• FEATURES \ Mar 05, 2005
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    In the name of the fathers
In the name of the fathers In a little-noticed decision, the Tel Aviv District Court last month ordered the Greek Orthodox Patriarchate of Jerusalem to pay NIS 3 million in legal fees to Mira Bornstein, a Tel Aviv attorney. The decision ended a 25-year relationship and Bornstein parted company with the heftiest client she ever had.

Now a senior partner in the law firm of Hartavi Bornstein Basson, Bornstein first encountered the Greek Orthodox Patriarchate when she was articling for attorney Avraham Socholovsky, who for years represented most of the churches in Israel. Afterward, as a practicing lawyer in her own right, Bornstein actively represented the patriarchate and worked closely with the legendary Socholovsky. After his death, in 1995, she inherited a few of the more important cases concerning the Greek church. One of them was known as the "Bishop's Palace case."

In 1993, the patriarchate leased 400 dunams (100 acres) of land in the center of Nazareth to a construction company called the Bishop's Palace. The company promised to build a large residential and commercial project on the site and to divide the property rights with the patriarchate. A group of Greek Orthodox residents of Nazareth filed suit in the local district court to prevent the deal from going through, arguing that the patriarchate had held the land in trust for them and therefore had to consult with them before making any changes.

"It was a confrontation that almost turned bloody," attorney Bornstein relates. "The residents did not balk at hurling every sort of accusation at the patriarchate, from acts of corruption to acts of carnality. At every hearing dozens of local residents would stand behind me with fury in their eyes."

Because the Greek Orthodox Patriarchate is one of the largest landowners in Israel, the Nazareth suit bore implications for the status of its land that far exceeded the local dispute. In December 2002, nine years after the legal proceedings began, the court rejected the residents' suit.

"It was a tremendous achievement," Bornstein says proudly. "The decision spelled the end of a serious threat to the church. If the suit had been accepted, the patriarchate would have faced a flood of additional suits."

Naturally, the lawyer wanted to share her success with the church. "As soon as the judgment was handed down, I sent them a letter informing them we had won the case," she says. "But no one even bothered to call to say thank you."

Eventually, a reaction arrived: In June 2004 the Greek Orthodox Patriarch, Irineos I, informed Bornstein that he was terminating her relationship with the church in favor of attorney Gilead Sher. Bornstein was stunned by Irineos' ingratitude, as well as by Sher's behavior. "It is true that according to the rules of ethics, a lawyer is allowed to take over representation of a case that is being handled by a different lawyer without asking for his consent," she notes. "But that does not eliminate the need to use elementary courtesy and speak to the lawyer handling the case, and Gilead Sher did not do that."

What really rankled Bornstein was the fact that the patriarch was removing her without paying her fee. She informed Sher

One of the cases in which Sher replaced Bornstein involved a lawsuit by the patriarchate against The Jewish National Fund (JNF) and a series of other bodies. Underlying this suit is an impressive sting operation, which reflects the way national institutions are maintained in Israel. The story begins 53 years ago, in 1952, when the patriarchate leased 527 dunams (132 acres) of land in the center of Jerusalem to the JNF, in the neighborhoods of Givat Ram, Talbieh and Rehavia. Among the institutions subsequently built on the leased land are the Knesset, the Israel Museum and the President's Residence. The agreement with the church was for 99 years and will expire in 2051. The JNF (and the government) naturally have an interest in renewal of the lease, but the patriarchate has been in no hurry. Then, in 2000, an ultra-Orthodox Jew named Yaakov Rabinovich suddenly appeared out of nowhere and informed the state, through attorney Yaakov Weinroth, that he had succeeded in persuading the patriarch at the time, Diodoros I, to extend the lease by another 999 years.

The finance minister at the time, Avraham Shochat (Labor), convinced that the offer was serious, made $20 million available to the JNF to execute the deal. On the eve of Passover 2000, Rabinovich was sent to the patriarch with the checks and returned with a signed contract. The whole matter would probably not have become public knowledge for a long time if someone had not leaked to the press that the JNF had not filed notification concerning its right to the land, as required, with the Land Registry Office.

Bornstein read the report in the paper and immediately asked the patriarch whether he had in fact ceded the extraordinarily expensive land in the heart of Jerusalem without informing his lawyer. According to Bornstein, Diodoros and his staff knew nothing about the extension of the lease until she told them. A police investigation turned up suspicions that Rabinovich had forged the patriarch's signature and had turned over the millions to persons unknown. Bornstein sued the JNF and Rabinovich, and asked the court to declare null and void any transaction they may have entered into with the patriarchate. Rabinovich was tried in criminal court for fraud and forgery.

