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1.12.2015

The HCJ in a rare decision in HaMoked’s petition against a punitive demolition order: the family home in the Askar Refugee Camp will not be demolished; “the Respondent’s exercise of the authority about a year after the [suspect]’s murderous deeds cannot anyhow lead to the desired and legitimate deterrence outcome”

On October 12, 2015, HaMoked petitioned the High Court of Justice (HCJ) to instruct the military to revoke a punitive demolition order issued for a home in the Askar Refugee Camp in Nablus. The demolition order targeted the family home of a youth who is suspected of perpetrating a stabbing attack in Tel Aviv in November 2014. The youth lived in the apartment – located on the ground floor of a two-story house – together with his parents and five siblings.

On December 1, 2015, the HCJ accepted the petition by a majority of two justices to one, and ordered the revocation of the demolition order due to excessive delay in its issuance. “The obligation to act with due haste is one of the primary tenets of proper governance. It stems from the obligation of every public servant to act fairly. Breaching this obligation might, in certain circumstances, prevent the exercise [of the authority], whether because the time for exercising the authority has run out, or because of waiver and preclusion”, ruled Justice Mazuz. The Justice noted that the state’s response, that the notice of intent to demolish the apartment had been given to the family only in October 2015, due to “operative reasons… inter alia, in consideration of the area in which the structure was located…”, was unconvincing, and added that he found it “hard to view such obscure words as an explanation, even a strained one, for a delay of some eleven months in issuing the order”. Justice Mazuz also emphasized that “exercising the authority must have a causal link to the legal grounds for its exercise, that is to say that it is required that the ground for issuing the order be the attack by the family member reside in the house subject of the order, and not for later events that are unrelated to the event in question”.

Justice Zylbertal joined the position of Justice Mazuz as to the need to cancel the demolition order, but contrary to the latter, held that the basis for revoking the order was the unreasonableness that attended the exercise of the authority, rather than lack of such authority. “I fear that the Respondent’s exercise of the authority about a year after the [suspect]’s murderous deeds cannot anyhow lead to the desired and legitimate deterrence outcome”, held Justice Zylbertal in the judgment. He also held that keeping the suspect’s family members ‘hanging in the air’ for long months, knowing that any day, they might be given a demolition order for their home, “is much like a continuous ‘delay of justice’ the end of which is unknown”.

Justice Rubinstein, in a minority opinion, held that the petition should be partially granted, so that only half of the ground floor of the structure would be demolished. The Justice said that “the solution of partial demolition adequately balances between the times that passed from the event until the demolition order was issued and family members’ anticipation, and the benefit of the partial demolition of the home to achieve deterrence”.
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