HCJ 1890/03
and 22 others
v
1. State of
2. Gen. Moshe Kaplinsky – IDF Commander in
Judaea and
The
[3 February 2005]
Before Justices D. Beinisch, E. Rivlin,
Petition to the
Facts: The site known as Rachel’s tomb, which is situated in
the outskirts of
Because of the persistent terror attacks by Palestinians on Jewish
targets since September 2000, and following the discovery of a terror cell that
intended to attack a bus of worshippers on their way to the tomb, the
respondent made an order to requisition land for the purpose of paving a bypass
road that would allow Jewish worshippers to travel safely to Rachel’s tomb. The
order was amended twice, but the petitioners still argued that the order
violated their freedom of movement and property rights.
Held: The respondent has a duty to ensure the realization
of the right of freedom of worship by protecting the safety and lives of the
worshippers on their way to and from Rachel’s tomb. In choosing the measures
for realizing this purpose, the respondent must take into account the basic
rights of the petitioners, including their property rights and freedom of
movement, and he must strike a proper balance between the conflicting rights.
In this case, the solution adopted by the respondent did indeed ensure the
realization of the worshippers’ freedom of worship without violating the
essence of the petitioners’ freedom of movement and property rights. Therefore
no intervention of the court was warranted.
Petition denied.
Legislation cited:
Basic Law: Human Dignity and
Order Concerning the Requisition of Land no. 14/03/T (Judaea and
Order Concerning the Requisition of Land no. 14/03/T (Amendment of
Borders) (Judaea and
Order Concerning the Requisition of Land no. 14/03/T (Second Amendment
of Borders) (Judaea and
Protection of Holy Places Law, 5727-1967, ss. 1, 2(b).
Israeli
[1] HCJ 2056/04
[2] HCJ
940/04 Abu Tir v. IDF Commander in Judaea and
[3] HCJ
10356/02 Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443;
[2004] IsrLR 53.
[4] HCJ 401/88 Abu Rian v. IDF Commander in
Judaea and
[5] HCJ 24/91 Timraz v. IDF Commander in
[6] HCJ 2717/96 Wafa v. Minister of Defence
[1996] IsrSC 50(2) 848.
[7] HCJ 7015/02 Ajuri v. IDF Commander in
[8] HCJ 358/88 Association for Civil Rights in
[9] HCJ 292/83
[10] HCJ
650/88
[11] HCJ
257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 48(2) 265.
[12] HCJ
1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC
55(4) 267.
[13] HCJ
7128/96
[14] HCJ
2725/93 Salomon v. Jerusalem District Commissioner of Police [1995]
IsrSC 49(5) 366.
[15] HCJ
4044/93 Salomon v. Jerusalem District Commissioner of Police [1995]
IsrSC 49(5) 617.
[16] CA
6024/97 Shavit v. Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3)
600; [1998-9] IsrLR 259.
[17] HCJ
672/87 Atamalla v. Northern Commander [1988] IsrSC 42(4) 708.
[18] HCJ
153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC
38(2) 393; IsrSJ 7 109.
[19] HCJ
5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997]
IsrLR 149.
[20] HCJ
2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.
[21] HCJ
3239/02 Marab v. IDF Commander in Judaea and
[22] HCJ 13/86 Shahin v. IDF Commander in Judaea
and
[23] HCJ 448/85 Dahar v. Minister of Interior
[1986] IsrSC 40(2) 701.
[24] HCJ 148/79
[25] HCJ 4706/02 Salah v. Minister of Interior
[2002] IsrSC 56(5) 695.
[26] HCJ 174/62 Religious Coercion Prevention
League v.
[27] HCJ 531/77 Baruch v. Traffic Comptroller,
Tel-Aviv and Central Districts [1978] IsrSC 32(2) 160.
[28] HCJ 1005/89 Agga v. IDF Commander in
[29] HCJ 390/79 Dawikat v. Government of
[30] HCJFH 4466/94 Nuseibeh v. Minister of
Finance [1995] IsrSC 49(4) 68.
For the petitioner — A. Tussia-Cohen.
For the respondent — A. Licht.
JUDGMENT
Justice D. Beinisch
Before us is a second amended petition, in which the petitioners attack
the legality of the Order Concerning the Requisition of Land no. 14/03/T
(Second Amendment of Borders) (Judaea and Samaria), 5733-2003, which was made
by the IDF Commander in Judaea and Samaria (hereafter: ‘the second respondent’
or ‘the respondent’) on 17 August 2004. The order concerns the requisition of a
strip of land in the area of Bethlehem, for the purpose of paving a bypass road
for Jewish worshippers who wish to go from Jerusalem to the tomb of the
Matriarch Rachel (hereafter: ‘the tomb’) and the building of a wall to protect
this road. These walls are supposed to be integrated, as will be clarified
below, in the route of the planned ‘separation fence’ in the
Factual
background and sequence of proceedings
1. On 9 February 2003, the
respondent made the Order Concerning the Requisition of Land no. 14/03/T
(Judaea and
The making of the aforesaid order led to the filing of a petition by
Bethlehem Municipality (the first petitioner), Bet Jalla Municipality (the
second petitioner), the Jerusalem District Electric Company (the third
petitioner, the Moslem Waqf (the twenty-third petitioner) and private residents
(petitioners 4-22) who claimed that they were likely to be harmed by the
realization of the aforesaid order (hereafter, jointly: ‘the petitioners’). In
the original petition, which was directed against the aforesaid order, the
petitioners claimed that the order should be set aside because, according to
them, they were not given a right to present their case before it was
published, and because according to them the order departed from the margin of
reasonableness and proportionality. Their main argument was that in choosing
the aforesaid original solution, the respondent did not give proper weight to the
harm that would be caused to the local population and that other alternatives
that affect the lives of the local population to a lesser degree were not
considered. Within the framework of their petition, the petitioners also
proposed several options to the original solution that was chosen. Inter alia they proposed that a tunnel should be made to the tomb, or a bypass
road should be made for the worshippers, by building a double wall that would
pass between the rows of olive orchards on the west side of most of the houses
of the petitioners.
2. In
response to the original petition, counsel for the respondents gave notice that
the second respondent decided to grant the petitioners a possibility of
objecting to the order and that it was agreed with counsel for the petitioners
that the petition, with its arguments and appendices, with constitute the
objection, which would be submitted to the respondent for a decision. Pursuant
to this agreement, the petitioners’ objection was indeed brought before the
respondent, who decided to accept the objection and change the original order.
