Newsletter Legal Department

Newsletter Legal Department

    13 September 2012
    Newsletter- issue #7
    1.        News                                                                                                                  2
    1.1     High Court of Justice orders the eviction of the Migron outpost
    1.2     Supreme Court increases imprisonment-time sentence in a case of assault against a Palestinian boy
    1.3     District Court determines the death of Rachel Corrie was accidental and within the framework of a war-related action
    1.4     Military Court convicts IDF soldier in a case relating to shooting incident during Operation Cast Lead
    1.5     New proposed Bill Memorandum codifies the rights of interrogees and suspects during investigation
    1.6     An Israeli Law Professor appointed to UN Human Rights Committee
    2.        Upcoming Events                                                                                              7
    2.1     Religion in a Multicultural Society - Lausanne Conference
    2.2     LLM programs in English at the Hebrew University Law Faculty
    The judgments and bills cited here are currently published only in Hebrew. This is an unofficial translation only for the purpose of this newsletter update, and in no way replaces any future official translations which may be available for the documents mentioned.
    High Court of Justice orders the eviction of the Migron outpost (HCJ 8887/06; HCJ 5180/12)
    On 29 August 2012 the High Court of Justice (HCJ) dismissed a petition to further delay the order of eviction of the Migron outpost (Migron or the Outpost), and ordered all settlers to evict no later than 4 September 2012. The Petitioners have asked the Court to delay the order based on two grounds: first, that the alternate site which the State has designated for the settlers is not yet prepared; and second, claims that parts of the land on which the Outpost is built was legally purchased by some of the settlers living there.
    The Court first summarized the background. In 2006 the owners of the land on which Migron was built have petitioned the Court requesting an order of eviction against the Jewish settlers living there. The State has agreed to evict the Outpost, and demolition orders were issued in relation to all the houses and constructions. Although the timeframe required for eviction had past, the Outpost was not removed. On 2 August 2011 the Court issued its judgment, indicating that it is no longer possible to condition the eviction orders on the finalizing of preparations in the alternate site, and ordered the State to evict the Outpost by 31 March 2012. Following several subsequent petitions, arguing that the settlers have not been prepared for the possibility of eviction without alternative residence, the eviction was repeatedly postponed.
    The Court then discussed the argument raised by the Petitioners, claiming that in purchasing the land they have acted based on the assumption that this is the only obstacle that prevents the State from authorizing the Outpost. Therefore, according to the Petitioners, once the issue of ownership is legally resolved, the State can prepare the outline plans for issuing the required building permits. The Petitioners insisted that this assumption was the result of the actions and presentations of the State.
    The Court rejected this argument, indicating that regardless of the question of whether the land was legally purchased or not, property rights are always subjected to existing outline plans. Without these, property rights are just rights and cannot by themselves authorize any building on the land. Moreover, the Court stressed that the fact that a settlement cannot be built on private Palestinian land does not mean that in any other case - where private land is not involved - a settlement will necessarily be authorized. Thus, the Court determined, the question of property rights was not the only impediment to legalizing the Outpost.
    The Court then emphasized that its original ruling which ordered the eviction of Migran, was in fact for the reason that there was never any decision by the Government which authorized this settlement and the State had actually issued demolition orders for all houses and constructions in the Outpost. The Court thus rejected the Petitioners' argument regarding false presumption by the State.

