Rulings & Decisions
Firing Zone 918 and the Move to Mediation
On January 16, 2013, ACRI Attorney Tamar Feldman, filed a petition at the High Court of Justice against the State’s plans to expel some 1000 Palestinians living in eight rural villages in Firing Zone 918, in the South Hebron Hills.
The petition, on behalf of 108 petitioners, mostly heads of large families residing in the area, was directed at the Defense Minister and the Commander of the Israel Defense Forces, and sought to prevent the forced transfers of villagers from their homes. The petition also questioned the justification for the closed military zone order around the area, arguing that it should be lifted and that petitioners’ dwellings be fully recognized. The petition was supported by a legal opinion by Israeli experts on international law Eyal Benvenisti, David Kretzmer and Yuval Shany; a legal analysis by international expert Professor Michael Bothe; and an independent expert opinion by leading social anthropologist Shuli Harman.
On September 2, 2013, the High Court of Justice (Court President Asher Grunis and Justices Hanan Meltzer and Daphne Barak-Erez) held the first hearing with regards to this petition, which was joined together with another petition filed by Attorney Shlomo Lecker. At the close of the hearing, the Justices suggested that the parties enter a mediation process in order to reach a mutually agreeable settlement. The justices suggested former High Court Justice Professor Yitzhak Zamir for the role of mediator.
Representatives of the petitioners agreed to the Court’s proposal. The state requested some time to consult on the matter, and a few weeks later also consented to mediation. On October 27, the Justices issued their decision naming Yitzhak Zamir as the court-appointed mediator. The Justices allocated a period of 4 months for the mediation process along with the possibility of an extension.
Attorney Tamar Feldman:
”The petitioners welcome the High Court of Justice’s decision to appoint a mediator, and believe that this indicates that the Court was not satisfied with the respondent’s claims. We hope that the mediation will bring forth a just solution that meets the needs of the residents of the villages in the area.”
Click the link to read ACRI’s comprehensive fact sheet on Firing Zone 918.
An Eye to the Future Following the Invalidation of the Anti-Infiltration Law
Under the now overturned amendment to the Prevention of Infiltration Law, passed in January 2012, refugees and asylum seekers entering Israel through the Sinai Peninsula could be held in administrative detention – without trial – for at least three years.
ACRI Attorney Oded Feller – together with Attorney Yonatan Berman, Attorney Anat Ben Dor, and Attorney Asaf Weitzen – filed a petition in October 2012, which asserted that both Israeli and international law prohibit the detention of immigrants if it is not for the purpose of deporting them. The petition defends the human right to seek asylum.
On September 16, the High Court of Justice ruled that the prolonged imprisonment of asylum seekers in administrative detention is unconstitutional and overturned the Anti-Infiltration Law.
The extended panel of nine Justices, headed by Supreme Court President Asher Grunis, unanimously ruled that the administrative detention of the refugees violates the Basic Law, Human Dignity, and Liberty, and ordered the state to immediately examine each of the detainees’ cases individually and to begin to release detainees entitled to release under the original Entry to Israel Law, completing the process within 90 days. Unlike the Anti-Infiltration Law, the Entry to Israel Law does not allow extended detention of persons against whom deportation proceedings are not underway.
Justice Edna Arbel commented that “Israeli reality will not change as a result of this ruling, but it will change for those 1,750 migrants, who will move out of an unresolved impasse involving incarceration to a life of freedom and hope for the future.”
In the aftermath of the ruling, a number of members of Knesset produced vitriolic responses to the ruling, questioning the legitimacy of the Supreme Court’s intervention in the matter and calling on the Knesset to immediately pass new legislation to mitigate the “catastrophic” High Court ruling.
As such, ACRI is braced for a potential legislative backlash in the Knesset, which include – attempts to re-legislate new anti-infiltration measures, and attempts to curb the High Court’s very authority to overrule such unconstitutional legislation in the future.
Petitions & Interventions
Against the Confiscation of Homeless People’s Belongings
Over the summer, five homeless families set up tents in Sacher Park in Jerusalem. These are families with young children whose parents’ salaries are insufficient to cover monthly rent or mortgage repayments. On August 19, two days after the tent camp was set up, city inspectors dismantled the tents and confiscated all of the equipment – including tents, mattresses and toys. ACRI urgently contacted Jerusalem Mayor Nir Barakat demanding that the municipality return all of the confiscated equipment and allow them to remain in the Sacher Park until appropriate housing solutions are found for them.
