Administrative Law Commons^™

Cohen V. Minister Of Defense, Dorit Beinisch, Miriam Naor, Uzi Vogelman

Translated Opinions

Petitions seeking remedies concerning the release of foreign arrestees who took part in a flotilla from Turkey to the Gaza Strip were rejected. Following the notice of the Attorney General regarding the release of the foreign arrestees, part of these petitions have become unnecessary, whereas regarding the petitions challenging the decision of the Attorney General, it a decision within the discretion of the Attorney General and there is no reason for intervention. The High Court of Justice (in an opinion written by Justice D. Beinisch) rejected the Petitions for the following reasons:

Following the decision of the Attorney General, the …

Academic Center Of Law And Business V. Minister Of Finance, Dorit Beinisch, Edna Arbel, Asher Grunis, Eliezer Rivlin, Ayala Procaccia, Esther Hayut, Salim Joubran, Miriam Naor, Edmond E. Levy

Translated Opinions

Facts: The Knesset enacted the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (‘amendment 28’), which provides that the State of Israel will establish, for the first time, a (single) prison that will be operated and managed by a private corporation rather than by the state. The constitutionality of this law was challenged by the petitioners, who argued that amendment 28 disproportionately violated the rights of prison inmates as a result of the actual transfer of imprisonment powers to a private enterprise, and as a result of the concern that human rights in a private prison would be violated to a …

Eurocom Dbs V. Bezeq, Esther Hayut, Eliezer Rivlin, Elyakim Rubinstein

Translated Opinions

Facts: Bezeq, the Israel Telecommunications Corporation Ltd., held 49.78% of the shares of “Yes” D.B.S. Satellite Services (1998) Ltd. Another 32.6% of the Yes shares are held by Eurocom D.B.S Ltd. Yes is one of only two providers in the multi-channel television broadcast infrastructure market and in the multi-channel television broadcasting market. The other multi-channel television provider in the market is “Hot”. Bezeq is a public company licensed to provide internal fixed line services, including fixed line telephony and Internet infrastructure. Bezeq also provides the public with a wide variety of communications services through its subsidiary and affiliated companies, …

Regis Ltd. V. Trabelsi, Miriam Naor, Edna Arbel, Elyakim Rubinstein

Translated Opinions

Facts: The respondent company, Dan Rolider Ltd., purchased heavy engineering equipment from the appellant, Regis Ltd., and agreed that a charge would be placed upon the equipment in favor of the appellant. The appellant failed to register the charges with the Registrar of Companies within the statutory 21 days. The appellant defaulted on its debt to the respondent, the CEO and controlling shareholder of the appellant company died, and an application was made to liquidate the company. Following the application for liquidation of the company, the respondent filed an application with the Registrar of Companies to extend the period …

Assessment Officer - Dan Region V. Vered Peri, Eliezer Rivlin, Elyakim Rubinstein, Edna Arbel, Miriam Naor, Esther Hayut

Translated Opinions

Facts: The respondent (the counter-appellant) is the mother of two children, and a lawyer in private practice. The respondent requested to deduct from her taxable income expenditures for her children’s pre-school and day care, as well as payments for afternoon day care for her daughter after she began attending elementary school. The respondent did not request a tax deduction for clubs that the children participated in during the afternoon, nor for day camps during the vacation summer months when the day care center was closed. The respondent argued that had her two children not been looked after in these …

New Family V. Minister Of Labor And Welfare, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia

Translated Opinions

Facts:     The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996.  By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on …

Hamifkad Haleumi V. Attorney General, Miriam Naor, Edmond E. Levy, Dorit Beinisch, Esther Hayut, Ayala Procaccia, Asher Grunis, Salim Joubran

Translated Opinions

Facts: The petitioner is a private company working for the promotion of political program to solve the Israeli-Arab conflict. It applied to the respondents for permission to expose the public to the central principles of its political program by way of advertisements on television and radio. Due to the political contents of the advertisements the Authorities rejected the applications, relying on, respectively, Broadcasting Authority’s Rules - (Advertisements and Notifications on Radio) and the  Second Authority Rules (Ethics in Advertising in Radio Broadcast)  and (Ethics in Television Advertising) (hereinafter-the Rules).

