Court Roundup | February – April 2013
Update:May 16, 2013
Rulings & Decisions
Freedom of Information Request – Allocation of State Land in the West Bank
On March 23, 2010, ACRI and Bimkom – Planners for Planning Rights submitted an administrative petition to the Court for Administrative Matters in Jerusalem under the Freedom of Information Law. The petition requested that the Court instruct the Civil Administration, the commander of IDF forces in the West Bank and the Ministry of Defense to make available certain statistics about state-owned lands in the West Bank and specifically in Area C. The information sought was regarding to:
- the amount of land that was defined as state-owned prior to 1967;
- the amount of land declared to be state-owned by the Israeli regime after 1967;
- the amounts of state land allocated from this total area to Israelis and to Palestinians; and
- the procedures according to which the Civil Administration allocates state-owned land.
The petition was submitted after the Civil Administration did not respond to the original request submitted under the Freedom of Information Law in March 2009.
Attorney Avner Pinchuk from ACRI managed the case on behalf of the petitioners.
The Civil Administration claimed that locating only the information about allocations would require 17,000 hours of work or about 2,000 work days, and requested that the petition be dismissed in light of the unreasonable amount of work it would require.
The petitioners suggested a compromise in which, in addition to the partial and incomplete information which was produced over the course of the hearings, the State would provide them with statistics about allocations of state lands to Palestinians during the years of the occupation. The respondents finally agreed under pressure from the court, and provided the information on February 4, 2013.
From the statistics that the Civil Administration subsequently provided, it emerged that since 1967, only 8,600 dunams – some 0.7% of state lands in Area C – have been allocated to Palestinian parties.
Privacy and the Presumption of Innocence:
Municipality Demands Employees’ Personal Information
In November 2011, ACRI contacted the Jerusalem municipality following a complaint from a political activist that had been hired as an aide to a city council member, but whose appointment was later rejected due to a demand from the municipality that she sign an “affidavit” regarding past criminal offenses and criminal cases pending against her.
In accordance with this request, the candidate explained that she had a case pending against her for having participated in protests. She was told in response that she could not be hired until the case had been resolved.Following the intervention of ACRI Attorney Lila Margalit, the Ministry of Justice instructed the Jerusalem municipality that they can not ask candidates questions concerning their criminal history by way of an affidavit or declaration. This is because under Israeli law, an employer is forbidden from obtaining, directly or indirectly, information about an individual from the police criminal records registry – unless they are specifically authorized to do so by law. The law emphasizes that it will not see an employer as being entitled to receive such information, merely because the applicant has agreed to provide it.
On 21 February, 2013, the Supreme Court ruled in a separate case that in certain circumstances an employer may require an affidavit related to a candidate’s criminal record, provided that the requirement is relevant and proportionate to the position in question. A request was then filed on March 10 for an additional hearing before an expanded panel to consider the principles set out in the judgment and to clarify the law once and for all.
On 24 April, Attorney Margalit and Attorney Avner Pinchuk requested to be recognized as a amicus curiae in the request for an additional hearing on this judgment. In their request they warned that the ruling would in practice render meaningless the protection afforded by law for workers’ rights and the right to rehabilitation. The ruling undermines efforts to protect employees and job applicants from improper attempts to exploit their weakness and force them to hand over confidential criminal information to employers who have no right to receive it.
Petitions & Interventions
Freedom of Speech at Ben-Gurion University
On 12 July 2011, ACRI filed a claim with the Be’er Sheva District Court against Ben-Gurion University owing to its refusal to allow university students to hang posters and distribute leaflets critical of government policy. The posters depicted images of Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman with a large red X painted in the background. Despite the fact that similar leaflets were distributed on other university campuses , Ben-Gurion University decided to ban the distribution of the leaflets on campus. The reason given by the university was concern that the distribution of flyers and posters on campus could incite violence, harm the university’s reputation and even expose it to defamation claims.
The District Court rejected the claim of the students, ruling that the university belonged to a special legal class that is entitled to consider and balance public relations and economic risks and limit the freedom of expression of its students on campus according to this calculus. ACRI immediately launched an appeal against this decision.
The Supreme Court heard the appeal against the ban on 25 April, 2013. The discussion took place before Supreme Court President Asher Grunis and Justices Yoram Danziger and Zvi Zilbertal. The appeal argued that the original ruling allows the university administration to prevent free speech whenever there is concern that it is offensive or may lead to a libel suit – even if this is only a remote possibility. It substantially limits the students’ freedom of expression and subjects it to the nearly unlimited and arbitrary discretion of a university administrator.
Five minutes into the hearing, where Attorneys Avner Pinchuk and Dan Yakir represented ACRI, President Grunis made it clear to the University that it was in a tenuous legal position. The university retired briefly to consider their options before conceding the case before the court reached a final decision.
For more information on the history of the case, click here.
Injunction Order against IDF Training in Firing Zone 918
On January 23, ACRI Attorney Tamar Feldman sent an urgent letter to the High Court of Justice Division at the State Attorney’s office following reports that the IDF were performing training exercises in the fields around Jinba and Tabban at the center of the Yatta District in the area known as Firing Zone 918. Residents reported that jeeps and soldiers maneuvered through their agricultural fields, tramping their recently sowed seedlings, and that the soldiers erected tents and dug trenches, causing severe damage to their crops and restricting their movement in the area.
