Legal Affairs: The house that Rajabi built

The dispute over ownership a building in Hebron was finally settled by the courts this week.

By DAN IZENBERG
November 20, 2008 20:41
Legal Affairs: The house that Rajabi built

Hebron home 224.88. (photo credit: Tovah Lazaroff)

 
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Nadav Ha'etzni, the lawyer who represented the settlers in the petition over the disputed building in Hebron, fought with a dogged determination - laced with impatience and subdued anger - to persuade the High Court of Justice to overturn the eviction order against his clients. Time and again, he ignored the court's pronouncement that it would not rule on the ownership dispute between the petitioners, Tal Construction and Development-Karnei Shomron and the Association for the Renewal of the Old Yishuv in Hebron, and Palestinian Faez Rajabi who, together with a partner, originally purchased the land and built the four-story structure. Ha'etzni presented one argument after another to persuade the court that his clients had purchased the building in 2004, even though Rajabi had told police the sale had not been completed, and the police had determined that some of the sale receipts submitted by the settlers were forged. It was not as though Ha'etzni did not understand what the High Court kept telling him. Earlier this year, he filed a suit in the Jerusalem District Court asking it to declare that the settlers had purchased the building and were its rightful owners. As Ha'etzni well knew, this was the way ownership disputes over property are settled. But Ha'etzni had no choice. He was in a race against time. He wanted to make sure that until the ownership dispute was resolved in the district court - presumably in his favor - the Jewish inhabitants of the building would remain there. Like so many other examples in the history of the settlement movement in the West Bank and Gaza, such as the establishment of more than 100 illegal outposts, there is nothing like time to help create permanent facts on the ground. Ha'etzni's tactics worked for 20 months. The settlers moved into the building located halfway between Kiryat Arba and the Machpela Cave on March 19, 2007, claiming that they owned it. On the same day, Rajabi filed a complaint with the police. He charged that the settlers had occupied his building by force. They were trespassers who should be evicted according to a military law which empowers the authorities to remove a "fresh trespasser" within 30 days of his illegal occupation of the property. After 30 days, the trespass is no longer considered "fresh" and a lengthy judicial process is required before the authorities can take action. At first, the police refused to help Rajabi evict the settlers. Rajabi told them he had never sold the building to the settlers. The settlers submitted a video in which Rajabi was seen signing the sales contract. The Palestinian then changed his story. He admitted to having signed the contract, but claimed that the settlers had not paid him in full and that shortly afterwards, he had changed his mind. The police described him as an unreliable witness. However, the minister of defense at the time, Amir Peretz, wanted the settlers out of the building. He ordered the head of the Civil Administration in the West Bank to issue a military order enacted not long before, declaring the use of the building for residential housing a use that "disturbs" the public order. This meant the settlers would have to leave. Ha'etzni appealed against the Civil Administration's order to a military court of appeals. That appeal has been pending ever since, and there is no indication as to when the court will rule on it. Meanwhile, the police continued their investigation of the claims and counter-claims of the settlers and Rajabi about who owned the building and who was in lawful possession of it on the evening of March 19, 2007. On April 11, 2007, the prosecution issued a statement saying that "in view of the circumstances and the questions that have been raised as to who owns the building, we cannot define the entry [by the settlers] as a trespass and issue the order which allows for their immediate eviction." Three months later, however, on July 3, 2007, the state started to change its tune. It informed the court that "according to the opinion of the police criminal identification department, documents that were presented to the police that were meant to support the claims of Tal Construction and the Association for the Renewal of the Old Yishuv in Hebron were found to be either forged or raised serious doubts regarding their authenticity." ON DECEMBER 2, 2007, the Civil Administration issued a notice to Ha'etzni, alerting him to the fact that it intended to assist Rajabi in evicting the residents of the disputed building according to the "fresh occupation" order. The following day, Ha'etzni petitioned the High Court against the decision. He wrote that a Palestinian front man, Ayub Jaber, had signed a contract with Rajabi on March 23, 2004 and paid him 464,000 Jordanian dinars (NIS 4 million) for the sale of the building. According to Ha'etzni, the balance was paid in installments. "The sales transaction was completed after Rajabi and his partner received the full amount of money determined in the contract," wrote Ha'etzni. He also maintained that another Palestinian, Sheikh Rabia Par'un, who had replaced Jaber as the front man after the Palestinian Authority allegedly threatened Jaber for assisting Jews in buying Palestinian property, received in return an irrevocable power of attorney to transfer the rights over the property." He also claimed that during the signing of the sales contract on March 23, 2004, Rajabi had formally handed over possession of the building to Jaber. The state disagreed. Attorney Gilad Shirman wrote in a brief to the court on January 6, 2008 that not only did some of the petitioner's documents appear to be forged, but that there was no indication the sales contract was ever completed, and that "no proper irrevocable powers of attorney were signed as is customary in Judea and Samaria when a transaction is completed." AFTER HEARING both sides, the High Court waited for 10 months before handing down its verdict. It waited to see if the military appeals court would rule on the settler's appeal against the military order declaring that the building could not be inhabited by the settlers. It is likely the court hoped to avoid having to hand down its own ruling on the petition, and hoped the appeals court would pull its chestnuts out of the fire. Finally, it decided to wait no longer, and on October 28, convened a final hearing on the petition before handing down its ruling. The justices, Supreme Court President Dorit Beinisch, Ayala Procaccia and Salim Joubran, made it clear again they would not deal with the question of whether or not the petitioners had purchased the home and were its rightful owners. However, they also stressed that they accepted the state's argument that there was sufficient administrative proof (which may be less conclusive than the proof required in court) to indicate that the settlers were not in possession of the building prior to the March 19 takeover. Even after the court advised Ha'etzni to persuade his clients to agree to leave the building voluntarily and gave him one day to respond, he essentially ignored their request. Instead of simply informing the court the next day of his clients' decision, he came back once more with a request to consider new and "decisive" evidence proving that the petitioners were in possession of the building before they occupied it. He also asked Attorney-General Menahem Mazuz for a hearing to present the evidence in the hopes of persuading him to change his mind and cancel the decision to help Rajabi evict the settlers. Neither the court nor Mazuz accepted Ha'etzni's last gasp. Mazuz did not grant the hearing and, on November 16, the court handed down its ruling. Now, it is up to the police to act on their own original decision to help Rajabi evict those they have determined to be trespassers as defined by law.

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