Administrative appeal to the Supreme Court to allow Issam Hamdan to travel in order to receive medical treatment in Israel, Petition 462/09
July 22, 2010
Issam Hamdan, a Palestinian resident of Gaza, has been suffering for two years from severe back pain due to a protruding disk in the vertebra of his neck, which has caused the almost total paralysis of the left side of his body. Due to his deteriorating medical condition and the lack of appropriate medical resources within the Gaza healthcare system, Mr. Hamdan was referred to the neurosurgery department at Saint Joseph’s Hospital in East Jerusalem for emergency treatment. After Mr. Hamdan did not receive an answer to his request from the Palestinian Civil Affairs Committee, he turned to Physicians for Human Rights-Israel (PHR-I). PHR-I passed the legal handling of his case over to Gisha.
Because of the Gaza District Coordination Office’s (DCO) decision to sever its relations with Israeli human rights organizations, on October 29, 2009 Gisha filed a pre-petition directly to the State Attorney’s office of the Southern District to intervene on Mr. Hamdan’s behalf and to arrange for his travel permit in order to receive emergency medical attention in Israel.
On December 22, 2009 the State Attorney’s Office of the Southern District refused Mr. Hamdan’s request on the grounds that medical treatment was available to him in Gaza. Furthermore, since Mr. Hamdan’s wife and four children reside in the West Bank, they were concerned that he would remain there and not return to Gaza.
As a result, Gisha filed an emergency petition on Mr. Hamdan’s behalf with the Beersheva District Court (petition number 462/09). During a hearing on January 11, 2010 hearing, the state attorney stated that they had made additional inquiries and concluded that appropriate medical treatment was indeed not available in Gaza, as Mr. Hamdan and Physicians for Human Rights-Israel had argued. As such, the State Attorney’s Office conceded that medical treatment was not available to him in Gaza, however, they still felt he was likely to remain in the West Bank after the treatment. Despite the fact that no evidence was provided to support the assertion that Mr. Hamdan intended to settle in the West Bank, the court (Justice Barkai) denied the motion based on the initial concerns raised by the state. In herrulingJustice Barkai determined, in complete contradiction to previous rulings by the Supreme Court and directives of international law, that Israel is not compelled to care for the welfare or health of the residents of Gaza (see paragraph 5 of the ruling).
As a result, on February 9, 2010 Gisha filed an appeal with the Supreme Court contesting the ruling of the District Court (Appeal number 1063/10). In the appeal Gisha asserted that the ruling was based on false legal and factual evidence and therefore violated the basic rights of an individual who was in critical condition. Moreover, the prolonged legal proceedings had exacerbated Mr. Hamdan’s condition and threatened to impact the chances that his illness could be treated successfully.
In the appeal hearing of March 2, 2010, Justice Fogelman urged the state’s representatives to find a solution to this humanitarian problem. Consequently the state authorities acquiesced and granted Mr. Hamdan a travel permit to enter Israel in order to receive the much-needed medical attention.
On March 25, 2010, after nearly six months of legal proceedings, Mr. Hamdan entered Israel and reached Saint Joseph’s Hospital.