Instead of the solution that was planned within the framework of the original
order, which was based, as aforesaid, on making the existing access routes to
the tomb secure, the respondent now chose a solution of preparing an
alternative route, which would be used only as an access route to Rachel’s
tomb, and making this road secure by means of walls. For the purpose of the
aforesaid change, on 5 August 2003 the respondent issued the Order Concerning
the Requisition of Land no. 14/03/T (Amendment of Borders) (Judaea and
Samaria), 5763-2003 (hereafter: ‘the second order’). According to the route
that was planned in the second order, the new road was supposed to start from
roadblock
On 14 August 2003, the petitioners were notified that their objection
had been accepted and that there was an intention to change the route, and on
19 August
3. The petitioners’ main
argument in the first amended petition was that the respondent’s decision in
making the aforesaid second order also suffered from extreme unreasonablenesss.
According to them, this decision did not reflect a proper balance between the
rights of the worshippers and the property rights of the local population and
their right to freedom of movement within
It would appear that no one disputes that the main harm that the second
order was likely to cause the residents (and especially their freedom of
movement) arose from the last part of the route that was planned in the second
order, according to which the planned road was supposed to split near the tomb
and connect with Rachel’s tomb in two ways, as explained above. This last
section was going to create an area that was surrounded entirely by walls that
enclosed on all sides, even according to the respondents’ position, at least
five residential houses where six families lived and where there were several
shops and offices, including the offices of the Moslem Waqf (hereafter: ‘the
area’). Indeed, it would appear that even counsel for the respondents was aware
that it was this area that was likely to create the greatest violation of
freedom of movement, since on page 16 of the respondents’ reply to the first
amended petition, he said that ‘the main harm alleged is to the residents who
will live from now on in an area that is surrounded by a wall, without free
access to Bethlehem.’ It should be noted at this point that this section of the
route, and the serious harm that it was likely to inflict on the residents who
were going to be enclosed within it, is indeed the part that troubled us more
than anything else in the route of the second order.
4. On 29 October
According to what is stated in the supplementary response of the
respondents dated 5 December 2003, of all the petitioners only two petitioners
(the Jerusalem District Electric Company and the Moslem Waqf) chose to submit
detailed claims to the respondents. In the supplementary response, it was also
stated that following the submissions of these two petitioners, a meeting did
indeed take place between the parties, but in the end the parties did not
succeed in reaching an agreement. In their reply to the supplementary response
of the respondents, the petitioners confirmed that they did not succeed in
reaching an agreement with the respondents on the questions and claims that
were raised by them in the petition, and they gave notice that they therefore
wished the court to decide the petition on its merits.
5. On 2 June 2004, after
negotiations between the parties failed, we held a further hearing on the first
amended petition. The hearing focused mainly on the harm that the second order
was likely to cause the residents of the aforesaid area, who were supposed to
be surrounded as aforesaid by walls, and on ways of preventing or reducing the
harm to those residents. After the hearing, an order nisi was made in
the petition.
Following the making of the order nisi and in view
of the court’s remarks during the hearing, the respondents asked for additional
time in order to reconsider the planned route. Meanwhile, on 30 June 2004, this
court gave its judgment in HCJ 2056/04 Beit Sourik Village Council v.
Government of Israel [1] with regard to the route of the
‘separation fence’ in the area north-west of
6. At the end of the aforesaid
reassessment, the respondents decided once again to change the planned route in
the area of Rachel’s tomb. Therefore, on 17 August 2004, the respondent issued
the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of
Borders) (Judaea and
The new order was sent to the petitioners, together with explanations
for their counsel, and none of the petitioners submitted an objection to the
order. But on 27 September 2004 the petitioners notified the court that this
change did not satisfy them, and that they insisted upon their complaints being
heard. Therefore, on 26 October 2004 the petitioners filed a second amended
petition, which is directed against the new order. This is the petition that is
before us today.
The arguments of the parties
7. In their second amended
petition, the petitioners as aforesaid attack the validity of the new order,
namely the Order Concerning the Requisition of Land no. 14/03/T (Second
Amendment of Borders) (Judaea and
Against this the respondents argue that the solution chosen in the new
order reflects a proper balance between the conflicting interests, and that the
decision is reasonable and proportionate. Counsel for the respondents argues
that the new order adopts a route that is intended to provide a response to the
remarks of the court in the hearing on the first amended petition dated 2 June
2004 and also to the test laid down by this court in Beit Sourik Village Council v.
Government of Israel [1]. The premise for the
reconsideration, according to counsel for the respondents, was a desire to
choose a more proportionate solution, which would minimize, in so far as
possible, the harm to the local population, without abandoning the need to
protect access to the tomb. Therefore, according to him, a route was chosen
that provided a security solution that was not ideal, in order to prevent local
residents being left on the other side of the separation fence. Counsel for the
respondents argues that the route that was ultimately chosen does indeed
provide a solution to the petitioners’ problem and to all of the specific
claims that they raised in their original petition and in their amended
petition. Counsel for the respondents argues that the solution that was
ultimately chosen, with certain changes, is based on one of the petitioners’ own
proposals in their original petition — paving a bypass road for the
worshippers. Counsel for the respondents further argues that building the wall
and paving the bypass road is clearly intended for a security purpose —
the protection of the lives of Israelis going to Rachel’s tomb. Counsel for the
respondents discusses in his response the need to make access to Rachel’s tomb
secure for worshippers, and he reviews the terror attacks and operations, which
include sniper fire, placing explosive charges, throwing Molotov cocktails and
disturbances of public order that have been directed at the tomb since the
combat activities and terror attacks began in September 2000. These events have
led to the military commander being compelled to adopt measures to protect the
site and ensure the safety of the worshippers on their way to and from the
tomb, as well as when they are at the site. Therefore, counsel for the
respondents in his response discusses how the decision is based on security
reasons only and that there is no basis for the petitioners’ claims that
irrelevant considerations and an intention to annex the area of the tomb to
Thus we see that the starting point for our deliberations is that the
petitioners do not deny the rights of the worshippers to have access to
Rachel’s tomb, but according to them this access should be ensured without
harming their freedom of movement in
It should also be noted that the scope of the requisition under the new
order (and the route of the bypass road and the walls planned within the
framework of this order) was planned so that it would be integrated with the
planned route of the ‘separation fence’ in the area of
‘It should be noted that this petition is not directed at the
“separation fence” that is being built at this time in the territories (and the
petitioners in this petition do not wish to address the question of the fence
itself at this stage) but merely at the question of the safe passage to
Rachel’s tomb, exactly as the respondents themselves define the
order, which was intended for the purpose of building a wall to protect the
worshippers going to Rachel’s tomb’ (s. 25 of
the second amended petition; emphases in the original).
