Israel's High Court Waving a 'Black Flag' Over Rights Groups' Petitions, Experts Say

Comments by University of Haifa dean made in reaction to High Court decisions in which unusually high legal costs have been imposed on NGOs which are funded by donations.

Tomer Zarchin
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"The High Court of Justice is 'flying a black flag' over petitions being submitted to it by human rights groups and this could deal a severe blow to civic society," says Prof. Gad Barzilai, dean of the Faculty of Law at the University of Haifa.

Barzilai was reacting to a series of High Court decisions in which unusually high legal costs have been imposed on NGOs which are funded by donations. Such financing has dwindled recently because of right-wing and other pressure, and this could discourage them from appealing to the courts to correct social injustices, he said.

Last Friday, Haaretz reported that unusually high court costs were being handed down to groups appearing as petitioners on behalf of the public before the High Court. Last week, a panel presided over by Supreme Court President Asher Grunis ordered the Association for Civil Rights in Israel, Physicians for Human Rights and the Adva Center to pay NIS 45,000 in court costs after rejecting their petition (against allowing doctors to offer private treatment at a public hospital being built in Ashdod ) because they had waited too long to file it.

On three other occasions recently, NGOs filing petitions on matters of principle were ordered to pay costs of between NIS 15,000 and NIS 17,000. In Barzilai's view, the High Court is trying to reduce the number of petitions it receives, although in the past, especially around the mid-1990s, public bodies were encouraged to submit them and they were made more easily justiciable.

"Human rights groups naturally undertake considerable risks when they file a petition," says Barzilai. "The High Court is waving a black flag and warning them that they should think twice - or even more - before petitioning, because they might find themselves saddled with heavy costs. Undoubtedly, this turn of events will discourage public bodies from filing petitions."

Dr. Arye Carmon, president of the Israel Democracy Institute, thinks differently: He supports a sharp reduction in High Court petitions in general and favors legislation in that vein. The tremendous caseload of petitions is an "alarming phenomenon that ties the hands of of decision-makers and prevents them from doing their job," says Carmon. "The number of petitions submitted by public bodies here is way out of proportion in comparison with other countries."

Carmon argues the court should have rejected several petitions submitted by public groups because they constituted a gross interference in the decisions of the executive branch.

"There are too many organizations that thrive on their reputation as public crusaders although no one has authorized them to act as such," he says. "Access to the High Court should be limited, as was true several decades ago when only petitioners with a personal interest vis-a-vis an issue with public ramifications could file one."

Carmon adds that if the right to petition were limited, the justices could deal more efficiently with their cases.

For his part, Dan Yakir, ACRI's legal adviser and one of Israel's leading human rights lawyers, emphasizes that in contrast with other petitioners, a public body that submits a petition to the High Court has no ax to grind and is interested only in correcting social injustice.

"The court should not punish a public body for bringing an issue to its attention which it must address, even if the petition is later rejected," Yakir says. "The imposition of heavy court costs on public groups ... has a doubly negative effect. First, most rights groups have a limited budget that has been adversely affected by the financial situation in recent years. The need to allocate funds to cover court costs will undermine their ongoing activities. Second, the trend could have a deterrent effect and might reduce the number of public petitions and number of cases of social injustice brought before the courts."

According to Prof. Danny Filk, chairman of PHR, the new trend of demanding payment of steep court costs has alarming implications for the principle of equality before the law, because "money might become a significant consideration to be weighed by a public body that is trying to decide whether to file a petition."

"The petition we submitted regarding private medical services at the Ashdod hospital was focused on a matter of principle," he says. "It was neither a petty nor a marginal issue. If the High Court's new policy is to impose high legal costs on the petitioner whenever a petition is rejected, we will have to prioritize. But we will continue to submit petitions on important matters of principle - even if we have to pay the court costs."

Israel's High Court of Justice in Session.Credit: Tomer Appelbaum
Gad BarzilaiCredit: Tomer Appelbaum