High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 10

  2.      A resident of a residence center who leaves or enters the center will identify himself to the center's employee. Reporting Dates

  3.      The following are the three dates on which a resident will report to the center each day in accordance with section 32H(a) of the Law (hereinafter – Reporting):

(1)     6:00 to 7:30 am;

(2)     13:00 to 14:30;

(3)     From 20:30 to 22:00. Location

  4.      The report will be in a place designated by the director of the Residency Center for this purpose. Identification

  5.      A resident will identify himself to the center during the report, to the satisfaction of the center's employee or the border control supervisor, as the case may be, provided that he is sufficiently convinced of the resident's identity. Advertising

  6.      The notice of the obligation to identify when leaving and entering the center, the obligation to report, the dates of the obligation to report and the place of attendance will be published in a conspicuous place in the center and will be translated into the main languages of those staying at the center, including English.

116. According to the petitioners, conducting a count three times a day practically limits the detainee's ability to move away from the detention center, and thus severely violates the right to liberty. On the other hand, the state is of the opinion that the detention center does not deny the right to liberty – but only restrictive, and that there is a substantial difference between the degree of harm inherent in its stay and that inherent in placing a person in custody. Both parties sought to refer in this context to factual data relating to the manner in which the Holot facility operates (despite the fact that in the framework of the petition before us, we are examining – as aforesaid – the constitutionality of the law and not the implementation of its provisions in this facility).  The petitioners argued that the "Holot" facility is located in a southern area that is far from any locality, and that this location exacerbates the intensity of the violation of the right to liberty deriving from the obligation to report (since the necessity to register at the facility in the afternoon significantly reduces the possibility of leaving for a place of community).  On the other hand, the state argued that it was not obligated to establish residence centers specifically near city centers; that there is a public transportation system that connects the Holot facility to the city of Be'er Sheva; that checking the dates of the report is done in a lenient manner; that according to data on arrivals and departures from February 2014, an average of more than 200 residents left the center every day during its opening hours; and that an automatic identification system has recently been purchased that will enable quick registration of the movement of residents, which will prevent the need to appear before the center's employee.  All of these indicate, according to the state, that the facility is mostly "open", so that the obligation to appear does not limit the right to liberty with the intensity claimed by the petitioners.

1)             The Violation of Constitutional Rights

117. My opinion is – and the reasons for which I will discuss below – that the obligation to appear violates both the right to liberty and the right to dignity – rights that are available to infiltrators as well as to all human beings.

A violation of the right to liberty (the main points of which we discussed above, in paragraph 46) is inherent to any facility in which the presence is involuntary.  Open accommodation centers to which entry is not voluntary, the result of the resident's free choice; and which require the presence of the resident, even at some of the hours of the day, violates the right to liberty.  In our case, the state does not dispute that the detention center limits the right to liberty, but rather that it distinguishes, as stated, between Negation The right to liberty and Limitation.  With regard to the analysis of the violation of the right, I have not found much in this distinction.  As he points out A. Barak"Limiting the constitutional right means violating it.  Basic Law: Human Dignity and Liberty uses the expression 'infringement' ('no violation of the rights under this Basic Law...').  In contrast, the Canadian Charter and most modern constitutions use the term 'limitation' ('Limits').  In my opinion, there is no distinction between the two."Proportionality in Law, at p. 135).  And as he explains Lightning: