To sum up this point: A person's forced stay in an institution carries with it, to varying degrees, a routine characterized by policing. The nature of the entity that manages the institution – whose people control all aspects of life in it – is of great importance in this matter. and the identities of those in authority, who are under the authority of the occupants, have a real impact on the daily life experience of the residents of the institution and the way they perceive the facility in which they are staying.
- In our case, I do not intend to set any conclusions on the question of whether the management of the detention center by prison guards amounts to an additional independent violation of the constitutional right to liberty, beyond the harm resulting from the deprivation of liberty itself. Nor do I wish to view the entrustment of the management of the detention center to the Prison Service as an independent violation of the dignity of the infiltrators, which falls within the scope of the "intermediate model" adopted in our case law (as determined, for example, in the case of the privatization of prisons in relation to incarceration by a private corporation; the matter of the privatization of prisons, at pp. 584-586). My conclusion, which will be further explained below, is that the law of chapter 4 nullity is therefore not based on the entrustment of the powers to manage the facility to the Prison Service. It is possible that another normative outline that would regulate the operation of such a facility would pass the constitutional examination even if the body in charge of managing it would be the Prison Service. However, this does not detract from the fact that the selection of the Prison Service as an administrative body intensifies the violation of the dignity and freedom of the infiltrators, caused by their detention in the detention facility. Therefore, even though the provision of section 32C of the Law does not constitute an independent infringement of constitutional rights (in a manner that requires us to examine whether it meets the conditions of the limitation clause), it intensifies and exacerbates the infringement of both the right to liberty and the right to dignity, and has implications for the proportionality of the entire arrangement.
(iii) Limitation of the length of stay at the center and grounds for discharge from it
- A third matter that requires an examination, which is not the first of its kind, but perhaps the first of its importance, relates to the length of stay in the detention center. Chapter D of the law completely lacks a provision limiting the length of time spent at the center. According to the petitioners, this means that the freedom of the infiltrators who are referred to the detention center is denied indefinitely. On the other hand, the state argues that shortening the length of stay in the center is not possible, since it means that the purpose of the law – preventing infiltrators from settling in city centers and preventing their integration into the Israeli labor market – will not be fulfilled to the same extent.
1) The Violation of Constitutional Rights
- Chapter D of the Law, which regulates the establishment of the Residency Center, lacks a provision relating to the length of stay at the Center. In contrast to the custody arrangement set forth in section 30A of the Law, Chapter D of the Law does not even include grounds for release, and it does not include grounds for release relating to the passage of time. What, then, is the upper limit for staying in the center? Since Chapter D of the Law does not set a time limit for the length of stay, and since the stay order given to the infiltrator does not specify an expected release date, it can be argued that in its current version, the law does not offer any horizon of release for those who are required to report to the detention center, so that they are expected to remain in the detention center indefinitely.
- I do not believe that this is the case. Chapter D, which was added to the Prevention of Infiltration Law as part of Amendment No. 4, is a temporary provision. The validity of this temporary provision was set for three years (section 14 of Amendment No. 4). In the explanatory notes to the bill, it was argued that the arrangement was set as a temporary provision for the said period "in order to examine during this period how the arrangement fulfills the purpose of preventing the settlement of infiltrators in Israel and the state's coping with the broad consequences of the phenomenon of infiltration [...]" (Explanatory notes to Amendment No. 4, at p. 123). This legislative structure means that the stay order issued to the infiltrator will remain in effect until the legislative arrangement expires after three years (if it is not extended), or until the decision of the executive authority to release him from the center earlier (see section 32D(a) of the law, which states that the border control officer may order the infiltrator to stay in a detention center "[...] until his expulsion from Israel, until his departure from Israel, or until another date to be determined").
- Thus, the current state of affairs allows an infiltrator to remain in a detention center for a period of at least three years. During this long period, the infiltrator will be required to be in a place where his liberty is denied. The course of his life will be interrupted. He will not be able to continue to work in the work in which he worked; He will no longer be able to see his friends who have not been called to the center of the stay; He will not be able to choose how to spend his hours; He will no longer be able to manage his day as he wishes. And all this, not as a punishment for his infiltration itself, or for the purpose of promoting his deportation, but only for the purpose of "preventing his settling in the city centers and integrating into the labor market."
- Moreover, an infiltrator who is currently granted a stay order cannot assume with certainty that he will be released from the detention center after three years. Since we are dealing with a temporary provision, it is clear that at the end of three years, the Knesset will be asked to decide whether to extend the validity of the temporary order or not. Given the well-known "history" of temporary provisions governing Materia similar to the one we are dealing with, it cannot be said that the possibility that the validity of the temporary order will be extended – and as a result, that the infiltrators who were summoned to the detention center will be forced to remain there for a period of more than three years – is a theoretical possibility, especially since the state did not rule out such a possibility (see and compare: The First Citizenship Law, at p. 464). In other words, the fact that the legislative arrangement in our case was anchored in a temporary order limits the duration of detention (for three years) for the time being, but at the same time it does not provide the infiltrator who is currently summoned to the detention center with concrete knowledge regarding the question of when his liberty will be restored. The result is that he is subject to uncertainty – the consequences of which are severe – regarding his future and his fate.
In my view, in this situation, the violation of the right to liberty available to the infiltrators is exacerbated, as is their right to dignity. I'll list my reasons.