Attorney Feldman claimed in the letter that the training is a violation of the court injunction issued on January 16, 2013 in the case of Abu Aram v. Minister of Defense. The injunction order instructed the state to refrain from forcibly transferring any local residents and prohibited any interference in their lives or livelihoods.
After no response was provided to this urgent request, ACRI petitioned the High Court of Justice, in the name of the residents, to rule that the state was in contempt of court, and demanded that the court enforce the injunction and compel the respondents to comply fully.
The state claimed in their response that the training was only “field-craft and transportation training” that “made use of existing roads in the fields and did not trample over sown or plowed fields.” They further argued that “the IDF forces that trained in the Firing Zone did not dig trenches… did not place any restrictions on movement in the said area” and “did not pitch tents on sown or plowed fields”.
ACRI is in possession of photographs of the fields attesting to the movement of soldiers and vehicles through the fields, the pitching of tents within the fields and of the digging of ditches and canals. In response to the state’s claims, ACRI presented the photographs to the court on February 19, 2013, together with affidavits from local residents whose land sustained damage as a result of the training.
For additional information on Firing Zone 918 and ACRI’s petition before the High Court of Justice, click here.
Status-less Children Struggling to Obtain Accurate Birth Certificates
ACRI together with the Hotline for Migrant Workers and Physicians for Human Rights have petitioned the High Court of Justice seeking an order to require the Interior Ministry to issue birth certificates that include the names of both parents and the family name chosen by the parents for children who are born in Israel without legal residency status.
The case was filed following the experience of a family from the Democratic Republic of Congo. After their daughter was born, the parents tried to get a birth certificate from the Interior Ministry. The ministry issued a certificate that did not name the father and refused the parents’ request to give the child her father’s last name, forcing the child to take her mother’s last name instead.
In the petition, the rights organizations explain that formal birth records including familial ties are among the fundamental rights of every child, anchored in the Convention on the Rights of the Child, to which Israel is a party, and which applies equally to all children present within a country’s territory, without reference to the immigration status of the children or their parents. The UN Committee on the Rights of the Child stresses the vital importance of registration and organized documentation of children: the certificate is an official recognition by the State of the child’s existence; it allows the State to plan how to care for children; and it protects children, in part by monitoring their parents.
ACRI Attorney Oded Feller: “The State has an obligation to protect the identities of all the children in Israel equally. It is also obligated to grant all children, without discrimination, birth certificates. The Interior Ministry is not authorized to erase elements of a child’s identity. It is not entitled to cancel the parenthood of fathers who are not Israeli, nor is it authorized to take away the names given to children by their parents. Sadly, time after time, petitions must be filed with the High Court of Justice so that it can remind the Interior Ministry of basic rules concerning what is allowed and what is not, and that foreigners too are endowed with human rights.”
Marriage and Divorce in the Jewish State: Israel’s Civil War
A new book analyzing the laws regarding marriage and divorce of Jews in Israel has emerged that looks at individual cases of discrimination whilst speaking at the same time to a larger question: Is Israel a democracy or a theocracy?
“Marriage and Divorce in the Jewish State: Israel’s Civil War”by Women’s Justice Center Director Susan M. Weiss and journalist Netty Gross-Horowitz.
The book lays out the true story of six women in divorce proceedings in rabbinical courts in Israel. These are women who find themselves “trapped … for reasons not understood, in a legal system where the rules are derived from ambiguous divine commands with whom negotiations can not be managed.”
The authors analyze the stories through the angle of human rights and call for institutionalizing civil marriage and divorce in Israel in accordance with the suggestion of Prof. Pinhas Shifman.
This book is particularly relevant and interesting in light of the current and growing calls for civil marriage in Israeli society.
Officer refuses to identity himself and arrests activist for disturbing the peace
The defendant in this case was charged with disturbing the peace after he refused to stop his vehicle at a checkpoint in the West Bank after the officer refused to identify himself. The Jerusalem Magistrate Court ruled that in the absence of identification, the defendant has the right not need to heed the orders of a soldier.
Judge Eilata Ziskind elaborated in her ruling that: “it is your right to ask officers to identify themselves so that you know who they are. Following that, the fact that they have been identified generally grants them the respect and care that they are due, such that they need not be careful about when they are detected … the principle that they must identify themselves protects us… This is my right, I have to protect this right, even if I recognize that he is clearly a security agent.”
Since there was sufficient doubt that the officer was wearing an identification tag as required under Section 5 (a) of the Police Ordinance, the judge decided to acquit the defendant of all charges.The requirement for a policeman to identify himself to a citizen so requesting, is not a technical right, it is a substantive civil right and as such is enshrined in law. It is the citizen’s right to know who has the authority to detain him or limit his rights, and if he has jurisdiction. This is the only tool that allows him or her to stand up for his or her rights against the far-reaching powers held by officers of the state to deny civil rights, including confiscation and deprivation of liberty.
