This section deals with basic or constitutional rights in Israel, such as the right to marry, to have freedom of movement, to give birth, to have a fair trial , to know one's biological parents/genetic identity etc.
Jew’s 'Right of Return' To Israel Not Absolute
Question:
Can a Jewish person who arrives in Israel as a tourist be refused new immigrant status ?
Answer:
Yes. A Jew’s “right of return” under the 1950 Law of Return is not absolute. Although it states that “every Jew has a right to immigrate to Israel”, the legislation provides exceptions. These are : a) proof that the applicant has worked against the Jewish people, or b) is likely to endanger public health or state security or c) has a criminal past likely to danger public security.
In September 2003 the Supreme Court of Justice dealt with a petition by a Jew in his early twenties whose application for new immigrant status had been turned down. He had arrived in Israel from Azerbeijan when he was 15,and already a drug addict, together with his mother. She was subsequently awarded new immigrant status. Shortly after his arrival, before his mother gained immigrant status, the petitioner, was convicted of causing the death of another person. He continued to be involved in crime – violence, theft, blackmail etc . His petition was rejected, and it was held that, given his background, there was no need to interfere in the minister’s findings.
Constitutional Right To Legal Representation & Access
Question:
Is there a constitutional right to legal representation and access to courts ?
Answer:
Yes, according to an appeal judgment by Jeruslaem District Court in March 2003 in which a handicapped woman won her right for legal aid.
The appellant, whose disability was set at 100% and was confined to a wheelchair, was appealing against the local legal aid office’s refusal to grant her legal aid . She did not work, and received various state benefits. She had been refused legal aid because her income exceeded the threshold for assistance under the 1973 Legal Aid regulations. She claimed the special services benefit she received from the state should be deducted from her income.
Her appeal centred on the argument that the refusal infringed her constitutional right to representation and access to the courts, and that the Legal Aid Act and Regulations should not be interpreted narrowly, but broadly in the light of the Basic Law: Human Dignity and Freedom , and of the 1998 Equal Rights Act For People With Disability .
Granting her appeal, the court said the special services benefit she received should be deducted from her income so that she met the threshold for legal aid.
The judgment stated: “ The legislating of the Basic Law: Human Dignity and Freedom led to the setting of norms relating to the protection of basic rights. There is no disputing today that the right of access to legal instances is a constitutional right in Israeli law, which stops any person being prevented access to legal instances.”
‘Clean Hands’ Required For Supreme Court Petition
Question:
If a petition to the Supreme Court has failed, does the petitioner have to state that his petition has already been turned down once, and why, if he petitions a second time ?
Answer:
Yes ! The Supreme Court of Justice stressed this in February 2003 when it turned down a petition to grant a husband, who had married an Israeli citizen in a civil marriage abroad , permission to live in Israel permanently.
Although the wife had stated in the second joint petition that they had submitted a petition the previous year, they had not even said that judgment had been given, let alone state the reasons for the rejection (security) , the Supreme Court held.
Furthermore, the court held , there had been no changes of circumstances that justified the submission of a new petition, and concluded : “ if all these are not enough, it is apparent from the present petition that the petitioner no. 2 ( the husband ), is behaving as if judgment had never been passed in the first petition and continues to remain in Israel illegally. All these together all bound by a lack of clean hands which is sufficient to reject the petition.
The Right To Marry
Question:
Has the right to marry, regarded as a human right, been tested in the Israeli courts ?
Answer:
There have been attempts to test this very point at the Supreme Court in Jerusalem but to date they have been by-passed and repeated and various calls for the Knesset (parliament) to pass new laws permitting some sort of civil union for couples who cannot marry have yet to bear fruit.
Because civil marriages cannot be conducted in Israel, tens of thousands of Israeli residents and citizens either cannot marry at all in Israel or cannot marry in a ceremony they like. Citizens immigrating from the former Soviet Union are particularly badly hit.
For example, someone who has no recorded religion or belongs to an unrecognised religion cannot marry a Jew in Israel. Their only option is civil marriage abroad. Two people whose religion is unrecognised here – e.g. two Anglicans – cannot marry in Israel either. Secular Jews who want to avoid a traditional Jewish wedding ceremony have to go abroad, too. Furthermore, a Jewish man who is a ‘mamzer’ (bastard) cannot marry a Jewish woman of normal status in Israel according to religious law and can only marry her in a civil ceremony abroad.