The various parties to the civil procedure are awaiting the conclusion of the criminal trial, which is bogged down because of the defendant's poor health. Behind the scenes talks are under way to strike a comprehensive deal. All the parties involved have an interest in getting a compromise: The JNF wants to lease the land, the patriarchate wants money and Rabinovich wants to minimize his personal damages.

Bornstein can now only observe the developments from the sidelines. "If I had not seen the report in the paper," she says, furious, "the patriarch would have lost all the lands. Now, thanks to my work, someone else will be the big winner. I am terribly upset. After many years of representation without getting paid, and just when money is about to arrive which I could benefit from, too, the cases are taken from me and in such an ugly way on top of it. It was like someone spitting in my face. I want you to know that this is the first time in 25 years that I have filed suit to receive payment of legal fees."

Wars of Jews

Gilead Sher, a senior partner in the Tel Aviv-based law firm of Aaronsohn, Sher, Aboulafia, Amoday & Co., was director of the Prime Minister's Bureau in the government of Ehud Barak and in that capacity was Israel's chief negotiator with the Palestinians from 1999-2001. He has represented Irineos I since June 2002, replacing another high-powered lawyer, Yaakov Ne'eman. Initially, he worked to get the Israeli government to recognize Irineos' election as patriarch by the church's Holy Synod.

According to Sher, the various land cases were transferred to him long before Irineos' election was approved by the government and without any connection to that development.

"We started to deal with all the affairs of the patriarchate before there was an appointment and before there was recognition, " says Sher. "We were not asked to prove anything except the quality of our work. Most of the cases that were handled by other lawyers were transferred to us, along with the new cases, of course. Today we are the main Israeli legal advisers to the patriarchate and we are the referents of its foreign legal advisers."

Sher says that Bornstein's contentions don't even deserve a reaction. "It is beneath my dignity to respond to that, and beneath her dignity as well," he says frostily. "But there is not a grain, or even an atom, of truth in those remarks."

The judgment in Bornstein's suit against the patriarchate was handed down without the church submitting a defense. Last November, after the final date for the submission had passed, Sher asked the court for a 60-day extension and Bornstein did not object. On January 3 Sher requested a second extension, but on the same day Bornstein requested the court to pass judgment in the absence of a response by the defendant, and the court agreed. Sher views this as highly uncollegial behavior.

"People who are contemptuous of our legal fees," Bornstein retorts, "should not expect me to behave toward them in the way they thinks they deserve. He had 90 days in which to submit a defense. Does he think that he can go on prolonging indefinitely the discussion about the money that is owed us, and that I am supposed to be collegial?"

Last week, Sher filed a request to have the judgment annulled. He claims, among other arguments, that Bornstein is asking for "outrageous" amounts of money for the services she provided, especially in the case against the JNF, which is not yet concluded. "Half-a-million dollars for two sessions in court is a fee that very few lawyers on earth can command - maybe Alan Dershowitz."

Bornstein, for her part, doesn't think she is exaggerating: "He can say the fee is outrageous, but I was the one who saved all that property - not the patriarch and not Gilead Sher. My calculation is minimal and is based on the scale of the suit, the scale of my work and what I am allowed according to the rules of the Bar Association."

What is amusing, or perhaps sad, is that while Irineos' Jewish lawyers are squabbling, the patriarch is telling the Arab members of his community that he does not hire Jewish lawyers. On May 24, 2004, Irineos I, whose election must also be approved by Jordan and the Palestinian Authority, met with Greek Orthodox residents of Amman. One of the participants in the meeting, which was held in the hall of the local Orthodox Society, asked the patriarch, "Why are Israeli lawyers, such as Yaakov Ne'eman and Gideon [sic] Sher chosen to represent the patriarchate when we know that there are perfectly capable people among the Arabs in Israel and the residents of the West Bank?"

Irineos replied in Greek and his spokesman translated into Arabic. "In the past," the spokesman explained on behalf of the patriarch, "all the patriarchate's lawyers were Jews, but now they are all Orthodox Arabs ... We hired a Jewish lawyer in connection with a suit against the Jews. That suit was against those who deleted us from the elections list [for the position of patriarch] and afterward we left him."

The Greeks on the map

The lucrative representation of the patriarchate is sufficient reason for both Bornstein's withdrawal symptoms and for Sher's angry responses. From his small apartment in the Old City of Jerusalem, Irineos I presides over vast land holdings. The Greek Orthodox community constitutes less than 10 percent of the world's Christians, but holds more than 60 percent of the church-owned assets that are scattered across the length and breadth of the Holy Land. A partial list includes Capernaum on Lake Kinneret and properties in Tiberias, Beit She'an, Nazareth, Acre, Haifa, Nablus, Jaffa, Lod, Ramle, Beit Shemesh, Ramallah, Beit Jala, Bethlehem, Jericho and of course Jerusalem.

When Pope John Paul II visited Israel in 2000, the chief rabbis wanted to host him for a festive meeting in their offices in Jerusalem's Givat Shaul neighborhood. However, a representative of the Holy See who arrived at the site for a preparatory meeting rejected the mundane office building outright. As a result, the meeting was moved to Heichal Shlomo, the former seat of the Chief Rabbinate, which abuts the Great Synagogue in central Jerusalem. In the end, the Jewish chief rabbis hosted the leader of the Catholic Church on Greek Orthodox land. Other Jerusalem sites that are situated on land owned by the patriarchate include: Liberty Bell Garden, Bloomfield Garden, the Inbal Hotel, the Monastery of the Cross, the old train station, the neighborhoods of Talbieh, Nayot and Givat Oranim, the St. Simeon Monastery in the Katamon neighborhood, the Church of John the Baptist in the Ein Karem neighborhood, and property in the Garden of Gethsemane on the Mount of Olives. In addition, the patriarchate owns land in the neighborhoods of Rehavia, Talpiot and Abu Tor, around the King David Hotel, on the Mount of Olives and, of course, in the Old City.

The Greek Orthodox Patriarchate has existed in Jerusalem for more than 1,500 years. However, it was not until the 19th century that it grew powerful and accumulated its vast wealth in the city. During the second half of that century, pilgrims from all over Europe flocked to the Holy Land and all the churches tried to consolidate themselves in Jerusalem. The Ottomans, who had ruled in the region since 1517, objected vigorously to the incursion of the Western churches, but was far more sympathetic to the Greek Orthodox Church (which is one of the Eastern churches). Aided by funds from the Russian czar, who was also an Orthodox Christian, the Greeks accumulated more and more land in Jerusalem.

Two principles drove the patriarchate: the closer to the Church of the Holy Sepulchre (in the Old City) the better - and the more land the better, too. In this period the patriarchate established a series of monasteries throughout Palestine and built hostels for pilgrims adjacent to them. The Greek monks received farmland around each monastery for their livelihood. After 15 years of working the land, it was considered the property of the patriarchate.

By the time of the British Mandate, at the beginning of the 1920s, the patriarchate owned almost all the farmland west of the Old City walls in Jerusalem. However, the patriarchate went bankrupt because of the drastic decline in the number of pilgrims during World War I, and no less because of the corrupt and licentious way of life of its leaders. In the 1920s the British Mandate authorities placed a lien on the assets of the patriarchate and forced it sell some of its lands. It is not difficult to guess the identity of the chief buyer: Hachsharat Hayishuv (the Palestine Land Development Company), operating on behalf of the World Zionist Federation, exploited the window of opportunity for all it was worth, buying from the patriarchate most of the land on which the Rehavia neighborhood now stands, as well as the Mamilla neighborhood opposite the Old City and the area of Ben Yehuda Street in the city center.

The British move against the patriarchate was unusual from every point of view. The great majority of the patriarch's properties were registered as consecrated lands, which could not be sold, and were it not for the heavy British pressure the Greeks would not have ceded their ownership. Nevertheless, in the years that followed the same pattern repeated itself: The patriarchate had large land reserves and few cash reserves, while the Zionist emissaries wanted to "redeem" more and more of the homeland. The obvious legal solution was to lease land.

Over the years the patriarchate leased land throughout the country to state, public and private bodies in Israel. In some cases the patriarchate signed deals that were ridiculous from the economic point of view. In 1969, for example, Taasiyot Rechev, an industrial firm, leased 75 dunams (about 18 acres) of land in Nazareth for only $3,000 a year. Under the terms of the contract, the lessees could do almost anything they pleased on the land. It was not until 2003, just before they were about to build a large commercial center on the site, that the agreement was amended and the rent jumped to $28,000 a year.

The previous patriarch, Diodoros I, seems to have had a great liking for real-estate deals. During his term of office (1981-2000) the patriarchate leased large tracts of land, mainly to private bodies, in Beit She'an, Nazareth, Jaffa, Beit Shemesh and Jerusalem. In most of the transactions the patriarchate received a basic payment and a percentage of the rights in future projects that would be built on the land. However, with the exception of the Andromeda residential project in Jaffa, few if any of the other projects got past the drawing board stage.

