High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 19

(2) to order the infiltrator's release on bail at the end of the period of time he has determined, if he is convinced that the conditions for release on bail under section 30a(b) or (c) have been met, and subject to the qualifications set forth in section 30a(d);

(3) To order a change in the conditions of the bail determined under section 30a(e), as well as to forfeit a bail due to a breach of one of the conditions of release on bail.

The court is therefore authorized to release an infiltrator on bail if it is convinced that some of the grounds for release have been met. In the section 30A)II), which states:

167. Thus, to the extent that none of the exceptional grounds listed in section 30A(b) of the Law are met, the Detention Review Tribunal for Illegal Aliens is not authorized to intervene in the Director-General's decision and release an infiltrator or a resident. The very decision to order the transfer of an infiltrator to custody is therefore not subject to judicial review initiated by any judicial or quasi-judicial body, except for the grounds for release listed in section 30a(b) of the Law (hereinafter: Judicial Review). An infiltrator or resident, who wishes to attack the Director-General's decision to order his placement in custody by virtue  of Section 32K(a) or (c) of the Law, is obligated to file an administrative petition with the Court for Administrative Affairs (Section 5(1) and Item 12(8) of the First Addendum to  the Administrative Courts Law, 5760-2000).

1)                    The Violation of Constitutional Rights

168. Section 32K of the Law violates two separate rights. First and foremost, it violates the constitutional right of the infiltrators to freedom.  I have discussed the place and importance of the right to liberty and the harm that custody causes to it (in paragraph 46), and there is no need to repeat the words.  However, the discussion is now being done from a different angle.  We noted that an infiltrator's right to liberty is significantly violated as a result of his placement in the detention center.  The question therefore arises: Does his transfer to custody constitute an independent violation of the constitutional right to liberty? My answer to this is in the affirmative.  The transition from the detention center to the detention facility is accompanied by a reduction in various aspects of the right to liberty that are not limited to increasing the infringement of physical liberty alone.  Infringement of personal liberty violates, as a by-product, additional basic rights (Zemach case, at p. 261).  Transfer to custody prevents the infiltrator in the detention center from leaving his or her limits at the permitted times; It limits the possibility of forming social connections; It interrupts the daily routine that the infiltrator adopted during his stay at the center (see also the harms involved in the custody arrangement set forth in section 30A of the law in paragraphs 46-47 above).  Transfer to custody therefore exacerbates the infringement caused by the stay in the detention center in a manner that amounts to an independent violation of the right to liberty.  Furthermore,  section  32k(c) of the Law authorizes the Border Control Officer to transfer into custody an infiltrator who is not staying at the detention center (since failure to renew a temporary permit for a visitor's residence under section 2(a)(5) of the Entry into Israel Law within 30 days from the date of its expiration also establishes grounds for transfer to custody).  In summary, transfer to custody – whether directly or from the detention center – violates the constitutional right to liberty.  This is therefore the starting point for our discussion.