Indeed, the two parties agreed that the declared purpose of the
requisition order in this case is not to prevent the infiltration of terrorists
from the territories into
Deliberation
8. In the petition before us,
the petitioners do not raise any argument against the authority of the respondent to make the order for the requisition of land under
discussion. Indeed, the general power of the military commander to requisition
land on the basis of the provisions of the Regulations Concerning the Laws and
Customs of War on Land, which are appended to the Fourth Hague Convention of
1907 (hereafter: ‘the Hague Convention’) and the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, 1949 (hereafter: ‘the Fourth
Geneva Convention’), when the conditions under international and Israeli law
are satisfied, has been recognized by this court in a series of judgments (see,
for example, Beit Sourik Village Council v. Government of Israel [1], at para. 32; HCJ 940/04 Abu Tir v. IDF Commander in
Judaea and Samaria [2], at para. 10; HCJ 10356/02 Hass v. IDF
Commander in West Bank [3], at paras. 8-9; HCJ
401/88 Abu Rian v. IDF Commander in Judaea and Samaria [4], at p.
770; HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [5], at pp. 333-335; HCJ 2717/96 Wafa v. Minister of Defence [6], at p. 856). The petitioners in the petition before us argue
against the discretion of the respondent in making the
order and they raise arguments that make allegations of unreasonableness and
disproportionality. Indeed, even when he acts with authority, the military
commander is liable to exercise his authority (inter alia) in accordance with the principles of reasonableness and
proportionality, and his discretion will be subject to the scrutiny of this
court (see, for example, Beit Sourik Village Council v. Government of
Israel [1], at para. 24; Hass v. IDF Commander in West
Bank [3], at para. 10; HCJ 7015/02 Ajuri v. IDF
Commander in West Bank [7], at pp. 375-377 {___-___}). Our deliberations
will focus, therefore, on the exercising of judicial scrutiny with regard to
the military commander’s considerations, in accordance with the criteria
outlined by the court in its case law rulings.
The arguments concerning
irrelevant considerations
9. As stated, one of the
petitioners’ arguments is that the respondent’s decision in making the order
was based on an irrelevant consideration. According to them, the consideration
that underlies the order was not ensuring the security of the worshippers
against terror attacks but the ‘annexation’ of Rachel’s tomb to
Right to
present a case
10. An additional argument that the petitioners made is that they
were not given a real right to present a case before the decision was made to
issue the new order. No one disputes that the petitioners have a right to
present their arguments with regard to the area affected by the order (see, for
example, Hass v. IDF Commander in West Bank [3], at
para. 6; HCJ 358/88 Association for Civil Rights in Israel v. Central
Commander [8], at p. 540); but, according to the respondents,
this right was given to the petitioners and was realized de facto. Counsel for the respondents claims that the objections of the
petitioners to the original order and to the second order were considered
carefully and that in formulating the new arrangement the respondents were
attentive to the arguments and problems of the petitioners and open to changing
their original position. And indeed, a proof of this is the fact that as a
result of the petitioners’ petitions and objections, the respondent changed his
original position and made a significant change in the planning, by adopting an
alternative that is based, with certain changes, on one of the alternatives
proposed by the petitioners themselves. Moreover, no one doubts that the
respondents took care to notify the petitioners that their objection to the
original order was accepted and of the intention to change the planning, and
they even invited the petitioners and their counsel to tour the area of the
requisition in order to show them the second route that was adopted. Moreover,
no one disputes that the petitioners were given an opportunity to object to the
second order and that the petitioners did indeed do this. As a result of this
objection, an additional meetings took place between the respondent’s
representatives and the petitioners’ representatives with the aim of finding
solutions that would be acceptable to the two parties. When this attempt
failed, the respondent examined the objection and rejected it in a reasoned and
detailed response. Likewise, no one disputes that the petitioners were given an
opportunity to object to the new order, which was also sent to the petitioners
together with explanations to their attorneys, but none of the petitioners
filed an objection to this order. Indeed, the history of the order which is the
subject of the petition and the changes that were made to it, to a large extent
also as a result of the petitioners’ claims with regard to the harm caused to
them, shows that the respondents gave every opportunity to persons who might
potentially be hurt by the route of the planned road and fence to raise their
arguments before making a decision on the final route. In these circumstances,
we see no real merit in the claim that the petitioners’ were not given the
right to present their arguments in this case, even though attention was paid
to that right to be heard only after the original petition was filed.
Now that we have rejected the petitioners’ arguments with regard to
irrelevant reasons and the right to present their case, let us turn to examine
the petitioners’ main claim in this case, namely the claim that the
respondent’s decision does not give sufficient weight to the harm caused to the
basic rights of the petitioners, and it therefore suffers from unreasonableness
and disproportionality.
Reasonableness
of the respondent’s decision
11. As can be seen from the respondent’s affidavit, the order with
regard to the requisition of the land was made in order to increase the
security of the worshippers on their way to Rachel’s tomb. The purpose underlying
the order, therefore, is to allow the realization of the worshippers’ freedom
to worship at Rachel’s tomb. The problem is that the means chosen for realizing
this purpose inherently involve a violation of the petitioners’ property rights
and freedom of movement. The question before us is therefore whether the new
order properly balances the worshippers’ freedom of worship against the
petitioners property rights and freedom of movement. Let us first consider the
worshippers’ freedom of worship at Rachel’s tomb and afterwards the proper
balance between it and the rights of the petitioners.
Freedom of
worship
12. The freedom of religion and worship is recognized in our law
as one of the basic human rights. This freedom was already mentioned in article
83 of the Palestine Order in Council, 1922, and in the Declaration of
Independence. Freedom of religion and worship has been recognized in the case
law of this court for a long time (see, for example, HCJ 292/83 Temple Mount
Faithful v.