In January 1999 three Supreme Court appeal judges avoided the opportunity to rule on the validity of civil marriage and even on the right to marry as a basic, Israeli constitutional right. The Jewish appellant , represented by Adv. Amihoud Borochov, had asked the Supreme Court to cancel a district court decision holding that her ‘proxy’ marriage abroad was invalid and that accordingly she was unentitled to maintenance from her former husband, a Roman Catholic, under civil law. She asked the Supreme Court to either declare the marriage valid, or valid for the purposes of awarding her maintenance until their marriage was dissolved. The Supreme Court allowed the woman’s appeal, on technical grounds, but avoided the opportunity to address the broader, constitutional issue of the right to marry and of the validity of civil marriage.
Greater Rabbinical Court asks Parliament To Protect “Agunot”
Question:
What are the rabbinical courts in Israel doing to protect the basic rights of Jewish women to have a personal life and marry – especially in relation to “agunot”, quasi- 'refusnik' victims of husbands who refuse to divorce, and who cannot marry ?
Answer:
In June 2004 the Jerusalem Greater Rabbinical Court in June 2004 appealed to the Knesset to pass laws to ease the plight of Jewish woman whose husbands would not free them from marriage by agreeing to divorce, and who could not marry under Jewish law.
“ We once again call upon the Knesset (Israeli parliament) not to stand in the way, when the cries of the ‘agunot’ of Israel from all over the world go up to the heavens. The state of Israel is the state of all Jews. It is the state of Jews from all over the world. Even if the Jews are not yet citizens or residents of Israel. …….the ears of the Knesset must be open to the caries of those sad and poor women. The freedom of those women must be able to come before a law which will rule according to the rabbinical court of Israel. Everyone for whom human dignity and freedom is before his eyes – even if he does not observe Jewish law or ‘mitzvot’ – must be saved and helped. The Israeli Knesset must not cover its ears and close its eyes to their cries,” it said.
Petition Against Rabbinical Court Remarriage Limitation
Question:
Can a rabbinical court make an order in a divorce judgment which expressly forbids a divorcee from marrying a specific person , without clear proof of their adultery ?
Answer:
In practice a rabbinical court may make such a decision based on Jewish law that a woman who committed adultery is “ prohibited” from being with either her husband or her lover . However, such a ban can be put to the test by a petition to the Supreme Court of Justice testing its legality, if an appeal against it to the Greater Rabbinical Court fails. If it is proved that the decision was made in a way that infringed the basic principles of natural justice and caused injustice , then the Supreme Court of Justice will cancel it .
Such was the case in August 2004 when the petitioners, a divorced woman and the man she was presumed to have been having an affair with, successfully challenged a decision made by the Haifa Rabbinical Court banning them from marrying one another, after their appeal to the Greater Rabbinical Court had failed. The Supreme Court of Justice accepted their petition and cancelled the decision, holding that the rabbinical court lacked the jurisdiction to make it. The decision had been made against a backcloth of shaky evidence of adultery, without the male petitioner being present, or having the opportunity to present his claims, it held, and restricted his right to marry the divorcee in the future. The rabbinical court held that the wife had committed “ugly acts” – on the basis of her admission of kissing the male petitioner and a detective’s report presented as evidence.
In this case the female petitioner and her ex-husband had divorced by mutual consent before the petition was heard, and the latter had asked for her to be given a ‘clean divorce judgment’ .
Freedom of Movement Threatened By ‘Shlom Bayit’ Plea
Question:
Is a person’s basic right to freedom of movement affected in any way by a spouse’s plea for ‘Shlom Bayit’ ?
Answer:
Yes. While under the basic law, the Human Dignity and Freedom Act of 1992 “every person is free to leave Israel’ i.e. there is a fundamental right to freedom of movement outwards from the country, if the couple are Jewish, and one of them files a marital reconciliation plea (‘Shlom Bayit’) at the rabbinical court , jurisdiction exists for granting an order preventing the other party’s exit from the country. The rationale for this is that the plaintiff has a right for proceedings to take place and the other spouse’s absence from the country could infringe that right. The rabbinical court will weigh up the two competing rights –the plaintiff’s right for progress in legal proceedings, and the defendant’s right to freedom of movement. Often a plea for marital reconciliation plea at the rabbinical court is used as a negotiation tool for improving the plaintiff’s position in negotiation over divorce – as limiting the defendant’s freedom of movement could put pressure on him.
Extradition Order and Maintenance Debtor
Question:
Where do a man’s rights to freedom of movement stand if an order is given to extradite him from Israel to face criminal proceedings abroad, and his wife files for divorce and maintenance at the rabbinical court, and gets an order to prevent him leaving Israel ?
Answer:
In this situation, the focus is not on the individual’s right to freedom of movement, but focuses on the clash between his wife’s right to conduct divorce and maintenance proceedings against her husband, which would be undermined by his absence, and the public interest in extraditing a wanted criminal.
