HCJ 3519/05
1. Salah Nabil Yunis Uared 2. HaMoked: Center for the Defence of the Individual v.
1. The Commander of the Army Forces in the West Bank 2. The Commander of the Army Forces in the Gaza Strip
The Supreme Court Sitting as the High Court of Justice [July 12 2006]
Before Justice E. Rivlin, Justice E. Rubinstein & Justice E. Hayut
Petition for an Order Nisi
For Petitioners: Gil Gan-Mor & Yossi Wolfson For Respondents: Dani Chorin
JUDGMENT
Justice E. Hayut:
This petition regards the request of petitioner no. 1 (hereinafter: "petitioner"), who was held in administrative detention and released on February 21 2005 to the Gaza Strip, to allow him to return to the city of Jenin in the Judea and Samaria area, where he had been living with his family when he was arrested.
The Essential Relevant Facts
1. Petitioner is a Palestinian, who was born in 1985. In 1994, when he was nine years old, petitioner arrived with his family, from Lebanon, to the Gaza Strip, and their entrance into the Gaza Strip was permitted at that time due to the fact that petitioner's father was an official in the Palestinian security apparatus. On December 18 1995, petitioner's father was granted a permit to enter Israel, valid until December 30 1995, for the purpose of passage from the Judea and Samaria area "for personal needs". Soon after, in 1996, as it appears from the petition and its appendices, the entire family moved to the city of Jenin, but in the Palestinian Population Registry, petitioner's family members, including petitioner, remain registered as residents of Gaza to this very day. On June 1 2004, petitioner was arrested near Shechem and placed in administrative detention, due to intelligence information collected by security officials that indicates that petitioner was involved in military terrorist activity. Approximately nine months after, on February 21 2005, petitioner was released, along with about 500 additional Palestinian prisoners and detainees, in the framework of a political gesture on the part of Israel toward the Palestinian Authority. Petitioner was released to the Gaza Strip, and according to the State's argument, that was since "the criterion for releasing prisoners in one place or another is their registered place of residence" (paragraph 12 to respondents' response, of June 25 2006, to the request for additional details).
2. After he was sent to the Gaza Strip, petitioners contacted respondents and requested that petitioner be allowed to return to his house in Jenin where his family lives, and not having been answered, this petition was submitted. In their preliminary response to the petition, respondents noted that their opposition to petitioner's passage from Gaza to Jenin stems from intelligence information regarding him, that indicates that petitioner is an active military terrorist who is liable to endanger the security of the area, the security of the State, and the safety of the public, and that the danger posed by him in Gaza is considerably smaller than the risk posed by him if he should be in the Judea and Samaria area. Petitioners raised principled arguments regarding the status of the West Bank and the Gaza Strip as one territorial unit; regarding respondents' lack of authority to deny or restrict the right of the residents of these areas to move from one area to another; and regarding the purely technical meaning of the population registry and the address registered in it. Petitioners further argued that residents' conduct in this case constituted a violation of human rights and a breach of international law, as well as Israeli administrative and constitutional law, especially due to the lack of issuance of a residence assignment order regarding petitioner, with all the rights that entails, as discussed by this Court in HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56 PD (6) 352 (2002) (hereinafter: Ajuri), including: the requirement that the order be extended once every half year, the holding of a hearing and the granting of an opportunity to the assignee to make his arguments before the committee via an attorney, the duty to economically support the assignee and his family during the period that the order is in effect, and examination whether there is evidence of a real security risk stemming from the assignee himself, as opposed to merely an abstract risk.