The status of the freedom of worship was discussed not long ago by this
court in Hass v. IDF Commander in West Bank [3], per Justice Procaccia:
‘The freedom of religion is a constitutional basic right of the
individual, with a preferred status even in relation to other constitutional
human rights. The freedom of worship constitutes an expression of freedom of
religion, and it is an offshoot of freedom of expression… The constitutional
protection given to freedom of worship is therefore similar, in principle, to
the protection given to freedom of speech, and the constitutional balancing
formula that befits the one is also applicable to the other… We are concerned
with a constitutional right of great strength whose weight is great when it is
balanced against conflicting social values’ (ibid. [3], at
para. 19).
Moreover:
‘The freedom of religion and worship… is regarded as a constitutional
right of supreme status that should be realized in so far as possible in view
of the conditions prevailing in the territories, while protecting the safety
and lives of the worshippers’ (ibid. [3], at
para. 15).
In that case, the court considered a very similar issue to the one in
our case — the legality of a requisition and demolition order that was
made by the IDF commander in Judaea and Samaria for the purpose of increasing
the security of the persons using the ‘Worshippers’ Route’ in Hebron (a route
that is used by the Jewish residents of Kiryat Arba who wish to realize their
right to pray at the Machpela Cave). With regard to the rights of the
worshippers in that case. Justice Procaccia said (ibid. [3], at
para. 19):
‘The worshippers who wish to go to the
13. No one disputes that Rachel’s tomb is a holy site for Jews and
that this site has been regarded by Jews as a holy site and a place of worship
for many generations. Indeed, there is much evidence regarding the sanctity of
the site to Jews and pilgrimages that were made to it already from very early
times. In his book, Wars of the Holy Places — the Struggle for Jerusalem
and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip (Jerusalem Institute for Israel Studies, 2000), to which we were
referred in the state’s reply, Dr S. Berkovitz states that the site recognized
today as ‘Rachel’s tomb, in the outskirts of Bethlehem, has been identified as
Rachel’s tomb for more than a thousand years. He also adds that Rachel, a holy
figure in Judaism, represents motherhood, mercy, redemption and the return to
the land of Israel, in both the Bible and in Jewish tradition, and that her
tomb is regarded as the third most holy site to Jews, after the Temple Mount
and the Machpela Cave (ibid., at p.
301). In the aforesaid book,
Counsel for the respondents wishes to add to this that even in the
interim agreements between Israel and the Palestinian Liberation Organization
and the Palestinian Authority, within which framework the control of Bethlehem,
inter alia, was transferred to the Palestinian
Authority, the right of Jews to realize their right to freedom of worship at
the sites holy to them was maintained, and according to these agreements,
Israel retained the security control of the tomb and the access routes to it
(see also Berkovitz, Wars of the Holy Places — the Struggle for
Jerusalem and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip, supra, at pp. 215-220, 287, 302-303). The petitioners, for
their part, do not dispute the right of Jewish worshippers to freedom of
worship at Rachel’s tomb nor do they even dispute the fact that the worshippers
have the right to realize the right of freedom of worship with relative safety.
The premise for our deliberations, therefore — without expressing any
position as to the political status of Rachel’s tomb or the right to have
possession of the tomb — is that Jewish worshippers have a basic right to
freedom of worship at Rachel’s tomb.
14. The freedom of worship is not an absolute
right. It is a relative right that may, in certain circumstances, yield to
other public interests or basic rights. The remarks of
‘Freedom of conscience, belief, religion and worship,
in so far as the theory of belief is put into the practice of action, is not an
absolute right… my right to pray does not allow me to trespass into my
neighbour’s property or to cause him a nuisance. The freedom of conscience,
belief, religion and worship is a relative freedom. It should be balanced
against rights and interests that are also worthy of protection, such as
private and public property and the freedom of movement. One of the interests
that should be taken into account is the interest of public order and public
safety.’
Indeed, in certain situations, the military commander
may restrict or even prevent the realization of freedom of worship at a certain
place in order to protect public order and public safety and in order to
protect the lives and safety of the worshippers themselves (see Hass v. IDF
Commander in West Bank [3], at para. 19; see also
HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [14]; HCJ 4044/93 Salomon v. Jerusalem District Commissioner of
Police [15]). But before he restricts the worshippers’
freedom of worship, the military commander should examine whether he is able to
adopt reasonable measures that will allow the realization of the freedom of
worship while ensuring the safety of the worshippers. This was discussed by
‘… Freedom of conscience, belief, religion and worship is limited and
restricted in so far as is necessary and essential in order to protect public
safety and public order. Naturally, before any action is carried out that may
violate and restrict this freedom because of harm to public safety, the police
ought to take all the reasonable steps available to them in order to prevent
the violation of public safety, without violating the right to conscience,
belief, religion and worship. Therefore, if the concern is one that there will
be violence from a group that is hostile to the worshippers, the police should
act against this violence, and not against the worshippers. But if reasonable
action by the police is not capable, in view of its limitations, of removing
the de facto harm to public safety, there is no
alternative to a restriction on the freedom of conscience and religion, as
required in order to protect public safety.’
(See also Hass v. IDF Commander in West Bank [3], at para. 19).
In the case before us, the worshippers have not been denied the right
of worship by the authorities, but it has been violated as a result of the
danger presented to the worshippers by terror activities that may be directed
at them. Therefore the respondent decided to search for measures that would
reduce the danger to the safety and security of the worshippers while
preserving their right of worship. The respondent’s decision is to give
significant weight to the basic right to freedom of worship, while making a proper
balance between the freedom of worship and the public interest of protecting
public safety. But in our case, the right of the worshippers to freedom of
worship is opposed not only by the interest of public safety but also by the
rights of the petitioners to property and freedom of movement, which may be
harmed as a result of measures adopted to protect the safety of the worshippers
and which are de facto harmed by the measures chosen by the
respondent (see Hass v. IDF Commander in West Bank [3], at para. 18). It should be emphasized that the respondents do not
dispute the fact that the petitioners have these basic rights and that the
respondent is obliged to take them into account in his decision, whereas the
petitioners, for their part, do not question the basic right of the worshippers
to freedom of worship at Rachel’s tomb. The dispute between the parties
therefore concerns the question whether the new order provides a proper balance
between the worshippers’ freedom of worship and the petitioners’ freedom of
movement and property rights. Let us first discuss the proper balance between
the worshippers’ freedom of worship and the petitioners’ freedom of movement,
and then the proper balance between the worshippers’ freedom of worship and the
petitioners’ property rights.
