Jerusalem Magistrate's Court Judge Anat Singer on Wednesday rejected a police request to remand Rabbi Yitzhak Shapira in custody for five more days for questioning on the arson of a Palestinian mosque last month.
Instead, Singer granted Shapira's request to be released immediately.
Shapira is the head of Od Yosef Chai yeshiva in the settlement of Yitzhar. Three of his students are currently in jail and under investigation regarding an incident in the Palestinian village of Kafr Yasif in November, in which a mosque was set on fire and threats were scrawled on its walls saying, "We will burn all of you."
In her decision to release Shapira, Singer wrote, "The state did not pass the first test for extending a remand in custody, that is, it did not provide sufficient evidence to back the allegations it made against the suspect."
The police informed the court that the suspicions it wanted to investigate involved two violations of the Penal Law. The first, under the heading "refusal to testify," states that "if a person being bound to testify or otherwise give evidence in a judicial proceeding refuses to do so, he is liable to two years' imprisonment."
The second states that it is illegal to do anything with intent to prevent or foil a judicial proceeding or to cause a miscarriage of justice, whether by frustrating the summons of a witness or by concealing evidence.
But the police failed to persuade Singer that either of these charges applied to Shapira.
First of all, she said, he was not legally bound to talk during an interrogation and was entitled to invoke the right to remain silent.
Secondly, since the three suspects in the arson were in jail, he could not obstruct justice by influencing them in any way.
Shapira's lawyer, Naftali Wurtzberger, told the court that the real reason the police wanted to hold Shapira was to break the spirit of the three arson suspects, who would suffer at the sight of their rabbi in jail.
"There is no question that as soon as the students see their rabbi humiliated and in jail, it could influence them," he said.
As for his client's refusal to answer questions during his interrogation, Wurtzberger added, "There is no obligation to report or testify. A man does not have to be an informer and what the investigators are asking is that the rabbi turn his students in."
During the hearing, it emerged that one of the suspects in the arson had told his interrogators he had informed Shapira about the attack after it had happened. The police do not suspect the rabbi of knowing about the attack before it occurred, in which case Shapira could have been charged with failure to prevent a crime.
In her ruling, Singer said that according to the evidence presented to her, Shapira not only did not cooperate with investigators but began singing and acting provocatively during his interrogation.
"The indignation of the state authorities in this situation is understandable, but does not justify holding him in jail," she said.
Singer gave the state until 10:30 a.m. Thursday to appeal her decision to the Jerusalem District Court.
The Judea and Samaria Police said Wednesday night that they would appeal the decision to free Shapira. Neither police nor the Shin Bet (Israel Security Agency) are prepared to disclose publicly the role they suspect Shapira of playing in the attack, but the judge who freed the rabbi read the classified case material earlier on Tuesday.
"All we can say at this stage is that he is suspected in connection with the arson incident," a police spokesman said.Yaakov Lappin contributed to this report.