Civil Case (Haifa) 32407-12-09 Jamal Abu Shanab v. State of Israel

Judgment

1. On January 13, 2003, the plaintiff was arrested by Israel Police officers on suspicion of committing an offense of assault and threats against members of the Z. family'as well as offenses of assault and false imprisonment of a police officer.  The plaintiff was taken for interrogation at the police station in the residence.  During his stay at the police station, while he was handcuffed to arrest another, defendants 2-3 arrived at the scene and assaulted him and caused him severe injuries.

In his lawsuit in this case, the plaintiff petitions to obligate the attackers as well as the Israel Police to compensate him for the damages he suffered in the assault incident.  As will be clarified below, the main dispute in the case concerns the question of under what circumstances the Israel Police is responsible for compensating a person who was injured by a third party while he was in its lawful custody.

Background

2. The plaintiff was born in 1965, lived in a rented apartment with his family in an apartment he rented from Mahmoud and Murad Z.'Rabbi (Defendants 2 - 3, hereinafter: The Defendants) in the settlement of Ma'alot Tarshiha (p. 25 of the transcript).  The plaintiff lived in the apartment for about 3 years.  In 2002, a dispute arose between the plaintiff and the defendants and he was required to vacate the apartment.  On December 11, 2002, a judgment was even issued in the Kiryat Magistrate's Court instructing the plaintiff to vacate the apartment (P/1).  The disputes between the plaintiff and the defendants did not remain at the door of civil law, and fights also developed between the parties.  Thus, for example, it turned out that on December 5, 2002, the plaintiff threatened Muhammad Z.  at the police station'Rabbi.  Following these threats, the plaintiff was prosecuted (Case (Shalom Acre) 5/04).  On January 26, 2004, the plaintiff was convicted on the basis of his confession and sentenced to a conditional prison sentence (P/3).
3. On January 12, 2003, the defendants demanded that the plaintiff vacate his apartment. Arguments and riots developed between the sides, and police forces were called to the scene.  There is no dispute that during the arrival of the policemen, the plaintiff used violence against both the defendants and the policemen, and inter alia, closed the door and locked one of the policemen inside one of the rooms of the apartment (see plaintiff's statement N/2).  Eventually, the plaintiff was arrested and taken to the Ma'ana police station.  According to the plaintiff, in his statement to the police (P/2), he was injured during the fight and suffered bruises on his fingers and neck.
4. Upon the plaintiff's arrival at the station, he was interrogated by the interrogator, Mr. Attias, on suspicion of committing offenses of assault, threats, assault on a police officer and false imprisonment of a police officer (P/20, para. 54, p.  47 of the transcript).  At the end of the investigation, it was decided by the head of the Investigations Department to arrest the plaintiff and extend his detention until the next day (p.  47).  In order to carry out the arrest, it was decided to transfer the plaintiff to detention at the police station in Acre.
5. In accordance with the officer's decision, the plaintiff was taken by Investigator Attias, accompanied by a volunteer named Henry Siboni, to the police car parked in the yard of the building. The plaintiff was handcuffed by another detainee named Igor Karev (P/20).  The detainees and the accompanying policemen came out of the station door, passing the logger's post for registration, and approached the patrol car.  The detainees stood next to the car and waited for the doors to open in order to get inside and drive.
6. At that time, the defendants arrived at the Ma'ana police station. The two entered the yard through the gate of the station.  The defendants approached the plaintiff and began to speak to him in Arabic (P/20, para.  8).  Shouting began between the defendants and the plaintiff and suddenly one of the defendants attacked the plaintiff and began to beat him (P/20 para.  9, testimony of the plaintiff at p.  30, the statement of Igor Karev in the police file, the statement of the volunteer Henry Siboni, the testimony of the policeman Elias, p.  52).  Hearing the shouting, the journalist Mr. Suleiman Bisan (P/21) was also called to the scene.  During the assault, the plaintiff was knocked to the ground while the defendants beat him and the accompanying policemen.  When the journalist Mr. Bisan arrived, he lay down on the plaintiff and protected him from the attackers (this incident is below).: The Attack Incident).

Eventually, additional police officers arrived at the scene, grabbed the defendants and arrested them.  The plaintiff himself was taken for medical treatment (p.  31).