This clash, and the requisite balance, were discussed in a petition to the Supreme Court of Justice in 2002 concerning a man whom the District Court had declared extraditable . He faced murder and robbery charges in Russia. While in detention awaiting the outcome of his appeal against extradition, he married according to Jewish law. He lost his appeal and two days before his intended extradition, his wife filed for divorce and maintenance at the rabbinical court, which granted an order preventing his exit.
The clash between the two orders was examined by the Supreme Court of Justice. It held that the extradition order should take precedence, and cancelled the order preventing his exit from Israel. It stated that although the rabbinical courts are not directly bound by the Civil Procedure Rules which hold that an order preventing the exit of someone made during the course of civil proceedings should be cancelled if an extradition order is given against that person, they must give overriding weight to the public interest, unless there are exceptional circumstances.
Non-Orthodox Conversions & I.D. Registration
Question:
What value does a non-Orthodox conversion to Judaism carried out in Israel or abroad have ?
Answer:
The Supreme Court of Justice made what has been called a landmark decision in February 2002 when it ruled that the Ministry of Interior should register an adult or a child who has undergone a Conservative or Reform conversion in Israel or abroad as a Jew in their Israeli identity card or other registration documentation.
Several petitioners, both adults and children, who were Israeli residents and who had undergone non-Orthodox conversions both in and outside Israel, succeeded in getting an order making the Interior Ministry record them as Jews.
It should be noted that the ruling gives non-Orthodox conversions administrative validity only. It did not address the legal validity of non-Orthodox conversions which remains unresolved. It is rather akin to the situation with civil marriage – a Jew who marries a non-Jew in a civil ceremony abroad can register his/her marriage at the Ministry of the Interior, but according to Jewish Law it has no legal validity as a Jew can only marry another Jew , in a religious ceremony.
Woman’s Right To Become Mother Infringed
Question:
Does a woman in Israel have a basic,constitutional right to become a mother?
Answer:
No, in practice there is no universal right to become a mother in Israel. Although a single woman as well as a woman who has a male partner, whether they are married or just cohabiting may apply be able to get pregnant via an anonymous donor at a sperm bank , she will not be able to use the services of a surrogate mother if she herself is unable to give birth. This is because current legislation,The Embryo Carrying Agreement (Authorization Agreement & Status of the Newborn Child) 1996 discriminates against single women without a male partner.
This point was underlined by the Supreme Court of Justice in December 2002 . It rejected a petition to allow a single woman who was unable to give birth because her womb had been removed to make an agreement with a surrogate mother. The 7-judge panel held that under current legislation , only women who had a male partner, to whom they were married or with whom they cohabited, were allowed to draw up an agreement with a surrogate mother as ‘intended parents’. It admitted that the legislation ran counter to a woman’s basic right to become a parent but that given the need to gain experience in surrogacy the infringement was acceptable. It emphasised that it was parliament’s role to consider amending the law, and called upon it to examine the possibility.
Children Cannot ‘Divorce’ Parents
Question:
Can children ‘divorce’ their parents ?
Answer:
No ! There is no such legal concept in Israeli law of children divorcing their parents, or having a constitutional right to sever contact with them. Divorce is reserved as a legal term for terminating marriage between heterosexual couples. When children mature into adults, however, they are free to limit the degree of closeness they have with their parents , and may distance themselves so much that they almost sever the connection.
Minor’s Independent Emigration Plea
Question:
Can a minor child file his or her own plea to emigrate from Israel ?
Answer:
Yes - according to a case decided in October 2002 by the Tel Aviv Family Court.
In its decision the court had to rule on the question of whether it had jurisdiction to hear an emigration plea brought by two minors , aged 5 and 7, via their mother, their natural guardian. The father claimed the family court had no authority to hear the case as the issue of emigration was already under the jurisdiction of the district rabbinical court, and that the mother had agreed to this in their divorce agreement authorized there and given the force of a binding judgment.
It rejected the father’s arguments and held that it had jurisdiction to hear the minors' independent plea. It held that the minors had an independent status as plaintiffs Under Section 3 of the 1995 Family Courts’ Act. It stressed that the act came into force after Israel had become bound by the 1984 International Convention on the Rights of a Child which recognized the rights of a child as an autonomous human being separate from his parents.
‘The right of a minor for his independent status to be respected in legal proceedings is recognized today as a constitutional right,’ the court held.
Just as a maintenance agreement signed by the parents does not bind the child and prevent him from bringing an independent plea, nor is a child bound by an agreement his parents make regarding jurisdiction over future disputes, and neither emigration nor the children’s good were discussed fully in this case , it held.