The petitioner contested this refusal in the High Court of Justice, …

Louzon V. Government Of Israel, Dorit Beinisch, Asher Grunis, Miriam Naor

Translated Opinions

This Petition challenges the exclusion of the medication “Erbitux” among the state provided health services, which are publically funded. The medication Erbitux is a new drug for the treatment of colon cancer.

The Supreme Court, sitting as a High Court of Justice, held as following:

It is doubtful whether the demand for public funding of new medications may find a hold in the hard core of the constitutional rights detailed in the Basic Law. Even under a broad interpretive approach with expand the constitutional scope of the right to dignity beyond the necessary minimum in the context of welfare and …

Chim-Nir Flight Services V. Tel Aviv Stock Exchange, Edna Arbel, Eliezer Rivlin, David Cheshin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitioner is the holder of leasing rights on a real estate property, which is held in collateral by the Second and Third Respondent. According to the agreement between them, the payment for realizing the collateral will be divided in a portion of 75 per cent to the Second Respondent (HaPoalim Bank) and 25 per cent to the Third Respondent (Le’umi Bank). HaPoalim Bank …

A V. State Of Israel, Dorit Beinisch, Edmond E. Levy, Ayala Procaccia

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result …

Haifa University V. Oz, Esther Hayut, Miriam Naor, Dorit Beinisch

Translated Opinions

Facts:  The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. …

Agbar V. Idf Commander In Judaea And Samaria, Elyakim Rubinstein, Edmond E. Levy, Yoram Danziger

Translated Opinions

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of six months.

In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed …

Emunah V. Prime Minister, Ayala Procaccia, Asher Grunis, Edna Arbel

Translated Opinions

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the …

Kav Laoved V. National Labour Court, Eliezer Rivlin, Dorit Beinisch, Edmond E. Levy, Asher Grunis, Miriam Naor, Edna Arbel, Esther Hayut, Salim Joubran, Ayala Procaccia

Translated Opinions

Facts: Palestinian workers filed claims in the Labour Courts against their Israeli employers with regard to their employment in the Israeli enclaves in Judaea and Samaria. These claims gave rise to the question whether these employment relationships were governed by Israeli law or by the local law of Judaea and Samaria, which is Jordanian law, the significance of this question being that Israeli law grants workers more rights and protection than Jordanian law.

The National Labour Court held on appeal that in the absence of any stipulation on this issue in the employment contracts, these employment relationships were governed by …

Yassin V. Government Of Israel, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A Petition under the Contempt of Court Ordinance, based on the argument that despite the long period of time that had elapsed since the hand down of the decision in HCJ 8414/05, Yassin v. The State of Israel (April 9, 2007), where the High Court of Justice ordered the Respondents to change the path of the security fence in the Bilin Area, in a …

Abu-Madigam V. Israel Land Administration, Salim Joubran, Edna Arbel, Miriam Naor

Translated Opinions

Facts: In response to large scale incursions onto state land in the Negev by Bedouins and their planting of agricultural crops on that land, the respondents decided to destroy the crops by spraying herbicide from the air. The petitioners challenged this policy on the grounds that the spraying of herbicide was done ultra vires and also endangered the health and dignity of Bedouins in the vicinity of the spraying. The respondents denied that the herbicide used presented any risks to health.

Held: (Justice Joubran) The respondents have no power under the law to spray herbicide in order to prevent incursions …

Mayor Of Ad-Dhahiriya V. Idf Commander In West Bank, Aharon Barak, Dorit Beinisch, Eliezer Rivlin

Translated Opinions

Facts: The petitioners challenged the construction of a concrete barricade, with a height of 81 centimetres, along a section of road in the south of Mount Hebron in the territory of Judaea and Samaria. The respondents argued that the barricade was required for security purposes. The petitioners argued that it impeded the movement of pedestrians and animals.

Held: The concrete barricade was disproportionate, since it was not the least harmful measure that was capable of achieving the security purpose. A metal barricade, which would allow livestock to pass underneath and would make it easier for people to climb over, would …

Majority Camp V. Israel Police, Aharon Barak, Miriam Naor, Elyakim Rubinstein

Translated Opinions

Facts: The petitioners applied to the first respondent to hold a demonstration in Tel-Aviv supporting the government’s disengagement plan. The first respondent imposed various conditions upon the holding of the demonstration, including demands that the petitioners should arrange to have security, first aid and fire extinguishing services present at the demonstration. The second and third respondents demanded payment from the petitioners for providing the first aid and fire extinguishing services. The petitioners challenged the legality of the demands made by the first, second and third respondents, arguing, inter, alia, that the fourth respondent should be liable to pay the …

