Thursday, January 12, 2012

Human Rights Center: Israeli Courts Deprive Palestinian Victims of Access to Justice

RAMALLAH, December 27, 2011 (WAFA) – The Israeli judicial system is partial and biased against Palestinian. It often imposes procedural barriers, and other times, impose more financial burdens, Thursday said a press release published on the Palestinian Center for Human Rights (PCHR) website.

It said the policies of the Israeli government further imposes physical barriers on effective access of Palestinian victims to the Israeli courts, thus depriving Palestinian victims in general, and victims of the Israeli offensive on the Gaza Strip (27 December 2008 – 18 January 2009), codenamed “Operation Cast Lead,” in particular of remedy and redress according to international human rights instruments.
In spite of all such barriers, the Palestinian Center for Human Rights PCHR will continue its serious efforts to ensure remedy for victims, as it is the legal representative in 100 cases on behalf of 626 Palestinian victims affected by Operation Cast Lead.

Strongly believing in the universality of human rights, PCHR will continue it work to face injustice, assist the victims and confront the barriers imposed by the Israeli occupation authorities.

In the context of their effort to deny the victims their right to justice and remedy, Israeli courts of various degrees considering cases filed on behalf of victims of Operation Cast Lead issued a series of decisions limiting access of Palestinian victims to justice.

The most significant decision in this regard was the one compelling each claimant in a civil case to pay a court insurance fee or bank guaranty of 20,000 NIS before the court will allow the case to proceed. If the money is not paid within 60-120 days, the claim will be dismissed.

The insurance fee means that the claimant or his/her representative must pay it to the court’s fund directly, while the bank guaranty is a financial guaranty signed by the claimant or his/her representative to a bank, and the bank deposits such signed guaranty in the court’s fund.

This decision has been issued in regard to 14 of the cases followed up by PCHR before Israeli courts. PCHR filed a number of petitions at the Israeli High Court in Jerusalem, demanding canceling these decisions or decreasing the amount of the guaranty. PCHR established its claim on a number of points, including, inter alia:

1. Determining the Ministry of Defense’s responsibilities for the incidents and the resulting damage.
2. Depositing a guaranty aims at blocking the way for claimants to file compensation claims for the damage incurred to them, as they have the right to know the reasons of killing their family members and it is not a form of fraud on the state.

3. Article 8 of the Basic Law relating to respect for the individuals and their freedom, which is applicable in the Israeli courts, establishes that the rule is that a guaranty must not be obligatory, and the exception is compelling payment of such guaranty.

4. The request to deposit guaranties followed the deposition of the prosecution’s response and before the prosecution explained its narrative of the incidents individually.

5. The amounts of guaranties are too high, especially as the economic conditions of the Gaza Strip’s population is extremely deteriorated.

6. The expenses for the prosecution, when opening an investigation in each case, are less than the amounts required to be deposited.

In its response to PCHR’s petition, the Israeli prosecution claimed that the filed cases relate to incidents that occurred in the context of a clear military operation (Operation Cast Lead), which the Israeli military was forced to launch according to decisions taken by the government of Israel (a military operation, according to the Israeli Civil Torts - Liability of the State – Law of 1952, provides complete impunity against damage claims).

The prosecution further claimed that the claims that are instituted are relating to compensation with dozens of millions of NIS, and due to the high number of claimants and incidents, it is expected that the prosecution is likely to endure high expenses to make a single checking for each incident, its circumstance and the alleged injury.
Additionally, it claimed that the claimants are non-citizens or non-residents of the State of Israel, and they cannot prove that they have property in territory of the State of Israel (the claimants are out of the jurisdiction).

For this reason, according to the prosecution’s claim, it is difficult to endure the expenses if the claim is rejected, and the guaranty compels the claimant to be serious in his/her claim.

In turn, the Israeli High Court rejected PCHR’s petitions and upheld the prosecution’s claims, which confirms the Israeli judiciary’s collusion, its surrender to the government’s dictations and its provision of a legal cover for the government’s illegal actions.

PCHR reiterates that the decisions taken by the Israeli courts with regard to guaranties constitute a large monetary barrier, which deprives the victims of their fundamental right to have an effective judicial remedy, including compensation, in violation of fundamental human rights ensured under the international law.

The right to get compensation is very essential for victims to rebuild their lives partially, although such compensation is worthless in comparison to their loss.

Accordingly, PCHR believes that under the current situation, and in light of such decisions by the Israeli courts and the Israeli judiciary’s bias against Palestinian victims, compensation is one of the remaining little hopes to achieve some form of justice.

It should be noted that the decisions relating to guaranties are part of a series of decisions and measures that have been taken by Israeli occupation authorities over years in order to prevent Palestinians from claiming for compensation before Israeli courts for violations they are subjected to.

On July 27, 2005, the Israeli Knesset approved an amendment to the Civil Torts Law (Liability of the State) of 1952, preventing Palestinians from claiming for compensation for the State of Israel. In response, 9 human rights organizations, including PCHR, filed a petition at the Israeli High Court challenging the law, and were able to obtain a decision allowing Palestinians to institute individual compensation claims before Israeli courts, and the judge would have the power of appreciation to adjust or reject it, and estimate the amount of the guaranty.

The Civil Torts (Liability of the State) Law had previously been amended to decrease the statute of limitations with respect to a compensation claim from 7 to 2 years, and requiring that a written notice be sent to the Israeli Defense Ministry within 60 days of the incident otherwise the right to judicial remedy will be terminated.

Other monetary barriers include also that Israeli courts often require claimants to pay insurance fees before initiating the judicial procedures. Such fees are left for estimations of courts. Concerning claims related to damages incurred to property, the fees are proportions of the values of property.
In claims related to killings and injuries, there is no specific range for fees. Due to such monetary burdens, PCHR was forced to return several files to the victims.

In addition, there are also physical barriers facing the victims. Since 2007, in spite of decisions by courts summoning victims or eyewitnesses, IOF have prevented them from traveling outside the Gaza Strip. As a result, the Israeli courts dismissed many claims under the pretext of the non-presence of eyewitnesses, and even imposed fines on them.

These barriers are part of a series of systematic restrictions imposed by Israel to limit the ability of Palestinian to claim for compensation before Israeli courts for damage caused to them by Israeli occupation forces. Such restrictions make achieving justice and judicial remedy for Palestinians impossible, so the resort must be to international justice mechanism.

PCHR will continue to use all available means to ensure victims’ fundamental human rights, including the right to reparation. Recently, a compensation of 500,000NIS was secured on behalf of the family of Rayah Salama Abu Hajjaj, 64, and Majeda ‘Abdul Karim Abu Hajjaj, 37.

These two women were killed by Israeli forces near Juhor al-Dik village during Operation Cast Lead. The compensation was awarded in an out of court settlement.

Palestine News & Info Agency - WAFA

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