2)             The Constitutional Right to a Fair Trial

169. In addition to the violation of the right to liberty, section 32K severely violates the constitutional right of the infiltrators to dignity, due to its violation of the constitutional "subsidiary right" to a fair trial. A basic rule of our approach dictates that "in any case in which a governmental authority seeks to infringe on the rights of the individual, it must conduct a fair process within the framework of which the justification for the said infringement will be clarified" (Barak , Human Dignity, at p. 863).  Although the main function of the right to a fair trial is within the scope of criminal law, its application is general.  It applies whenever a governmental authority uses its coercive power in a way that is likely to infringe a protected human right – whether for the benefit of another person (civil proceeding), or in the public interest (administrative action, criminal proceeding, or disciplinary proceeding).  The right to a fair trial is based on the terms "general considerations of fairness, justice and the prevention of miscarriage of justice" (Criminal Appeal 5121/98 Issacharov v.  Chief Military Prosecutor, IsrSC 61(1) 461, 559 (2006) (hereinafter: the Issacharov case); High Court of Justice 11339/05 State of Israel v. Beer-Sheva District Court, IsrSC 61(3) 93, 154 (2006) (hereinafter: the Beer Sheva District Court case); See also Richard B.  Saphire, Specifying Due Process Values: Toward a more Responsive Approach to Procedural Protection, 127 U.  Pa.  L.  Rev.  111 (1978)).  The right to a fair trial consists of procedural guarantees that are intended to guarantee, on the one hand, the interest of the individual whose right the state has violated, and on the other hand, the public's interest in doing justice and exposing the truth.  "It's like an act of shacking.  It is not summarized in a specific procedural arrangement or a specific right, but rather bases itself on a combination of means, procedural arrangements and substantive rights that coexist, side by side" (Beer Sheva District Court, at p. 155).
170. Like most human rights, the right to a fair trial is not absolute, but relative. The scope of its interpretation must be understood. "Certain aspects of due process apply to any proceeding – whether criminal, civil or administrative.  other aspects are unique to this or that proceeding" (Barak – Human Dignity, at p. 872).  We must therefore delimit the scope of the constitutional  right to due process.  Since the Basic Law: Human Dignity and Liberty does not include independent provisions dealing with due process, it is necessary to examine whether this right can be derived from one of the rights enshrined in the Basic Law.  In this context, the constitutional right to dignity and the constitutional right to liberty are taken into account in our case.
171. Section 5 of the Basic Law: Human Dignity and Liberty states: "A person's liberty shall not be taken away or restricted by imprisonment, detention, extradition or in any other way." The wording of the section raises interpretive questions that have not yet been clarified in our case law.  The main of these is the question of how the box will be interpreted "in any other way" – whether it applies only to the restriction of physical freedom, or whether it also extends to the right of the individual to autonomy (Barak  , Human Dignity, at pp. 338-345).  In our case, there is no need to decide on this interpretive question, since there is no doubt that the right to liberty applies directly to any denial of physical liberty, including placement in custody.  Therefore, it was held that the constitutional right to a fair criminal trial is directly derived from the constitutional right to liberty (see, for example, High Court of Justice 3412/91 Sufian v.  Commander of IDF Forces in the Gaza Strip, IsrSC 47(2) 843, 847 (1997); Additional Criminal Hearing 4390/91 State of Israel v. Haj Yahya, IsrSC 47(3) 661, 694 (1993); Criminal Appeal 5956/08 Al-Aqa v. State of Israel, [published in Nevo], para. 10 (November 23, 2011); Barak  , Human Dignity, at p. 868).  Moreover, when we are dealing with a proceeding that is liable to deprive a person of his physical liberty, the constitutional right to a fair trial is also derived from the constitutional right to dignity (Criminal Appeal 1741/99 Yosef v. State of Israel, IsrSC 35(4) 750, 767 (1999); Retrial 3032/99 Burns v. State of Israel, IsrSC 56(3) 354, 375 (2002); See also Criminal Appeal 9956/05 Shai v. State of Israel, paragraph 9 of the judgment of Justice A. Rubinstein (November 4, 2009); see also the references detailed in Barak, The Constitutional Right and its Daughters, vol. 2, at p. 869, notes 50-51).
172. Indeed, not every violation of the right to a fair trial amounts to an infringement of human dignity. In our approach, as stated, the "intermediate model" is practiced, which requires a close substantive connection between the "right of the daughter" (the right to a fair trial) and the "right of the mother" (the right to human dignity). The right to a fair trial is therefore a framework right derived from the right to dignity.  The guideline in the "decree" action is that the rights of the daughter must reflect only the aspect of human dignity in the due process.  It must maintain a close substantive connection to human dignity (Barak  , Human Dignity, at p. 870).  What aspects of the right to due process are closely related to human dignity?  In his comprehensive essay, A. Barak distinguishes between aspects common to any fair judicial proceeding and aspects that apply only to criminal proceedings.  Regarding aspects of the first type, Barak writes:

"Two aspects of the right to a fair trial apply in all types of proceedings: one aspect is related to the court; The other aspect is related to the right to representation.  Let's start with the court: The starting point is that the judges who decide the dispute will be independent (personally and institutionally) and independent.  The court must act objectively and impartially.  Every person has the right to equality before the court.  The procedure should allow for a proper and fair investigation of the claim.  He must give a proper opportunity to exercise procedural rights.  He must uphold the rules of natural justice.  Each side should have its day in court.  The procedure should be public.  The judgment must be reasoned, given in a reasonable time, and published.  Every person has the right to appear in court – whether physically or by his agent.  Hence, the right to a fair trial requires that every person be allowed to be represented by a lawyer" (Barak , Human Dignity, at pp. 872-873).