Editor’s Note-
The decision is controversial for two reasons. Firstly, children aged 5 and 7 are probably too young and immature to be capable of forming their own independent views on emigration. Secondly, the argument concerning emigration and maintenance agreements is inappropriate . A child’s right to maintenance , from either one or both of his parents, is a basic, absolute right recognized throughout the world’s legal systems. The right to emigrate is not a basic right, and is relative, being conditional upon awareness, understanding and desire. A baby or a child of a tender age is too young to form an opinion on the issue, whereas an older child, aged 10 or over, can form an opinion and express wishes on the subject , which will be taken into consideration by the court as it does in custody issues.
Basic Right to Know Father’s Identity – Precaution Against Incest
Question:
Is there a risk that someone who is born as a result of artificial insemination from donated sperm could actually have an incestuous relationship with a person and even get married – without knowing that the partner is a half-sibling ?
Answer:
This slim risk exists and was referred to by Tel Aviv Family Court in a paternity case in 2004 when it cited a commentator who pointed out that : “ Writers on the new genetics.. argue that, as knowledge of human genetics and diseases advances, the genetic status of ovum, sperm and embryo donors must be established for medical reasons and to prevent unwitting incest. This argument is equally applicable to the birth parents of an adopted child.”
Basic Right to Know Father’s Identity – Medical Advantages
Question:
I am a teenager at high school and was born to a single mother who went to a sperm bank and got pregnant by artificial insemination. I suffer from a rare disease that the doctors tell me might require a transplant from a blood relative. The doctors say that my mother is not a suitable donor, but my father could be. Do I have a right to trace him ?
Answer:
This issue is relatively new in Israel law and although the Supreme Court of Justice has held a right to know one’s parents’ identity has been said to be a basic right under the Human Dignity and Freedom Act, it is not specifically defined and protected compared with other legal systems, e.g. Sweden where legislation expressly states that a person born using donor sperm is entitled to receive information on his biological father. In one Supreme Court Case in Israel, however, the medical justification behind the right to trace one’s genetic /biological parents was recognized. It was stated that this advantage was multigenerational ; it may prove critical as it increases the circle of biological family who could save him if his life were at risk and it may also be medically advantageous when he , himself, plans to raise a family. He can find out whether there is a chance that he could pass on a genetically inherited disorder etc.
It is possible that a petition may have to be made to the Supreme Court of Justice to gain access to the information, based partly on the principle expressed in the Genetic Information Act of 2000 of passing on genetic information to relatives for health reasons, and on the need to give medical treatment as part of “ a minor’s need” under the Legal Capacity and Guardianship Law of 1962 .
Constitutional Rights - Child V Alleged Father in Paternity Case
Question:
Does a man have a constitutional right to refuse to co-operate in genetic testing when he is faced with a paternity suit filed by the mother ?
Answer:
The question of whose constitutional rights prevail in a paternity suit was considered by the Beersheva Family Court in the Summer of 2002 when it was told to hear the case again after the alleged father convinced the appeal court that another man was equally likely to be the father.
The defendant objected to a blood test and claimed he could not be forced to undertake one as it would infringe his basic right to freedom of choice over his body according to the 1993 Human Dignity and Freedom Act, one of Israel’s basic laws. While the family court accepted that there were problems in ordering a blood test which was invasive it held that it could force the defendant to undergo a non-invasive test and give an alternative sample . Its powers to do so derived from the Family Courts’ Act which allows it to act as it sees appropriate to ensure a fair trial. It also stated that even if the test it proposed (a saliva sample taken from inside the mouth ) did constitute ‘ harm’ to his body under the basic act above, his constitutional rights would have to be weighed up against those of the minor – and the latter’s would prevail.
Purpose of Legislation on D.N.A. Testing
Question:
Is there any legislation in Israel relating to D.N.A. testing, and if so, what is its purpose ?
Answer:
Yes, genetic testing is regulated by the Genetic Information Act of 2000. This states specifically that it is designed to regulate the carrying out of genetic testing and genetic counselling and to protect the right of privacy of those being tested- while not hampering medical treatment, medical and genetic research and medical progress, and public safety.
D.N.A. Results – Revealing Information For Health Reasons
Question:
Do the results of D.N.A. testing only remain available to the person from whom the sample is taken, or can others gain access to this information ?
