High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 12

3)             Proportionality

1. The Rational Connection Test
2. The first test of proportionality is the test of rational connection, which requires that the means chosen be suitable for the realization of the purpose underlying the legislation. I will note at this stage – and this comment will accompany us throughout the examination of the proportionality of chapter D as a whole – that the parties did not focus their arguments on the purpose of "responding to the needs of the infiltrators".  The question of the proportionality of the various arrangements of Chapter D of the Law and of this chapter as a whole will therefore be examined in relation to the purpose of "preventing settlement in the city centers" only.

As a matter of principle, there is a rational connection between the obligation to stay in the center of residence and the necessity to report for three daily counts and the purpose of the legislation, since the means chosen are intended to help prevent the infiltrators from settling in the city centers and preventing their integration into the labor market (see also Section 32h)IV) Sifa, according to which "the dates of such reporting will be determined in a manner that will not allow the resident to work in Israel").  Reporting to the counting makes it possible to frequently and efficiently examine the infiltrator's condition and keep him "in sight" – all the more so when the infiltrator is required to report for the count in the afternoon, in a way that makes it very difficult for him to leave the center during the day.  This is the case in theory, but it is doubtful whether this is the case in practice.  Against the background of the minority of those held in the detention center compared to their number in the general population, I am not convinced that placing them in the detention center and their obligation to report there three times a day is known Effective Impact The settlement of the infiltrators as a group in the city centers, and whether it substantially helps prevent their integration into the labor market (and this, inter alia, in light of the state's commitment not to enforce the prohibition on work on those who are not held in the detention center as stated in paragraph 32 above).  to similar doubts expressed by my colleague the judge A. Arbel In Parashat Adam See Name, at paragraph 97).  However, taking into account that the state claimed that the Holot Center serves as a kind of "pilot"; that by virtue of the law, it is possible to establish additional centers; and that there are other means to achieve the purposes of the law, I am prepared to assume for the sake of the discussion that the obligation to appear meets the test of rational connection.

1. The test of the means that is less harmful
2. The requirement to be present at the facility also meets the second test – according to which the offending law must refrain from infringing the constitutional right beyond what is necessary in order to achieve the proper purpose. It is not enough that infiltrators are obliged to stay overnight in the open accommodation center in order to achieve – with the same degree of effectiveness – the purpose of preventing settling in the city centers. Indeed, the center of life of an infiltrator, who is required to report in the evening in a facility that is very far from any place of settlement, is relocated to the detention center.  He cannot "settle" in the city centers.  In any case, south Tel Aviv, which was (and still is) a hotbed of many infiltrators, is very far from this center.  Even if the center was located closer to population centers, it is clear that the address of the infiltrator is the address of the detention center.  However, there is no denying that if the infiltrator is able to be absent from the center during the day, he is more likely to seek to join the labor market, even if it involves traveling to one destination or another.
3. Although this fact is sufficient to pass the second test of proportionality, I would like to point out that it is appropriate to consider additional measures that may prevent integration into the labor market. As has already been suggested in the Adam case, "labor laws can be tightly enforced so that there is no preference for cheaper labor for infiltrators" (ibid., at paragraph 104); It is even possible to consider increasing the wages paid to infiltrators employed in the accommodation center (which currently stands at only 12-13 NIS per hour of work and may lead to a reduction in the "pocket money" to which they are entitled), in a way that will incentivize them to turn to this type of occupation. under the risk of violating the prohibition on working outside the walls of the center.  The minority of those employed in the center now (according to the state, as of the beginning of March 2014, there were only 179 residents) indicates that there may be room for the development of this channel.  One can also think of a requirement for various deposits and collateral, which will be forfeited if the infiltrator violates the prohibition on work.  These measures may be helpful, but I do not dispute that they cannot achieve the purpose with the same degree of effectiveness achieved as a result of the requirement to report to three daily counts.  As is well known, the second subtest of proportionality examines only the very existence of a measure that infringes less on the protected constitutional right.  It requires an examination of whether that less harmful measure fulfills the purpose of the legislation to the same extent or to a similar extent to the measure chosen by the legislature (the issue of the privatization of prisons, at pp. 601-602).  These alternative measures do not meet the aforementioned criteria, and therefore, the conclusion is that the current arrangement is consistent with the second proportionality test.  However, the existence of additional measures that can help reduce the harm can have an impact on all of the stated in the third proportionality test.