State Of Israel V. Beer-Sheba District Court, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Aharon Barak, Eliezer Rivlin, Asher Grunis, Miriam Naor

Translated Opinions

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope …

Beilin V. Prime Minister, Dorit Beinisch, Edna Arbel, Ayala Procaccia

Translated Opinions

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was …

Morar V. Idf Commander In Judaea And Samaria, Dorit Beinisch, Eliezer Rivlin, Salim Joubran

Translated Opinions

Facts: The petitioners, who represent five Arab villages in the territory of Judaea and Samaria, claimed that the respondents unlawfully deny Palestinian farmers in those villages access to their agricultural land. The petitioners also claimed that the respondents do not act to prevent attacks and harassment perpetrated by Israeli inhabitants of the territory of Judaea and Samaria against Palestinian farmers and do not enforce the law against the Israeli inhabitants. In reply, the respondents explained that the agricultural land was closed only when it was necessary to protect the Palestinian farmers from harassment by Israeli inhabitants. The respondents also notified …

Dobrin V. Israel Prison Service, Ayala Procaccia, Esther Hayut, Salim Joubran

Translated Opinions

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to …

Kav Laoved Worker’S Hotline V. Government Of Israel, Edmond E. Levy, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the …

Council For Higher Education V. Haaretz, Esther Hayut, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Miriam Naor, Salim Joubran, Mishael Cheshin

Translated Opinions

Facts: In the first case, HaAretz Newspaper Publishing submitted a request to the Council for Higher Education for information. The Council gave HaAretz copies of decisions it had made, but refused to allow it access to the minutes of meetings. HaAretz therefore applied to the District Court to order the Council to grant it access to the minutes of the meetings.

In the second case, the Shachar Organization for the Advancement of Education in Israel applied to the Council for a licence to open an institute of higher education in Ashkelon. When the Council refused the licence, Shachar applied to …

Mara’Abe V. The Prime Minister Of Israel, Aharon Barak, Dorit Beinisch, Ayala Procaccia, Edmond E. Levy, Asher Grunis, Miriam Naor, Salim Joubran, Esther Hayut, Mishael Cheshin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

According to orders by the military commander, a partition fence was erected that sorrounds the town of Alfei Menashe in all directions while leaving a road connecting the town to Israel. Several Palestinian villages are within the area surrounded by the fence. The fence cuts them off from the remaining areas of the West Bank and creates a landlocked cluster of villages on the …

Hotels.Com V. Zuz Tourism Ltd., Asher Grunis, Mishael Cheshin, Edna Arbel

Translated Opinions

Facts: The applicant and the first respondent entered into an exclusive marketing agreement in February 2000. This agreement contained an arbitration clause stating that disputes between the parties would be resolved by arbitration which shall take place in Texas. In June 2002, the first respondent filed an action in Israel against the applicant and the second respondent, on the grounds that the second respondent was marketing the services of the applicant contrary to the agreement. The applicant filed a motion for a stay of proceedings on account of the arbitration clause in the agreement. The District Court denied the application, …

State Of Israel V. Jerusalem Magistrates Court, Dorit Beinisch, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex …

State Of Israel V. Peretz, Dorit Beinisch, Eliahu Mazza, Mishael Cheshin, Aharon Barak, Jacob Turkel, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Asher Grunis

Translated Opinions

Facts: In two unrelated cases, the prosecution and the defence made a plea bargain in the trial court that was subsequently rejected by the trial court, and the respondents were given stricter sentences than the ones recommended to the court in the plea bargain. The respondents appealed against the strictness of the sentences. In the appeals, which were heard jointly, the state defended the sentences that were handed down by the trial courts, rather than the plea bargains that were originally made by the state. The appeals were allowed, but the court expressed different views on the question whether …

Ganis V. Ministry Of Building And Housing, Mishael Cheshin, Aharon Barak, Ayala Procaccia, Dorit Beinisch, Eliahu Mazza, Jacob Turkel, Eliezer Rivlin

Translated Opinions

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or …

Fuchs V. Prime Minister, Aharon Barak, Eliahu Mazza, Dorit Beinisch, Ayala Procaccia, Jacob Turkel, Mishael Cheshin, Edmond E. Levy

Translated Opinions

Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held.

The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial …