A petition to allow entry to Israel for the purpose of medical examination, in the framework of a damages claim: HaMoked petitioned the HCJ against the military's decision not to allow a Palestinian youth to enter Israel for the purpose of a medical exam necessary in order to prove his damages in a claim he has filed. The boy was shot and seriously wounded while he was in the schoolyard, probably by soldiers who were manning a nearby checkpoint המוקד להגנת הפרט
09.02.2005
A petition to allow entry to Israel for the purpose of medical examination, in the framework of a damages claim: HaMoked petitioned the HCJ against the military's decision not to allow a Palestinian youth to enter Israel for the purpose of a medical exam necessary in order to prove his damages in a claim he has filed. The boy was shot and seriously wounded while he was in the schoolyard, probably by soldiers who were manning a nearby checkpoint
Print Print
Share

On 9 October 2001, during a gym class in a schoolyard at Al Fawwar Camp in the Hebron District, one of the students was suddenly shot in the chest, and seriously wounded. The 14-year-old was rushed to Mizan hospital, in Hebron, where he remained hospitalized for an entire month. After his release, the youth required additional treatments and surgeries, and to this day he suffers from a severe injury to his chest and paralysis in his left arm. He was certified as having a high degree of permanent disability, at a rate of 60%. 

Eyewitnesses stated that they saw soldiers at a nearby checkpoint aim their weapons at the school, and, immediately afterwards, a shot was heard. When one considers the checkpoint's proximity to the school, the fact that only a single shot was fired, and that no unusual incidents were taking place in the camp at the time, the probability is that the boy was injured by one of the soldiers' gunfire. 

Following the incident, on 9 December 2001, HaMoked: Center for Defence of the Individual filed a complaint with the Military Advocate General (MAG), requesting an investigation into the incident. However, despite many letters of reminder and appeals by HaMoked, and despite the gravity of the incident, the MAG's response was received only on 7 December 2004, three years after the complaint was filed. The response stated that insufficient evidence had been found, and therefore, the case was closed. 

Previously, on 9 April 2004, the boy submitted a damages claim to the Jerusalem Magistrate's Court through an attorney from the office of Adv. Copti, against the State of Israel and the military. The claim accuses the soldiers, as agents of the State, of, inter alia, firing in unjustifiable circumstances, firing without verifying the target, firing in a residential area without reason, and firing in violation of the open fire regulations. The claim also states that the shooting took place during an ordinary "police" action (manning a checkpoint), as it is defined in the Civil Wrongs (Liability of the State) Law, and therefore the State and the military must not be exempted from their responsibility for such an action. 

To view the damages claim submitted to the Magistrate's Court in Jerusalem (CC 5418/04 Al-Khatib v. the State of Israel et al.)
 

Continued handling of the claim and the submission of a petition to the HCJ
If his claim is to stand a real chance of being accepted by the Court, the boy must present a medical opinion by an authoritative specialist, to prove his damages. For this purpose, the plaintiff was summoned to a medical examination in Jerusalem, by a specialist on neuromuscular disease from the Hebrew University's Faculty of Medicine. The exam was scheduled for 21 November 2004, and the specialist requested that the boy be accompanied by an adult, due to his age. Two weeks prior to the date of the exam, HaMoked appealed to the Military Legal Advisor for the West Bank, requesting to allow the boy's entry, accompanied by his mother.  On 17 November 2004, the Military Legal Advisor responded that the boy's entry was not approved, due to security reasons which the response did not specify. Since the boy's entry was prohibited, so was his mother's. 

Following this response, HaMoked submitted a petition to the HCJ on 27 December 2004. The petition stressed the grave injustice done to the boy: not only had he been caused great suffering, without the perpetrators being held accountable, now the very same authorities ostensibly responsible for the injury are preventing him from rectifying his situation by the only means left to him – a claim of damages. When a plaintiff in a claim for bodily damages is denied the ability to provide an expert medical opinion, his claim is substantially damaged, and he faces the risk of it being thwarted entirely. Such an impediment may infringe his right to a remedy for the violation of his rights, as well as his right to access to the courts. The right to a remedy is constitutional, and acknowledged by international law. The petition also stressed the violation of the basic principle that all are equal before the court. This principle emanates from the general principle of equality, the right to due process, and the right to access to the courts. It must be noted that the army, which is preventing the plaintiff’s access to Israel, is – together with the State – the defendant in this claim, and has a vested interest in its failure. The army should have weighed its decision carefully, if only for the ostensible conflict of interests and the possible implication of disingenuousness; in the very least, it should have explained its refusal in detail. 

To view the respondent's response to the petition dated 10 January 2005 (Hebrew) 

To view the notification on behalf of the petitioners dated 9 February 2005 (Hebrew)

משפט ישראלי - מסמכים אחרים


משפט ישראלי - כתבי בי דין


משפט ישראלי - חקיקה


משפט ישראלי - פסיקה


משפט בינלאומי וזר - מסמכים אחרים


משפט בינלאומי וזר - אמנות וחקיקה


משפט בינלאומי וזר - פסיקה


ספרות - עדכונים


ספרות - פסיקה במבחן


ספרות - ספרים


ספרות - מאמרים


ספרות - שונות


ספרות - דוחות