Tali Almi, Coordinator of ACRI’s Jerusalem Public Hotline, pointed out in the correspondence that the Attorney General has made clear that the confiscation of personal items from the homeless is justified only if its presence causes substantial harm to the public space it occupies. Additionally extra care must be taken not to damage their belongings. The Attorney General’s position was evinced in a separate case regarding the Tel Aviv Municipality’s harassment of homeless persons in public places.
According to Almi, in the case of the families who set up tents in Sacher Park, it is inconceivable to claim that the tent structures could have caused any substantial harm to the public use of the space. “These are people who are forced to sleep on the streets due to financial hardship and the bylaws of the municipality must take into account their right to live with dignity in the public sphere. The Jerusalem municipality should be working to find solutions for the families who were forced to establish the encampment from a position of economic hardship. Evacuating them from the public space they inhabit should be a last resort adopted only after exhausting all other options of resolving the crisis.”
Biometric Time Clock for Workers
The Sderot Municipality recently initiated a policy requiring its employees to use a biometric time clock in order to signal their attendance at work, ordering them to provide their fingerprints and “agree” to the establishment of a database containing their biometric data. Three workers in the education department refused to participate in this scheme, and were punished by having their wages withheld until such time as they agreed to join the scheme. The workers, represented by Attorney Jonathan Klinger, turned to the Be’er Sheva District Court and requested that the city refrain from withholding their wages whilst litigation was taking place. The request was denied, leading to an appeal to the National Labor Court.
On July 21, 2013, ACRI provided the court with its position via amicus curiae brief. In the document, prepared by Attorneys Avner Pinchuk and Tal Hassin, it is made clear that many employers in Israel violate their workers’ right to dignity and privacy, but that this disturbing reality is not sufficiently reflected in the judgments of the Labor Courts.
The decision of the Be’er Sheva District Labor Court to reject the request of the workers to temporarily prevent the withholding of their wages, reinforces the power differential between employers and employees and places them at even more acute disadvantage. Without the temporary relief that would allow financial and emotional burden of conducting negotiations with their employers may mean they will need to give up on their efforts to defend their rights.
Prior to the appeal, which was to be heard by the National Labor Court on 15 October 2013, the municipality announced that it would pay all of the salaries owed to the petitioners. The trial is due to return to the District Court where we hope that the question of how employers exert power over employees in cases of new technology will still be considered by the court.
September 1, 2013 – Reproductive Rights for Same-Sex Couples
On September 1, 2013, an extended panel of seven Justices at the High Court of Justice rejected a petition by a lesbian couple who requested to be able to bring a child into the world through the following procedure: an egg would be taken from the body of one of the women, it would be fertilized externally and implanted in the body of the second woman. The Health Ministry permitted the performance of the first phase of the procedure in Israel, but claimed that the law does not presently permit the second phase – the implantation of the fertilized egg into the body of the second woman. As such, the ministry decided that the procedure could only take place abroad.
A number of Justices recommended to the couple that they accept the Health Ministry’s compromise to perform the first phase of the procedure in Israel and travel overseas to complete it, but the couple rejected the overture and decided to await the ruling of the court.
In a slim majority of 4-3, the High Court of Justice denied the women’s petition.
September 12, 2013 – A legal precedent for leniency in sentencing for transgender criminals
A transgender man, convicted of armed robbery, has had his sentence reduced by the Israeli Supreme Court on September 12, 2013, due to the Israeli Prison Service’s policy of isolating prisoners whose sexual identity is unclear. The prisoner was originally convicted of robbing a gas station near Eilat and threatening the attendant with a knife.
Justice Salim Joubran made special reference in the ruling to the constitutional right of transgender persons to equality under the law, while Justice Neal Hendel considered the various legal considerations that must be taken into account, especially when dealing with particularly harsh sentencing arrangements, such as isolation.
The Justices’ rulings referred to statements by the Prison Service, which explained that they are sensitive to the situation of transgender persons, and so take care to accommodate for them by not placing them in the general male or female prison population. This sensitivity is likely to set a precedent in future criminal cases involving transgender persons.
Follow up: following media reports regarding the lengthy period of solitary confinement awaiting the prisoner, Israeli President Shimon Peres, on the recommendation of Justice Minister Tzipi Livni, granted clemency to the prisoner. Instead of serving time in solitary confinement, the prisoner will instead spend the ten months performing community service.
