Australia/Israel & Jewish Affairs Council

The death of Ben Zygier - Excerpts of the report issued by the investigating magistrate

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Readers following the extensive media coverage of the case of Australian-Israeli man Ben Zygier - who died in an Israeli prison in 2010 - will be aware that last week the Israeli courts allowed the publication of a redacted version of the report issued by the Rishon Lezion Magistrates court following the hearings held to investigate Zygier's death. While there have been media report about the contents of the report, which was issued in December, below is a verbatim translation of key excerpts from the report.

Magistrates Court in Rishon Lezion
President of the court the Honorable Judge Daphne Blatman Kadrai

Applicant: the State of Israel
Re: The investigation into the death of the late John Doe
Respondent: The family of the late John Doe, Z"L

On behalf of the applicant attorney Ben Ari and Superintendent Alon Sraveni
On behalf of the respondent Attorney Ben Tzur and attorney Mazor
Wife of the deceased



A. Introduction and background for discussions:
1. On 15.12.10 at 20:19 John Doe (hereinafter "John Doe" or "the deceased") was found dead in a holding cell in Ayalon Prison, after being arrested in connection with a criminal trial conducted against him in the District Court. The court case against the deceased as well as his alleged acts and the circumstances of his arrest were sheltered under gag orders.
The deceased was found hanged in the shower of the holding cell, with a sheet wrapped around his neck and tied to the stall window.
2. On 16.12.2012 the State filed, through the Israeli Police, Unit of Internal Crime Investigations, a request to investigate the cause of death of the deceased under section 19 of the Investigating Causes of Death Act from 5718 (Hebrew calendar) - 1958 (hereinafter: "the ICD act")
That same day, and on the basis of this request, I have ruled that the preliminary foundations for an investigation by the ICD Act have been established, and after being presented with the consent of the deceased's wife, I have ordered an autopsy. On the same day I have also ordered that further investigation will be conducted by the Israeli Police, and that the family of the deceased shall be invited [summoned] to further court meetings.
3. On 01/19/11 the deceased's family showed up at a court meeting and clarified that they also request the investigation into the cause of death and seek to take an active part in the proceedings. In my decision from the same day I have accepted the family's position that discussions will be held in the presence of representatives of the family, subject to decisions regarding confidentiality of claims [arguments] or documents, if any will be issued.
4. [...]
5. [...] Other [court] decisions were issued in regards to the right of the family of the deceased to receive the investigation file [material]. On 24/05/2011 I have decided that such a right exists and that the family will be entitled to receive the investigation material after it is completed. [...]
6. Upon completion of the investigation, the parties have raised arguments regarding the ICD order. All parties were represented and put forward their cases in an articulate and professional manner. The State through the Central District Prosecutor's representative, attorney Orly Ben-Ari Ginsberg, who accompanied the case, since the 25/04/2011 court decision, and the family of the deceased by attorneys Roy Blecher, Boaz Ben-Tsur and Moshe Mazor.

B. Nature of ICD procedure and its results


C. The medical cause of death of the deceased:
8. As stated, on 15.12.10 at 20:19 the deceased was found hung in the shower [bathroom] in his cell, with a sheet wrapped around his neck and tied to the window of the toilet stall in his cell.
The medical cause of John Doe's death was determined in the expert [professional] opinion report of Dr. Ricardo Nachman, forensic expert, from 20.12.10 which states that:
"Based on the results of the autopsy on Mr. (name of the deceased, my note - D B K) it is my opinion that the death was caused probably due to mechanical asphyxia (suffocation) by tightening the noose around the neck. There were abrasion wounds on the left forearm caused by blunt trauma which did not contribute to the death. Following the results of toxicological testing, supplement opinion will be given. Both sections of the sheet brought to my examination can cause the stress canal that was found on the neck. "
In a supplement to his opinion report, dated 01/23/11 he stated that:
"Based on the results of toxicological testing on the body of Mr. (name of the deceased, my note - D B K) I hereby state my opinion that a small amount of sedative was found in the blood, and no alcohol or drugs. This opinion report does not change my opinion as of 20/12/2010 regarding the cause of death."
9. The medical conclusion which is established by the the pathology opinion report is accepted by me, and by the parties. Therefore it must be determined that the deceased found his death by suffocation caused by tightening a sheet to a noose tied around his neck.
This statement does not close the investigation, since the aim of the present investigation process [is to analyse] the cause of death in legal terms:
That is, whether the death was caused by offence and whether, then, the identity of the suspects in it can be established.

