Court Judge Bilha Tolkovsky ordered the Ministry of Justice and the Police Investigations Department to pay compensation of NIS 280,<>, including attorney's fees, to two of the complainants against Commissioner Niso Shaham. The judge noted in her ruling that the goal does not justify all the means and that the investigation must be conducted in accordance with the provisions of the law.
This is a lawsuit filed by two policewomen who were interrogated as testimony by the Department for the Investigation of Police - DIP, as part of an investigation opened against one of the senior police commanders at the time, Commissioner Niso Shaham, who later stood trial and was convicted of offenses of indecent assault, breach of trust and sexual harassment for having intimate relations with female police officers younger than him.
Major General Niso Shaham as commander of the Jerusalem District, photo: Yoav Ari Dudkevich
The prosecutors claimed that the PIU investigators used an intrusive and dismissive line of interrogation against them, which included threats of dismissal and prosecution, when there was no need to interrogate them after each of them clarified during her interrogation that this was an intimate consensual sexual relationship with no potential for sexual offenses.
The defendant, on the other hand, the DIP, argued that in light of the events that are the subject of the investigation and the indictment filed as a result, and especially in light of the strength of the public interest underlying the investigation, it should be determined that the investigation and the collection of notices from the plaintiffs were carried out in accordance with the provisions of the law, guidelines and procedures that were in force at the relevant time. It was further argued that even if in retrospect it can be assumed that some of the questions asked by the plaintiffs were unnecessary, this does not establish a cause of action that entitles to compensation so that the claim should be dismissed.
Avi Cohen
The ruling rejected the plaintiffs' argument that the very investigation into the intimate relationship that took place between each of them and Shaham constitutes a violation of their right to privacy and to keep information about the intimate relationship for themselves. It was held that the plaintiffs, who are police officers, could have expected that having an intimate relationship with a senior official with whom they are in direct or indirect subordinate relations could be the subject of a criminal investigation or disciplinary inquiry, even if it was an agreed relationship.
Judge Tukolovsky ruled that there was no justification for an investigation that included blatant and humiliating questions, including going into great detail and plastic descriptions of the sexual acts.
Retired Commissioner Niso Shaham today in court // Archive, photo: Gideon Markowitz
The conclusion of the investigation and the question of consent to sexual contact could and should have been done in a respectful and dignified manner, without exerting pressure by way of blunt and intrusive questions, threatening to undergo interrogation with a warning, or insinuating that the plaintiffs' jobs were endangered.
In the ruling, Justice Bilha Tolkovsky ruled that in light of the suspicions of sexual offenses or intimate relations between someone who held the highest rank in the police and junior female police officers who had subordinate relations with him, this was an investigation based on an important public interest – eradicating the phenomenon of sexual harassment and abuse by senior police officers, in order to promote an organizational culture of maintaining integrity and maintaining a safe work environment.
Retired Nitz Niso Shaham at the Supreme Court (Archive), photo: Oren Ben Hakon
However, the end does not justify all means. Even when it is an important investigation for which there is a clear public interest, the investigation must be conducted in accordance with the provisions of the law and with due care, while preserving the rights and dignity of those who were interrogated as witnesses or potential victims of crime.
"The plaintiffs' claim that the conduct of the investigators gives them a cause of action under the Prevention of Sexual Harassment Law was rejected. It was held that the matter should be examined taking into account the totality of the circumstances. This was an investigation that focused on the question of sexual relationships. This type of investigation inherently involves a violation of privacy and questions relating to the sexual relationship in general and the question of consent to the sexual relationship in particular. When this is the context, even if it is determined that certain questions deviated from the reasonable and necessary bounds for the purposes of the investigation, it does not amount to sexual harassment within the meaning of the Prevention of Sexual Harassment Law."
The judge wrote: "The award of compensation for emotional distress and non-pecuniary damage caused to each of the plaintiffs must take into account the fact that this is naturally an embarrassing investigation that involves a violation of privacy. The award of compensation therefore relates only to the extreme emotional distress caused to the plaintiffs due to the violation of their dignity and privacy due to the unnecessary questions that were not reasonably required for the purposes of the investigation, as opposed to the mental anguish naturally involved in such an investigation."
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