Maltreatment and torture during interrogation: Court rejected tort claim over mental disability of a Palestinian man who underwent a cruel and intensive ISA interrogation המוקד להגנת הפרט
04.01.2022
Maltreatment and torture during interrogation: Court rejected tort claim over mental disability of a Palestinian man who underwent a cruel and intensive ISA interrogation
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May 23, 2016, HaMoked filed a tort claim against the State – specifically the military, the Israel Prison Service (ISA) and the Israel Security Agency (ISA) – on behalf of a young man from Hebron who was arrested from his home in January 2014 and held  in ISA interrogation at Shikma prison for 36 days. The claim detailed that during his lengthy interrogation, the man was interrogated an average of 20 hours a day, and sometimes even 22 hours a day, during which he was bound hand and foot to the interrogation chair in painful positions. This, despite the fact that upon his arrest, he immediately informed the military paramedic and later the prison physician about his health problems, including shortness of breath and chronic leg and back pain. About 10 days into his interrogation, the man suffered a mental breakdown and even threatened to kill himself. At that point, an IPS social worker who did not speak Arabic was called into the interrogation room, where she talked with him with the ISA interrogators serving as interpreters. On her recommendation, the man was taken to a cell, where he was kept shackled hand and foot to the bed. He was kept thus for the next four days during the allotted hours of “rest” when he was not interrogated, and was not given any psychiatric treatment. According to the claim, the man suffered permanent mental and physical disabilities as a result.

Over five and a half years later, on January 3, 2022, the Jerusalem Magistrates Court rejected the man’s claim, ruling, among other things, that it had not been proved that his shackling inside the interrogation room “had been done unreasonably or for an improper purpose”. The court also rejected the claim regarding the lengthy hours of interrogation and deprivation of sleep, which, the Court ruled, were done “in accordance to the stipulation of an orderly procedure”. The Court added that “it must be assumed” that the procedure had been formulated so as to balance between the needs of the interrogation and the interrogee’s basic needs…”. In this context, the judgment referred to a February 1, 2016 response from the Ministry of Justice regarding the decision of the Comptroller for Interrogees’ Complaints  to close the man’s complaint, in which the Comptroller’s Supervisor stated that although the intensive interrogation had been conducted according to the regulations, “given the claims in the complaint, and in light of the findings of our inquiry, we have decided to reexamine several matters in the procedure of the Israel Security Agency and according to the inquiry findings, draw the appropriate organizational lessons” – without detailing what issues were to be reexamined.

All three experts who examined the plaintiff found that he suffered from some degree of mental disability, and the court-appointed expert even found that the disability stemmed from his detention. However, the Court rejected the claim that the interrogation had caused the plaintiff’s permanent mental disability, ruling that “an immediate response was given by the Defendant to prevent suicidality… [and] it has not been proved that there was need for psychiatric intervention at that point in time or that the lack of intervention exacerbated the mental state of the plaintiff.”

At the same, the judgment found that “there was room to act differently” in two matters relating to the authorities’ conduct in addressing the plaintiff’s mid-interrogation suicidal crisis: the first concerned the non-Arabic speaking social worker’s reliance on interpretation by interrogators during her conversation with the plaintiff. Judge Miller rejected the position of social worker Shuli Elkayam, who maintained that the conversation was not privileged because its purpose was “to prevent suicidality rather than give treatment”, and ruled that this was a privileged conversation by law, and that conducting it in the presence of an interrogator limited “the detainee’s ability to speak freely and openly about his distress, undermining his privacy”. In this context, the Judge again referred to the 2016 Ministry of Justice response, in which the Comptroller’s Supervisor acknowledged the problematics of conducting a meeting between an interrogee and a social worker in the presence of an interrogator serving as an interpreter, and notified that following the complaint, the State’s Attorney’s Office, together with other relevant authorities, were reconsidering the matter. Unsurprisingly, the Judge ultimately ruled that nonetheless, this did not warrant awarding damages in this case, and maintained that “the matters raised before the social worker were first brought up before the interrogator, so that the plaintiff’s privacy was not violated”.   

The Court also criticized aspects relating to the fact that the interrogee was tied to the bed during the hours of “rest” “due to the danger he posed to himself” – instead of putting him in one of the incarceration facility’s padded cells (dubbed “spaceships”), intended for such situations. Although “this matter also does not warrant [awarding] damages”, the Judge noted, “the lack of documentation of the exercise of discretion in this matter raises a difficulty, as [social worker] Elkayam herself agrees that a spaceship is preferable to shackling from the aspect of the plaintiff’s mental health condition”.

While the Court rejected the lawsuit, it did not impose any court costs on HaMoked, ruling that each party shall bear its own costs, “given the above-mentioned comments regarding the isolated difficulties in the Defendant’s conduct, and as the plaintiff’s complaint prompted a review of changes regarding at least one point”. 

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