173. Thus, an essential and important aspect of the right to a fair judicial proceeding – be it a criminal, disciplinary, administrative or civil proceeding – is the right of every person in whose case a legal proceeding is being conducted by an objective entity that enjoys personal and institutional independence. This principle derives directly from the basic principles regarding the separation of governmental powers and our adversarial legal system. This method is based on the assumption that on both sides of the barricade of the judicial proceeding there are procedural adversaries, each of whom represents a different interest, while the decisive factor is passive.  It does not act proactively to gather evidence and clarify the truth, but rather relies on the evidentiary basis that each side has chosen to bring before it and decides on the basis of it.  In this way, the adversarial legal system differs from the inquisitorial system (see Shlomo Levin, The Theory of Civil Procedure - Introduction and Basic Principles 149-161 (2nd ed., 2008) (hereinafter: Levin); David Luban, Lawyers and Justice: An Ethical Study 67-103 (1988); Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm.  & Mary L.  Rev.  5 (1996)).  In order for the judicial process to be fair from the point of view of a party whose rights are liable to be violated, the judge must be neutral and objective throughout the proceeding (section 2 of the Basic Law: The Judiciary).  He is prohibited from making a face and biasing a judgment (section 6 of  the Basic Law: The Judiciary; Yigal Marzel, "On the Judge's Declaration of Allegiance," Book of Light 647, 652 (Aharon Barak, Ron Sokol and Oded Shaham eds., 2013)).  He must not have a personal interest in the outcome of the proceeding, otherwise he must disqualify himself (Section  77A(a) of the Courts Law [Consolidated Version], 5744-1984; Yigal Marzel Law of Disqualification of a Judge 18-21 (2005)).  By virtue of these principles – which also apply to a quasi-judicial tribunal – there is a clear separation between the executive branch, which is responsible for active enforcement of the law and gives it broad discretion on the question of how to conduct the proceeding and which matters will be brought to the court's decision; and the judiciary, whose role is to decide disputes brought before it and which does not have the discretion to choose the disputes brought before it (High Court of Justice 164/97 Contram in Tax Appeal v. Ministry of Finance, Customs and VAT Division, IsrSC 52(1) 289, 388-389 (1998)).  The separation of powers is an inherent and inseparable part of the constitutional right to a fair judicial process.  Deviation from it violates this right and is subject to the tests of proportionality.
174. Alongside the right to be tried by an independent body from a personal and institutional point of view, the constitutional right to a fair trial also includes additional "procedural guarantees" that are "subsidiary rights" of the constitutional right to a fair trial ("granddaughter rights" of the constitutional right to human dignity). These guarantees apply, to varying extents, in civil proceedings (see Levin, at pp. 79-91; compare: High Court of Justice 3914/92 Lev v. The Great Rabbinical Court, IsrSC 48(2) 491, 500 (1994)), the administrative (see Dafna Barak-Erez, "The Right to Appeal – Between Procedural Justice and Efficiency," Book of Light 817 (Aharon Barak, Ron Sokol and Oded Shaham, eds., 2013)), disciplinary and criminal (Barak – Human Dignity, at pp. 873-875).  Their purpose is twofold: first, to increase the probability that the proceeding will end with a correct outcome, after the person whose right is likely to be violated has been given an opportunity to present his version before the court and to convince him that it is not justified to infringe on his right; andsecond, to increase the chances that the proceeding will be conducted fairly from the victim's point of view, in a way that will make it easier for him to accept the outcome and accept the authority of the law with understanding and acceptance.  After he had his day in court (see E.  Allan Lind & Tom R.  Tyler, The Social Psychology of Procedural Justice (1988); Lawrence B.  Solum, Procedural Justice, 78 S.  Cal.  L.  Rev.  181 (2004); Rebecca Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L.J.  127 (2011)).  At the basis of the procedural guarantees is the assumption that normative recognition of human rights is not enough, but rather that a practical mechanism is needed to enable their protection.  Indeed, "the history of liberty is primarily the history of procedural means of protection" (words attributed to U.S. Supreme Court Justice Felix Frankfurter as they appear in Criminal Appeals Authority 2060/97  Vilenchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697, 715 (1998); For the importance of procedural guarantees in the United States in a context similar to our case, see: Farrin R.  Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 Hastings L.  J.  363, 372-73 (2014); David Cole, In Aid of Removal: Due Process Limits on Immigration Detention, 5 Emory L.  J.  1003, 1014-21 (2002)).