Freedom of
worship versus freedom of movement
15. As stated, the main claim of the petitioners is that
realization of the worshippers’ freedom of worship in accordance with the order
seriously violates the freedom of the petitioners to move within
The status of the freedom of movement in our legal system was discussed
by this court in Horev v. Minister of Transport [19], where it considered inter alia the relationship between the freedom of movement and an injury to
religious sensibilities and a religious lifestyle. In that case, President Barak
said that freedom of movement is ‘one of the more basic rights’ (ibid. [19], at p. 49 {___}),
that the right to freedom of movement ‘is in the first rank of human rights’ (ibid. [19], at p. 51 {___})
and that freedom of movement is ‘a freedom that is on the very highest level of
the scale of rights in Israel’ (ibid. [19], at p.
53 {___}). The president
also added in Horev v. Minister of Transport [19] that ‘as
a rule, we place the freedom of movement within the boundaries of the state on
a similar constitutional level to that of the freedom of expression’ (ibid. [19], at p. 49 {203}). It should be noted that similar remarks with
regard to the status of the freedom of movement were also made by the justices
who did not agree with President Barak’s majority opinion in Horev v.
Minister of Transport [19] (see, for example, the
remarks of
The freedom of movement is recognized as a basic right also in
international law. The freedom of movement within the state is enshrined in a
whole host of international conventions and declarations concerning human
rights (see, for example, art. 12 of the International Covenant on Civil and
Political Rights, 1966, art. 13 of the Universal Declaration of Human Rights,
1948, and art. 2 of the Second Protocol of the European Convention on Human
Rights, 1950) and it would appear that it is also enshrined in customary
international law (see Zilbershatz, ‘On Freedom of Movement within the State:
Following HCJ 5016/96 Horev v. Minister of Transport,’ supra, at pp. 800-801).
Notwithstanding, like the freedom of worship and like almost all
freedoms, the freedom of movement is not absolute. It is relative, and it
should be balanced against other interests and rights. This is the case in our
constitutional law (see, for example, Horev v. Minister of Transport [19], at pp. 39, 181 {___,
___}; it is also the case in international law concerning human rights.
Thus, for example, art. 12 of the International Covenant on Civil and Political
Rights provides:
‘1. Everyone lawfully
within the territory of a State shall, within that territory, have the right to
liberty of movement…
…
3. The above-mentioned
rights shall not be subject to any restrictions except those which are provided
by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and
are consistent with the other rights recognized in the present Covenant.
…’
(See also art. 4 of the same Covenant with regard to the possibility of
restricting the rights listed therein in situations of national emergency). It
should be noted that, in view of the positions of the parties in their
arguments before us, we are not called upon to decide the question whether and
to what extent the principles of Israeli constitutional law and the
international human rights conventions apply in Judaea and Samaria (cf. HCJ
3239/02 Marab v. IDF Commander in Judaea and Samaria [21], at p.
364 {___}; HCJ 13/86 Shahin v. IDF
Commander in Judaea and Samaria [22], at pp. 210-213). It is
sufficient for us to say that within the framework of the duty of the military
commander to exercise his discretion reasonably, he must also take into
account, among his considerations, the interests and rights of the local
population, including the need to minimize the degree of harm to their freedom
of movement, and, as aforesaid, the respondents do not deny this. How, then,
should the military commander balance the basic right of freedom of movement
against the basic right of freedom of worship?
16. The proper balancing formula between these two rights should
be determined in accordance with the relative weight of each of these rights,
since ‘the balancing formulae vary in accordance with the conflicting values’ (Dayan v. Wilk [20], at p. 475 {345}) and as Vice-President Ben-Porat said in HCJ
448/85 Dahar v. Minister of Interior [23], at p.
708:
‘The proper criterion is not fixed and
uniform for all types of case… but a suitable test should be adopted, taking
into account the nature and importance of the
competing principles in our outlook concerning the relative importance and degree of protection that we wish
to give to each principle or interest’ (emphases in the original).
In the case before us, we are presented with a conflict between two
basic rights of equal weight. As we have seen above (in paras. 12 and 15), both
the freedom of worship and the freedom of movement have been recognized in our
case law as being on the highest level of the scale of rights (with regard to
the freedom of worship, see Hass v. IDF Commander in West Bank [3], at paras. 15, 19; and with regard to the freedom of movement, see
Horev v. Minister of Transport [19], at pp.
49-53 {202-207}). Moreover, both the freedom of worship and the freedom of
movement have been recognized in the case law of this court as having the same
weight as freedom of expression (see Hass v. IDF Commander in West
Bank [3], at para. 19, and Gur Aryeh v. Second Television
and Radio Authority [12], at p. 285, with regard to
freedom of worship; and see Horev v. Minister of Transport [19], at p. 49 {202-203}, Dahar v. Minister of Interior [23], at pp. 706, 708, and Levy v. Southern District
Commissioner of Police [18], at pp. 401-402
{117-118} with regard to freedom of movement). In addition, with regard to both
of them an identical balancing formula has been applied in order to balance
them against the same public interests (with regard to the freedom of worship,
see, for example, HCJ 292/83 Temple Mount Faithful v.
The result implied by the conclusion that we are concerned with a
conflict between two rights of equal weight is that the balance required in
this case is a horizontal balance, which will allow the coexistence of both of
these rights. The remarks made in Dayan v. Wilk [20], at p. 480 {353} (with regard to the balance between the right to
hold a meeting and procession as opposed to the right to privacy in a person’s
home) are pertinent:
‘We are concerned with two human rights of equal standing, and the
balance between them must therefore find expression in a reciprocal waiver
whereby each right must make a concession to the other in order to allow the
coexistence of both… The balance required between the rights is a horizontal
balance.’
Indeed, ‘in the organized life of society, there is no “all or
nothing.” There is “give and take,” and a balance between the different
interests’ (
Against this background, let us examine the nature and intensity of the
violation of the petitioners’ freedom of movement in this case, in order to
examine whether the new order does indeed result in the realization of the
essence of the freedom of worship without harming the essence of the freedom of
movement, as required by the horizontal balance between these two liberties of
equal weight.
