Such was the case in the petitions that are the subject of the present appeal. These petitions all deal with one subject – the refusal of the military commander to permit Palestinians to leave the region. However, the registrar’s decision relates to many dozens of petitions, involving numerous subjects, which HaMoked and other organizations file in the HCJ. In effect the registrar’s decision affects everybody who petitions the HCJ.
Experience has shown that the mere filing of a petition requires the authorities to carefully examine their decision and act according to law. For this reason, in many cases, the authorities change their position and provide the petitioner the relief sought, even before any hearing is held on the petition. In these cases, the petitioners dismiss their petition.
For many years, justices and registrars have ordered reimbursement of the entire fee that was paid upon opening the proceeding in the High Court (which now stands at NIS 1,629), when the petition is dismissed without a hearing, pursuant to Rule 15 of the Court Rules (Fees). The rationale of the rule is to prevent a situation in which a litigant is required to pay the fee when the judges have not done any significant work on the file, and also to encourage compromise at an early stage of the proceeding.
On 12 January 2005, Registrar Yig’al Marzel made his decision that is now under appeal. The decision states that the interpretation of the rule until now, whereby reimbursement of the entire fee, is possible, but that the proper interpretation is that, in every case, a certain amount should be deducted from the fee upon reimbursement. This amount, the decision states, is identical to the amount that is deducted in the District Court, i.e., NIS 825. The registrar believes that deduction of part of the fee being reimbursed is to cover the litigant’s share in the costs of the service provided to him or her, and to prevent the filing of frivolous actions.
The rule enables deduction of part of the fee reimbursed only as to proceedings held in the District Court and in the Magistrate’s Court, but not to proceedings initiated in the Supreme Court. Therefore, the registrar’s interpretation is inconsistent with the wording of the rule and with its general purpose, whereby a person’s right shall not be infringed except where set forth explicitly in statute.
Alternatively, HaMoked argues that even if the wording of the rule can be understood in the way the registrar understood it, preference should be given to the interpretation that infringes human rights to a lesser degree.
The decision places a financial obstacle that infringes the petitioners’ right of access to the courts and the right of equality between litigants. This is especially relevant because of the uniqueness of the HCJ, in which the petitioner seeks to protect his fundamental rights, such as the rights to liberty, freedom, and dignity.
The registrar’s decision will impair one of the customary practices of organizations like HaMoked – filing of a large number of petitions with the HCJ. In large part, filing of many petitions is a last resort, taken after other possibilities of resolving the problem have been exhausted. The HCJ has become a most important instrument for advancing human rights in matters involving the state and military authorities, and in many cases, the simple act of filing the petition motivates the authority to act according to the law. It is no surprise, then, that few petitions reach a hearing and judgment, and that the vast majority are resolved shortly after they are filed, with the petitioner obtaining the relief sought, or with a compromise. As stated, although no hearing before a panel of judges is held, the action contributes greatly to the rule of law. It is improper, therefore, to deter petitioners from initiating proceedings that are liable to end in this way, and encouragement should be given to dismissing the proceeding immediately upon receiving the requested relief, and before a hearing on the petition is held. Reimbursement of the entire fee will encourage this process.
The registrar’s decision also ignores the fact that reimbursement of the fee in its entirety has been proven over the years a practice that increases the judicial system’s efficiency, a claim supported by the state, which is responsible for the public treasury and the efficient administration of the courts system. If the registrar’s decision is allowed to stand, the petitioner will lose more than half of the fee that was paid, which will raise the incentive not to compromise, and to continue the litigation, and will lead, in many cases, to the waste of judges’ time and much money.
Such was the case in the petitions that are the subject of the present appeal. These petitions all deal with one subject – the refusal of the military commander to permit Palestinians to leave the region. However, the registrar’s decision relates to many dozens of petitions, involving numerous subjects, which HaMoked and other organizations file in the HCJ. In effect the registrar’s decision affects everybody who petitions the HCJ.
Experience has shown that the mere filing of a petition requires the authorities to carefully examine their decision and act according to law. For this reason, in many cases, the authorities change their position and provide the petitioner the relief sought, even before any hearing is held on the petition. In these cases, the petitioners dismiss their petition.
For many years, justices and registrars have ordered reimbursement of the entire fee that was paid upon opening the proceeding in the High Court (which now stands at NIS 1,629), when the petition is dismissed without a hearing, pursuant to Rule 15 of the Court Rules (Fees). The rationale of the rule is to prevent a situation in which a litigant is required to pay the fee when the judges have not done any significant work on the file, and also to encourage compromise at an early stage of the proceeding.
On 12 January 2005, Registrar Yig’al Marzel made his decision that is now under appeal. The decision states that the interpretation of the rule until now, whereby reimbursement of the entire fee, is possible, but that the proper interpretation is that, in every case, a certain amount should be deducted from the fee upon reimbursement. This amount, the decision states, is identical to the amount that is deducted in the District Court, i.e., NIS 825. The registrar believes that deduction of part of the fee being reimbursed is to cover the litigant’s share in the costs of the service provided to him or her, and to prevent the filing of frivolous actions.
The rule enables deduction of part of the fee reimbursed only as to proceedings held in the District Court and in the Magistrate’s Court, but not to proceedings initiated in the Supreme Court. Therefore, the registrar’s interpretation is inconsistent with the wording of the rule and with its general purpose, whereby a person’s right shall not be infringed except where set forth explicitly in statute.
Alternatively, HaMoked argues that even if the wording of the rule can be understood in the way the registrar understood it, preference should be given to the interpretation that infringes human rights to a lesser degree.
The decision places a financial obstacle that infringes the petitioners’ right of access to the courts and the right of equality between litigants. This is especially relevant because of the uniqueness of the HCJ, in which the petitioner seeks to protect his fundamental rights, such as the rights to liberty, freedom, and dignity.
The registrar’s decision will impair one of the customary practices of organizations like HaMoked – filing of a large number of petitions with the HCJ. In large part, filing of many petitions is a last resort, taken after other possibilities of resolving the problem have been exhausted. The HCJ has become a most important instrument for advancing human rights in matters involving the state and military authorities, and in many cases, the simple act of filing the petition motivates the authority to act according to the law. It is no surprise, then, that few petitions reach a hearing and judgment, and that the vast majority are resolved shortly after they are filed, with the petitioner obtaining the relief sought, or with a compromise. As stated, although no hearing before a panel of judges is held, the action contributes greatly to the rule of law. It is improper, therefore, to deter petitioners from initiating proceedings that are liable to end in this way, and encouragement should be given to dismissing the proceeding immediately upon receiving the requested relief, and before a hearing on the petition is held. Reimbursement of the entire fee will encourage this process.
The registrar’s decision also ignores the fact that reimbursement of the fee in its entirety has been proven over the years a practice that increases the judicial system’s efficiency, a claim supported by the state, which is responsible for the public treasury and the efficient administration of the courts system. If the registrar’s decision is allowed to stand, the petitioner will lose more than half of the fee that was paid, which will raise the incentive not to compromise, and to continue the litigation, and will lead, in many cases, to the waste of judges’ time and much money.
