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17.3.2016

HaMoked to the HCJ: “examining the family’s views after the fact and in retrospect, is not part of the tests or criteria established in case law on the question of the proportionality of demolishing the family home”

On March 13, 2016, the HCJ held a hearing on HaMoked’s petition against the punitive demolition order issued for the family home of a 15-year-old minor who is suspected of carrying out an attack against Israelis in South Hebron Hills on January 17, 2016. In the home, located in Beit ‘Amra in Hebron District, live the minor’s parents and siblings.

HaMoked strongly argued that the decision to demolish the residence of the entire family over the acts of a minor (facing criminal charges at the same time) was patently unreasonable and unbalanced, especially as the family was not implicated in the attack. However, the HCJ held that it was precisely when the suspect was a minor, that the family had a greater responsibly to prevent his attack. Justice Baron commented that the parents were evaluated by their children’s deeds in such cases, and signified that the “deterrence message” accompanying the demolition of homes would prompt parents to make sure they supervise their minor children to a greater degree.

With the state’s consent, the court decided to conduct the hearing as if an order nisi obligating the state to justify its stance had been issued. The court also opined that the state should re-examine and soon the issue of deterrence – especially the data on juveniles – and weigh the harm against the benefit of the home demolition policy.

Regarding the proportionality principle, the justices sought to know if the question of the family members’ complicity had been taken into account in making the decision to issue the demolition order. Despite the state's declaration that in this case, the family members were not implicated, the justices insisted on knowing whether there were evidence as to the family’s possible involvement, including expressions of support following the attack, and asked to review the investigation materials relating to the family.

The court gave the state three days to submit the family members’ media interviews made after the event, and gave the petitioners three days from that time to submit their response to these materials.

In the petitioners’ response from March 17, 2016 over the materials presented by the state, HaMoked argued that there was no proof of foreknowledge by the family about the attack, and stressed that the state did not claim the family was involved in the incident. HaMoked strongly criticized the “very attempt to trace various expressions on part of the minor’s family after the fact”, and asserted strongly that such an attempt did not conform with the professed purpose of Regulation 119, which was deterrence. Furthermore, HaMoked stressed that “examining the family’s views after the fact and in retrospect, is not part of the tests or criteria established in case law on the question of the proportionality of demolishing the family home […] and in any event does not influence it in practice”. HaMoked also speculated as to the degree in which the court’s involvement would be required in supervising the parenting skills of Palestinian parents and as to “the threshold of evidence which parents of young assailants who did not know about their children’s actions must meet in order to prove they indeed tried to prevent them”.
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