Prosecutors Say Ben Zygier Hid Intent to Commit Suicide From Prison Guards

Family of Zygier, currently discussing compensation with Justice Ministry and Prime Minister's Office, says all signs were there; neither side willing to stipulate amount of compensation up for discussion, but it could reach an estimated NIS 5-6 million.

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Ben Zygier, a Mossad agent whose 2010 suicide in Israeli prison rocked this country and his native Australia when his identity and death came to light early this year, hid his intent to commit suicide from his guards, according to the State Prosecutor's Office. Attorneys for Zygier's family, who are negotiating a financial settlement with the state, dispute the claim, saying the Mossad and Prison Service were fully aware of the risk that Zygier might take his own life. Details from the classified transcripts of the discussions of the "Prisoner X" case are being published here for the first time following a request by Haaretz.

The family of Zygier, who committed suicide in his Ayalon Prison isolation cell in December 2010, is discussing financial compensation with the Justice Ministry and Prime Minister's Office, which is in charge of the Mossad, following the Israel Prison Service's negligence in his death.

Administrative and disciplinary proceedings against six prison guards and officers involved in the incident are nearing completion and the results will be published soon.

Central District Court President Daphna Blatman Kedrai, who concluded her investigation into Zygier's death in December 2012, and whose report was published two months ago, determined that "failure by various elements in the Israel Prison Service caused his death."

The State Prosecutor's Office refused to recognize the Prison Service's criminal responsibility or to indict dozens of prison officials whose failings were detailed in the report, but the meaning of Blatman-Kedrai's conclusions is that at the very least, the Prison Service could be sued for negligence in Zygier's suicide.

The goal of the financial negotiations with Zygier's family attorneys is to prevent a civil suit against the Prison Service. Any agreement would need to be approved by State Prosecutor Moshe Lador. Zygier's family is represented by attorneys Roy Blecher and Boaz Ben Zur.

Both of the sides – the state and the families attorneys - have refused to stipulate the amount of compensation under discussion. A veteran jurist unrelated to the case estimated that by taking into account Zygier's expected life-span (he was 34 at the time of his death) and his last monthly wage from the Mossad, the amount in such a damages case could reach five or six million shekels.

Last week Blatman-Kedrai agreed to Haaretz's request to publish additional documents and transcripts regarding the Zygier file, following a request submitted by attorneys Tal Lieblich and Yaron Shalmi of Lieblich-Moser law firm.

The inquiry into Zygier's death was conducted in unique manner, with Blatman-Kedrai functioning less as an arbitrator and more as a chief investigative officer. After investigators of the Israel Police unit for international crimes thought they'd concluded the investigation, the judge instructing them to question prison officials under warning, as suspects.

At first, only the state and the family were involved in the case, but soon enough the Prison Service officials became involved - as suspects whose rights needed to be guaranteed - and the media, which grated against the gag order on publishing the story. One of the family's attorneys, Moshe Moser, testified as a witness. One of his colleagues, Roy Blecher, announced at the beginning of the process that he was the husband of a judge - Yael Blecher - who serves under Blatman-Kedrai, which wasn't deemed a conflict of interest by anyone involved.

"We're not looking for anyone to blame," said family attorney Ben Zur during one of the sessions. Prosecutor Orly Ginsberg Ben-Ari retorted: "They claim they're not looking for anyone to blame, but they are interested in someone's pocket."

A month after Zygier's suicide, Blecher said: "The family's suspiciousness is understandable." He spoke of "two levels of suspicion. One includes an intentional act by someone who wanted the death of the deceased. There is a rash on the deceased's hand that isn't connected to his suffocation. When a person meets his death by suffocation, there is a possibility that he reached this situation after an argument with someone [who then hanged him.] And then we examine if there is something in the deceased's corpse that could point to a physicalconfrontation that didn't lead to his death, but that caused him to be choked against his own will. The question surrounding the rash on his hand remains. One can ask if he was drugged before his death. That is the family's fear. The second, more complex level of suspicion is that the reason the deceased's death wasn't prevented was because of others' negligence. The investigation should be comprehensive and include many officials both in the Prison Service and in the Mossad." A Mossad security officer, "Nir," who was in charge of "preventing the leaking of information from Zygier" was questioned, though not under warning - even though his version of a conversation with attorney Moser contradicted Moser's own. A face-to-face confrontation between the two was never held. "Nir" was asked, and he agreed, to allow Zygier to have phone conversations with his family and wife in Australia "following the events of that day and the emotional state he was in."

Ben-Ari described Zygier as "an isolated prisoner with a false identity," and repeatedly described his suicide as systematically planned to mislead those in charge of his safety. "The suicide was a deliberate act that was planned by the deceased. He had full understanding of what he was about to do. The data the professional staff (psychiatrists, doctors, social workers ) and the decision makers had did not make it possible to prevent the deceased's actions without imposing difficult and excessive conditions that would have harmed his fundamental rights in a disproportionate manner. The deceased, in a storm of emotions, was probably determined to commit suicide, in contrast to what he openly said in his discussions with the staff and attorney Moshe Moser, who was one of the last people to talk to him, and in complete contrast to the facade he presented. The deceased himself never said a word about his suicidal intents," Ben-Ari stated.