175. The scope of the constitutional right to a fair trial – both in terms of the scope of the application of the procedural guarantees, and in terms of the consequences of their violation within the framework of a concrete proceeding (as a derivative of the doctrine of proportional consequence; see Criminal Appeals Authority 3080/10 Smorgonsky v. Chief Military Prosecutor, [published in Nevo], paragraphs 12-13 (December 25, 2012)) – is influenced, inter alia, by the normative status of the right that is liable to be infringed and the extent of the potential infringement thereof (compare: CAM 1512/14 Anonymous v. Minister of the Interior, [published in Nevo], paragraph 6 (March 19, 2014) (hereinafter: the Anonymous case); Issachar Rosen-Zvi and Talia Fischer, "Beyond Civil and Criminal: A New Order of Judicial Procedures," Mishpatim 38 (2009)). This principle runs through the length and breadth of the provisions regulating the procedures in the courts and quasi-judicial tribunals, as well as in administrative law.  It derives directly from the principle of proportionality enshrined in the limitation clause and is binding on all government authorities (section 11 of the Basic Law:  Human Dignity and Liberty).   The higher the normative hierarchy   of the violated right, and the greater the degree of potential infringement thereof, the greater the scope of the interpretation of the constitutional right to due process, and the more procedural guarantees it will include (see and compare: High Court of Justice 266/05 Filant v. Deputy Military Advocate General, IsrSC 59(4) 707, 715 (2005); Retrial 7929/96 Kozli v.  State of Israel, IsrSC 55(1) 529, 564 (1999); Criminal Appeal Authority 1790/06 Guseynov v. State of Israel, [published in Nevo], paragraph 3 of the judgment of Justice A. Rubinstein (August 7, 2007)).  The imposition of a duty to apply to the court as a condition for the violation of the right, and alternatively the application of proactive judicial review as a condition for this – both are procedural guarantees whose purpose is to ensure, to varying degrees, the fairness of the proceeding.  The question of whether any of them falls  within the scope of the constitutional right  to due process will be determined, as stated, from the normative status of the right that is liable to be violated and the extent of the possible infringement thereof.
176. On the aforesaid side, it is clear that any fair process requires a balance between the aspiration to reach the right result and to give the potential victim his day, as aforesaid, and no less important interests of efficiency and finality (see CAM 6094/13 Madhana v. The Ministry of Immigrant Absorption, [published in Nevo], para. 8 (December 10, 2013)). This includes giving proper weight to the efficient use of the resources of the judiciary and the executive branches. These resources are limited by nature, and their exploitation in one way always comes at the expense of their exploitation for other purposes.  Naturally, the more procedural guarantees the procedural proceeding will include, the greater the probability that the result obtained in the end will be correct; and that in his case, the procedure of the proceeding shall be accepted with her.  In direct proportion to this, the costs that will be devoted to its management at the expense of other goals, which are also important, will also increase.  The scope of the procedural guarantees is therefore required to reflect an appropriate balance between the costs that will be invested in the proceeding (and the procedural guarantees as a whole) and the importance of the right at stake and the consequences of the potential infringement thereof (for the balance between the competing interests that underlie the judicial proceeding from an economic perspective, seeRichard A.  Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J.  Legal Stud.  399 (1973); Robert D.  Cooter & Daniel L.  Rubinfeld, Economic Analysis of Legal Disputes and Their Resolution, J.  Econ.  Literature 1067, 1087-88 (1989)).
177. Certainly: The type of proceeding being conducted – criminal, disciplinary, administrative or civil – is a relevant and important consideration on the question of which procedural guarantees fall within the scope of the constitutional right to a fair trial, but this is not an exclusive consideration. It is clear that the more offensive the proceeding is by its very nature, the more significant procedural guarantees it is required to include. In general, a criminal proceeding has more offensive characteristics than a civil proceeding, and therefore includes more significant procedural guarantees.  However, this assumption is not always correct.  The right that may be violated in a criminal proceeding and the extent of the infringement vary between different criminal proceedings.  After all, a criminal proceeding that revolves around a charge of a felony offense for which the maximum penalty is a monetary fine is not the same as a criminal proceeding for a felony offense for which the maximum penalty is many years in prison, which is liable to infringe on the constitutional right to liberty.  The same applies to other types of proceedings.  After all, a civil proceeding in a small claim for a small sum of money is not the same as a civil proceeding in which a person is liable to lose his residence in a manner that violates his constitutional right to property (compare: Civil Appeal Authority 646/14 Ashtrom Contracting Company in Tax  Appeal v. New Koppel Ltd., [published in Nevo], paragraph 7 (May 8, 2014)); After all, a disciplinary proceeding that may end in a reprimand is not the same as a disciplinary proceeding in which a person may lose his license to practice the profession permanently in a manner that severely violates his constitutional right to freedom of occupation; After all, an administrative proceeding that results in planning damage to the land is not an administrative proceeding that revolves around the legality of an order to stay in a residential center.
