Jerusalem Magistrate Court Judge Dorit Feinstein ruled that the State of Israel will compensate a Har Habayis activist with the sum of NIS 32,000. The ruling was given in the framework of a civil suit filed for illegal searches and detentions carried out by policemen and prison guards.

The two incidents which occurred several days apart in June 2013 included searches and prolonged detentions, after the activist was detained while davening at one of the gates to Har Habayis.

The first incident occurred when the activist davened at noon on a Friday near the Cotton Merchants’ Gate, the gate located opposite Kodesh Kedoshim.

Muslims who were leaving Har Habayis began to curse him and an Arab child kicked him. The activist kicked the child in response and was detained by nearby policemen.

After interrogating the activist the policemen requested his release on condition of banning him from entering Har Habayis for 15 days, but he refused to accept the condition. Even though he had been detained five hours before the onset of Shabbos, and there was sufficient time to bring him to a deliberation before Shabbos as the law requires, the police chose to leave him in remand over Shabbos. On motzei Shabbos, the detainee was brought to a deliberation and conditionally released until another deliberation was held two days later.

During his remand the detainee was strip-searched by prison guards, despite his objection. Judge Feinstein ruled that there had been no grounds for the strip-search, rather only for a search of his clothes, as the regulations instruct. Judge Feinstein also ruled that there were no grounds for leaving him in remand over Shabbos instead of releasing him on condition of appearing later at a deliberation. Judge Feinstein awarded him NIS 8,000 for the illegal strip-search and NIS 5,500 for the illegal remand.

The second incident occurred several days later when the activist walked around the walls of the Old City by himself, on the “Circling the Gates” route customarily walked by groups on the first day of the Hebrew month, and davened outside of one of the gates to Har Habayis. A group of Arabs who had begun to gather outside of one of the gates started to yell at him and argue with him. After several minutes the activist relented and with a police escort moved to the nearby Tribes Gate. Also at the Tribes Gate a small group of Arabs began to gather. The police then decided to detain the activist and handcuffed him. According to the policemen the activist cursed them, however Judge Feinstein ruled on the basis of security camera footage that “There is no evidence that the plaintiff was wild or behaved violently.”

Judge Feinstein rejected the police claim that the plaintiff was handcuffed because “he was jumpy” and wrote that the claim “does not stand up to the test of legality”. The judge added that there was no cause to keep the plaintiff in remand and to bring him to court as a detainee and also that, “the judgment of the police was not balanced and reasonable and therefore the remand was not legal”.

Additionally, an illegal search was carried out on his body and therefore the judge ordered that he be compensated with NIS 5,500 for the illegal remand and NIS 6,000 for the illegal search, which was not a complete strip-search this time. The plaintiff was also awarded NIS 7,000 for legal expenses, including attorney fees. In total the compensation is NIS 32,000.

During the trial, serious flaws in the Israel Prison Service were revealed when a senior officer testified that the prison guards carry out strip-searches in an illegal manner, despite the regulations which instruct that a search should be carried out on outer clothing only, other than under unusual circumstances in which there is a substantial reason to suspect the detainee.

Judge Feinstein called on the State to either clarify or change the regulations concerning all aspects of searches in Israel Prison Service facilities. “In my opinion the prison guards are not capable of exercising proper discretion concerning all aspects of searches, if they do not know what a prisoner is suspected of and under which circumstances a prisoner is being brought before them,” wrote the judge. “It would be proper for the State to consider amending or clarifying the regulations again, in order to allow genuine and proportional discretion to be exercised in each individual case.”

Honenu Attorney Menashe Yado, who represented the activist, stated that, “This suit was filed by Attorney Itamar Ben-Givir and for technical reasons was transferred to my care. The civil suit did not only yield compensation for the injury to a citizen but also once again revealed serious deficiencies in the actions of the prison service and the police, deficiencies which unfortunately are not taken care of by the internal inspection authorities, but rather backed by senior officers and allowed to continue on a daily basis.”

It must be noted: According to the Poskei Hador one is absolutely forbidden to visit the Temple Mount, and there is an Issur Kares for one that goes there.

Six years ago on Sukkos, Israeli President Shimon Peres paid a visit to the Sukkah of Maran Hagon Rav Elyashiv ZATZAL, where Rav Elyashiv called on the President to prevent Jews from visiting Har HaBayis, stating it is an act that that is viewed as extremely provocative by the goyim. Maran stated everything possible must be done to avoid a religious war, and the provocateurs are playing with fire.

Maran is quoted as explaining to the president that Halacha forbids going onto Har HaBayis but today, it is more than this, it is an act that may lead to a religious war and bloodshed.

This is and remains the view of poskei hador. This is also the view of the Chief Rabbinate of Israel. Among the rabbonim who share this view are HaGaon HaRav Chaim Kanievsky Shlita, HaGaon HaRav Shmuel Halevy Wosner ZATZAL, HaGaon HaRav Gershon Edelstein Shlita, Maran HaGaon HaRav Aaron Yehuda Leib Shteinman Shlita, Maran HaGaon HaRav Ovadia Yosef ZT”L, Maran Hagon HaRav Yosef Shalom Elyashiv ZT”l and many others.

(YWN – Israel Desk, Jerusalem)