D. Offences investigated in this case:
10. The deceased lost his life in custody. The suspicion that was investigated is whether the death was caused by offence.
In accordance to my orders, first the question whether the death was caused by a deliberate act of another [person] was examined. Although the deceased was found hanging in the shower stall in the cell, this does not exclude the theoretical option of active intervention by another person who intentionally brought his death in this way. The findings found at the scene - which proved the way the suicidal act was carried out and the shredded sheet together with the findings of the autopsy which determined the medical cause of death, the evidence about the position in which he was found hanged, with a wet rolled up sheet tied to the bars of the bathroom window wrapped around the neck of the deceased, the toxicology findings which disproved other suspicions, together with examination of prison cell's conditions [detention conditions] which rule out entry to the deceased cell from a location which is not covered by the cell's surveillance cameras and the examination of the cell camera's tapes which ruled out the entry of any other person to the cell - all ruled out the intervention of other person in causing the death of the deceased.
At the stage when the parties concluded their arguments, there was no longer dispute that it was a voluntary act of the deceased that caused his death by suicide.
11. Therefore, the offence that has been investigated in this proceeding and which should be examined to establish whether prima facie evidence was brought to prove it, is the offence of causing death by negligence as defined in section 304 of the Penal Code 5737 (Hebrew calendar)- 1977 (the "Penal Code"). The investigation focused, therefore, on examining the conduct of those in charge of the deceased's incarceration in Ayalon prison, detention procedures, protection [guarding] and supervision orders, their implementation, information and expectations of the Israeli Prison Services personnel.
12. [...]

E. Investigation material before me:
13. The investigation duty was assigned to the Unit of International Crime Investigations of the Police
14. After I studied all of these [the investigation material] including evidence collected at my order, I think that the investigation was comprehensive and thorough, carefully examining the full range of relevant issues, and establishes a proper and sufficient base to conclude the investigation into the cause of death of the deceased as required by law.
34. The duties of Israel Prison Service (IPS) personnel are many and difficult to perform. The obligations imposed on IPS personnel regarding the deceased were particularly difficult and complex, due to secrecy, compartmentalisation, different gaps in information and partial compartmentalisation of regulatory provisions themselves.
However, the special supervision provisions to preventing suicidal risk were given, and these were known to the persons responsible for monitoring and supervision. These supervision provisions were not carried out and in the "suicidal window of opportunities" created the risk for the worst happened - the suicide of the deceased.
The evidence shows that all IPS personnel who did their duty during the suicide incident worked wholeheartedly with the intention of carrying out their responsibilities, but the fact is that the supervisory tasks regarding the deceased according to the known instructions were not carried out.

35. The investigation of the unfortunate death of the deceased revealed prima facie evidence that various omissions in IPS conduct caused his death.
In these circumstances, I did not see as correct the applicant's position that seeks to close the ICD file without determining fault [liability].
In conclusion of the investigation I found that there is prima facie evidence against IPS personnel that caused death of the deceased.
However, I found that the issue of prosecution involves additional considerations of the strength of evidence and enforcement policies in offenses of causing death [by negligence]. Although I thought that liability of other individuals involved in the supervision over the deceased, including senior command level, could be examined, and that such examination should be performed in accordance with the general policy of the prosecuting authorities regarding the scope of the duty of knowledge and responsibility required in supervision over prisoners and detainees, ultimately, I think that at this point, it is appropriate that the applicant [the Israeli Attorney-General's office] reconsider its position regarding prosecution after it reviews the various statements and emphases listed in this decision.


Given day, Vav in Tevet 5773 (Hebrew Calendar- Tsha"g), December 19, 2012 attended by the parties


Translation by Or Avi-Guy



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