• The test of proportionality in the narrow sense

131. We found that the requirement to appear passes the first and second tests of proportionality. However, in my view, a legal arrangement according to which three daily counts will be held, which is concretized in the attendance regulations according to which a count is held at noon, fails the third test of proportionality – proportionality in the narrow sense. The benefit derived from the legislation is clear: the requirement to report at noon makes it difficult for the infiltrators to move and prevents them from "settling down" in the city centers or perpetuating work (in which they are not permitted to work).  However, the benefit to the public interest from the threefold obligation to report is not equivalent to the damage caused to the infiltrators.  This damage – the violation of the rights of the infiltrators – is derived from the degree to which the detention center is open.  There is no law requiring an infiltrator to stay at night in a stay center – in which case he can – at least during the day – move freely, consume culture, meet his friends and relatives, practice his hobbies, acquire an education, and other activities that involve the realization of his autonomy – as is the law of obliging an infiltrator to report to the stay center even at noon.  If he leaves the center in the morning, by the time he reaches his destination, he will have to turn back.  In this way, it is not possible to develop a life with content and value.  It is not the adjective – "prison", "custody" or "detention centre" – that matters.  What matters is the essence.  The obligation to report for the counting that takes place in the afternoon means that for many of the infiltrators, the facility is not open at all – and the gates of the detention center are effectively closed.
132. The severe harm of the requirement to appear becomes clear when we look at other Western countries where the practice of requiring periodic reports is practiced for the purpose of supervising illegal aliens who are in the territory of the country. Before we delve into the depth of the aforementioned examination, it should be clarified that the absence of a normative distinction in Israel – which is customary in other countries – between asylum seekers and others – makes it difficult to conduct a comparative examination of the legislative arrangements governing the immigration of foreigners in different countries (without taking a position regarding the affiliation of the infiltrators to Israel, in whole or in part, to the category of asylum seekers or to other categories that we have discussed). At the same time, and as we explained above, against the background of the basic values shared by democratic states, it is possible to learn and draw inspiration from what is done in other legal systems with the care and due reservations.
133. Most European countries that practice collective open centers for those whose asylum claims have not yet been decided do not force them to stay in them, and sometimes it is a benefit granted on the basis of economic need. The facilities are "open" in the sense that those staying in them can leave and return to them freely, although in some places the facilities close their gates at night (but also for a shorter period of time than is customary in Israel). An examination of the accommodation facilities open elsewhere therefore reveals that in many countries this is a voluntary arrangement from the perspective of the asylum seeker, which allows for adequate living and living conditions for those who cannot afford it.  Where it is a social benefit, the centers are usually used to detain asylum seekers for a limited period of time, as long as their needs for international protection are clarified.  After this initial period, and if it turns out that a person is not "deportable", he is entitled, in principle, to choose his place of residence (within the territory of the country or in defined areas therein) and to move freely in such country or areas (see UNHCR Comments on the  Prevention of Infiltration (Offences and Jurisdiction) Bill  (Amendment No. 4 and Temporary Order), 5774-2014 (2013); For an overview of the status granted by various countries to foreigners who are not subject to deportation, see  the FRA report , at pp. 34-38).  A recent comparative study conducted by the European Migration Network (EMN) shows that this is the case in the United Kingdom, France, the Netherlands, Spain, Belgium, Hungary, Italy, Poland, and Sweden (EUR.  Migration Network, The Organisation of Reception Facilities for Asylum Seekers in Different Member States, 13-16 (2013) (available here) (hereinafter:  Open Facilities Report).
134. Even when a report is required, it is not a strict requirement such as that which exists in Israeli law. In Austria, asylum seekers awaiting a decision on their application, as well as those whose applications have been rejected and those who cannot be deported, are staying in an open facility on the basis of economic need. Each county state (Bundesländer) has different arrangements, which generally restrict the freedom of movement of those staying in the facilities.  In some county states, the maximum length of absence from certain facilities is 24 hours (so in effect one report per day is required), but the movement of occupants is limited to the borders of the state of the province where the facility is located; In other facilities,  reporting is required once every three days.  Failure to report properly usually results in a sanction of reduction or denial of the welfare allowance (see Sieglinde Rosenberger & Alexandra König, Welcoming the Unwelcome: The Politics of Minimum Reception Standards for Asylum Seekers in Austria, 25 J.  Refugee Stud.  537, 546-51 (2011); Saskia Koppenberg, Int’l Org.  for Migration & Eur.  Migration Network, The Organization of the Reception System in Austria 21-28, 61-62 (2014) (available here); Ophelia Field, U.N.  High Comm’r for Refugees, Div.  of Int’l Protection Servs., Alternatives to Detention of Asylum Seekers and Refugees 162, U.N.  Doc.  POLAS/2006/03 (April 2006) (available here)).  Similar arrangements exist in Germany.  In the various states of the region, residence centers have been established to house foreigners in respect of whom a deportation order has been issued or whose request for asylum is clearly found.  Each county state may formulate the specific rules regarding the facilities as it sees fit, but as a rule, it is not required to show up, and entry and exit to and from the facility is free.  However, the movement of the occupants is limited to the territory of the state of the province where the facility is located (Asylverfahrensgesetz [AsyIVfG] [Asylum Procedure Act], Sept.  2, 2008, Bundesgesetzblatt I [BGBl.  I] at 1798, as amended, §§ 47, 56-57; AufenthG, §§ 61-62; Andreas Müller, Federal Office for Migration & Refugees & Eur.  Migration Network, The Organisation of Reception Facilities for Asylum Seekers in Germany 12 (2013)) (available here) (hereinafter: the German Report).  In Belgium, asylum seekers are placed in housing in shared facilities or in state-funded housing in the community, according to their individual needs, and they receive a living allowance.  If an asylum seeker does not come to claim the allowance or is absent from the facility for a period of more than 10 days, he is considered to have violated the conditions and may lose his place in the facility (EUR.  Comm’n & Eur.  Migration Network, The Organisation of Reception Facilities in Belgium 4 (2013).  (available hereinafter: the Belgian Report);Liesbeth Schockaert, Alternatives to detention: Open Family Units in Belgium, 44 Forced Migr.  Rev.  52, 52, 54 (2013)).  In Canada, there is a "presumption against custody", and the rule is that an asylum seeker is released from custody when the purpose of removal can be achieved by other means, or when placement in custody is required for the purpose of clarifying the asylum application.  Accordingly, about 90% of the asylum seekers – both those whose application has been clearly requested, those whose applications have been rejected and who are awaiting deportation – are released to the community under various and varied conditions.  These conditions may include, among other things, the obligation to report.  To illustrate, one of the restrictive release programs – the Toronto Bail System – initially requires  a bi-weekly report, but the frequency decreases as time passes and trust is built between the parties.  In more advanced stages, there is an obligation to report by telephone based on a voice recognition system (UNHCR 2011, pp. 56-60).  In Norway, asylum seekers whose application has been rejected and other foreigners awaiting deportation may continue to live in an open centre where asylum seekers whose application has not yet been decided also reside.  In order for the authorities to be able to carry out the deportation order effectively, they are required to report to the center  once every three days (EUR.  Comm’n, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries 75, E.U.  Doc.  HOME/2010/RFXX/PR/1001 (Mar.  11, 2013) (available here)).  In Australia, as stated above, an unlawful person will be held in custody until his deportation or until he obtains status in the country, indefinitely (but see the recent Supreme Court judgment there, cited in paragraph 76 above).  It has already been noted that in any case this practice has been criticized (see ibid.).  However, there is an option of "community detention" in Australia, which is sometimes activated after several years in "regular" custody.  In the framework of this arrangement, the unlawful resident is required to reside in a place to be determined by the Minister; to  appear once a day before an authority on the dates to be determined; and he is not entitled to work or study (J.  Standing Comm.  on Migration, Immigration Detention in Australia: Community-Based Alternatives to Detention 22-24 (2009) (available here)).  In Denmark, subject to exceptions, those against whom the deportation order cannot be executed – for technical, legal or humanitarian reasons – are referred to open detention centers.  Those staying in these facilities are required to report to the police at designated times, usually once a day (Udlændingeloven [Aliens Act], jf.  lovbekendtgørelse nr.  863 af 25.  juni 2013, as amended §§ 42a(9), 42a(10), 34(3); State Appendix 2013, at pp. 106-109).  In the Netherlands, those in whose case a deportation order has been issued are transferred to open accommodation centers.  Residents are allowed to leave the centers freely, but not from the municipal area in which they are located.  They are also  obliged to report once a day (Vreemdelingenwet [Aliens Act], Stb.  2000, Nr.  495, p.  1 §§ 56-57 (hereinafter: Vreemdelingenwet); State Appendix 2013, pp. 272-275).  In Lithuania, which applies the closest arrangement to the one we have with regard to the obligation to report, asylum seekers are held in facilities that are closed between 6:00 and 22:00, and they are also obligated to report once a day.  This policy was criticized in a report by the European Parliament (EUR.  Parl.  & STEPS Consulting Social, The Conditions in Centres for Third Country National (Detention Camps, Open Centres as Well as Transit Centres and Transit zones) with a Particular Focus on Provisions and Facilities for Persons with Special Needs in the 25 EU Member States 113, 196 (2007) (available hereinafter) (hereinafter: Accommodation Facilities Report))).  In Malta, foreigners released from custody are transferred to facilities that are open on the basis of economic need, where they are  obligated to report frequently ranging from one to three times a week (Immigration Act, c.  217, §25A(13) (as amended); Suso Musa v.  Malta, App.  No. 42337/12, ¶ 33 (Eur.  Ct.  H.R.  July 23, 2013); C.O.E.  Comm’r for Human Rights, Report Following His Visit to Malta from 23 to 25 March 2011, ¶ 57, E.U.  Doc.  CommDH(2011)17 (June 9, 2011) (available here)).

To summarize this point: the distinction between a violation of freedom of movement and a violation of the right to liberty is not rigid.  Imposing significant restrictions on a person's movement is liable to substantially infringe on freedom.  In the Torah, this violation may lead to a violation of the right to dignity, which includes a person's right to autonomy, which allows him to shape his life as he wishes.

135. In Israel, the infiltrator is required – by virtue of section 32H(a) of the law – to report for the count three times a day. This requirement deviates from what is customary in the world. This deviation has a real implication for the extent of the infringement of the rights of the infiltrators.  The difference between an "open" facility and a "closed" facility is a significant difference.  An open facility allows a person to preserve his identity.  His independence remains.  In many ways, he is the master of himself and his own destiny.  A closed facility is similar to a detention facility or a prison.  Staying for days, weeks, and months (and in fact – a stay that may last several years, as we will detail later) in a closed center means that every aspect of a person's life – his leisure time, the food he consumes, the people with whom he socialises and comes into contact – all of these are dictated by the state.  This is a serious violation of liberty and dignity.  Indeed, the requirement to appear at noon is beneficial to the public interest (although it should be taken into account that, as was mentioned in our discussion regarding the existence of a less harmful measure, there are other means that can make it difficult to integrate into the labor market) – but this benefit does not justify the severe infringement of constitutional rights.

(ii)           Management of the detention center by the Israel Prison Service and the powers of the prison guards

136. A second arrangement that is subject to judicial review deals with the identity of the entity operating the accommodation center. By law, the body that runs this center is the Prison Service.  This is what follows from section 32C of the law, which states:

137. Thus, the law places the responsibility for the management and operation of the detention center on the Prison Service. The center is run by a senior prison guard appointed by the Commissioner of the Prison Service; and its employees are guards on duty, who are subject to the rules of discipline that apply to prison guards. In this context, the state sought to emphasize that as part of the implementation of the law in practice at the Holot facility, the guards working at the center underwent special training of several days before they began working at the Holot facility, and they do not walk around the center in uniform but rather in "designated clothing items."  However, according to the petitioners, the fact that the center is run by prison guards – in addition to other characteristics of the detention center – means that those held in the facility are expected to experience their stay there as being held in prison for all intents and purposes.
138. In my view, entrusting the management of the detention center to the Israel Prison Service – which has also been granted extensive powers necessary to operate the center – intensifies the violation of the rights of the infiltrators. I will explain my conclusion.
139. The Israel Prison Service is the body responsible by law for the incarceration in prisons of a person who has been convicted by law. The legislature entrusted the task of managing the prisons, securing prisoners, and all that entails this to the service (section 76 of the Prisons Ordinance; the matter of privatization of prisons, at pp. 579-580).  The Prison Service is therefore part of the government authorities.  It is an arm of the executive branch.  It was referred to in our case law as the "National Prison Organization"; "the authority in charge of prisoners"; and "The Authority in Charge of Prisons" (High Court of Justice 6069/10 Mahmali v. Prison Service, [published in Nevo], para. 20 (May 8, 2014); the Golan case, at pp. 153-154).  However, there is a difference between a regular administrative authority and those who hold positions in the Prison Service, mainly due to the nature and scope of the authority given to them.  The authority to run a prison gives the commissioner and the officers in the service full control over the prisoner's life.  Indeed, "there is no person who is subject to and dependent on an administrative authority for the tribe or chesed like a prisoner, and there is no authority that dictates a person's way of life like the Prison Service.  A regular administrative authority has specific authority, for certain matters under certain conditions.  The IPS Commissioner and his staff have sweeping and continuing authority to maintain order and security [...] Hence, the IPS's authority is not similar, in terms of substance and scope, to ordinary administrative authority" (Ron Shapira, "Administrative Procedure as Determining the Boundaries and Framework of Criminal Punishment," Mishpat 12 – Sefer Adi Azar 485, 491-492 (2007)).
140. The prison, whose operation is entrusted to the Israel Prison Service, is a "punitive institution." The actual enforcement of the prison sentence is part of the criminal proceeding; And carrying the punishment behind the walls of the prison is part of the punishment process ( Privatization of Prisons, at p. 662; Netanel Dagan and Uri Timur "A Journey in the Empty Space: On the Prison Service's Discretion in Exercising Punitive Powers (Following Small Claim (Netanya) 1348/09 Magadava v. Hasharon Prison Administration" [Posted inNevo] The defense attorney 178 4, 7 (2012)).  The Israel Prison Service is therefore authorized to run punitive institutions, and this is how it operates in practice.  As a result of the above, the daily routine of the service involves dealing with a population of prisoners who are serving their sentences after they have been convicted in the criminal law.  This is a criminal population.  Its characteristics are special.  Dealing with this population requires constant preparations for the prevention of crime and violent incidents, inter alia by establishing a non-civil relationship of discipline and intimidation (Rina Shapira & David Navon, Cooperation between Inmates and Staff in Israeli Prisons: Towards a Non-Functionalist Theory of Total Institutions, 15 Int'l.  Rev.  Modern Sociology 131 (1985); Erving Goffman, The Characteristics of Total Institutions, in Asylums: Essays on the Social Situation of Mental Patients and Other Inmates 321 (1961); On violence in Israeli prisons, see Yehoshua Weiss and Gabi Yehuda, "Violence among Criminal Prisoners in Prisons" A Window to the Prison 10 73 (2006)).
141. On the other hand, the presence of the infiltrators at the detention center has a distinctly "civil" character. The stay order issued to them, by virtue of which they are required to go to the center of their stay, is not a convicting ruling. Their presence there is not a punishment for their infiltration (see Parashat Adam, paragraph 90).  The state itself recognizes that "we are dealing with an open detention center, intended for civilian purposes, and not a detention facility intended for punitive purposes" (paragraph 238 of the state's response).  The Israel Prison Service, which does not normally manage the "civilian" population, is the body designated by the law to operate the open detention center, and it is the body that currently operates the Holot facility.  This raises a difficulty.  The service specializes in managing "closed" facilities, where a criminal or suspected criminal population resides.  He is accustomed to facilities aimed at neutralizing danger and preventing escape; It deals with the operation of detention facilities, which require dealing with a criminal population.  None of these are characteristic of an open accommodation center, which allows entry and exit to and from it on a daily basis.
142. Indeed, it seems that it is appropriate to distinguish between the management of a detention facility and an open facility: detention facilities completely deprive those held there, and they are essentially similar to prisons or detention facilities. The choice of the Israel Prison Service as the body that manages detention facilities is more understandable (although the "criminal" nature of the detention facilities has also been criticized, and in various places there have been calls for them to become more "civilian."  See, for example, in the United States: Asylum Abuse: Is it Overwhelming Our Borders? Hearing Before the H.  Comm.  on the Judiciary, 113th Cong.  79 (2013) (U.S.) (available here); Dora Schriro, U.S.  Dep't of Homeland Sec., Immigration Detention Overview and Recommendations 20-21 (2009) (available here); and in the Netherlands: Arjen Leekers & Denis Broeders, A Case of Mixed Motives? Formal and Informal Functions of Administrative Immigration Detention, 50 Brit.  J.  Criminol.  830, 833-38 (2010)).  In contrast, an open detention center must have "civilian" characteristics, given the differences between the population of infiltrators and the population of prisoners and detainees.  As a result, the facility hosting the infiltrators must maintain the sense of freedom of those staying there.  It is not surprising, then, that entrusting the management of the detention center to the Israel Prison Service is unacceptable in other Western countries, which have developed various arrangements regarding the identity of the entity managing the open or partially open facility.  What they have in common is that the facilities are operated by essentially "civilian" entities: immigration authorities; local authorities; non-profit associations; and private entities (but for criticism of privatization in a similar context, see: Michael Flynn, Who Must Be Detained? Proportionality as a Tool for Critiquing Immigration Detention Policy, 33(3) Refugee Surv.  Q.  40, 64-65 (2012)).
143. Thus, in France, responsibility for the management of the facilities is partly given to the officials of the immigration authorities and partly to non-profit associations and private service providers (French Contact Point of the Eur. Migration Network, The Organisation of Reception Facilities for Asylum Seekers in France 13-15 (2013) (available here)). In Belgium, the facility is run by non-profit organizations, including the Red Cross, as well as a designated authority for the treatment of asylum seekers (Fedasil), which also supervises the facilities (Belgian report, pp. 8-9).  In Sweden, responsibility is divided between the immigration authorities and local authorities (Open Facilities Report, pp. 15-16).  In Britain, the management of the facilities is, as a rule, done by private companies that have entered into designated contracts with the state.  However, the state does not abdicate its responsibility and continues to have broad supervisory powers over what happens at the facility (Magnus Gittins & Laura Broomfield, Home Office, The Organisation of Reception Facilities for Asylum Seekers in Different Member States: National Contribution from the United Kingdom 8-9 (2013) (available here)).  In Malta, the facilities are run by a government authority responsible for the treatment of asylum seekers, sometimes in conjunction with church-affiliated organizations (DeBono, p. 149).  A similar mix of the division of responsibility between immigration authorities, non-profit organizations, and private entities also exists in Germany, France, Poland, Norway, and Denmark (Accommodation Facilities Report, p. 194).  In Israel, too, the possibility of the Open Residency Center being operated by the Ministry of Interior was considered (see the Draft Law on Combating the Phenomenon of Infiltration on the Southern Border (Temporary Order), 5772-2011;  The Adam Case, at paragraph 104).  However, at the end of the day, the legislature chose the Prison Service to operate and manage the open detention center.
144. The entity that operates and manages the open accommodation center has a daily interface with those staying in the facility. His control over the infiltrator who resides in the center is great, and encompasses all areas of life. This control is expressed, inter alia, in the many powers granted by Chapter D of the Law to the prison guards (and other entities listed therein) for the purpose of supervising what is happening at the center, including: the power to conduct a search without a judicial order on the body of a person residing at the center (section 32B of the law); the power to conduct a search in the area of the center (section  32C of the law); the power to prevent entry or exclude a person who refused to identify himself or to allow a search (section  321 to the law); the authority to seize objects that are prohibited from being held in the premises of the facility (section 32D of the law); power to delay (section  3216 of the law); and the authority to maintain order and discipline in the center.  The director of the center and his deputy are also authorized to use disciplinary measures such as reprimands, warnings, and restrictions on leaving the center (section 32i).  Some of the sections even grant the operator the authority to use force for this purpose.  The result is that the infiltrator does not come into contact with a prison guard at sporadic "points of contact" during his day; he is subordinate to him for all the hours he is in the center.   The identity of the person who runs the center therefore has an impact on the infiltrators' daily routine and their feelings.  It is a crucial component in the question of how the facility is perceived by its occupants: an open facility of a civilian nature, or a detention or detention facility of a criminal nature.  We said that the population of infiltrators is "civilian" in nature.  Why, then, should her daily routine be managed by prison guards, with the symbolic baggage that comes with it? The state insisted that the guards did not wear their uniforms while working at the detention center, and that they had undergone a short training for the purpose.  However, even if this is able to reduce, to some extent, the harm caused to the infiltrators as a result, it is clear that the raiding of the uniform does not strip the Prison Service of its long years of dealing with the incarceration of criminals.  This is the DNA of the service, and the number of training days cannot change that.
145. Certainly: These words do not cast aspersions on the Prison Service, which does its job faithfully. I do not wish to dispute his ability or competence to manage a facility of the type we are dealing with. Operating such a center is a difficult task, and there is no doubt that the Israel Prison Service is skilled enough to do it successfully.  The service personnel are presumed to exercise their powers proportionately and reasonably, that they are loyal to the provisions of the law and the values of the service, and that they are making an effort to treat the resident population with the required sensitivity.  The focus in this context is not on the skills and qualities of the service personnel, which are indisputable.  The focus is on  the symbolic significance  of the deprivation of liberty by prison guards.  We have ruled that  the manner in which liberty is denied, and not only the denial of it, has an impact on the extent of the infringement.  As  President D. Beinisch  noted in the prison privatization affair:

"The right to liberty is not violated only by its total denial.  The degree of violation of the right is broad and complex.  The manner in which the violation of the constitutional right is done, the nature and intensity of the infringement naturally affect the examination of the constitutionality of the violation of the glasses of the limitation clause" (The Privatization of Prisons, at p. 585).