Answer:
In principle, the information is confidential but it may be passed on to help a relative of the person who was tested - in certain situations even if the person tested objects. The Genetic Information Act of 2000 regulates this and states that where the information is needed to prevent the relative from dying, or becoming seriously ill, or for other health reasons, it can be given, where the advantages to the person being treated from having the information outweigh the damage caused to the individual tested, or where the latter’s refusal is unreasonable. The person for whom the information is needed can even be a baby yet to be born.
Compulsory Hospitalization & Constitutional Rights
Question:
Can a person be legally hospitalized against their will ?
Answer:
Yes, in exceptional circumstances. Whilst sovereignty over one’s body is a constitutional right under the Basic Law : Human Dignity and Freedom Act of 1992, this legislation does provide for the infringement of rights according to law, including compulsory hospitalisation, if it is for a worthy purpose, and not in excess of what is necessary.
Anorexic Patient Wins Battle For Hospitalisation in Non-Psychiatric Institution
Question:
Can an anorexic patient have a say in which kind of framework compulsory hospitalization will take place ?
Answer:
Yes. In October 2003 Tel Aviv District Court accepted an appeal by a 21-year old anorexic woman , against a decision by the District Psychiatric Committee’s decision to extend her compulsory hospitalization in a mental hospital. The appellant had suffered from anorexia since the age of 15 and had been hospitalized many times against her will, in hospitals (for both children and later for adults) and then in a psychiatric hospital. The committee had found that she was psychotic and should receive treatment in a mental hospital, although she had recently escaped from it before subsequently being taken to Tel HaShomer Hospital by her father, who had been appointed her guardian when her condition deteriorated.
In her appeal the appellant brought medical evidence to counter the committee’s findings and to show that although she did suffer from an extreme version of anorexia, that she was not psychotic , and her life was not now in immediate danger.
Accepting her request to be treated in an ordinary hospital , the court remarked in its judgment : “ A situation cannot be created whereby a hospital for the mentally ill is used as a place for forced feeding, as it was not intended as such, and it is not possible to use the law to do so, except in order to protect the life of someone who suffers from anorexia, by ignoring the aims of the act, and with the free consent of the patient.”
Petition Re Organ Transplant From Live Donor
Question:
What can a potential live donor or potential recipient of an organ do if the National Live Organ Transplant Assessment Committee refuses to approve the transplant ?
Answer:
The final option is to petition to the Supreme Court of Justice , with the Ministry of Health, The Minister of Health and the committee being the respondents.
Dialysis Patient Loses Battle For Transplant From Live Donor
Question:
How will the Supreme Court of Justice deal with a petition against a committee’s refusal to approve a life-saving kidney transplant from a live donor?
Answer:
When the Supreme Court of Justice is faced with a petition against the refusal of the Ministry of Health’s National Live Organ Transplant Assessment Committee to authorize a transplant, it will see whether it acted reasonably. It will concentrate on the suitability of the potential live donor , both medically and otherwise, and will check whether his or her motives were altruistic i.e. the decision was of his/her own free will, and was not motivated by gain, either present or future. In the absence of legislation on the subject these are the principles behind the Ministry of Health’s guidelines .
In practice, because of the professional expertise involved in the assessment process, it is very difficult for an individual to be successful in petitioning against a decision , as the Supreme Court of Justice tends to refrain from interfering in the decisions of professional bodies where expertise is required. In October 2003 it rejected an appeal by a potential live donor, a 27 year old single woman , and the potential kidney recipient , a married man with children, against the committee’s refusal to approve the transplant. It said that the potential donor had made her decision too lightly and was not sufficiently ‘ready’ for the transplant . It also suspected that she had not made her decision for altruistic reasons alone, and had been subject to external pressure.
“ The committee’s above decision was made by the exercise of discretion in the matter it had expertise in, and accordingly I have not found the place to cancel the decision…”, the judgment said, emphasizing that the potential kidney patient could re-apply to the committee once he had found another potential donor.
Urgent Petition Re Sperm of Terror Victim
Question:
How far-reaching are the rights of the family of terror victims regarding what is done with the body after death ? Can sperm be removed from the body to preserve the deceased’s memory ?
Answer:
The Supreme Court of Justice was faced with this very question in March 2002 when the mother of a male victim of a terrorist attack petitioned for an urgent order to be made against the state of Israel allowing a sample of sperm to be taken from her deceased son’s body and preserved by medical means for the possible creation of children in the future.
The petition emphasized that it was not asking for the sperm to be used a present; it was merely asking to keep open the potential to do so, something that only existed for a short time after death. If the circumstances making this desirable were to arise, it argued, a separate petition concerning use of the sperm would be made. The human desire to create children and carry on the family line was ancient, it said, petitioning the court to allow modern technology to assist in actualising this basic ‘right’. It referred to existing legislation which gave the family rights to decide over post- mortems (Investigation of The Cause Of Death Act 1958), the donation of the deceased’s organs (The Anatomy & Pathology Act of 1953), and forms of burial (The Right to Alternative Secular Burial Act of 1996).
