Court won't allow Gaza couple to testify by video in suit

The Abu Azers should travel to a neutral country to give evidence, says Nazareth court judge says on couple's lawsuit against the state.

By JOANNA PARASZCZUK
311_gavel (photo credit: Ariel Jerozolimski)
311_gavel
(photo credit: Ariel Jerozolimski)
In a ruling issued by the Nazareth District Court this week, and released for publication Thursday, judges upheld a request by the state to overturn a previous magistrate’s court decision that would have allowed a Gaza couple to testify by video in a lawsuit against the state.
Khaled and Adia Abu Azer, residents of the Gaza Strip, are suing the state in a civil suit in the Nazareth Magistrate’s Court over the death of their daughter. The couple claims that the girl, named Amira, was killed by IDF gunfire in the northern Gaza Strip in 2007.
The state says that the death occurred in a war zone, and therefore there is no need to pay compensation to the family.
When the trial reached the stage where witnesses were asked to give testimony, the magistrate’s court decided that the Abu Azers and their witnesses should be allowed to testify by video conference, because as residents of Gaza they are not allowed to enter Israel.
The state immediately appealed to the Nazareth District Court against the decision to permit the video testimonies.
In upholding the state’s appeal to disallow the videoconferencing, Judge Avraham Avraham noted the state’s policy to refuse residents of Gaza, an enemy territory, entry into Israel except in extraordinary cases.
Because of this policy, the Abu Azers cannot enter Israel – even though they are required to testify about events connected to their lawsuit.
“It is as if the doors of the Israeli courts have been blocked to them,” Avraham wrote.
However, the judge wrote that the decision of the magistrate’s court to permit the Abu Azers and their witnesses to testify by video conference from Gaza was “not a solution.”
Avraham conceded that the courts have permitted, however rarely, witnesses outside Israel to testify by video conference, but noted that on these occasions the courts were convinced that video-conferencing was the only way for the legal process to take place, and that it would not lead to a miscarriage of justice or diminish the rights of the other party in the suit.
“In this case, I was not convinced that [video conferencing] was an appropriate way to conduct the trial,” the judge noted, citing several reasons why allowing the Abu Azers to testify via video-conferencing might prejudice the trial.
If the witness testimonies were given via video-conferencing from Gaza, the state attorneys would not be able to be present.
“[The state] would not be able to verify the identity of witnesses, assess the suitability of the place the testimony was given, or monitor the way the testimony was given so as to avoid anyone influencing the witnesses – including by helping them give answers that weren’t recorded on the camera,” wrote Avraham.
“A representative of the opposing side should be present to present documents, or other evidence, during cross examination. This is not possible when the opposing side is denied the possibility to be present during testimony.”
The judge also noted that in cases where witnesses are permitted to testify remotely in countries where the rule of law prevails, the opposing party is able to know whether, according to the law of that country, acts like perjury are permitted.
However, Gaza is not such a country, Avraham noted.
In ruling to uphold the state’s appeal against allowing video conferencing, Judge Avraham wrote that the Abu Azers should travel to a neutral country, such as Cyprus, which will permit them to give evidence in the presence of a representative of the state.
Attorneys for the Abu Azers disagreed with this suggestion on the grounds that the family could not afford to travel to Cyprus.