Yassin V. Minister of Defense.Pdf
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The Supreme Court Sitting as the High Court of Justice HCJ 9060/08 Before: The Honorable President A. Grunis The Honorable Justice S. Joubran The Honorable Justice U. Vogelman The Petitioners: 1. Khaled Abdallah Abd al-Ghani Yassin 2. Harbi Ibrahim Mustafa Mustafa 3. Abd al-Rahim Abdallah Abd al-Ghani Dar Yassin v. The Respondents: 1. Minister of Defense, Ehud Barak 2. IDF Commander in the West Bank 3. Head of Civil Administration 4. Police District Commander for Judea and Samaria, Shlomo Katabi 5. Beit El Local Council 6. Beit El Yeshiva Center Applicants to Join: 1. M.K Zehava Galon 2. The Meretz faction 3. The Ta’al faction 4. M.K Dr. Ahmad Tibi 5. Guy Sagiv 6. David Abudraham 7. Hana Yifat Abudraham Application of Respondents 1-4 dated April 27, 2012 Date of Session: 14th of Iyyar, 5772 (May 6, 2012) For the Petitioners: Adv. Michael Sfard; Adv. Shlomi Zacharia; Adv. Avisar Lev For Respondents 1 – 4: Adv. Uri Keidar; Adv. Osnat Mandel For Respondent 5: Adv. Nethanel Katz For Respondent 6: Adv. Yaron Kostliz; Adv. Noa Firer For Applicants to Join 1- 2: Adv. Omer Shatz For Applicants to Join 3- 4: Adv. Osama Saadi; Adv. Amar Yaasin. For Applicants to Join 5-7: Adv. Ehud Yelink Facts In HCJ 9060/08 petitions were filed with the High Court against the illegal construction of structures on a site next to the Beit El settlement. Following a series of hearings the State notified the court of its adoption of a policy concerning the demolition of illegal building on private land and the arrangement of construction on State land. As a result of this policy, illegal construction located on private land would be removed. The Court gave a judgment giving effect to the State's undertaking to ensure the removal of the illegal structures within one year of the filing of said notification. One year later the State filed an application to "renew the hearing of the petition" based on the desire to reconsider the manner of implementing the policy regarding illegal construction on private land. The State's reasons for the application were: (a) that an action had been filed in the District Court concerning the substantive question of the ownership and hence the legality of the structures and the inappropriateness of ignoring the existence of a pending action which was of clear relevance to the demolition order; (b) that the examination of the structures under adjudication in the petition could not be separated from illegal construction in other locations. The policy relating to priorities in enforcement of the law in the Zone should therefore be reconsidered, keeping in mind planning and property aspects and other political, public and operational aspects. The State therefore requested that the court grant a delay to enable the formulation of an updated policy, during which the structures would not be removed. The petitioners opposed the request, arguing that the State's failure to fulfill its obligation contained in a judgment constituted contempt of court, that there was no procedural proceeding that enabled the opening of a completed proceeding, and that the State's change of position was politically motivated and was not supported on legal grounds. Held In his decision of 7 May 2012 President Grunis ruled that there were no grounds for reopening the hearing on the petition. President Grunis ruled that the principle of res judicata does not allow the opening of an already completed proceeding. The principle of res judicata is based on a number of public interests. It enables the delineation of the borders of the legal proceeding, it assists in clarifying the legal position, it prevents the inconveniencing of litigants with the same legal issue and repeat litigation, and it ensures the proper functioning of the judicial system. From a constitutional perspective, the principle of res judicata also reflects the separation of powers between the branches of government in the sense that it signifies the termination of role of the judicial branch in the matter, given that the execution of judgment is a matter for the executive authority. The President further noted that apart from the res judicata issue, the State’s request to open the case also undermined the basic principle of fulfillment of judgments that ensures that the judicial proceeding does not become a meaningless, farcical proceeding, but rather that its results be executed within the time period prescribed by the court. This principle is particularly relevant when the body charged with execution of the judgment is the state. Finally, a change of policy is not grounds for deviating from the principle of res judicata, for otherwise the court would be required to reopen