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The HCJ approved a punitive home demolition in one petition and issued an order nisi in two others: the two suspects were on the outer circle of assailants and their cases warrant further review

On February 28, 2016, HaMoked petitioned the High Court of Justice (HCJ) against the decision to demolish three homes in Nablus, in which lived, with their families, three suspected accomplices in a shooting attack against Israelis east of Nablus on October 1, 2015. Concurrently, criminal proceedings have been taking place against the three.

In the court hearing on March 14, 2016, HaMoked argued that in deciding to demolish these homes, the state expanded its interpretation of Regulation 119, by applying the military commander’s authority also to people outside the first circle of alleged perpetrators. HaMoked asserted that the punitive measure the state was employing against the implicated persons of the first rank (whose home had already been demolished), and those of the second rank (in the cases at hand), was indiscriminate and therefore inevitably disproportionate.

In its decision, issued April 20, 2016, the court unanimously decided to issue an order nisi in two of the petitions, requiring the state to justify its position as to the proportionality of the demolition decision, and also clarify the nature of the administrative evidence against the two suspects concerned. In a majority decision, the court dismissed the third petition; Justice Baron in the minority, held that an order nisi should be issued in this petition also.

In addressing HaMoked’s contention that the state did not disclose earlier on the investigation material underlying the suspicions against the three, Justice Sohlberg stressed that in order for the review hearing to have been substantively significant, the essentials of the suspicions against the three should have been given rather than just the general claim that the three were involved in an attack against Israelis. Recently, in HCJ 7084/15, the court ruled that it was imperative to “include in the notice on the seizure and demolition intent minimal details at least of the evidentiary material that exists against the suspect living in the home slated for demolition”.

As to the question of proportionality, Justice Sohlberg held that “it revolves in the present case… on the severity of the deeds ascribed to the suspects and to the strength of the evidence in their case”. The justice concluded that in two of the three cases under discussion, a difficulty arose in those respects; and therefore, the state must “properly clarify the nature of the administrative evidence against them, and also the proportionality of the seizure and demolition order issued in their matter, this in relation to the status which given by the Respondent to the overall considerations he must weigh”. Nonetheless, the Justice added that he did not object in principle to the use of Regulation 119 for the deterrence of accomplices of the outer circle. In the third petition, the Justice determined that the allegation of direct and immediate complicity was “amply substantiated by administrative evidence”.

Justice Baron, who held in the minority that an order nisi should be issued in all three petitions, agreed with Justice Sohlberg that the severity of the deeds and strength of the evidence were highly pertinent to the question of proportionality, but stressed that “these considerations do not stand alone”. She went on to reiterate her position that the question of the family’s involvement should be given crucial weight in determining whether the home demolition decision was proportionate. Justice Baron also criticized the state, saying that, “this consideration, despite its importance, was not examined at all by the Respondent when he issued the orders… and in this respect, there was a flaw in the exercise of the authority on his part”.

The court ruled that the state must submit its response by May 17, 2016. (02) 627 1698   (02) 627 6317

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