178. Summary of this point: The greater the potential infringement of the individual's right at stake, and the higher the normative status of this right, the greater the obligation to balance the infringement by adhering to procedural guarantees whose purpose, as stated, is to increase the chances that the result will be correct and that the proceeding will be fair from the point of view of the injured party. These two purposes do not stand alone, and must be balanced against the need for effective management of the proceeding in all its aspects.
179. Does section 32K of the Law violate the constitutional right to a fair trial? In my view, this should be answered in the affirmative. As I noted above, the scope of the constitutional right to a fair trial – including the nature and scope of the procedural guarantees included therein – is influenced, inter alia, by the normative degree of the right at stake and the degree of potential infringement thereof. The harsher the sanction and the more severely it violates basic rights, the more the balance point is shifted in the direction of individual rights, and more significant procedural guarantees are required to ensure that the right to a fair trial is preserved.  The scope of the procedural guarantees that will apply in the circumstances of the case must be balanced against the public interest in the efficient use of resources.  Section 32K of the Law authorizes  the Commissioner of Border Control to violate the constitutional right to liberty – one of the most constitutional and important human rights of every person – for a long period of time that can reach  a full year.  The normative degree of the right to liberty, which we discussed above (in paragraph 46), and the degree of potential infringement thereof, together require the existence of appropriate procedural guarantees as a condition for the existence of the constitutional right to a fair trial (see and compare in a particular case, at paragraph 7).  These guarantees do not exist in our case.  First and foremost, the abusive power set forth in section 32K of the Law is granted to an administrative entity, which is part of the executive branch, without it being accompanied by judicial (or quasi-judicial) review.  This authority severely violates the right to due process.  The power to restrict and supervise liberty is at the core of the role of the judiciary, and therefore – as a rule, and in the absence of weighty considerations to contradict – proactive judicial review is a condition without which there is no denying of liberty.  This is the case in detention before the filing of an indictment (sections  12-18 of  the Arrests Law) and afterwards (sections  21-22 of the Arrests Law); This is the case in administrative detention, both in Israel (sections 4-5 of the  Emergency Powers (Arrests) Law, 5739-1979) and in the Judea and Samaria area (section 287 of the Order Regarding Security Provisions (Judea and Samaria) (No. 1651), 5770-2009).  Judicial review is therefore an inherent part of the process of deprivation of liberty, and it is it that gives it its legal validity, to the extent that it can be said that it is a combined decision of the administrative body ordering the deprivation of liberty and of the judicial body approving it (Federman, at pp. 187-188; Yitzhak H. Klinghoffer, "Preventive Detention for Security Reasons,"  11 Mishpatim 286, 287 (1981)).  In our case, all that can be done to avoid a transfer to custody is to file a petition with the Court for Administrative Affairs.  In other words, the infiltrator must initiate a legal proceeding (and bear its funding), and he is not entitled to a judicial review initiated in his case (except for the exceptional grounds listed in section 30A(b) of the Law, as detailed in paragraph 167 above).  This raises a difficulty.  Access to the courts requires knowledge, means, and usually legal representation.  Of course, all of these are not necessarily the lot of those staying at the center – people whose fate has not been better for them in any case and who do not have much money in their pockets. Many of whom do not speak the language or are familiar with the details of the normative arrangements that apply to them; and that they are not well acquainted with the legal tools at their disposal.  This population therefore encounters an inherent difficulty in initiating, conducting and succeeding in a judicial proceeding (see and compare: High Court of Justice 10533/04 Weiss v. Minister of the Interior, [published in Nevo], para. 10 (June 28, 2011); Yuval Elbashan, "Access to Law by Disadvantaged Populations in Israel," Alei Mishpat 3 492 (2003)).  Moreover, without proactive judicial review, the infiltrator is not heard by an objective entity that enjoys institutional independence.  This result is contrary to the principle of separation of powers.  It is liable to create a feeling among the infiltrator of an "addicted game" in a way that humiliates him and harms his dignity (compare: Issacharov, at p. 560; Miscellaneous Criminal Applications 8823/07 Anonymous v. State of Israel, [published in Nevo] paragraph 16 of the opinion of Vice President E. Rivlin, paragraph 1 of the opinion of my colleague Justice (as then described) M. Naor (February 11, 2010)).  Second,  section  32K of the Law does not regulate additional procedural guarantees.  Thus, for example, the right to inspect the evidence material is not mentioned; The right to representation by a lawyer is not included.  The absence of procedural guarantees that guarantee the fairness of a proceeding-denial-liberty process intensifies the extent of the violation of the constitutional right to due process.

