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2.3.2016

The HCJ rejected HaMoked’s request for further hearing in a punitive demolition case: the judgment does not set a new precedent on the required evidence level for exercising the authority to demolish homes, it only rules on this issue under the particular circumstances of the present case

On February 28, 2016, the High Court of Justice (HCJ) in a majority vote dismissed HaMoked’s petition against the planned punitive demolition of a home in Hebron, in which lived a young man who, the military claims, perpetrated a car-ramming attack on November 4, 2015 in Halhul Junction. In the petition, HaMoked argued that the state did not strive to collect sufficient evidence to rule out the possibility that this was not a deliberate attack but rather a car accident; and that the decision to demolish the family home was based on a flimsy and lacking evidentiary infrastructure. In the judgment the court ruled that the administrative evidence presented by the military was of “sufficient proof value”, adequate to rule out the accident scenario.

In the minority opinion, Justice Zylbertal averred that the state did not possess sufficient proof to determine this was indeed an attack rather than an accident, and that the state did not make sufficient effort to collect evidence. Moreover, Justice Zylbertal held that given the severity of the home demolition measure, the evidentiary threshold should be more than "sufficient", but contain “clear, conclusive and compelling evidence”. Therefore, Justice Zylbertal concluded there was call to issue an order nisi compelling the state to justify its position.

Thereupon, HaMoked filed in March 2, 2016, a request for further hearing, on the grounds that the judgment set a new precedent, whereby “a partial and shallow evidentiary structure [is held] as a sufficient condition for employing a sanction under Regulation 119 of the Defense (Emergency) Regulations”. HaMoked stressed that this new precedent contradicted the existing binding precedent requiring “clear, conclusive and compelling evidence” in cases where the denial of a basic right was in the balance. HaMoked asked the court to issue a stay order halting the demolition pending the end of proceedings.

That day, the Supreme Court President rejected HaMoked’s request and ruled no new precedent had been set in the judgement, and that it was “a decision rooted in the particular circumstances of the case, that does not exhibit an intention to deviate from existing precedent”. The request to postpone the demolition was also dismissed.
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