A temporary order was granted allowing sperm to be removed from the deceased’s body and preserved.
Widow Wins Right To Save Husband’s Sperm
Question:
Does a widow have the right to become a mother by getting court permission to extract sperm from her husband’s body soon after his death ?
Answer:
Nothing is specifically mentioned about this in Israeli legislation but a woman whose husband has been killed can apply to the family court for permission for sperm to be extracted from his body and frozen for possible use later. In May 2003 a woman whose husband was killed in Haifa gained permission from Haifa Family Court for sperm to be extracted from his body. The court emphasized that she would have to apply for separate permission if she wished to use the sperm to bear a baby.
Rabbinical Court & Women’s Civil Property Rights
Question:
When a rabbinical court decides on the property of a divorcing couple, which law do they apply, religious or civil ?
Answer:
Since the landmark ‘Bavli’ petition before the Supreme Court of Justice in Jerusalem in 1992 rabbinical courts who have jurisdiction to rule on property relations between a couple when they divorce must recognise and apply women’s property rights under civil law. They cannot just decide that a woman will only get what is stated in her ‘Ketuba’(marriage contract) and according to Jewish caselaw, as they did beforehand.
The Women’s Equal Rights Law of 1951 , which states that legislation discriminating against the female sex should not be followed, applies to proceedings at the rabbinical courts too, it was held. Thus, rabbinical courts were forced to recognise the concept of partnership in marital property as the starting point in disputes .
Jewish Law Favours Husband Re Housing
Question:
My husband and I have been fighting each other over divorce and property at the rabbinical court for years. Although our home is registered in our joint names the rabbinical court has ordered me to vacate it even though it has not yet ruled about dividing up our ownership in it. This seems unfair because my husband has been living in an apartment belonging to his family for years . I have nowhere else to go. I do not work and cannot afford to rent a place. I just cannot understand why I have to leave before the home is sold and why the rabbinical court can risk me being left without a roof over my head. It seems far more logical and fair to delay ordering the property to be vacated until it is actually sold. This would enable me to purchase or rent somewhere with my part of the proceeds from the sale. Can the rabbinical court act in this way ?
Answer:
Yes , although a rabbinical court that orders a wife out of the marital home before it decides on ownership rights and before the place is sold, so that she could be left without a roof over her head, may well find its decision is successfully challenged by a petition to the Supreme Court, if an appeal to the Greater Rabbinical Court fails.
A rabbinical court acting this way would probably base its decision on two Talmudic rules. One rule loosely translated says ‘giving a man a run around is harder than giving a woman a run around’. Another says ‘in a yard belonging to two, she is pushed out before him’. Such a decision would conflict with Israeli civil laws which regards men and women as having equal property rights. In particular, it conflicts with the principles of the 1951 Women’s Equal Rights’ Law and the Basic Law: Human Dignity and Freedom Act in relation to an individual’s property.
Faulty Rabbinical Court Judgment – Property
Question:
My marriage broke down while my wife and I were living abroad temporarily . When I returned to Israel as we had planned she insisted on staying abroad with our child. She even threatened to ‘go on the run’ with her. I am filing for divorce at the rabbinate. I have warned my wife that I will also take legal action against her for child abduction. If I file for divorce, and my wife carries out her threats, can I ask the rabbinical court to order the sale of her share of our apartment (which we own jointly) to cover the legal and other costs that I may incur in getting my child back to Israel ?
Answer:
The powers available to the rabbinical court in a similar situation were tested by the Supreme Court of Justice in Israel in the Sapir petition. The petitioner, the wife , requested the cancellation of the sale of her half-share of the family home in Israel to her brother-in-law , following rabbinical court rulings. It had been sold at the low cost of an ‘occupied’ apartment to cover legal and other costs relating to child abduction and getting his wife to attend divorce proceedings in Israel. The rabbinical Court had given two decisions regarding the sale, which the wife appealed against at the Greater Rabbinical Court, but lost.
The Supreme Court of Justice held that the rabbinical court had acted outside its jurisdiction in ordering the sale of the wife’s share of the home to help cover expenses incurred because of the child abduction. The husband could have brought an ordinary civil action regarding these expenses. The rabbinical court has no jurisdiction regarding child abduction, it said.