- Let us begin the discussion of the right to liberty, which we discussed earlier (see paragraph 46 above). Although the state declares that one of the purposes of the detention center is to provide a response to the needs of the infiltrators (and I am not determining at this stage whether the detention center does indeed provide such a solution), it is clear that an infiltrator who is called to the center cannot be released from it as he wishes. This is, therefore, a model of a center in which the presence is coerced, and therefore it violates the right to liberty. In the Adam case , I noted that holding a person in custody for a period of any period, let alone for a period of three years, is a severe violation of his right to personal liberty (paragraph 15 of my opinion). This is also true in relation to the center of stay. Imposing an obligation on a person to stay in a certain place of his choice – even for one day – violates his freedom. a command to disconnect from one's surroundings – even for one day – during which time he cannot choose where and with whom to spend his nights; In which control of his life is expropriated, and he is not free to do as he pleases at the time, violates his freedom.
- If this is the case with regard to one day, things are all the more beautiful in relation to a longer period. The basic concepts are that the passage of time deepens and exacerbates the infringement of liberty, and that the longer the deprivation of liberty, the greater the intensity of the infringement on it. Thus, for example, in a consistent case law relating to section 62 of the Arrests Law, this Court reiterated that the passage of time is a significant consideration in the question of whether to continue and keep in detention until the end of the proceedings a defendant whose trial has not been completed after many months; and that it tilts the balance point from the public's right to security and to exhaust proceedings with the defendant to the defendant's right to liberty (see, among many: Miscellaneous Criminal Applications 2970/03 State of Israel v. Nasraldin, [published in Nevo], paragraphs 3-6 (April 2, 2003); Miscellaneous Applications Criminal 9466/06 State of Israel v. Dahan [published in Nevo] (November 20, 2006)). Thus, the longer the deprivation of liberty is prolonged, the greater the intensity of the infringement on it. Needless to say, therefore, that an arrangement that restricts liberty for a period of at least three years embodies a severe violation of the right to liberty, a violation that will deepen if the validity of the temporary order is extended.
- A three-year stay in a detention center violates not only the freedom of the infiltrators but also their right to dignity. The dimension of time has a real impact on the violation of the dignity of a person whose liberty is denied. Deprivation of liberty for a short period of time allows a person to get his life back on track in a short time. The longer the deprivation of liberty, the more a person is required to give up his desires and desires more and more. His personal identity and unique voice are drowned out in a disciplined and abrasive daily routine. Anyone who enters the detention center and is released from it after three full years does not leave it as it was. Three years – a period of time during which a person could marry and start a family, advance in his work, and acquire an education. A chapter of life that never returned.
- Moreover, as we have already clarified, given that the temporary order is subject to a possible extension, an infiltrator who has been sent to the detention center is in inherent uncertainty as to the date of his release. This uncertainty is not part of the inherent infringement of dignity in every stay in a facility that deprives liberty: it is a unique and independent violation of the right to dignity, which stems from the way in which the uncertainty intensifies the suffering involved in the deprivation of liberty in any case. Indeed, psychological studies have shown that uncertainty is a significant stressor in a person's life, and it is often linked to anxiety and depression (for a detailed review of the literature on the subject, see Emily L. Gentes & Ayelet Meron Rusico, A Meta-Analysis of the Relation of Intolerance of Uncertainty to Symptoms of Generalized Anxiety Disorder, Major Depressive Disorder, and Obsessive-Compulsive Disorder, 31 Clinical Psychol. Rev. 923 (2011); Veronica Greco & Derek Roger, Uncertainty, Stress, and Health, 34 Personality & Individual Differences 1057 (2003)). When we are dealing with the deprivation of liberty, uncertainty has particularly serious consequences (see, for example, Ian Robbins et al., Psychiatric problems of detainees under the Anti-Terrorism Crime and Security Act 2001, 29 Psychiatry Bull. 407 (2005)).
- This is especially true of foreigners and asylum seekers, who are a population that is particularly vulnerable to post-traumatic stress disorders associated with deprivation of liberty (see Matthew Porter & Nick Haslam, Predisplacement and Postdisplacement Factors Associadted with Mental Health of Refugees and Internally Displaced Persons, 294 J. Am. Med. Assoc. 602 (2005)). A study conducted by the European Parliament, which examined the lives of foreigners in accommodation facilities (including open facilities and those with voluntary access), found that indefinite stay in accommodation centres, without a clear status and uncertainty as to when it will end, increases the rates of suicide attempts and mental disorders among those staying (Accommodation Facilities Report, pp. 70-72, 184-186, 198-200). It therefore seems that it is not for nothing that the European Absorption Directive stipulates that the conditions of detention must include protection of the mental health of detainees (Directive 2013/33/EU, of the European Parliament and of the Council of 26 June 2013 on Laying Down Standards for the Reception of Applicants for International Protection (recast), art. 17(2), 2013 O.J. (L 180) 96, 104-05 (available here)). The dire consequences of the uncertainty regarding the duration of the deprivation of liberty were also discussed by UNHCR (available here):
"Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for statless persons and migrants who cannot be removed for legal or practical reasons" (U.N. High Comm’r for Refugees & U.N. Office of the High Comm’r for Human Rights, Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons, Geneva, Switzerland, 11-12 May 2011: Summary Conclusions 4 (July 2011).