The Public Defender’s Office criticized its own ministry’s plan to significantly raise penalties for illegal construction, a move that would adversely affect the Israeli-Arab community.
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In a long legal opinion, the Public Defender’s Office stated that a number of the proposed amendments to the Planning and Building Law are “an extreme and disproportionate solution,” and no justification exists to raise the level of punishment for building offenses.
The Public Defender’s Office’s opposition follows those raised by a coalition of civil-society organizations against the bill, which is being advanced by the Justice Ministry and would increase the Finance Ministry’s enforcement powers.
The Knesset Interior and Environment Committee, chaired by MK David Amsalem (Likud), is expected to approve the proposed amendments with only minor changes. The Knesset will then likely pass the legislation to harshen the punishments on illegal construction, which will be implemented mostly in Arab communities.
The legal opinion, which Haaretz has obtained, states that the intention to expand the number of bodies that can be criminally prosecuted for illegal construction could turn large numbers of normal people into felons with a criminal record.
The Public Defender’s Office says that many of those who violate planning and building laws are “citizens who have despaired of the authorities’ handling of their cases.” Many of these citizens are poor people who are struggling to make a living and who carried out the violations based on a critical need – for example, in cases where people live in areas without any approved master plans or in areas where such planning takes many years, while the local governments don’t provide any solutions for their citizens’ basic needs.
The proposed changes significantly increase the penalties for illegal construction, but do not differentiate between various types of violations or construction. For example, building without any permit at all would be treated no differently than construction that deviates from what was allowed in a legally issued permit.
The Public Defender’s Office says this violates the principal of proportionality in punishment.
In addition, the proposed amendment does not differentiate between those who violate the law in order to make a profit and those who do so for reasons unconnected to their acts, such as a lack of proper planning in the area.
“We must be careful about excessively raising the level of punishment,” the legal opinion noted. Raising it only for the purpose of deterring the public does not provide a solution in many cases – such as when the construction is essential or if there is a lack of response from the authorities.
Reviewing a long list of sections that would limit judges’ ability to take such circumstances into consideration, the legal opinion says the new law would create a situation in which the courts are unable to apply the law appropriately to the unique circumstances of the crime or individual, which could harm civil rights and the right to due process, and could undermine the public’s faith in the judicial system.
The bill would also allow authorities to make administrative decisions without placing any time limits on the process, and without granting the public the right to be heard, sometimes without court approval. This raises a serious fear of misuse of power by the authorities and potentially harming citizens’ rights, said the defender’s office.
The Justice Ministry’s proposed amendment is “a step too far,” said MK Yael Cohen Paran (Zionist Union). Of course the laws must be enforced and illegal construction should be prevented, she said, but the proposed law is intent on turning everyone who makes even the slightest deviation from the building permit into a criminal, and will limit the judiciary from being flexible, she warned.
Cohen Paran said it was a shame that the Public Defender’s Office’s legal opinion had not been presented to the committee, which raised questions about the fairness of the entire legislative process concerning the law.
Amsalem had yet to respond to a request by Haaretz by press time.