Where a rabbinical court wants to ensure a party attends divorce hearings it can take action against that person’s property, including ex-parte decisions, for example, by freezing rights or giving instructions about dividing up property. However, when it makes decisions regarding property as part of divorce proceedings it cannot harm a side’s material rights.The aim of the sale had been to cover the husband’s legal and other costs – and not to ensure the wife’s appearance at divorce proceedings, the Supreme Court of Justice held. The rabbinical court had acted beyond its jurisdiction when it ordered the home sold to pay costs associated with the abduction, it ruled.
Furthermore the actual sale had not been made in good faith – the purchaser, the respondent’s brother, had clearly identified with his brother and the apartment had been sold at a very low price as it was ‘occupied.’
Right To Inspect Contract at Israeli Lands’ Authority
Question:
My wife and I want to look at a contract between the Israeli Lands’ Authority and a private company which won a tender for a building project near us. We are worried that it will ruin our neighbourhood. The company refuses to let us see the contract. Is it entitled to prevent us seeing the contract ?
Answer:
No ! The 1998 Freedom of Information Act recognizes the right of an Israeli citizen or resident to obtain information of a public nature from a public authority, even if he does not have a special, personal interest in it. The person requesting the information does not have to give a reason for asking for it.
Information on the conditions of contractual relations between a public authority and a private-commercial entity is clearly information of a public nature. Information in the possession of a public body is public property. A commercial body that chooses to enter into contractual relations with a public authority is regarded as knowing and agreeing to the fact that information relating to their business connection is available to the public.
As planning of land belonging to the Israel Lands’ Authority’s is an activity of a public/governmental nature, a private company which becomes involved in building on the former’s land, is seen as being bound by the same rules relating to the public’s right of access to information on the joint venture.
Right to Bequeath Property – Constitutional Right
Question:
What value or weight is given to the right of a person to leave his property to whom he wishes after he dies ?
Answer:
A person’s property rights are protected in basic legislation , The Human Dignity and Freedom Act, which states: “ A person’s property must not be harmed”. Furthermore, the right is also protected in the 1965 Inheritance Law, under which provisions made by a person in his will regarding his property are to be upheld, providing it is proved he had the appropriate legal capacity to make the will, did so freely without pressure, trickery , undue influence etc, and that it reflects his final, and true wishes on the matter. Thus, in a nutshell, a person has a constitutional right to leave his property to whom he wishes after his death.
Judicial Review of Interior Minister’s Refusal To Grant Residency
Question:
Can a court in Israel overrule the Minister of Interior`s refusal to grant a foreigner residency ?
Answer:
In theory, yes, but in practice, while possible, courts rarely overrule refusals by the Ministry of Interior. Under the Entry Into Israel Law of 1952 the Minister of the Interior has wide discretionary powers regarding the granting of residency to a foreigner who is a citizen and resident of another country – providing there are no flaws in the exercise of his discretion. The exercise of discretion can be tested by a petition to the Supreme Court of Justice in Jerusalem; if flaws are found, the decision can be overruled, but this is very rare.
These points were tested in February 2002 when a woman from the Philippines petitioned to the Supreme Court of Justice against the Minister of Interior’s refusal to grant her and her son, now aged 9, residency. She had arrived in Israel on a Phillipine passport, but had remained in the country without proper permission, and who had given birth in Israel . She had spent half of her adult life in Israel and the child had only known Israel. His father was a Thai worker whose whereabouts were unknown. An Israeli family had offered to sponsor the woman and child. However, the petitioners were subject to the ministry’s rules governing ‘humanitarian circumstances’, and the Minister had decided that the woman was young and healthy and, therefore, did not qualify for residency.
Rejecting the petition, the court said the case was heart-rending, yet the Minister had acted in accordance with his discretion. His decision making could not be faulted, although it could have decided the other way.
Human Dignity & Family Violence
Question:
Does Israeli law recognise the right of family members to live in an atmosphere free of domestic violence ?
Answer:
Yes. One former Supreme Court judge has said that family violence is a serious infringement of constitutional rights enshrined in the Basic Law : Human Dignity & Freedom . In an essay on the subject Justice Shamgar said that violence destroys human dignity and the Israeli legal system should react very strongly to it.
Psychiatric Test & Constitutional Rights
Question:
Since my husband got fired from work he has been going through an emotional crisis. For weeks now he has shut himself indoors, refusing to go out. He has now started locking himself in his study where he talks to himself and makes weird noises. Yesterday he even started banging objects against the wall. I am frightened that he is going to harm himself or someone in the family. Can I get the court to make him undergo psychiatric testing ?