    Finally the Court has also rejected all other arguments raised by the Petitioners, relating to their claim that it is in fact possible to prepare outline plans for the lots they have purchased. However the Court agreed to suspend the demolition orders for the houses in the purchased lot, until the questions of ownership and possible outline plans will be examined by the State. 
    For an article on the Migron eviction, click here. 
    Supreme Court increases imprisonment-time sentence in a case of assault against a Palestinian boy (Case No. 3578/11)
    On 13 August 2012 the Supreme Court (the Court) has decided to uphold the conviction of Mr. Tzvi Strok (the Appellant) in the charges of assault, but decided to amend the sentence imposed upon him by the Jerusalem District Court (the District Court) and to increase the time of imprisonment from 18 to 30 months.
    On 14 November 2010 the District Court has convicted the Appellant in three counts of assault of Mr Amran Fareh (the Complainant) and his friends on two separate events. On 27 March 2011 the District Court has sentenced him to 18 months imprisonment, stressing the severity of the offences and the harm inflicted on the Complainant who was 15 years old at the time of the assault.
    In his appeal before the Supreme Court, the Appellant had argued that his conviction was the result of a series of legal and factual errors and misinterpretations. The Appellant further argued that the sentence imposed on him was too severe considering the mitigating circumstances presented to the District Court regarding the Appellant's positive and non-violent character and consistent behaviour during a long period of time spent in stressful and dangerous surroundings. The State, on the other hand, argued that the punishment is too minor considering the severity and recurrence of the acts, which imply a violate behaviour towards young Palestinians, with the nature of the acts pointing to a territorial and national motive.
    The Court first emphasized that it would normally not interfere with the factual findings set by the Trial Court and its determination as to the question of reliability- only in exceptional cases. After examining all relevant evidence, the Court found no reason for interfering with the factual findings of the District Court, and indicated that the credibility of the Complainant and his friends stands firmly throughout the entire procedure and sufficiently confirms the identification of the Appellant on both events.
    The Court then examined the Appellant's arguments regarding alleged faults during the process of investigation and abuse of process. First, the Court stressed that the police indeed has an obligation to investigate possible alibi arguments and pointed out some faults in the performance of the investigation in this regard. However, the Court held that the Appellant's defence was not prejudiced or that any injustice was caused as a result of these faults in a manner that would justify interfering with the determinations of the District Court.
    Second, the Court noted that questions regarding abuse of process are considered by a three level test: the Court first identifies the procedural faults and errors and whether they are substantial and severe, separated from the question of guilt or innocence; second, the question arises as to whether the sense of justice and fairness will be severely compromised by continuing with the criminal process despite these faults; and finally, the Court must examine whether it is possible to resolve these identified difficulties in a proportionate manner, before turning to the option of a permanent stay of proceedings. With regard to the present case, the Court found that the arguments raised by the Appellant did not qualify the first or the second tests, and rejected his abuse of process claim in total.
    Lastly the Court discussed the mutual appeals of the Appellant and the State regarding the severity or ease (respectively) of the sentence. The Court stressed that it will only interfere with a sentence imposed by the Trial Court in cases of clear deviation from the proper punishment policy. In this specific case, however, the Court accepted the arguments of the State, and stressed that in spite of some mitigating circumstances, (1) the public interest of proper reaction to all who are involved in cruel violent acts and (2) deterrence considerations, should be given more weight.
    District Court determines the death of Rachel Corrie was accidental and within the framework of a war-related action (T.A 371/05)
    On 28 August 2012 the Haifa District Court published its judgment in the case of the Estate of the Late Rachel Corrie and others (the Plaintiffs) v. the Ministry of Defense (the Respondent). The Plaintiffs have argued that on 16 March 2003, the decedent, together with other activists in the International Solidarity Movement (the ISM), arrived at the "Philadelphi Corridor" in the Rafiah area of the Gaza Strip, where two bulldozers and an IDF tank were observed conducting operational activities. They argued that the decedent and her fellow members of the ISM stood in the path of the bulldozers in order to prevent them from implementing a plan to demolish a house. The Plaintiffs claimed that the bulldozer intentionally caused the death of the decedent.
    The Court first examined the nature and category of the acts carried out by the IDF force on that day. It indicated that during the period pertinent to this case, the "Philadelphi Corridor" was the site of daily warfare, and there was a military directive in force declaring it a "closed military area" and forbidding the entry of civilians. The mission of the IDF force on the day of the incident was to clear and level the ground, in order to expose hiding places used by terrorists, who would sneak out from these areas and place explosive devices with the intent of harming IDF soldiers. The Court accepted the Respondent's claim that there was urgency in carrying out this mission, and that the mission did not include, in any way, the demolition of houses.
    Taking all evidence into consideration, the Court subsequently determined that the act of clearing and leveling the land with which the IDF force was occupied during the event was a "war-related action" as defined in the Israeli Civil Wrongs Ordinance.
    After defining the nature of the acts as a war-related action, the Court continued to examining the facts of the case, and concluded that there is no foundation to the Plaintiffs' claim that the bulldozer struck the decedent intentionally. The Court described the events of that day and accepted that this was a very unfortunate accident but was certainly not intentional. The Court further noted that the IDF force was in fact very careful not to harm the activists, and repeatedly relocated itself due to the activists' interference in carrying out its mission.
    Finally, the Court determined that since the decedent was accidentally killed in the framework of a war-related action and in light of the instructions laid out in article 5 of the Israeli 1952 Civil Wrongs Ordinance - which determines that the State is not responsible for torts resulting from a war-related action - the State is not responsible for damages inflicted upon the Plaintiffs.