Having said these things and in the margins of this matter, I would like to note that in the current structure of the Chapter 4' According to the law, the question is whether judicial review is not required even in relation to the very stay order by virtue of which an infiltrator is required to report to the detention center, within the framework of the constitutional right to a fair trial.  The question of whether proactive judicial review is required as part of this right will be decided, as stated, in accordance with the status of the violated right and the severity of the infringement thereof.  Given the result I have reached, and from Chapter 4' The law should be repealed in any case, as will be further explained below, I do not see the need to decide this question at this time.  I will note, however, that it is clear that another legislative arrangement that will come, if any, in place of Chapter 4' to the law in its current form - which will offer different balances in relation to an open accommodation facility, and will reduce the violation of the right to liberty and other rights that I have discussed at length - may not require such an audit.

3)             Proportionality

1. The Rational Connection Test
2. Does section 32K of the Law pass the tests of proportionality? Let us begin with the test of the rational connection, within which it is necessary to examine whether the offensive measure assists in the realization of the purpose of the legislation. The abusive measure in our case is custody (the sanction that the Border Control Commissioner is authorized to impose), which by its nature deepens and exacerbates the infringement of liberty that is already inherent in the center of the stay, to the extent that an independent violation of this right is created. Does this infringement contribute to the achievement of the purpose of the law? My answer to this is in the affirmative.  The sanctions  set forth in section 32K of the law incentivize the infiltrators to comply with the instructions to stay at the center; to report for the counts; to behave properly; and to refrain from harming the security and property of those staying and working there.  Indeed, in the absence of effective administrative enforcement measures, there is concern that the accommodation center will become "voluntary", in a way that will thwart the purposes for which it was established.  Another question at hand is whether the violation of the right to a fair trial, which is expressed in the absence of procedural guarantees (and especially in the absence of procedural review) as a condition for the deprivation of liberty, assists in the realization of the purpose of the legislation.  To this too, I answer in the affirmative.  Granting such authority to an administrative entity facilitates the operation of the facility and saves costs, both for the executive branch and for the judiciary.  Holding a hearing for an infiltrator before placing him in custody for a violation is a short and effective procedure; Subordinating the proceeding to a hearing held on the infiltrator realizes his right to plead in a way that reduces the probability of error in the decision; Finally, the cost of such a hearing is not high, and it allows for the efficient use of the administrative authority's resources.  All of this is sufficient to determine that the arrangement set forth in section 32K of the Law maintains a rational connection to the purpose it is intended to achieve.

