In addition to all this, Flexer argues that his request to determine that the exception to immunity is met in this case was decided by a registrar who is a judge who in a later decision even clarified that he made this decision "in his hat" as registrar. Therefore, according to Flexer, this is a decision that was given without authority, since according to him, the Registrar's authority is limited to those cases in which the law or regulations explicitly authorized him to hear, whereas regarding the immunity of public servants in torts, there is no clause in the law authorizing the Registrar to hear. Flexer further argues that the fulfillment of the exception to the immunity clause is a factual question that is generally not within the authority of the Registrar. Since the lawsuit against the police officers was dismissed out of hand, Flexer adds, it even makes it difficult for him to prove his claims on the merits.
Because when the lawsuit was dismissed, the police refused to answer questionnaires he sent them on the grounds that they were not litigants. Finally, Flexer argues that Regulations 10 and 11 of the Torts Regulations stipulate a duty to hold a hearing on an application relating to the fulfillment of the conditions of immunity for public servants, in which the parties will be able to cross-examine the declarants, hear witnesses, and submit written arguments, and the court has no discretion to deviate from these procedures.
- In the summaries of the state and the police officers represented by the State Attorney's Office (hereinafter: Respondents), the respondents elaborate on the proper interpretation of their approach to the arrangements in the Ordinance dealing with the immunity of public servants, which were incorporated into Amendment No. 10 to the Ordinance The Torts (Hereinafter: Amendment 10 to the Ordinance).
The respondents claim that the background to the enactment of the amendment to the Ordinance is the concern that public servants will be exposed to pressures by way of filing personal lawsuits against them, which may disrupt their judgment and lead to excessive deterrence of employees and hesitation in their functioning. However, the respondents further argue, the immunity established in the Ordinance following Amendment 10 is only procedural immunity and does not prejudice the plaintiff's substantive rights to receive the full compensation to which he is entitled from the employer of the public servant - the state or the public authority - if he proves that the employee's actions establish grounds for damages. With regard to the civil servants, it was argued that the significance of the notice of recognition of immunity is that the state found, in accordance with the administrative evidence available to the decision-making body, that the defendant civil servant committed the alleged acts in the framework of his governmental position and that the conditions of the exception to immunity are not met. According to the respondents, the Attorney General authorized three senior officials in the civil service (the Deputy State Attorney, the Deputy Attorney General, and the Director of the Civil Department of the State Attorney's Office), and only them, to notify the court of recognition of the immunity of an employee, and in their opinion, this leads to the concentration of skill and experience in this field in the hands of these entities. Because the Notice of Recognition is Administrative Decision The respondents are of the opinion that the court must exercise the authority given to it In sections 7b(c) and(d) to the Ordinance in accordance with the rules that govern the exercise of judicial review of administrative decisions, for the purpose of determining whether the conditions of immunity were met in the case before it. According to the respondents' approach, the legislature did indeed see fit to combine the discussion and the decision on the issue of immunity in the civil proceeding (the tort claim), in order to prevent the splitting of the hearing on this issue between the two courts
Variety, but given the fact that we are interested in judicial review of an administrative decision, the respondents are of the opinion that the civil court must apply for this purpose the rules and principles that are customary in administrative law. The respondents further refer in this matter to the explanatory notes to the proposed amendment 10 to the Ordinance, which also support their position that the notice of recognition is subject to judicial review in accordance with the rules of administrative law.
- The respondents further argue that the examination of the issue in accordance with the rules of administrative law is preferable to the other tests that have been proposed. According to the respondents, an examination of the conditions of immunity according to the test of the statement of claim would render the immunity arrangement meaningless, because any plaintiff can formulate his claim in a manner that attributes to the public servant acts that satisfy the conditions of the exception to immunity, and they therefore believe that such an expansive approach is inconsistent with the purpose of Amendment 10, which is intended to protect the public servant from harassment. The respondents also argue that there is no room for comparison between the dismissal of a claim in limine - from which the statement of claim test is taken - and the recognition of the immunity of a public servant, because the dismissal of a claim in limine leaves the plaintiff without remedy, whereas the recognition of the immunity of a public servant does not prejudice the plaintiff's right to receive relief from the state or from the public authority, as the case may be, if he proves his claim. The respondents are further of the opinion that there is no room for a preliminary factual clarification on the question of the fulfillment of the immunity conditions, since there is an overlap between the evidentiary hearing that will be required for the purpose of clarifying the questions relevant to the issue of immunity and the evidentiary hearing that must be conducted in the proceeding on its own merits for the purpose of clarifying the tort cause. The respondents further argue that typically, the question of immunity is up for decision before the preliminary proceedings have been conducted and before the case has matured for hearing. For this reason, too, according to the respondents' approach, it is unreasonable to conduct a preliminary factual clarification relating to the recognition of immunity. Finally, the respondents are of the opinion that in view of the administrative nature of the objection process to the notice of recognition of immunity, there is no reason to hold an oral hearing on this matter, and in most cases, according to them, the court will be able to examine whether there is an administrative ground for intervention, according to the notice of recognition and on the basis of written documents.
- With regard to the interrogation and arrest of Flexer, the respondents claim that an administrative evidentiary basis was brought before the Deputy State Attorney, consisting mainly of the investigation file against Flexer, and which proves that the actions of the police officers were carried out professionally and in good faith in the framework of their duties as investigators. Therefore, the respondents are of the opinion that Flexer did not meet the burden of proof