17. How, then, should we examine the extent of the violation of
the freedom of movement of the petitioners, who argue with regard to their
right to move within the city of Bethlehem, when their place of residence or
work is in the area close to Rachel’s tomb? From the case law of this court we
can derive several subtests or criteria for examining the intensity of the
violation of the individual’s freedom of movement, of which the main ones are
the geographic scope of the restriction on movement, the degree of intensity of
the restriction on movement, the period of time during which the restriction
remains in force, and the interests that the freedom of movement seeks to
realize.
With regard to the criterion concerning the geographic scope of the
restriction of movement, Justice Türkel said in
HCJ 4706/02 Salah v. Minister of Interior [25], at p.
704:
‘It need not be said that the most serious violation of the freedom of
movement and the right to liberty is the imprisonment of a person in a jail, by
virtue of an arrest warrant or a prison sentence, and the restriction of his
movements behind the prison walls. Less serious than this is the restriction of
freedom of movement to a specific place of residence, such as an alternative to
arrest that makes the accused’s bail conditional upon his living at a specific
address (“house arrest”). Less serious still is a restriction of movement to
the limits of a certain city, and less serious still is a restriction of
movement by means of a prohibition to enter the limits of a certain city. Less
than this is a restriction on the freedom of movement by means of a prohibition
against leaving the country… less than this is a restriction by means of a
prohibition against entering a certain country, such as a prohibition against
entering an enemy country…’
Similar remarks were also made by
‘Restrictive orders are of different and varied kinds, and the degree
of restriction caused by them are not always equal. A restrictive order that
imposes “house arrest” on the person affected by the restriction… cannot be
compared to a restrictive order that restricts his movements to an area within
which he is allowed to move freely. And a restriction to a specific area, for
someone who lives and works there, cannot be compared to such a restriction for
someone who was “exiled” to the area by virtue of the order, just as someone
who is prohibited from leaving Israel cannot be compared to someone whose
movement is restricted within Israel.’
(See also the remarks of Justice Bach in Dahar v. Minister of Interior [23], at pp. 714-715; and see the remarks of
An additional criterion, as we have said, is the degree of
intensity of the restriction on movement. It is clear
that the violation involved in a complete denial of the freedom of movement is
more serious than a violation caused by a partial restriction on the freedom of
movement, and the smaller the extent of the restriction, so the intensity of
the violation will be less. Thus, for example, it was held with regard to the
intensity of the violation of freedom of movement in the context of the closure
of roads that the closure of a road that is the only means of access cannot be
compare to the closure of a road where there are alternative access routes
nearby; the closure of a main traffic artery cannot be compared to the closure
of a road inside a neighbourhood; and the closure of a road that is tantamount
to blocking access absolutely cannot be compared to a closure than results
merely in a longer route and an inconvenience for the persons using the road;
and the smaller the increase in time and convenience caused by the alternative
route are, the smaller the intensity of the violation of freedom of movement (Horev v.
Minister of Transport [19], per President
Barak, at p. 67 {___}, per Justice Or at pp. 98-102 {___-___}, per
According to the criterion of the period of
time during which the restriction remains in force, the longer
the period of the restriction of freedom of movement, the greater the intensity
of the violation (Salah v. Minister of Interior [25], at p.
705). A curfew that denies the right of a person to leave his home for several
hours cannot be compared to house arrest that denies a person the right to
leave his home for several weeks or even months; similarly, a restriction on
the right to leave Israel for several days cannot be compared to a restriction
of this right for several months or even years (Salah v. Minister of Interior [25], at p. 705); similarly, the closure of a part of a traffic artery
for the duration of prayers cannot be compared to a closure for the whole of
the Sabbath (Horev v. Minister of Transport [19], at p.
66 {___}).
According to the criterion of the personal interest of a
person in realizing freedom of movement, the purpose
of the movement or travel is considered in order to assess the intensity of the
violation of freedom of movement. The restriction of the movement of someone
whose travel is essential and important may increase the violation thereof.
Indeed, someone whose travel is intended for the purpose of urgent medical
treatment cannot be compared to someone whose travel is intended for the
purpose of a pleasure trip (Salah v. Minister of Interior [25], at p. 705). A similar test was proposed by Prof. Zilbershatz in
her article ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v.
Minister of Transport,’ supra, with regard
to the freedom of movement:
‘The more important the purpose of the movement, the greater will be
the constitutional protection that should be given to the right to freedom of
movement… according to this, it is definitely possible that certain movement
for a purpose that is not essential, such as for the purpose of travel only,
will be recognized as a basic right that should be protected, but to a lesser
degree than movement for an essential purpose, such as for the saving of life’
(ibid., at p. 815).
A similar approach was expressed in Horev v. Minister of Transport [19], where all the justices agreed that a restriction of movement on
Bar-Ilan Street should be done in a way that left the road open to traffic for
security and emergency vehicles (see, for example, the remarks of President
Barak, ibid. [19], at p. 67 {___} and the remarks of
Against the background of these criteria, let us examine the violation
of the freedom of movement in this case.
From general
principles to the specific case
18. When making the order with regard to the requisition of land,
the respondent sought as aforesaid to increase the security of the worshippers
on their way to Rachel’s tomb, in order to allow the realization of the
worshippers’ freedom of worship. The respondent chose to realize this purpose
(which no one disputes is a proper purpose) by means of a bypass road, which
will be used only as a means of access to Rachel’s tomb, and the protection of
this road by means of walls. The solution of paving a bypass road for the
worshippers is an appropriate solution because it allows the access of the
worshippers to Rachel’s tomb to be guaranteed in order that they can realize
their right to freedom of worship on the site, without harming the freedom of
movement of the local population on the existing roads in Bethlehem, as was
likely to have happened according to the original order. Counsel for the
respondents also argues that when the new arrangement that guarantees the safe
access of the worshippers to the tomb is put into operation, it will be
possible to remove the restrictions that currently exist on the freedom of movement
of most of the residents who live between roadblock 300, which is situated
south of Jerusalem, and Rachel’s tomb. Moreover, the harm caused by the new
order to the freedom of movement of the residents is far smaller (both from the
viewpoint of the number of residents harmed and from the viewpoint of the
intensity of the harm) as compared with the solution proposed in the original
order and the second order, and the petitioners do not deny this. What
therefore remains of the violation of the residents’ freedom of movement?
A study of the arguments of the parties and of the maps and aerial
photographs that were attached to their arguments shows that even after the
change in the route within the framework of the new order, there are several
residents whose freedom of movement is still harmed to a certain degree as a
result of the protective measure adopted to enable the access of the
worshippers to the tomb. As a result of the amendment to the route that was
made in the second order (and was also retained in the new order), the movement
of most of the petitioners, who live along Hebron Road, is not affected by the
requisition order, since the road that will be paved will circumvent, as
aforesaid, their houses to the west, in an area without buildings. Thus,
according to the respondents’ estimation, the number of residents whose freedom
of movement will be harmed was reduced by approximately 70% as compared with
the original order. The harm that remains is to several dozen residents who
live in the vicinity of Rachel’s tomb, in an area where the bypass road will
connect with
Thus we see that the second order led to a significant reduction in the
number of residents whose freedom of movement is affected, whereas the new
order led to a significant reduction in the intensity of the violation of the
freedom of movement of the remaining residents that are affected. Indeed, in
assessing the extent of the harm caused by the route chosen to the local
residents, we should take into account not only the number of the residents
that are affected, but also the intensity of the violation of their rights. The
remarks made recently in Abu Tir v. IDF Commander in Judaea and Samaria [2], which concerns the route of the separation fence in the area of
the village Tzur-Bahar, are pertinent in this respect:
‘In assessing the proportionality of the proper route, we should take
into account both the number of the owners of rights who are likely to be harmed
and also the intensity of the violated rights. A weighting of these components
is required in accordance with their relative weight in order to arrive at a
determination of a route that will, from an overall perspective, cause the
least possible harm to the local inhabitants. An examine of the number of owners of rights who are harmed by each option is insufficient.
Without assessing the intensity of their rights that are expected to the violated it is impossible to assess the
proportionality of the chosen option… an assessment of the intensity of the
rights being violated must be made at the same time as the number of residents
that are harmed are taken into account, while making a proper weighting between
them’ (ibid. [2], at para. 12; emphases in the original).
The reduction in the intensity of the violation of the freedom of
movement within the framework of the new order, as compared with the second
order, is mainly expressed in two of the criteria mentioned above: the
geographic scope of the restriction on movement, and the degree of intensity of
the restriction on movement.
From the viewpoint of the geographic scope of the restriction on
movement, according to the second order that was cancelled, the residents in
the area of the ring road that was planned close to Rachel’s tomb were supposed
to be enclosed in an area surrounded by walls; going from this area, even to
Bethlehem itself, required passing through a roadblock. In other words,
according to the second order we are not speaking of restricting the ability of
the aforesaid residents to enter
From the viewpoint of the criterion that concerns the intensity of the
restriction on movement, we are also speaking of a significant reduction in the
intensity of the violation. According to the solution that was proposed in the
second order, in order to leave the aforesaid area, the residents of the area
were supposed to travel to roadblock 300 (a distance of approximately
Even from the perspective of the criterion concerning the interests
whose realization is dependent on the freedom of movement of the residents of
the area, we can see a significant reduction in the harm caused by the
requisition order to the petitioners. The solution that was proposed within the
framework of the second order was likely to harm the normal lives of the
residents who lived in the aforesaid area most seriously. The result of the
second order was that even the most basic everyday activities — such as
going to work and to school, buying essential items, medical treatment,
etc. — required the residents to leave the area and to pass an army
roadblock, something that would have caused the residents great hardship in
conducting their daily lives. The lives of the residents of the area were
likely to be harmed also by the fact that the entry of guests and visitors, as
well as service providers (including the employees of the first petitioner and
the third petitioner) into the area would have been restricted. Now that the
restriction on movement to and from the aforesaid area has been removed to a
large extent, this will result in a significant improvement in the daily lives
of the petitioners who live there from the viewpoint of the interests whose
realization depends on the freedom of movement.
With regard to the period of time during which the restriction remains
in force, there is no change in the new order as compared with the two previous
orders. The respondents admittedly emphasize that these are temporary measures
and according to them when the security position improves and the danger to the
lives of the worshippers going to the tomb decreases, it will be possible to
dismantle the walls and remove the restrictions on the petitioners’ freedom of
movement, but naturally this is an unknown period of time that depends on all
the circumstances that prevail in the territories, which may continue for a
long time.
The conclusion is therefore that even the new order contains a certain
violation of the freedom of movement, but this is a considerably smaller
violation than the violation that was involved in the original order and the
second order. We naturally accept the petitioners’ basic argument that the mere
fact that the respondents thought of adopting more harmful measures does not
necessarily make the measure that was ultimately chosen reasonable and
proportionate. But on the merits of the matter we have been persuaded that the
harm that remains — a certain extra distance in the travel route of a
small number of the petitioners when they go to the eastern part of
Bethlehem — is not a serious and significant violation of the freedom of
movement, which departs from the margin of proportionate and reasonable
measures that the respondents, who are responsible for security and normal life
in the territories, are entitled to introduce (see Horev v. Minister of Transport [19], at p. 67 {___}
(per President Barak); Religious Coercion Prevention
League v. Jerusalem City Council [26], at p. 2668; Baruch v.
Traffic Comptroller, Tel-Aviv and Central Districts [27], at p.
165).
19. The petitioners further argue that it would have been possible
to realize the purpose of the order — providing safe access for the
worshippers who wish to realize their right to freedom of worship at Rachel’s
tomb — by other means that would harm the petitioners to a lesser degree.
Thus, for example, they argue that it would have been possible to ensure the
security of the worshippers by means of the existing security arrangements
(transporting the worshippers in a bullet-proof bus with an army convoy to the
tomb), or by digging a tunnel to the tomb.
The respondents utterly reject the petitioners’ arguments. According to
them, the measures proposed by the petitioners are inappropriate for realizing
the purpose of the order and they even raise a doubt as to whether these
measures would cause less harm to the petitioners. The respondents’ argument is
that in the current situation, where only the area of the tomb itself is
protected, the security weak point is the means of access to the tomb, which
passes almost entirely through hostile territory. They also argue that the
traffic to the tomb and from it is a preferred target for terror attacks, and
that the existing method of exposed traffic by means of a bullet-proof bus and
an army convoy does not provide a proper security solution to the danger
presented to the lives of the worshippers and the soldiers who accompany them.
