facie level, to substantiate its decision.  The third and final test to which Flexer refers in his arguments is the administrative audit test, which those who hold it argue that the state's decision to recognize or not recognize the employee's immunity deserves to be examined in accordance with the rules of administrative law (hereinafter: the administrative audit test).  This is the approach adopted by the District Court in this case.  However, according to Flexer, even if this is the appropriate test, the District Court erred in applying it because it ignored many administrative flaws that occurred in the notice of recognition, and in this context Flexer points out that the notice of recognition is not reasoned, does not specify who the administrative body was who examined the actions of the policemen, what its findings were, and when it was examined.  In addition, an affidavit verifying the course of the examination and its findings was not attached to the notice of recognition.  Therefore, Flexer is of the opinion that the state did not present a basis that would allow the court to determine that its decision was reasonable, and in this context, the notice of acknowledgement that it submitted should not suffice in order to reject its well-founded arguments regarding the mental element that accompanied the police officers' actions.