In many court rulings, it has been determined that state authorities can and should anticipate the possibility of harming the detainee. For example, in a civil case (Tel Aviv District) 1715/89 Estate of Ben Haim v. State of Israel, [Published in Nevo] P.M. 5755 (a) 353 (1994), the state was held liable for causing the death of a prisoner by another prisoner who was a "bull of the meeting", i.e., it was clear that he was in danger. It was also determined that the state was responsible for the damage caused to a prisoner in need of protection (Civil Appeal 8650/08 The above; T.A. (Tel Aviv) 975/77 Nagar v. State of Israel, [Published in Nevo] F.M. 45(1) 490, 497-498 (1985)).
- The main test for determining the state's responsibility for a breach of the duty to protect a detainee from third-party criminal acts is the expectation test; That is, to what extent could one have foreseen, in the circumstances of the case, the possibility that a third party would harm the detainee? In order to answer this question, the law authorities are required to gather information about the dangers inherent in the detainee they hold, to find out whether the detainee is dangerous to others and whether there is anyone who wants to harm him. The Authority must employ mechanisms for gathering information, separate dangerous prisoners from one another, remove elements that may harm them, remove and prevent the entry of means that can be used to harm detainees, etc. (see Civil Appeal 559/77 Lampert v. State of Israel, IsrSC 33(3) 649 (1979); Civil Appeal 6970/99 Abu Samra v. State of Israel, IsrSC 66(6) 185, 188 (2002); Civil Appeal 4704/96 Makrin v. Prison Service Commission, Piskei Din 52(3) 366 (1998); Civil Appeal 8650/08 The above; Civil Appeal 1678/01 State of Israel v. Weiss, Piskei Din 58(5) 167 (2004)).
- And what about us? The plaintiff was arrested by tortured police officers and brought to the police station, where he was interrogated on suspicion of committing offenses against members of the Cherbi family. During the investigation, it became clear that there was an ongoing dispute between the plaintiff and the Cherbi family, which even led to the prosecution of the plaintiff in the past.
It seems that in such circumstances, the possibility that the Cherbi family would seek to harass and harm the plaintiff should have been in the eyes of the police. Any reasonable police officer should have understood that a meeting between the complainants and the plaintiff, shortly after a violent incident following which the plaintiff was arrested, could end in another fight. It seems that every police officer should and can anticipate the possibility that a victim of violent offenses, a victim of an assault, will seek revenge and harm the person who hurt him only a short time earlier (see the words of Justice Zilbertal Civil Case (Jerusalem) 1367/99 Estate of the late Musa Suleiman Abu Sabha ' מדינת ישראל (19.5.2004)).
- From what has been said, it is clear that there is a conceptual duty of care and a concrete duty of care, and that the State and its authorities had a duty to take reasonable measures to prevent harm to the plaintiff during his detention. Let us now turn to examine whether this duty has been breached.
- As will be detailed above, the plaintiff was brought to the police and interrogated. At the end of the investigation, an order was received to transfer him to the Acre Police Detention Center. The witness Yaakov Attias testified that he did not know the reason for the decision to transfer the plaintiff to Acre (p. 47). After the order was received, the plaintiff was taken by Officer Attias to a diary sitting at the entrance to the station, where a registration process is carried out, at the end of which the policeman signs the arrest of the detainee (p. 48). While they were in the vicinity of the journal, Officer Attias learned that another detainee, Igor Karb, had to be taken away, and therefore he handcuffed the two detainees together (p. 48). Policeman Atias clarified that removing a detainee from the station requires the accompaniment of two policemen, and therefore he was joined by the late volunteer Mr. Henry Siboni (p. 48). He also said that before transporting a detainee, he checks whether there is any special information about him, such as escape attempts, self-harm, attempts to harm others, and the like (ibid.).
- According to Policeman Attias, no special information was found in relation to the plaintiff and therefore he did not take any special action (ibid., line 32). However, he confirmed that he knew the plaintiff from previous cases and knew that the plaintiff was acting violently (p. 49). The witness also recalled a case in which the plaintiff was not located for a long period of time. In these circumstances, he was of the opinion that the detainee was defined as a "fugitive" as well as a "dangerous detainee", due to past acts of violence, including the imprisonment of the policeman in the incident for which he was arrested (p. 41).
- As noted above, when the plaintiff was brought to the station, he was interrogated by Policeman Atias (P/20). The investigation focused on the relationship with the Cherby family, the conflict that developed between them, and the fight that broke out that day. In other words, Officer Attias, and everyone involved in the prosecutor's arrest, knew that the background to the arrest was a dispute with the Cherbi family. Taking into account his previous past, and the relationship described with the Cherby family, which also led to a previous indictment, the possibility that there is tension between the Cherby family and the plaintiff that could erupt if they met, should have been and could have been expected.
- From the description of the policeman Shlomi Herzog (N/22), who served at the relevant time as the head of the patrol office in the Ma'ona police, it becomes clear that the police station was built in the "Tigrat" building (a police fortress built during the British rule). The station yard is fenced off and at the entrance to the yard there is an electric gate controlled by the logger. Every citizen who wishes to enter the station must enter through the courtyard. The applicant must call the internal communication system (intercom) and after he identifies himself and clarifies the purpose of his visit, the diary opens the gate for him.
It also turns out that the front yard is used for police cars parked near the entrance to the building. The station also has an additional exit at the rear. This opening is used by special units, such as the Rural Policing Unit, Special Patrol Unit and the like, but it is not used for ongoing operational use (paragraph 11 of N/22 and p. 63).