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31.3.2016

HCJ accepts HaMoked petition against a punitive demolition order: A home in Qarawat Bani Hassan will not be demolished

On February 10, 2016, HaMoked petitioned the HCJ against the punitive demolition order issued for a home in Qarawat Bani Hassan, Salfit District, where the parents and siblings of a person suspected of involvement in an October 3, 2015 attack in the old city of Jerusalem live. In the petition, HaMoked argued that the decision to demolish the home despite the fact that the family was not involved in the attack, and despite the fact that the young man has been living in student residence in Abu Dis, rather than his parents’ home, for the past three years, was disproportionate and necessarily constitutes harm to innocents.

On March 31, 2016, the HCJ issued a majority judgment instructing the revocation of the demolition order. Justices Mazuz and Baron accepted HaMoked’s petition. President Naor dissented.

Justice Mazuz found the state lacked authority to use Regulation 119 – the regulation that gives the military commander the power to order house demolitions - in this case, since the young man cannot be considered to be living in the home: “A grown person who leaves his parents’ home and lives in his own apartment, even if it is a rental or a student apartment, cannot be deemed to be temporarily absent from the parents’ home with the intention of returning, and, it follows, cannot be seen as a ‘resident’ in his parents’ home”. Justice Mazuz further found that even if the young man could have been considered a “resident” of the home, the decision to demolish the home fails to meet the test of reasonableness and proportionality, in terms of discretion, given the family’s lack of involvement in the attack and the lack of connection between the home and the attack.

Justice Baron also objected to the petition, however, unlike Justice Mazuz, found the young man did have a tie of residency to the parents’ home, though, a “diminished tie”, which meant that the family could not be alleged to have even constructive knowledge of the planned act (i.e., turning a blind eye). In light of this, Justice Baron ruled that the decision to demolish the home was disproportionate and that the demolition order must be revoked. Justice Baron further emphasized that the degree to which the family was involved is an important test of proportionality with respect to the decision to employ Regulation 119, whereas the gravity of the act committed by the terrorist and the “deterrent power” attributed to the Regulation must be ascribed less weight. On the issue of deterrence, the Justice said: “There are grounds for the notion that house demolitions have only localized deterrent powers”, and that the vagueness surrounding this deterrent power should be “a significant consideration, when the Court examines the proportionality of the use made by the military commander of this measure” (emphasis in original).

President Naor rejected the petition, holding that the fact that the young man visited his parents’ home from time to time does establish ties to the home to a degree that suffices for use of Regulation 119. The President stressed that “the deterrent power embodied in Regulation 119, which may save lives and prevent death and injury, is the grounds for the conclusion that sometimes there is no recourse but to use it”. President Naor repeated current case law, whereby lack of involvement by the family does not preclude use of the power.
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