In First, Israel's Top Court Refrains From Freezing House Demolition Order in Terrorism Case

Although the High Court abstained from issuing the order against the home of Eliyahu Kay's murderer, the filing of the petition against it automatically freezes the demolition

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A sign reading 'death to terrorists' at a demonstration in the Old City of Jerusalem after the attack in which Eliyahu Kay was killed in November.
A sign reading 'death to terrorists' at a demonstration in the Old City of Jerusalem after the attack in which Eliyahu Kay was killed in November.Credit: Emil Salman
Netael Bandel
Netael Bandel

The High Court of Justice has for the first time refrained from issuing a freeze order for the demolition of a terrorist’s house to avoid harming the victim’s grieving family with procedural misunderstandings.

Judge Barak-Erez criticized the state for, among other things, not informing the family of Eliyahu Kay in advance that an order might be issued to freeze the demolition of the terrorist's house, which would then lead to a hearing.

“Why do we always have to go through this procedure, with a petition submitted, followed by an injunction, with the bereaved family hearing on the radio that a temporary stay order was issued?” Erez-Barak asked.

“It upsets them. Why can’t you tell the family in advance that you’ve taken time to submit the petition and that a temporary injunction will be issued so that a hearing can take place. Why isn’t this taken into account?”

Attorney Safdie Attila, who represents the state's prosecutor's department with High Court cases responded, “They are updated regarding the demolition order, but not about its implementation.”  

The scene of the attack in which Kay was killed, in November.Credit: Ohad Zwigenberg

After Atilla said that the legal dynamics are clear, the judge continued: “It’s clear to you but not to the bereaved family, and this could hurt them unnecessarily. On one hand, it may not be the right procedure with regard to the petitioners, but it’s also not so for the family.”

A petition against the demolition of the house of terrorist Fadi Abu Shkhaydam, who carried out a fatal shooting attack in the Old City of Jerusalem in November, was filed this week by his wife.

And although the High Court refrained from issuing a temporary freeze order, the very filing of the petition would freeze the demolition, angering right-wing organizations.

In February, the High Court dealt with a petition that tried to cancel the use of order No. 119, which permits the demolition of the houses of people who have carried out a terrorist attack. The petition was filed by the family of the terrorist who killed Esther Horgan near her home.

Before the hearing, right after the petition was filed, the court froze the demolition order issued by the IDF to prevent the creation of a fait accompli, and to allow arguments to be heard in court before the demolition. This is the court’s customary pattern.

As on previous occasions, this time, too, right-wing activists assailed the High Court for holding up the order. The Im Tirtzu NGO issued a condemnation, saying “the court’s temporary ruling yet again undercuts Israel’s efforts to combat terror. It’s time for this juridical terror to stop.”

Another right-wing NGO, Betzalmo, also denounced the ruling. “The High Court of Justice repeatedly harms the war on terror. Every delay in demolishing the house of a terrorist amounts to one thing – rewarding terror and issuing an invitation for the next murder.”

The right-wing website Srugim said, “Justice Daphne Barak-Erez, who stopped the demolition of the house of the terrorist who murdered Amit Ben-Yigal, has halted the demolition of the house of the terrorist who murdered Esther Horgan.”

Jessica Montell, director general of the human rights group HaMoked, an NGO assisting Palestinian prisoners, whose lawyers are the ones filing most of the petitions against the demolition of terrorists’ houses, said that “the executive branch is motivated by considerations of placating public opinion in its decisions regarding punitive demolitions, but when such considerations reach the judicial branch of government, this is much more troubling.”

“It’s hard to shake off the impression that there are judges who worry more about criticism from the right than about the illegality of demolishing the house of an innocent family. In this case, one wonders if the court is afraid to issue a temporary injunction, and to what extent one can still expect the High Court of Justice to revoke a demolition order in the course of a hearing?”

The court hearing was attended by the forum of bereaved families associated with Im Tirtzu. This forum has in the past assailed the High Court for suspending house demolitions, such as in the case of the terrorist who murdered Ori Ansbacher. The forum said at the time that “this was a delusional ruling which again shows how disconnected the High Court judges are from reality. This ruling, even if it is a temporary one, is a reward for terror, spitting in the faces of bereaved families.”

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