HaMoked to the Court: order state to approve immediate removal of debris from a punitively demolished housing unit in Jabal al-Mukabber in order to prevent further damage to property or life
On the morning of October 6, 2015, military and police personnel arrived at the Jabal al-Mukabber neighborhood of East Jerusalem and detonated the family home of one of the perpetrators of the November 2014 attack in Jerusalem’s Har Nof neighborhood. The demolition caused considerable damage to adjacent units, despite the state’s undertaking to take steps to minimize collateral damage – an undertaking recorded in the judgment dismissing HaMoked’s petition against the demolition. The judgment itself was handed down on December 31, 2014. Photos
from the site of this punitive demolition show the state failed to fulfil this undertaking, despite the engineer expert opinion submitted by HaMoked which stated that the demolition of the assailant's unit would “cause critical damage that could result in the collapse of the entire structure in a chain reaction”.
Given the extensive damage caused by the demolition to nearby units belonging to the assailant’s father and four siblings, on October 25, 2015 HaMoked sent the state notice
of representation of the family in a civil claim. HaMoked stressed that the debris left in the demolished unit itself and in the severely damaged adjacent unit, occupied until demolition by one of the brothers and his family, “constitutes a hazard that poses clear and present danger to the occupants of the building and to the rest of the building”. HaMoked demanded that the state remove the hazard immediately, but received no answer.
On October 29, 2015, HaMoked again contacted the state, asking it to allow the occupants of the adjacent unit to remove the debris from the demolished unit and clear hazards caused by the demolition. HaMoked stressed that if the state’s answer did not arrive within one day, given the danger to their safety and their property, the occupants would begin removing debris, from the demolished unit as well, without prejudice to their claims in the matter. It should be noted that the demolished unit is also under a military seizure order, so the occupants are not allowed to take any action inside it without permission.
On October 30, 2010, HaMoked filed an urgent motion
to the Magistrates Court seeking a mandatory injunction prior to submission of a civil claim, and an urgent hearing, on behalf of the assailant’s father and four brothers, who live in the building and whose units were either damaged or at risk of sustaining damage as a result of the demolition and the debris left in the building. HaMoked stressed that at this time, the beginning of winter, rainfall has exacerbated the cracks in the floor and walls of the demolished unit, which has resulted in severe leaks into other units in the building. HaMoked argued that given that the state has demolished and seized the unit, it is its lawful owner and therefore bears responsibility to prevent (further) damage to neighboring units. HaMoked demanded that the state dispatch a contractor to remove the debris from the assailant’s unit, as well as the adjacent unit, or, alternatively, permit the applicants to enter the demolished unit in order to “take any action required in order to prevent further damage to other parts of the building”. Should the state decline to take either route immediately, HaMoked demanded that pending a resolution of the matter, it provide alternative housing to the applicant families, 22 persons in total.
HaMoked argued that the authorities were acting in “bad faith, motivated by extraneous considerations”, delaying the removal of the debris, and thereby putting 22 people, and their property, in danger.In its response
, dated November 2, 2015, the state asked the court to dismiss the motion as the plaintiffs “failed to point to real concern for further damage in the building… that would justify a drastic measure such as a mandatory injunction”. At the same time, addressing the leak into the bottom floor, located underneath the demolished unit, the state did agree “ex gratia” to consider possible solutions “including repairs from inside the assailant’s unit”.
On November 3, 2015, the Magistrates Court heard HaMoked’s motion. The state noted that it would consider completing the demolition of elements that had come loose and may pose a danger to neighboring units and their occupants. It also said it would consider the possibility of allowing occupants to enter the demolished unit in order to remove the debris, which would make it possible to seal the floor and prevent water leakage into the bottom unit. The state clarified that such permission would be given subject to the applicants’ signing a “waiver with respect to damage caused… during the sealing”.
In the supplementary notices submitted to the court, the state noted it would complete the demolition of an unstable wall in the assailant’s unit and check to make sure there are no other hazardous loose elements. The state undertook to complete this task no later than November 30, 2015. The state also allowed the occupants to remove the debris from the floor of the assailant’s home, either themselves or through a contractor, in order to have the floor sealed, under the condition that they waive their right to claim compensation from the state for any damage caused during the sealing.