"The restriction or infringement occurs in any situation in which a governmental authority prohibits or prevents the holder of the right to realize it to its fullest. In this regard, the question of whether the injury is severe or minor is of no importance; if it is at the heart of the right or in its dark zone; whether it is intentional or not; if it is done by way of an act or by way of omission (where there is a positive obligation to protect the right); Any infringement, whatever its scope, is unconstitutional unless it is proportionate" (ibid., at pp. 135-136).
- Even if we assume that the infringement of liberty is on a lower level than that of custody, the restriction on liberty inherent in the "open" center of residence is certainly a violation of the constitutional right to liberty. In any "open" or "semi-open" facility – regardless of its location – the obligation to report for the counting at noon makes it very difficult for the practical ability to leave the facility for the period of time required to carry out continuous activity. This difficulty is not limited to the restriction of freedom of movement, but reaches the point of a real violation of freedom. Indeed, the difference between the denial of freedom of movement and the denial of the right to liberty is a matter of measure (Alice Edwards, 'Less Coercive Means': The Legal Case for Alternatives to Detention of Refugees, Asylum-Seekers and Other Migrants, in The Ashgate Research Companion to Migration Law, Theory and Policy 443, 447-448 (Satvinder S. Juss ed., 2013)). As the European Court of Human Rights has ruled, a denial of freedom of movement to a high degree may coincide with a denial of liberty (see Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) at 32-34 (¶¶91-95) (1981), where it was held that the arrangement that included, inter alia, the obligation to report twice a day and a restriction on movement between 7:00 and 22:00 constituted a violation of the right to liberty, in contravention of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms art. 5, Nov. 4, 1950, C.E.T.S. No. 5; Alice Edwards, The Optional Protocol to the Convention Against Torture and the Detention of Refugees, 57 Int'l & Comp. L. Q. 789, 811-13 (2008)). Such is the situation in our case. The restriction here is so severe that it can only be said that the law and the regulations enacted by virtue of it violate the right to liberty, even if it is not a complete denial of the right, but rather a limitation of it.
- Alongside the violation of the right to liberty, I am of the opinion that the obligation to report at noon also violates the right to dignity. This right has already been comprehensively addressed in our case law, and we will discuss below the main points in view of its importance to the matters at hand.
2) The Constitutional Right to Human Dignity
- Human dignity rests on the recognition of the physical and spiritual integrity of the person, his humanity and his value as a human being, and all this regardless of the degree of benefit that arises from him to others (Tal Law, at pp. 684-685). Differing opinions were heard on the question of the scope of the right to honor. There is no dispute that the right to dignity applies in relation to the prevention of the humiliation of a person and the prevention of harm to his human image and his value as a human being (The Privatization of Prisons, at pp. 589-590). The interpretation of the right to human dignity over the right to a minimum of human existence with dignity is also understood today. This position, according to which a person's right to dignity is also the right to have conditions of life that enable him to exercise his freedom as a human being, has earned it a strike in our case law (see High Court of Justice 366/03 Commitment to Peace and Social Justice v. Minister of Finance, IsrSC 60(3) 464, 480 (2005) (hereinafter: the Commitment Association); The Hassan case, at paragraph 34 and the references therein; High Court of Justice 4511/12 Gamlieli v. National Insurance Institute, [published in Nevo], paragraph 4 (January 6, 2013)). According to the "intermediate model" adopted in the case law of this Court (Tal Law, at pp. 683-684), the scope of human dignity must also include an infringement that is closely related to human dignity as an expression of autonomy of private will, freedom of choice and action, and the like (High Court of Justice 8300/02 Nasser v. Government of Israel, [published in Nevo], para. 46 (May 22, 2012); Tal Law, at p. 687).
- The right to autonomy is therefore part of human dignity, and it enjoys constitutional protection in the Basic Laws. At its foundation is the recognition that man is a free being, who develops himself according to his will in the society in which he lives. It means that each individual has the right to control his actions and desires in accordance with his choices, and to act in accordance with them. his right to shape his life and his destiny, and to develop his personality as he wishes; the right to acquire knowledge, culture, values and skills; to decide where he will live; What will he deal with? With whom he will live and what will he believe (Tal Law, ibid.; High Court of Justice 7245/10 Adalah v. The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, [published in Nevo], para. 44 (June 4, 2013); Da'aka, at p. 570; High Court of Justice 7426/08 Tabka, Law and Justice for Ethiopian Immigrants v. Minister of Education, IsrSC 66(1) 820, 844-845 (2010) (hereinafter: the Tabka case); See also: The Gaza Coast case, at p. 561; Aharon Barak, "Human Dignity as a Constitutional Right," Hapraklit 41, 271, 277 (1994) (hereinafter: Barak – The Right to Dignity). For an extensive review, see Aharon Barak, Human Dignity – The Constitutional Right and its Daughters, vol. 1, 245 ff. (2014) (hereinafter: Barak – The Constitutional Right and its Daughters)).
- These are the outlines of the right to dignity. And who hold this right? The answer to this question is simple. Every person is entitled to enjoy the right to human dignity . This is required by the Basic Law. Section 2 of the Basic Law, entitled "Preservation of Life, Body and Dignity", states: "No harm shall be done to the life, body, or dignity of a person"; Section 4 of the Basic Law, entitled "Protection of Life, Body and Dignity", teaches: "Every person is entitled to the protection of his life, body and dignity" (emphases added - p. P). This is also required by the basic principles of democracy in general and of our legal system in particular, for "there is no better and more acceptable quality than the basic measure of human dignity: a free and enlightened society is distinct from a savage or oppressed society in the degree of respect that is measured for a person as a human being" (High Court of Justice 355/79 Catalan v. Prison Service, IsrSC 34(3) 294, the opinion of Acting President H. Cohen (1980) (hereinafter: The Killer Matter)). Indeed, "the right to human dignity is the right of every person as a human being. Young and old, man and woman, healthy and mentally ill, prisoner, detainee and innocent person, Israeli resident or foreign citizen – each of them has the right to human dignity," since "human dignity is not only my honor, but also the dignity of the other and of the other" (Barak, Human Dignity, at pp. 257, 379-381).
- Infiltrators are also human beings. We are interested – whether to ask from another place – about "people of flesh and blood, people in pain, living and breathing human beings" (Civil Appeal 1165/01 Anonymous v. Attorney General, IsrSC 57(1) 69, 80 (2003); See also the case of Commitment Association, at p. 501). And if this requires clarification, it is explicitly stated: Infiltrators do not lose their right to dignity in full simplicity, but only because they came to the country by a wrong way. They do not lose their dignity when they enter custody or a detention center, and their right to dignity is in full force even if their arrival in the country was done by way of irregular immigration. Their dignity is forbidden and they are entitled to its protection. Moreover, it is precisely in their case that we are obligated to be meticulous and meticulous with cod as it is severely. After all, as H. Cohen noted, the protection of honor comes not only to those whose dignity as a human being is visible and unquestionable, but especially to those whose dignity as a human being seems to be in doubt or blurred. In his words:
"Even if outward appearance or prevalent prejudice points in the opposite direction, the potential for respect is still equal for all human beings. The fact that for some human beings, this dignity is conspicuous and obvious, and in other cases is not foreseeable, irrelevant – neither to the nature nor the scope of the protection that the law affords to the dignity of all human beings. The less a person's ability to defend his dignity on his own, the greater the obligation imposed on all government authorities and institutions to ensure that his dignity is effectively protected" (Haim Cohen, "On the Meaning of the Right to Human Dignity," Human Rights and the Civil Rights in Israel , vol. 3, 268-269 (1992); see also the issue of the privatization of prisons, at pp. 588-589).
- Go out and learn by way of an analogy: A well-rooted rule in our case law is that the denial of the prisoner's personal liberty and freedom of movement, which is involved in the very act of imprisonment, does not justify further infringement of the prisoner's other human rights beyond the extent required by imprisonment itself or for the realization of a vital public interest recognized by law (the Privatization of Prisons, at p. 571; see also the Golan case, at pp. 152-153). As it was stated many years ago, "The walls of the prison do not separate the detainee from human dignity. The prison life regime requires, by its very nature, an infringement of many freedoms enjoyed by the free person [...], but the prison life regime does not require the denial of the detainee's right to bodily integrity and protection against violation of his dignity as a human being. The detainee was deprived of his freedom; The image of man is not taken from him" (Katalan case, at p. 298). Admittedly, "many evils involved in prison life are added to the denial of freedom. But let us not add to the necessary evils that cannot be prevented by limitations and injuries that have no need or justification" (Livneh, at p. 690). All of this is even more true in the era of the Basic Laws, in which the right to human dignity has become a supra-legal constitutional right (The Privatization of Prisons, at pp. 589-590; compare: Civil Appeal 8622/07 Rotman v. Israel National Roads Company Ltd., [published in Nevo], paragraphs 97-98 (2012)). and if this is the case with regard to prisoners who were placed behind bars for committing a criminal offense and at the end of a legal proceeding conducted in their case, all the more so with regard to infiltrators who were placed in custody or in a detention center, who are not prisoners and who are not "criminals" in the sense accepted by us in criminal law; and many of whom define themselves as "asylum seekers."
- How is this reflected in our case? The obligation to report as stipulated in the law and the attendance regulations effectively limits the ability to stay outside the walls of the residence center. In this way, the infiltrator is prevented from developing his personality. In this way, his right to dignity is violated. When he is required to report three times a day to a residence center that is far from any central settlement, how will the person staying recognize a spouse? What hobbies can he adopt for himself? When will he get a chance to meet his friends who have not yet received a stay order? Will he be able to try to acquire education and knowledge in a place of his choosing? It is therefore clear that the current structure of chapter D of the law does not allow an infiltrator to realize his right to autonomy in a manner that is consistent with the duty of the state authorities – and the legislative branch including – to preserve his dignity.
- These words are intensified in our case against the background of the special characteristics of the Holot facility, which the parties discussed at length. Infringement of liberty and dignity can be more or less severe – all as a result of the requirements to report to the facility and its geographical location. "Sands", as its name implies, is surrounded by sand and sand. It is far from any settlement. The nearby cities (Be'er Sheva and Yeruham) are located about 60 km away. This fact significantly increases the likelihood that the infiltrator will choose – to the extent that it can be called a "choice" – to remain at the gates of the center at all hours of the day. Let us not allow the title – "Open Facility" – to deceive us: the obligation to report for the three daily counts, along with the great distance of the center from the settlements in the area, negates almost any possibility of a routine exit from the center of residence. Is this really an "open" center?
- The conclusion that the obligation to appear violates not only the right to liberty but also the right to dignity is necessary even apart from the administrative arguments of the petitioners, that is: even if the facility were located in the heart of a city and not in its current location. A person needs a suitable window of time to fill his life with real content. Short, scheduled hours are not enough for this. The noon count, which is added to the counts that are customary in the morning and evening, means that the infiltrator's departure from the detention center is almost futile. And what will the infiltrator do in the few hours he is given to stay outside the center? The manner in which the legislature outlined the requirement to report to the "open" detention center makes the center, in practice, a facility that is essentially close to a closed facility. Thus, in my view, part of the minimum life is violated with the dignity to which every person is entitled, which allows a person to "choose his choices and exercise his freedoms" (Barak, The Constitutional Right and its Daughters, vol. 2, at pp. 598-601).
Against the background of what has been said so far, my conclusion is that the demand that the infiltrator report to the detention center three times a day means a severe violation of the freedom and dignity of the infiltrators. It is incompatible with the right to liberty; It does not provide the infiltrators with a dignified human existence. Is this infringement of rights proportionate?