proceedings whenever a change in policy was decided on. Israeli Supreme Court Decisions Cited [1] HCJ 3267/97 Rubinstein v. Minister of Defense [1999] IsrSC 55 (2) 241. [2] HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General (not reported, 22.2.2006). [3] HCJ 29/52 S.A. Shachupek v. Tel Aviv – Jaffa City Council [1953] IsrSC 7 603. [4] CA 9085/00 Shitrit v. Sharvat Brothers Construction Co. Ltd [2003] IsrSC57(5) 462. [5] HCJ 9669/10 Abd el-Rahman Kassam Abd el-Rahman v. Minister of Defense [2014]. [6] HCJ 7891/07 Peace Now Movement - Sh.A.L. Educational Enterprises v. Minister of Defense [2013]. [7] HCJ 306/85 Kahane v. Knesset Chairman [1985] IsrSC 39 (4) 485. [8] HCJ 8887/06 Yusuf Musa Abd a-Razeq al-Nabut v. Minister of Defense (not yet reported, 25.3.12) Decision President A. Grunis 1. Five permanent buildings and five prefabricated structures which were erected adjacent to the Beit El settlement, on a site known as "the Ulpana Hill" are the focus of this proceeding. In the petition forming the subject of the current proceeding, filed on 29 October 2008, the court was requested to order the execution of demolition orders and stop-work orders issued against these structures. Four hearings were conducted in the presence of the litigants, at the end of which a judgment was given on 21 September 2011. In the course of clarifying the petition a long series of notifications was submitted to the court by the litigants as well as responding affidavits of the Respondents, after the issuing of order nisi in the petition (on 15 September 2010). In the responses of Respondents 1 - 4 (hereinafter: – "the State") it was consistently claimed that the land upon which the structures were built or located was privately owned Palestinian land. Accordingly the Civil Administration issued stop-work orders and demolition orders for the structures. The claims raised by Respondent 6, the Beit El Yeshiva Center concerning the purchase of the land by the settling movement "Amana" were examined by the State and rejected. The State's argument, as raised in the course of the hearings concerning the petition, is that since the structures were erected on settled land registered in the Tabu books, no validity attaches to the purchase claims for as long as the registration has not been altered. The State further told us that no transaction license had been requested for the alleged purchase, and in the absence of such license, the transaction, to the extent that it occurred, is invalid (notice on behalf of the State on 10 January 2010). 2, On 1 May 2011 the State filed a response to the order nisi in which it stated that on the 28 February 2011 the Prime Minister had convened a meeting with the participation of senior ministers, the Attorney General and other relevant officials. In this meeting "the foundation was laid for an integrated policy concerning the demolition of illegal building on private land and regarding the arrangement of construction on State land, so that as a rule, illegal construction located on private land was to be removed". In that meeting it was also decide to take measures for the removal of the structures forming the subject of the petition within a year (response on behalf of the State of 1 May 2011, pp. 4 - 5). 3. Following the notification of the State a judgment was given on the petition, at the end of the hearing conducted on 21 September 2011 (President D. Beinisch, Justices S. Joubran, and U. Vogelman). The judgment anchored the State's notification of 1 May 2011 to the court, and determined the following: "We have recorded the State's notification of 1 May 2011 and the notification given to the court today - that pursuant to the decision adopted in a meeting headed by the Prime Minister and additional ministers in the Government, as well as the Attorney General, in accordance with which construction on private land would be removed, as opposed to construction on State land; it was decided that the construction forming the subject of the petition would be removed within one year of the filing of the said notification…. to the extent that the structures are not demolished before then by the possessors thereof. In this notification the petition has been exhausted and the proceeding was terminated". Hence, in accordance with the State’s notification to the court, which was incorporated into this judgment, the State was supposed to have demolished the structures by 1 May 2012. 4. A year passed from the time of the State's notification being given, but the demolition orders were not executed. Instead, on the 27 April 2012, a few days before the termination of the period for the demolition of the structures, the State filed a notification and application to "renew the hearing of the petition".