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10.1.2016

The HCJ approved a punitive demolition of a housing unit in Surda: “we sit amongst our people in the current grim daily reality… we cannot assume that things are made only to appease public opinion…”

On December 28, 2015, a panel of High Court Justices decided unanimously to dismiss two petitions which were filed by HaMoked against a punitive demolition order which had been issued against a housing unit in Surda, Ramallah district. The perpetrator who carried out the attack on October 3, 2015, in the old city of Jerusalem, lived with his parents and four siblings – who were not involved in the incident – as lessees in the targeted housing unit. The housing unit was built in the framework of a project of the Palestinian Workers Union and is in fact owned by the chair of the board of directors of the union who, by virtue of his position, is registered in the land registration office as the owner of the asset (which belongs to the union). One petition was filed on behalf of the family and another petition was filed on behalf of the chair of the board of directors of the union which built the project.

In the judgment, the court ruled that the state had the authority to use Regulation 119, which empowers the military commander to seize and demolish Palestinian dwellings, and that this authority “is vested with the Respondent for the purpose of creating effective deterrence and not for punitive purposes, although there is no dispute that in fact damage is occasionally caused to persons who are not involved in terror activity.” With respect to the question of who is the owner of the asset, the lessees or the union, the judgment stated: "It is not necessary to show that the perpetrator who resided in the asset together with his family had ownership rights in the asset when he executed the attack", and also that the family resided in the house for many years.

With respect to the potential damage to the surrounding area, the court held that, “High ranking officials are presumed to use their best efforts to prevent such damage” (emphasis in the original); and added that, to the extent damage was caused to the adjacent houses, their owners would be compensated by the state. Given the question of ownership of the property, and the possibility that the family would ask for the military commander’s “remission” – i.e. limiting the term of the seizure order, issued for the property together with the demolition order, which prohibits entry there, let alone residence and renovation – the court stressed that “The principle of proportionality which defines the limits of Respondent's discretion in the issue of the order, also defines the required forfeiture term, and it will be taken into consideration to the extent an appropriate request is submitted in due course by the Petitioners”.

In his judgment, Justice Rubinstein addressed the position Justice Mazuz had expressed in his dissent in another recent judgment concerning punitive demolition – a position whereby, “harm caused to property of innocent people is unacceptable". On this, Justice Rubinstein noted that "We all wish to interpret the authority in the spirit of the Basic Laws. Had we been living in another reality I, and likewise many of our colleagues, would have been very glad to join the conclusion reached by our colleague Justice Mazuz, with all due respect… But we sit amongst our people in the current grim daily reality and… we cannot assume that things are made only to appease public opinion following severe attacks.”

Justice Barak-Erez reminded that in a host of recent judgments over punitive demolitions, the court left “an opening to revisit the issues emanating from this matter according to accumulated experience… and also held that the Respondent should reexamine the use of said measure from time to time". However, Justice Barak-Erez noted that "this matter cannot be revisited already at present, as this court has just recently reaffirmed the practiced rule". It was further stated that "it stands to reason that in view of the complex questions evoked by the use of the measure of house demolition… this court will indeed continue to examine the compatibility of case law to the changing circumstances and the lessons to be learnt from the cases in which demolition orders were executed”.

The HCJ ruled that the interim order issued in the petitions would expire within ten days from the date of the judgment.

On January 9, 2016, military forces arrived to demolish the house using heavy equipment – bulldozers and excavators – and razed it to the ground.
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