31.12.2009
The HCJ forces the State to allow Jenin District Student to leave for Yemen in order to complete his medical studies in a petition filed by HaMoked: The court clarified to the state that its refusal to allow the student to travel was disproportionate
The petitioner, a student from the Jenin District, who was to begin his sixth year of medical school at the University of Hadramaut in Yemen, was apprehended by Israel on 1 August 2009, when he arrived at the Allenby Bridge en route from Yemen to his parents’ home in the West Bank, as he had done every summer vacation in the last five years. After a 40 day detention, during which he was interrogated about various issues, the student was released without conditions and or an indictment.
At the end of the summer vacation, when the petitioner attempted to leave for Jordan en route back to his studies in Yemen, the military’s representatives at the Allenby Bridge prevented his departure. The petitioner tried to make inquiries about the travel preclusion at the Jenin District Coordination Office (DCO) in order to file an objection, but the soldiers refused to process his application. After the Palestinian coordination inquired with the Israeli DCO, the petitioner was told that the travel preclusion had been lifted. The student again went to the Allenby Bridge and the army representatives again prevented him from traveling. The student then filed an objection at the DCO. He also contacted HaMoked: Center for the Defence of the Individual for assistance. However, HaMoked’s appeals to the DCO in the matter remained unanswered for many weeks. Due to the chain of events, and since time was of the essence, HaMoked filed an urgent petition with the High Court of Justice requesting the military respond to the objection and allow the petitioner to travel abroad in order to complete his medical studies and so that his professional future does not sustain irreversible damage.
In the petition dated 17 December 2009 HaMoked claimed, inter alia, that the military’s refusal to allow the student to travel abroad constituted a grave violation of his right to education and freedom of movement, rights vested in the petitioner by Israeli law and international humanitarian law alike. Additionally, the military was violating the duty incumbent upon it under international law as occupying power to care for the routine lives of protected persons in its failed conduct toward the petitioners as well as its continued refusal to allow the student to leave the country for the purpose of studies.
In the preliminary response to the petition, the state notified the court that its refusal to allow the petitioner to leave the West Bank remained intact for security reasons. The material on which the state’s decision to prevent the petitioner from leaving the West Bank was based, was exceptionally handed over to HaMoked. This, as was clarified during the hearing in the petition, was the only material the state used in its decision. The material, along with the response submitted by HaMoked to the court clearly revealed that during the petitioner’s detention which lasted forty days, the 23-year-old man who had not been involved in any activity against the state, admitted that he had had several conversations with students and other inividuals, some of whom were affiliated with Hamas. The young man also admitted that a year ago, he inquired where one might get training in using weapons for self defense.
This case is an exception to the vast majority of cases, in which the state claims confidentiality of the material relating to the petitioners and thereby denies them any possibility of reasonably defending themselves against the allegations made against them, as well as any possibility of refuting these allegations or presenting the court with alternative evidence. As it turned out, in this case, discovery of the material to the petitioner and his counsels was enough to turn the tide and provide the petitioner with the appropriate tools which led to the reversal of the travel preclusion and the prevention of irreparable damage to his professional future.
In a hearing on the petition held on 28 December 2009, the court accepted the petitioners’ claims regarding the flagrant disproportionality between the empty suspicions the state attributed to the petitioner and the damage that would be caused as a result of the petitioner’s being denied travel to Yemen in order to complete his medical studies and the devastating significance of such a decision on his professional future. At the hearing, the justices clarified to the state that its decision was disproportionate and ordered it to reconsider. The state was forced to agree, subject to the petitioner not returning to the West Bank before completing his studies, with the exception of emergencies.
