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23.3.2016

HCJ majority approved another punitive demolition in Hebron: but two of the justices were in favor of revising the core issues in an expanded panel

On March 23, 2016, the High Court of Justice (HCJ) rejected by a majority of two, HaMoked’s petition against a punitive demolition order for a home in Hebron, in which lives the family of a Palestinian youth who committed an attack against Israelis near the Cave of the Patriarchs on December 7, 2015. The family’s apartment is on the first floor of a five storey building.

HaMoked requested the reconsideration of the prevailing precedent in the HCJ’s judgments, which repeatedly led to the legitimation of punitive home demolitions, and argued that despite the reservations expressed recently by some of the justices, the HCJ was adhering to this rule because of the “significance of the precedent”, from which it is not the custom to deviate. In the judgment, Justice Sohlberg ruled on this matter that there was no call to review again the principle issues already determined by the court.

Justice Vogelman reiterated his position (expressed earlier in HCJ 5839/15) that “[…] in view of the many judgments which followed the rule (by different panels), revisiting the rule should be done by an expanded panel […]”. Nonetheless, Justice Vogelman sided with Justice Sohlberg and rejected the petition on the ground that “so long as the binding precedent stands, which is the situation at present, I see no way in this case to avoid the conclusion that there is no cause for our intervention according to the set precedent in its current form”.

Justice Mazuz joined the call for the renewed consideration in expanded panel of the principle issues relating to the use of Regulation 119 – pursuant to the military commander issued punitive demolition orders for homes in the OPT. In the minority, Justice Mazuz held that the petition should be granted and reiterated his opinion (given in HCJ 7220/15), that the Regulation’s use “raises a host of difficult legal questions, which in my view, have not yet been given a satisfactory and contemporary solution in the jurisprudence of this court”. Justice Sohlberg retorted that this assertion “disregards a weighty and rigorous discussion of the difficult questions raised by the issue at bar in a host of recent judgments”.

The court allowed HaMoked to submit an engineering opinion to the military within three days, and instructed that the demolition order should not be implemented within a week’s time from the date of the judgment.
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