7. For the sake of completeness, we note that an indictment was filed against the defendants in the Magistrate's Court in Acre, in which they were charged with the offense of terrorist assault, an offense under the Section 382(a) + 380 to the Penal Law, 5737-1977. To Mahmoud Z'Rabbi was also charged with assaulting a police officer in the performance of his duties, an offense under Section 273 to the Penal Law.  On December 8, 2003, a settlement was reached with the defendants, they confessed to the offenses attributed to them in an amended indictment (which was not submitted for my review), were convicted and sentenced.

The Prosecution

8. In the statement of claim filed by the plaintiff in this case, it was claimed that during the said assault incident, he was severely injured in his body and suffered numerous bodily injuries. The lawsuit was filed against the defendants due to their direct responsibility for his attack and against the Israel Police due to its responsibility for the negligence of the police in guarding the plaintiff while he was in their custody.  It was also claimed that during the fight, the police tried to pull the plaintiff away from him, without noticing that he was handcuffed.  These pulls caused him damage.

The plaintiff claimed that the police officers should have anticipated the possibility that the defendants would seek to harm him, and therefore they should have prevented any possibility of a meeting between him and them.  According to him, the station's procedures and the lack of separation between the suspects and the complainants constitute negligence.

9. According to the plaintiff, he was severely injured in his shoulders, back and arms during the incident and had to undergo medical treatment. He attached to his statement of claim the opinion of Dr.  Mazen Falah, an expert in the field of orthopedics, who estimated that the plaintiff had a disability of 35% due to a significant limitation in the movements of the left shoulder and a disability of 25% due to a significant limitation in the movements of the right shoulder.  He further claimed that the plaintiff suffered additional disabilities in the orthopedic field, including 20% due to limitation in the movement of the cervical spine, 15% due to a slight restriction in the movement of the lumbar spine, 10% due to a complete tear in the left tendon, and 10% due to a disorder in the function of both elbows.
10. The plaintiff further claimed that as a result of his health condition, he also suffered from mental distress, anxiety, difficulty concentrating and functioning difficulties. The plaintiff attached a medical opinion by the psychiatrist Dr.  Farah, who found that the plaintiff had a permanent mental disability due to an acute post-traumatic condition of 30%.
11. The statement of claim was served on all the defendants. The state defended itself against the lawsuit and denied any responsibility on the part of the police.  It was claimed that the injuries to the plaintiff were caused by the actions of defendants 2-3.  It was also claimed that the police could not have foreseen the attack.  According to the state, there was no flaw in the procedures for transporting the detainees and the public's entry into the station compound.  It was also claimed that the plaintiff was responsible for his own actions for the incident, both because of his involvement in the attack on members of the Cherbi family and because of his behavior at the time of the incident.  Finally, it was argued that there was no connection between the alleged damages and the assault incident and that the alleged damages were excessive and did not correspond to the plaintiff's real situation.
12. Defendants 2-3 also filed a statement of defense in which they denied all the circumstances of the incident. The defendants claimed that they had no responsibility for the plaintiff's damages and that the circumstances of the injury to the plaintiff were different from what was claimed.  Defendants 2-3 also denied the alleged damages and the causal connection between the assault and the damages.

The Proceedings

13. The state asked to examine the plaintiff and submitted an opinion on its behalf. In Prof.  Roffman's opinion, which was attached on her behalf, the expert noted that a significant part of the plaintiff's complaints were related to the events that preceded the assault.  The expert referred to the documentation indicating injuries suffered by the plaintiff many years before the assault that is the subject of the lawsuit.  Taking all of this into account, Dr.  Roffman estimated, for the sake of caution, that the assault slightly worsened his general condition in the orthopedic field and estimated the disability due to this aggravation by only 5%.
14. The state also attached the opinion of Dr. Anat Ratner, an expert in psychiatry.  The expert found that the plaintiff suffers from a personality disorder that is unrelated to the alleged incident and began even before him.  The expert also assessed that there is a permanent element of tendenciality in the plaintiff's complaints.  In conclusion, she was of the opinion that no mental disability should be attributed to the plaintiff following the assault incident.

It should be noted that defendants 2-3 did not submit a medical opinion on their behalf and announced that they agreed with the conclusions of the state's experts.

15. Taking into account the large gaps between the experts' assessments, an agreement was reached between the parties to appoint experts on behalf of the court. Accordingly, Prof.  Wolpin was appointed as an expert in the field of orthopedics, and Dr.  Noa Keret as an expert in the field of psychiatry.