    Nevertheless, above and beyond what is necessary, the Court has also discussed the cause of action filed by the Plaintiffs as well as their other claims. It first examined the claims regarding evidentiary damage, and reached the conclusion that the investigation of the case as carried out by the Criminal Investigation Division (CID) was conducted appropriately and without fault. With regard to the alleged evidentiary damage related to the Institute of Forensic Medicine, the Court noted that the Plaintiffs (1) did not prove that any evidentiary damage which impaired their ability to prove their claims was caused; (2) nor did they prove that the claimed evidentiary damage was caused by the Respondent through negligence. Therefore the two required cumulative conditions were not upheld.
    Lastly, the Court rejected all other claims, of both sides, regarding negligence, willing endangerment, and legal grounds relating to the right to life.
    For a detailed summary of the judgment, click here.
    Military Court convicts IDF soldier in a case relating to shooting incident during Operation Cast Lead (MATKAL (District) 816/10)
    On 12 August 2012 the District Military Court approved a plea bargain in the case of Military Prosecutor v. Staff Sergeant S.H. (the Accused). The Accused was charged with illegal use of a weapon and conduct unbecoming, in a case of shooting during Operation Cast Lead.
    The Court first described the events of the day indicating that when the Accused arrived at the location of the IDF force, he saw a group of people walking towards the IDF soldiers. At this point, the Accused fired 2-3 shots in the air, and as the group continued to approach, he fired again 2-3 shots, this time in the direction of their legs. When the Accused realized that his prior warning shots have not prevented the group from advancing in the direction of the IDF soldiers, he has made the decision to aim and shoot at one of the character's upper body. The Court indicated that the Accused has made this decision on his own, and without receiving any orders from his superiors to that effect.
    The Court then discussed the two central considerations in the Military Prosecutor's decision to amend the indictment (which originally included the charge of manslaughter, based on the outcome of the event and the death a woman). The Court emphasized (1) the substantial evidentiary difficulty to prove the connection between the shooting and the resulted death, absent any identification of a victim; and (2) the prejudice to the Defence and the possibility that the fairness of the procedure might have been compromised, as a result of inadmissibility of the findings of the operational inquiry of the incident, which include details that could have assisted the Defence's case.
    The Court finally concluded that the illegal shooting was carried out in violation of the required precautionary procedures and in excess of authority. However, it also considered the fact that the act was carried out in a time of intense fighting in Gaza, and that there was specific intelligence indicating an intent to harm IDF soldiers by means of disguising as innocent civilians carrying white flags.
    In light of all the above-mentioned considerations, the Court determined that the amended indictment was the result of an appropriate and reasonable assessment by the Military Prosecutor of all the factual and evidentiary difficulties; and thus accepted the terms of the plea bargain. The Accused was subsequently sentenced to 45 days of imprisonment with an additional six-month suspended sentence, and was demoted to the rank of private.
    For more information, click here.
    New proposed Bill Memora
    ndum codifies the rights of interrogees and suspects during investigation
    On 3 September 2012 a new Bill Memorandum was published, the aim of which is to regulate and codify the rights of interrogees and the procedures for investigation, as they have been developed over many years in the jurisprudence of Israeli courts. The Bill Memorandum is the result of more than three years of work of a committee appointed by the Justice Minister to review issues of criminal procedure and evidence. The committee published its conclusions on April 2012.
    The Bill proposal includes, among other things, the right of interrogees to avoid self-incrimination, the right to remain silent, and the right to consult with an attorney. It is intended to set the legal framework for the interrogation of suspects as well as witnesses, and thus proposes to change the name of the law to Criminal Procedure Ordinance (Conducting Interrogations), as opposed to (Investigating Suspects) as it currently stands.
    Moreover, in addition to set the obligation of the interrogator to inform the interrogee of his rights, the Bill Memorandum also suggests that the format and content of this notification will be inscribed in primary legislation, and not left to be determined in secondary legislation and regulations. This is due to the significance of this notification. The Bill Memorandum proposes as well to regulate the authority of the interrogator to body search, where it is necessary for public or personal safety or to prevent the obstruction of interrogation. Lastly, the Bill Memorandum proposes that the right to representation by the Public Defenders be extended to include the phase of pre-arrest investigation.
    An Israeli Law Professor appointed to UN Human Rights Committee
    On 6 September 2012 Professor Yuval Shany, an Israeli lawyer of international renown - was elected by the vote of 112 states to serve on United Nations Human Rights Committee. Prof. Shany is Dean of the Hebrew University Law Faculty, an associate professor of Hersch Lauterpacht Chair in Public International Law, and a senior research fellow at the Israel Democracy Institute. He has been appointed visiting professor in a number of universities world-wide, and has held the position of academic director of the Minerva Center for Human Rights.
    For more information, click here.
    Upcoming events

    Religion in a Multicultural Society - Lausanne Conference

    The International Association of Jewish Lawyers and Jurists is organizing an international conference on the subject of religion in a multicultural society. The conference will include debates and discussions analyzing diverse approaches to the issue and their ramifications for human rights, as well as two days of tours including a visit to the UN Human Rights Council in Geneva.
    The conference will take place in Lausanne, on 30 October - 4 November 2012.
    For more information, click here.

    LLM programs in English at the Hebrew University Law Faculty

    In the forthcoming academic year of 2012-2013 the Hebrew University Law Faculty is offering two English LLM programs: a program in human rights and international law, and a program in international business law and intellectual property. The programs courses will be taught by top academics and practitioners, and will take place at the Faculty of Law, situated at Mount Scopus Campus in Jerusalem.  
    For more information, click here.