Answer:
No ! Although violence against another family member does constitute an infringement of the victim’s constitutional right to sovereignty over his own body, an alleged perpetrator of violence can only be forced to undergo psychiatric tests as part of special criminal proceedings, according to the Treatment of the Mentally Ill Act of 1991.Thus , in the absence of these, or express instructions in legislation allowing the testing, a person cannot be forced to undergo psychiatric testing, which is a form of medical testing. Protection of one’s body is a constitutional right and cannot be infringed by someone else without consent.
Prisoner's Right to Sex – Aids Carrier
Question:
My boyfriend , who is an aids carrier, has just started a long prison sentence. What is the procedure for getting permission for special visits so that we can be allowed to be alone in prison and have sexual intercourse, and is my informed consent enough to get automatic acceptance ?
Answer:
Firstly, a prisoner must ask the prison authorities for permission for conjugal visits, and even if the prisoner's partner gives informed consent regarding the prisoner's medical condition and the risk of catching Aids , there is no guarantee that the application will be accepted.
Special regulations govern the rules about conjugal visits between prisoners and their partners. Each case is decided on its merits, with the regulations being designed to balance an individual prisoner's human need for intimate contact and other factors such as the responsibility of the prison services for running of the prison, and the safety and security of the public, the prison staff and visitors, including the individual partner. The prison authorities will assess the risk to the prisoner's partner of catching Aids, based on his medical condition, the type of offence committed, his personality , psychological make-up and behaviour and the likelihood of the prisoner actually using precautions and practising safe sex.
If the prison authorities refuse permission, the prisoner can file an administrative petition at the District Court against the decision. If this fails, the prisoner can apply for permission to appeal , to the Supreme Court.
Judicial intervention in the decision-making of the prison authorities is rare, only if the decision is extremely unreasonable and arbitrary. In August 2007 the Supreme Court upheld the refusal of conjugal visits between an Aids positive prisoner serving a life sentence and his partner, even though she had given her informed consent in writing. The risk of her catching Aids or bearing a child-infected with Aids was high because of the prisoner's complex personality, his impulsive and defiant behaviour and verbal threats to infect others, including his girlfriend, which made it impossible to guarantee that he would take precautions to protect her from being infected, it was held.
Restrictive Orders – Incomplete Panel of Rabbinical Judges
Question:
As part of divorce proceedings between my wife and I, presumably to try and force me to grant her a divorce, the Greater Rabbinical Court passed various restrictive orders against me. The judgment was signed by three rabbinical judges, but only two of them were present at the hearing. Can I do anything to fight the orders ?
Answer:
Yes ! A religious judge who writes a judgment or who is supposed to attend an appeal must be present during the hearing, in order to hear both parties and get his impressions of them, as well as reading the material in the file. Accordingly, where a judgment is given by three judges, but one of them was absent from the hearing on the subject, there are grounds for petitioning to the Supreme Court of Justice for it to be cancelled, on the grounds that the panel was incomplete.
Successful Petition – Arbitration Between Moslems
Question:
What can a party to proceedings at a religious court do if he or she feels that he/she has not been given a fair hearing and that everything was in favour of the other side because of strong family connections ?
Answer:
In extreme cases where the aggrieved party has exhausted the appeal process at the religious court system, and still feels that he/she did not have a fair hearing, he /she can consider filing a petition to the Supreme Court of Justice. While the Supreme Court of Justice does not sit as a further appeal court on decisions of religious courts, it may, in exceptional cases , interfere in their decisions where they have acted beyond their jurisdiction, or railroaded principles of natural justice to the extent that a fair hearing has been denied.
In March 2007 the Supreme Court of Justice accepted a petition filed by a woman against judgments and decisions made by Moslem Religious Courts - the Greater Sha'ari (Appeal) and the Taibe Area Sha'ari Courts - based on allegedly biased arbitration to solve a property dispute with her husband. In this case, the Supreme Court of Justice found that while the Taibe Area Sha'ari Court had been correct to refer the dispute to arbitration, the appointment process itself had been faulty, with the two arbitrators being relatives of the husband. Consequently, this raised doubt as to the validity of the arbitration ruling as the arbitrators only met with the husband. Instead of being extra cautious and asking the court for instructions when the wife and her lawyer refused to meet with them because of alleged bias, they proceeded to make their ruling, and the Sha'ari court asked passed judgment accordingly.
Furthermore, the Supreme Court of Justice held that the Greater Sha'ari Appeal court had also acted wrongly when it failed to give her an extension to file her appeal, and rejected it outright, without hearing it.
The judgment in the petition held that the woman had not had a fair hearing, and it cancelled the Greater Sha'ari Court's judgment, and ordered it to grant her an extension of time to appeal, and to set a hearing to deal with it.
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