Case Number

HCJ 7040/15

Date Decided

11-12-2015

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions against the forfeiture and demolition orders that were issued for the homes of Palestinians who are suspected of perpetrating murderous attacks, pursuant to the authority of the Commander of the IDF Forces in the Judea and Samaria area under Regulation 119 of the Defence (Emergency) Regulations.

The High Court of Justice (per President M. Naor, Justices H. Melcer and N. Sohlberg concurring) denied the majority of the petitions, holding:

The scope of Regulation 119 of the Defence Regulations is extremely broad, but the case law has made it clear that use of this authority must be extremely cautious and restricted in accordance with the principles of reasonableness and proportionality. It has also been laid down in the case law that when the acts attributed to a suspect are particularly heinous, this may be sufficient in order to invoke this extreme sanction of demolishing the perpetrator’s home, for reasons of deterrence. The confidential information that was presented by the Respondents shows that concern about damage to the homes of relatives has a deterrent effect on potential terrorists; as such, there is no reason to deviate from the ruling whereby in general, intervention in the decision of the competent authority to employ this measure is not justified.

Nevertheless, it cannot be said that causing damage to a house owned by an “outside” third party, who is not a relative of the terrorist and who has no knowledge of the latter’s intentions, creates deterrence.

In the framework of the right to a hearing, it must be ensured that the timetables for carrying out the demolition orders, including the period of time for submitting an objection, are reasonable and fair in the circumstances of the case. Even though in our case, the flaw in this respect was repaired, in the future the Respondents must establish reasonable procedures regarding the relevant dates. As a rule, notice of the intention to confiscate and demolish should contain at least minimal details of the evidentiary material against the suspect who lives in the home marked for demolition, even though in the circumstances of the present case, there is no room for intervention in this matter.

The demolition should be conditioned upon repairing or paying compensation for damage caused as a result thereof to third parties who are not related to the terrorist, even if the damage was caused in the absence of any negligence on the part of the Respondents.

The Petitioners did not present a sufficient factual basis for their argument that the policy of the Military Commander discriminates between Jews and Arabs.

After reviewing the case of each of the Petitioners and the particular arguments, it was found that there were no grounds for intervention in the majority of the decisions concerning demolition of homes, subject to the duty of the Respondents to repair or pay compensation for damage caused to third parties who are not related to the terrorist. However, with respect to the terrorist who lives in a rented apartment owned by an outside third party, no connection was proved between the deterrent purpose and the demolition of the building. Consequently, the order nisi was made absolute, subject to the family of the terrorist vacating the apartment.

Keywords

Constitutional Law -- State of Emergency and National Security

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