Not one inch

Diodoros' successor, Irineos I, declared on several occasions that he intended to put a stop to the frittering away of the patriarchate's lands. In the meeting in Amman in May 2004, the patriarch's spokesman and interpreter stated, in Irineos' name: "Despite the difficulties, we are trying to strengthen what we have and to restore what we can by legal means. I am happy to inform you that we have succeeded in restoring the land next to the Hyatt Regency Hotel. Last week, after decades, we laid the cornerstone for a new building of five stories so that we can generate new income for our patriarchate. The other [church] streams in Jerusalem are saying, `The patriarchate has now begun to build, after selling in the past.'"

However, Irineos, too, is well aware of the boundary line. He was elected to his post by the 17-member Holy Synod, which administers the community, in August 2001. Under the community's rules, the election is validated only after approval is granted by the three political entities in which the patriarchate operates: Jordan, the Palestinian Authority and Israel. Jordan and the PA gave their approval quickly, but the Israeli government balked because Irineos was considered pro-Palestinian in general and a friend of the late Palestinian leader Yasser Arafat in particular.

The approval process required an examination by the Shin Bet security service, a police investigation and two petitions to the High Court of Justice. It was two and a half years after his election before Irineos I received his letter of authorization, not before promising the relevant authorities that he would arrange the continued leasing of the lands in Talbieh and Rehavia, which were at the center of the sting operation in 2000.

"There is more than one senior official in the Israeli administration who heard consistently from the patriarch that he has no intention of not renewing the leasing agreement for the lands of West Jerusalem," says an authoritative source in the circle of the patriarch. "He has never hidden the fact that he does not intend to enter into any transaction that contradicts the long-term leasing to the government of Israel."

No one was really concerned that in another 46 years the Knesset would have to leave its building in favor of Palestinians who will take over the land, thanks to the patriarchate. Nevertheless, it turns out that the commitment to extend the lease was extracted from Irineos in a rather bizarre way. "There were a number of cabinet ministers who showed great hostility to Irineos because of ideological reasons," says a senior source who was in on the secret. "But it seems that it also had to do with a very concrete land dispute between the church and a group of Jewish settlers in the Old City of Jerusalem. When nothing of what was said about Irineos stuck to him and all the professional bodies declared that there was nothing to prevent the approval of his election, another situation suddenly arose: apprehension about the fate of the Knesset building and the nearby Prime Minister's Office. That is simply ludicrous. No one really thinks that in the year 2051 a team from the Bailiff's Office will show up at the Knesset with a closure order. After all, the state can expropriate the land whenever it wishes and fence off the land, citing national grounds. Still, because the concern was raised, we had to address it. We called in the patriarch and explained to him that the matter had to be resolved, and it was."

In contrast to the national symbols, which are now permanently ensconced in their premises, the struggle for control of patriarchate land around Mar Elias Monastery, between Jerusalem and Bethlehem, is far from over. Not long ago the Defense Ministry expropriated about 20 dunams (5 acres) of the land to build the separation fence, but the patriarchate still owns a good deal of real estate there. Israel would like very much to gain control of that land to connect the neighborhoods of Gilo and Har Homa (both of which are situated across the 1967 line) and create territorial continuity in south Jerusalem. However, the Palestinians know the map as well as the Israelis and therefore are also trying to gain a solid foothold in the area. Caught in the middle is the patriarch, who in the meantime is making noises indicating that he does not intend to yield to courting by the Israelis.

At the meeting in Jordan last May, one of the speakers complained about the patriarchate's passivity concerning the recent land expropriation near Bethlehem. "How do you know that the patriarchate did not file a suit?" Metropolitan Esihios, the deputy patriarch, scolded the questioner. "A suit was filed in the Supreme Court of Israel ... There is a decision by His Beatitude the Patriarch and the Holy Synod that we will not sell and will not give one meter, or even an inch, of the lands. There is land that was given to the Jews during the previous administration, and we do not want to mention names - because they are all dead - to build a four-story house. We filed suit and the land was returned. Since Irineos assumed his post, the patriarchate has paid $1.5 million for the restoration of lands."

To the last shekel

The members of the Greek Orthodox community in Israel, most of them Arabs, are not impressed by the muscle-flexing of their Greek leaders. There has not been an Arab patriarch for more than 400 years; the Greek minority has ruled the local patriarchate during that entire period. The Greek priests usually come to Israel at an early age in order to be educated in the community's educational institutions and then gradually rise through the ranks of the internal hierarchy.