Ben-Ari maintains that there should be a distinction made between "suicidal intent" - which presumably manifests itself in obvious preparations to commit suicide - and "suicidal thoughts."

Such suicidal thoughts apparently were evident - but ignored - three times during Zygier's detention.

First, when Zygier cut his hand shortly after being jailed, "he was asked about it and said he did it because he was bored," according to Ben-Ari.

Then, two weeks before his death, and after the discovery of a "suspicious lump in his nipple, he was examined by the Prison Service chief medical officer who noted that he appeared to her to be depressed and in a bad mood.

"She sensed that he could harm himself and shared her impression with security officials," Ben-Ari said.

Five days passed before Zygier was brought to a psychiatrist, who defined his state as "without any change or fear of suicidal tendencies or psychological distress." A social worker filed a similar report several days later.

And third, a few hours before Zygier's death, his mother sent Moser an email from Australia because she was apparently alarmed to hear that his wife had "ended her relationship with him," according to prosecutors. Zygier's mother reportedly wrote that she feared her son would commit suicide by overdosing on pills.

Moser apparently asked the guard on duty to check on Zygier. But, according to Ben-Ari, "The guard told Moser that Zygier was sleeping in bed. Twenty minutes later [Zygier] contacted Moser and had a conversation with him that lasted for about an hour. The conversation was conducted in a calm, quiet and routine manner, and included references to the future.

"The mother's fears, expressed in her email to Moser, were not specifically brought to the attention of Prison Service officials. According to the investigation, the method Ben Zygier used to commit suicide was premeditated and included deceiving the guards. He prepared a sheet and placed it in the bathroom. He turned off the light in the cell. He made it look as if he was lying in bed watching television in order to mislead the guards."

In June 2011, Ben-Ari admitted that "there were certain shortcomings, irregular procedures that were used during the task of protecting the deceased.

"We're not discussing the civil negligence case, but a defined procedure," Ben-Ari said. "The deceased's attorneys wish to read the Prison Service's internal investigation, despite an unequivocal order of the Prison Service's regulations guaranteeing secrecy of Prison Service reports."

Blecher later mentioned that one of guards had said he carried out his duty to check in on Zygier every half hour, but that he had failed to log the time of each inspection as required.

Ben-Ari cited an "accumulation of failings" but added that they fell short of amounting to responsibility or guilt.

"As to the window of opportunity for the deceased to commit suicide, as the family's attorney phrased it, he could have [committed suicide] in the half-hour periods between inspections," Ben-Ari said.

"He misled his guards, who were busy with other duties. They weren't aware or sharp enough to notice what was happening, but we believe the suicide could not have been prevented. The prisoner wasn't defined as a prisoner at risk [of suicide] but only as a Level B supervised prisoner. The information available to the Prison Service did not justify tightening the belt.

"The deed was carried out in a simple manner," Ben -Ari added. "There were no knives, only a sheet that he wrapped himself with."

Attorney Ben Zur denied that Zygier "misled" the guards. "All the flags were flying hours before the event, and the guards were explicitly told he might commit suicide. The Mossad and the Prison Service were aware of that."

The state prosecutor also addressed the behavior of Zygier's attorneys and the role they might have played in failing to prevent his death: "Without blaming any of the defense attorneys, if they had voiced their clear concerns to the relevant people that the deceased might take his life, then those people would have and should have increased their supervision of each and every step the deceased took.

"Since they did not do so, it is another reason that the accumulation of failings discovered in the investigation does not lead to responsibility for negligence," said the prosecutor.

Ben-Ari insists that "the duty of the Israel Prison Service to prevent suicide is not absolute.

"The court must also consider material resources, including the manpower that was at the disposal of the Prison Service," Ben-Ari said. "True, the technological failings, including the failing of camera 116, as well as the poor quality and the difficult conditions for watching, such as the darkness in the cell, 'allowed' the prisoner to carry out his act, but one cannot determine that he would not have succeeded even if there were no such failings."

Judge Blatman-Kedrai, who watched the footage that documented the hour of Zygier's death, rejected this argument. Among other things, she ruled that "despite the extremely poor visibility, when you focus on camera 116 you can see [Zygier] doing something for 20 minutes in the location where he hanged himself, and several times you can see the silhouette of a man moving up and down in the same location.

"The footage is blurry and dark, but since the television set was on, its light helps to show what is happening. Despite the darkness, you can see a man's shadow in the area of the hanging for several minutes without moving. If you view the footage meticulously, you can even see his death throes."

Ben Zygier, the dual citizen who killed himself in prison.

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