3. In the decision of September 28 2005, another panel of this Court granted an order nisi ordering respondent no. 1 to give reason why he should not allow petitioner to return from Gaza to his home and his family in Jenin, in the West Bank. As a result, respondents filed a response, which they asked to see as their skeleton argument, in which they reiterate that their opposition to petitioner's passage from his registered place of residence in Gaza to Jenin is based upon updated intelligence information indicating that petitioner was involved in military terrorist activity, and is still involved in it today, and thus, according to their argument, he poses a real risk to the safety of the public and the security of the State. That risk, they further argue, is considerably smaller when petitioner is in Gaza than it would be if he were in the Judea and Samaria area. Regarding the legal basis of their position, respondents emphasize that according to the security legislation that applies in the area, respondent no. 1 has the authority to prevent Palestinians who are not residents of the Judea and Samaria area – which has been declared a closed area – from passing from Gaza to that area, to the extent that it is necessary in order to protect its security, a fortiori after the declaration of the end of the military government in the Gaza Strip on September 12 2005. According to respondents' argument, their position has been confirmed time and time again by this Court, and they further argue that their position does not contradict the ruling in Ajuri, the case of family members of a terrorist who were residents of the Judea and Samaria area, whose residence had been assigned to the Gaza Strip for security reasons, pursuant to the order issued by respondent no. 1. In this case, however, there is a petitioner whose registered address is in the Gaza Strip, and for that reason was released there. Regarding the registration, respondents further argue that for years, and even after the signing of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip on September 28 1995 (hereinafter: "the interim agreement"), respondent no 1's permission for changing one's residence from the Gaza Strip to the Judea and Samaria area was needed, and the Palestinian side recognized said authority of respondent no. 1. Respondents further argue that the parties routinely acted accordingly until September 2000, and that during all those years Israel approved moves of residence to the Judea and Samaria area according to applications relayed by the Palestinian Authority, unless there was a security reason preventing it. In September 2000, and in light of the armed conflict that broke out between Israel and the Palestinians, Israel stopped approving passage of Palestinians from Gaza to the Judea and Samaria area and changing of residence to the Judea and Samaria area, except in a number of exceptional cases which were approved for humanitarian reasons over the past year. According to respondents' arguments, respondent no. 1 was never asked by the Palestinian Authority to approve a move of the residence of petitioner and his family from Gaza to Jenin, and such approval was thus of course not given. Thus, respondents further argue, petitioner and his family have been present in Jenin since 1996 with no legal permit, and petitioner cannot rely upon that situation in order to receive the relief he requests. Last, respondents argue that the issue of changing residence from the territory of the Gaza Strip to the Judea and Samaria area is a political issue that touches upon the relations between Israel and the Palestinian Authority, and was even discussed in the contacts between those parties until recently. In light of that character of the issue, and in light of the fact that it regards the State's foreign relations, respondents are of the opinion that the government has the prerogative to decide it, and that it is not proper for the Court to intervene in it.
4. In the hearing we held on July 12 2006 after the filing of the skeleton arguments, respondents declared that due to the military terrorist activity in which petitioner was involved, petitioner had become wanted by the security agencies. Respondents once again asked to present classified and updated intelligence material regarding petitioner in camera, in order to provide a basis for their argument regarding the real risk posed by him. However, petitioners did not consent to presentation of that material before us in camera, and thus we were not able to examine it.
Discussion
5. Petitioners raise serious and important questions in this petition, which we have surveyed above. According to the thrust of their argument, these questions should be examined at the outset, and especially, it should be determined whether respondents acted within the framework of their authority when they removed petitioner to the Gaza Strip. The individual balance regarding petitioner, including examination of the risk posed by him, should come, according to their argument, only at the second stage, after their principled stance has been accepted, and this Court should declare the removal to Gaza void and order petitioner's return to the Judea and Samaria area. Only then will it be possible to hold a proper administrative proceeding regarding him, including the issuance of the proper residence assignment order, which includes all the securities that come along with it. In the special circumstances of this case, and especially due to the recent developments regarding petitioner, we cannot accept the outline for decision proposed by the petitioners. The immediate relief requested by petitioners is, as mentioned, an order absolute ordering petitioner's immediate return from Gaza to Jenin, without the security risk posed by him being examined at all at this stage, and without allowing the Court to examine in camera the updated intelligence material regarding him, upon which respondents base their position that petitioner poses a real security risk, to the point of being declared as wanted by the security agencies. Petitioners request this despite the fact that petitioners' counsel himself noted in the hearing on July 12 2006, in response to information regarding petitioner's status as wanted, that in that state of affairs it is doubtful whether petitioner would want to return to the Judea and Samaria area at this time. Petitioners' counsel is, however, of the opinion that it is appropriate to decide the petition on the merits, due to the important questions it raises, and regardless of petitioner's individual case.
We find it difficult to accept that approach.
6. It is settled caselaw that when the petitioner opposes presentation of classified material in camera, a presumption arises in favor of the administrative agency, according to which it made a legal decision based upon that material, and that the onus is upon anyone wishing to overcome that presumption (see HCJ 1227/98 Malevsky v. The Minister of the Interior, 52 PD (4) 690, 711 (1998); AdminApp 5237/05 The Ministry of the Interior v. Carlson (yet unpublished, paragraph 9 of the judgment); HCJ 7712/05 Pollard v. the Government of Israel (yet unpublished, paragraph 12 of the judgment). The significance of the declaration of petitioner as wanted is that he is hiding from the security agencies as an active military terrorist. In these circumstances it seems that this petition, despite the fact that it raises serious questions which are not simple, has become a theoretical petition. The "spearhead" of the petition regards petitioner's individual case, and once petitioner's return to the Judea and Samaria area has become impractical at this time, there is thus no more reason to decide the general questions raised by petitioners, as serious as they may be. As a final comment, we wish to note that it would be appropriate for respondents to consider the determination of guidelines for granting a hearing to a person removed to a particular area, in appropriate circumstances and without issuance of a residence assignment order, so that he can make his arguments if he is challenging the registration in the Palestinian population registry.
For the reasons detailed above, the petition is rejected. No order for costs.
Justice E. Rivlin
I concur.
Justice E. Rubinstein
I concur.
Decided according to the judgment of Hayut, J.
Given today, 1 Av 5766 (July 26 2006).