Petition to remove the sewage treatment facility – HCJ 4457/09 Mohammed Ahmed Yassin Manaa v The Minister of Defense
For years, residents of the settlement of Ofra, located northeast of Ramallah, used oxidation ponds to treat their sewage – ponds built on land belonging to residents of the Palestinian villages Ein Yabrud and Silwad. As a result of the increase in illegal construction in the settlement, the ponds were closed off after the settlement residents complained of sanitary and odor hazards. As a result, the sewage was diverted to an adjascent valley and to lands owned by residents of Ein Yabrud.
In 2005, the Binyamin Regional Council illegally undertook construction of a sewage treatment facility for the settlement. It was built illegally on private Palestinian land belonging to the residents of Ein Yabrud, Yesh Din clients, and prevented them from accessing their land. In July 2008, the subcommittee for supervision (subordinated to the High Planning Council at the Civil Administration) issued a stop-work order and a demolition order for the facility. However, only in March 2009, as a result of intervention by Israeli law enforcement authorities, the decision was made to halt construction and prevent the facility’s connection to the electricity grid. Two months later, Yesh Din petitioned the Israeli High Court of Justice (HCJ) on behalf of the landowners asking that operation of the facility be banned and to demolition orders against it be implemented.
In its response, the State claimed that construction of the sewage facility is crucial both to the settlement of Ofra and to the adjacent Palestinian villages. However, the State admitted that “The appropriate method of action from the start would have been to review alternative solutions to the problem, and then undertake a procedure addressing planning and propriety, in order implement the appropriate solution.” The State also claimed that the facility’s current location is the suitable spot for a regional facility that will serve the neighboring Palestinian villages, and that the establishing a regional facility in any other location would also require expropriating land.
In July 2011, the HCJ ruled that the facility must not be operated or connected to the electricity grid unless all the legal proceedings regarding its operation are completed. The ruling states: “Under the circumstances, we must first consider that no one disputes the need for a sewage treatment facility in the area, which will serve all towns in the area, both Ofra and the Palestinian villages; second, no one disputes the fact that the facility in question should not be operated since it was built illegally, unless there is a change in its legal status, appropriate planning proceedings are undertaken, and the necessary legal proceedings concluded.”
In April 2014, it became apparent that the State is planning to expropriate 180 dunams (44 acres) of Palestinian land, including the sewage treatment plan area, and to operate it solely for the benefit of residents of the settlement of Ofra. In November 2016, the High Planning Council of the Civil Administration decided to submit a plan for authorizing the facility on the private land that was expropriated. The objection filed by Yesh Din on behalf of the landowner stated that the “sewage treatment facility was designed solely to serve the settlement of Ofra…any other claim is incorrect, tendentious and distorted, and seeks to promote the aforesaid planning processes by creating a planning façade, since this is a facility that is supposed to serve the Palestinian population that exists in the area.”
Petition Status: The petition was partially accepted
Petition to prosecute the heads of the Binyamin Regional Council Pinchas Wallerstein and Avi Roeh – HCJ 8088/14 Najah Mubarak Musa Farhat v the Attorney General
Submission Date: 27.11.14
In addition to the submission of the petition to remove the sewage treatment plant, Yesh Din filed a criminal complaint against the previous head of the Binyamin Regional Council Pinchas Wallerstein and against his then deputy and later on the head of the Regional Council, Avi Roeh, for their involvement in illegal construction.
In 2012, Wallerstein and Roeh were investigated by the National Fraud Investigation Unit on suspicion of the offenses of trespassing, construction without permits and issuing a fictitious permit (Roeh). During questioning at the National Fraud Investigation Unit, Roeh confessed to the offense attributed to him. He confessed that he knew it was construction on private Palestinian land and that he signed a fictitious building permit that enabled the facility’s construction illegally. Wallerstein admitted that he instructed construction to begin although the Regional Council did not own the land in question.
In October 2012, the police recommended prosecuting the two officials for planning and construction offenses. However, in June 2014, then Attorney General Yehuda Weinstein announced he decided not to serve an indictment since (among other reasons) no such similar indictments were issued in the past.
“There can be no justification whatsoever for illegal construction, trespassing on private property and the additional acts those involved are suspected of,” the Attorney General wrote. “However, there is a public need for building a sewage treatment facility; The Ministry for Environmental Protection required that the Council seek a solution to sewage pollution; the funding the State provided for the project through the sewage administration in the Ministry of National Infrastructure; and the passing of time from the date construction ended (five years) need to be taken into account regarding the question of whether criminal proceedings should be undertaken against the suspects. All this taking into account that if an indictment were served in this case, it would be a relatively precedential indictment, given there has been hardly any criminal enforcement on planning and construction offenses in Judea and Samaria to date, owing to the absence of an investigative agency in charge of this issue.”
As a result of the Attorney General’s decision, Yesh Din petitioned the HCJ against the closing of the case. The State Attorney responded that there is no dispute that these are suspicions of “grave acts that cannot be accepted,” yet added that public interest does not justify prosecution. The State Attorney repeated that there was no precedent for indictments against West Bank council heads for construction offenses, and it would not be appropriate to begin with this case.
In January 2016, HCJ justices instructed the Attorney General to reexamine the decision not to take legal action against Wallerstein and Roeh, an extraordinary measure. “We are disturbed by this case,” Justice Esther Hayut said during the hearing. The justices requested the State also examine the possibility of taking disciplinary action against the two.
As a result of the judge’s criticism, the State Attorney reached a settlement with the two, according to which they would confess to the violation of the planning and construction law and pay a fine. The two did not sign a regular plea deal, but are confessing in a relatively new proceeding of a conditional order, which allows the State Attorney to close confession cases without issuing an indictment.
The State response to the HCJ stated that after a renewed examination of the case, Mandelblit thought that “taking disciplinary steps would not be possible,” which is why there was the need to take steps that would “reflect the invalidity of the conduct” by Wallerstein and Roeh. However, they would take into account the special circumstances of the incident. Yesh Din claimed in opposition that this is not a sufficient step as far as public interest is concerned, and that a regular indictment must be filed against the two.
At the end of September 2017, the High Court of Justice rejected a petition and determined that the conditional agreement Wallerstein and Roeh signed would be sufficient. However, the judges levied sharp criticism in the ruling against their conduct: “The two exploited their power and used public resources in order to carry out illegal construction, despite being aware this was private property.” Justice Dafna Barak-Erez added: “Law-breaking conduct cannot ever be considered legitimate, even when it stems from ideological and other reasons that do not relate to the production of private benefits.” She also added: “Sometimes committing offenses under the auspices or veil of an action for the public benefit is even more dangerous, since someone that fails at it may not identify its inherent problem, which may have been the case here.”
Petition Status: Dismissed.