These arguments are now strengthened, inter alia, by the information that was recently revealed by the General Security
Service as a result of discovering several terror cells in
With regard to the petitioners’ proposal that a tunnel should be dug to
the tomb, the respondents argue that it is not at all clear whether this
solution can be implemented from an engineering point of view, and in any case
the digging of a tunnel under a hostile area is not a good solution. According
to them, this solution involves a risk that a terrorist will infiltrate the
tunnel or an explosive charge will be placed in the tunnel, which may turn the
tunnel into a death trap for those in it. Therefore they claim that this
solution requires a military presence to be kept in the area above the tunnel
and at its entrances, and therefore this solution will not lead to a change in
the military deployment in the area, and will merely increase the danger to
those coming to the tomb. In addition, the respondents also claim that it is
precisely a tunnel that has the characteristics of a permanent solution,
whereas the respondents wish to find a solution to a temporary and specific
security situation.
Thus we see that the parties disagree with regard to the security
measures that are appropriate for realizing the purpose of the order and with
regard to the effectiveness of the measures proposed by the petitioners. As a
rule, in such a dispute on military-professional questions, on which the court
does not have any expertise of its own, the court will give considerable weight
to the professional opinion of the military authorities, which has the
professional expertise and the responsibility for security (see Beit Sourik
Village Council v. Government of Israel [1], at
para. 47, and the references cited there). In the present case the petitioners
have not discharged the burden of persuading us that their position with regard
to the effectiveness of the measures that they proposed should be preferred to
the opinion of the military commander.
Moreover, when we reached the conclusion that the harm resulting from
the measure chosen by the respondents is not a serious and significant
violation of the freedom of movement, and that this measure does not depart
from the margin of proportionate and reasonable measures that the respondents
are given, we are not required to decide the question of the effectiveness and
propriety of the measures proposed by the petitioners. Indeed, there are often
several ways of realizing the purpose, which are all proportionate and
reasonable. The military commander has the authority to choose between these
methods, and as long as the military commander does not depart from the ‘margin
of proportionality’ and the ‘margin of reasonableness,’ the court will not
intervene in his discretion (Beit Sourik Village Council v. Government of
Israel [1], at para. 42). Indeed:
‘It is only natural that the court does not put itself in the military
authority’s place… in order to substitute the discretion of the court for the
discretion of the commander. It considers the question whether, in view of all
the data, the adoption of the aforesaid measure falls within the margin of
measures that can be regarded, in the circumstances of the case, as
reasonable…’ (per President Shamgar in HCJ 1005/89 Agga v. IDF
Commander in Gaza Strip [28], at p. 539; see also Ajuri v. IDF
Commander in West Bank [7], at pp. 375-376 {___-___}; Beit Sourik
Village Council v. Government of Israel [1], at
para. 46).
In summary, after we have examined the nature and intensity of the
violation to the freedom of movement in this case, we have reached the
conclusion that the solution chosen by the respondents within the framework of
the new order does indeed guarantee the essence of the realization of the
freedom of worship without violating the essence of the freedom of movement.
The respondent’s decision within the framework of the new order succeeds in
preserving the ‘essence’ of both of these two liberties of equal weight, and
this is therefore a reasonable balance that does not justify any intervention.
Freedom of worship versus
property rights
20. Property rights are also included among the basic human
rights. Property rights have been recognized as basic rights worthy of
protection in the case law of this court (see, for example, HCJ 390/79 Dawikat v.
Government of Israel [29], at pp. 14-15; HCJFH 4466/94 Nuseibeh v.
Minister of Finance [30], at pp. 83-85) and have also
been given explicit constitutional expression in s. 3 of the Basic Law: Human
Dignity and Liberty. These rights are also recognized in international law, and
in so far as territories held under belligerent occupation are concerned, they
are enshrined, inter alia, in
The balance between the freedom of worship and private property rights
was considered recently in Hass v. IDF Commander in West Bank [3]. In that case the court reached the conclusion that ‘there is no
need to adopt a decisive position with regard to the conceptual ranking of the
right of worship and the right of property in order to decide the question of
how to balance between them in a case of a conflict.’ This was because, in the
circumstances of that case, the court reached the conclusion that ‘Even if we
assume, for the purposes of this case, that we are concerned with
constitutional rights of equal standing and importance, even so, in the
horizontal balance between them’ the balance made by the respondent satisfies
the test of constitutionality (ibid. [3], at
para. 20). These remarks are also appropriate in the case before us, and we too
shall follow the same path, since we have been persuaded that the violation of
property rights in this case is marginal. Counsel for the respondents claims in
his reply to the second amended petition that the harm caused by the new order
to private land is ‘absolutely marginal,’ in his words, and even the
petitioners placed their main emphasis on the violation of freedom of movement
and did not point to any concrete violation of the property rights of any of
the petitioners. Counsel for the respondents claims that within the framework
of the planning of the route an effort was made to rely, in so far as possible,
on the existing borders of parcels of land, that only a few petitioners were
harmed by the requisition of the land and that even so we are speaking merely
of the requisition of small parts of parcels. Counsel for the respondents
further states that for this requisition fair rent and compensation will be
paid. Therefore we have been persuaded that the balance between the freedom of
worship and property rights does not depart from the margin of reasonableness
in this case, even if we assume that we are speaking of two rights of equal
weight, and that the proper balance between them is therefore a horizontal
balance. We have also made a note of the statement made by counsel for the
respondents that the respondents will be prepared to examine any application for
an amendment of the route at a specific point, in order to reduce the harm to
the owners of the land.
Summary
21. Jewish worshippers have a basic right to freedom of worship at
Rachel’s tomb and the respondent has the duty to ensure the realization of this
right by protecting the safety and lives of the worshippers. Within the
framework of choosing the measures for realizing this purpose, the respondent
must take into account the basic rights of the petitioners, including property
rights and the freedom of movement, and he must strike a proper balance between
these rights. In this case, the solution adopted by the respondent, after he
reconsidered the original plans and adopted a course that follows the case law
of this court, does indeed ensure the realization of the worshippers’ freedom
of worship without violating the essence of the petitioners’ freedom of
movement and property rights. We have therefore not found that the arrangement
determined by the respondent at the end of the proceedings contains any
unreasonableness that justifies our intervention therein.
For these reasons, the petition is denied.
Justice E.
Rivlin
I agree.
Justice E.
Hayut
I agree.
Petition denied.
24 Shevat
5765.
3 February
2005.