Within the community the patriarch is an omnipotent ruler. On the one hand, Israeli governments have rarely intervened in his internal affairs, for fear of international criticism. At the same time, the Orthodox churches do not have a central religious authority like the pope, so that every patriarch is totally independent and is not subject to supervision.

"No matter how holy someone is," says a member of the community who does not want his name used, "if you dangle money, land, and women, too, in front of him, and everything without supervision, the distance between monk and priest and holiness becomes as great as the distance between heaven and earth."

"One individual, with another 17 clergymen around him, are administering property that is not theirs," notes attorney Nissim Shaqer, from Jaffa. "They do not report to anyone and it is not clear where the money goes." Shaqer and others say that according to the constitution of the patriarchate, which is rooted in Ottoman and British Mandate legislation, a mixed secular and religious council is supposed to manage the patriarchate's property. Irineos, like his predecessors, is in no hurry to convene the council. At the meeting in Jordan, when the calls to convene the council intensified to the point where they became a nuisance, the patriarch stated, "The meeting will be held in Jerusalem and we will see whether Israel will give you visas."

No one in the patriarchate's Jerusalem headquarters ever knew exactly what properties existed, who was paying rent as required and who was consistently exploiting the church. "This is an organization that does not work according to our accepted norms," an Israeli source who is close to the subject explains. "This is a different culture and a different language. They certainly have a code of behavior that does not facilitate the external and Western interaction with them." For example, great persistency is required to attract the patriarch's attention, in matters both small and great.

"In the case of the land that was leased to Taasiyot Rechev, we arrived at what I consider a good compromise and we needed only the patriarch's signature to authorize it," attorney Bornstein relates. "You have no idea what hell I went through until I was able to get the signature."

The patriarchate is currently in poor economic shape, as the spokesman confirmed at the May 2004 meeting in Amman. A few weeks ago Nikolas Papadimas, the patriarch's economic assistant, disappeared. The estimates of how much money he may have taken with him vary from one source to another. Mira Bornstein is not the only lawyer who says that the patriarchate owes her money. There are at least another four like her. "Nikolas promised to pay me to the last shekel," says a senior lawyer from one of Israel's largest law firms, "but now it's unlikely that I will ever see either the money or Nikolas." Gilead Sher says in response that he assumes that the patriarchate will ultimately repay every one of its real debts.

Irineos I maintains that he will make order of the chaos, but that task may be too much for him. Not long ago former Supreme Court president Meir Shamgar, in his capacity as an arbitrator, ruled that the patriarchate must pay NIS 30 million to Cedron Properties for being in violation of a contract to build an apartment hotel in Jerusalem's Abu Tor neighborhood. In the 1995 contract, the company undertook to finance the construction and all the attendant expenses. All that Patriarch Diodoros I had to do was sign mortgage papers and a request for a building permit. The late patriarch took with him to the grave the answer to the intriguing question of why he adamantly refused to sign the two documents for two years - but there is no doubt that his peculiar behavior brought about the expiration of the contract. Now, instead of enjoying 40 percent of the prestigious project, the patriarchate is liable to lose the land to the construction company.

In another case, 77 dunams (about 19 acres) of land belonging to the patriarchate were expropriated over the years to build a road between the village of Tel Adashim and Upper Nazareth. According to attorney Bornstein, the patriarchate took no action to prevent the series of expropriations or at least to get proper compensation for them. It was only in 2001, after protracted efforts, that Bornstein succeeded in persuading Irineos I to act. However, then it turned out that the statute of limitations applied to the claim for compensation. Bornstein asked the interior minister for special authorization to submit a claim nonetheless, and it was finally given at the end of 2004. Now, after the patriarchate's dismissal of Bornstein, it is not clear what will happen.

In Jerusalem, too, the patriarchate has issues that are pending. For the past 15 years about 100 settlers have been living in St. John's Hospice, located near the Church of the Holy Sepulcher. The settlers purchased the right of residence in the building from a rent-protected tenant, who had previously lived there. However, the patriarchate, which owns the building, claimed that the tenant was not entitled to transfer his rights and filed suit to have the new occupants evicted. Diodoros did not pursue the matter very vigorously, and despite the many years that have passed the legal proceedings are still in their preliminary stage.

After Diodoros' death, right-wing activists were fearful that his successor would take action against the settlers in the hospice, and therefore lobbied against the government's recognition of Irineos as patriarch. In the meantime, though, they have no reason to complain. Nearly a year has passed since the appointment was confirmed and they are still securely ensconced in the hospice, which is little more than a stone's throw from the Church of the Holy Sepulchre.