1. The test of the means that is less harmful
2. Similarly, section 32K of the Law passes the second test of proportionality – the test of the means that is less harmful.  The arrangement set forth in section 32K of the law includes a rapid, inexpensive and efficient mechanism for imposing a sanction for violating the rules in force at the facility, but in the meantime violates the constitutional right to a fair trial.  Is it possible to achieve the same goal with the same degree of effectiveness, using a less harmful means? My answer is no.  In order to remedy the violation of the right to due process, procedural guarantees that the law lacks, and especially procedural review, must be added.  There is no dispute that these guarantees come at a price.  Thus, adding a proactive judicial review will entail considerable costs, including the judicial time of the tribunal that will conduct the judicial review; The addition of the right to representation by a lawyer will delay the implementation of the sanction, and it may harm its effectiveness, even if only to some extent, (although this is not necessarily the case); Finally, conducting an adversarial proceeding before a judicial tribunal may require additional resources on the part of the state.  Since resources are limited, the additional resources on the part of the judicial and executive branches will necessarily come at the expense of other, no less worthy goals.  Hence, it cannot be said that the purpose can be realized with the same degree of effectiveness and the same costs (cf. the Lotan case, at paragraph 19), so that the arrangement also passes the second subtest.

• The test of proportionality in the narrow sense

182. We have seen that section 32K of the Law met the first two tests of proportionality.  Nevertheless,  section  32K of the Law does not pass the third test of proportionality.  As for the benefit of the arrangement: The arrangement in its current form creates deterrence efficiently and at minimal costs.  There is no doubt that proactive judicial review and the procedural guarantees that accompany it entail considerable costs (which we discussed at length earlier), and it is possible that they will somewhat impair the effectiveness of the existing deterrence mechanism (although this is not required).  However, this benefit is not directly proportional to the damage inherent in section 32K of the Law.  The constitutional right to a fair trial is an important right, and the extent of its violation in our case is very severe.  We reiterate that  section  32K of the law grants an administrative body the authority to deprive the infiltrators of their liberty for a period of up to one year, without procedural review and without procedural guarantees that are appropriate to the status of the violated right and the severity of the infringement.  The Border Control Commissioner is authorized to deprive an infiltrator of his liberty after he is found to have violated any of the provisions of the law.  The Border Control Commissioner, who is part of the executive branch and is responsible for the implementation of its declared and well-known policy on the subject of infiltration, is therefore the party that decides, from the outset, before the hearing, that grounds have arisen for transferring the infiltrator to custody; He is also the party that decides whether to accept the arguments presented by the infiltrator at the hearing; And finally, it is the factor that determines the sanction that will be imposed on the infiltrator – sending him into custody for a period of time that can reach up to a year.  The entire process – from beginning to end – is not subject to the control of a neutral and objective entity, with institutional independence.  In this situation, the extent of the violation of the infiltrator's constitutional right to a fair trial seems obvious.  It is natural for the infiltrator to feel that this is an "addicted game"; For one does not listen to him with a receptive heart and a willing soul; that the decision to impose the sanction on him was predetermined; And that the chances of changing the evil decree are not high.  In this situation, the possibility that the infiltrator is about to attack the Authority's decision to place him in custody by filing an administrative petition imposes a significant burden on him, and it is a reversal of the situation.  The injury is therefore severe and weighs greatly.
183. Given the status of the right and the intensity of the infringement thereof, the absence of proactive judicial review carries a heavy price that does not maintain, in any way or in any way, a proper relationship to the benefit deriving from it to the public interest. Indeed, the necessity of "deterring" infiltrators from committing violations – a necessity, we said, because it is not possible to run a facility that requires the presence without coercive force of this kind – requires means, and these means have costs. The application of proactive judicial review will result in resources that are currently being used for other purposes to be channeled for this last need.  However, the denial of a person's liberty – every person – is a last resort.  It is in the clear public interest that we ensure that liberty is not deprived before minimal defense mechanisms are put in place aimed at reducing the risk of mistake, which leads to such severe harm; and that the victim will be given the feeling that a fair trial has been conducted in his case.  What follows from the aforesaid is that the benefit that arises from the arrangement set out in section 32K of the Law does not meet the proper proportion to the degree of the violation of the right.
184. My determination that the arrangement set forth in section 32K of the Law is unconstitutional because of its disproportionate infringement of the right to a fair trial obscures the need to examine whether the section passes the tests of the limitation clause due to its violation of the constitutional right to liberty. As stated, in the circumstances at hand, a violation of the right to a fair trial inherently involves a violation of the constitutional right to liberty. However, as stated, the arrangement violates the right to liberty an independent violation that deserves a separate examination, mainly against the background of the periods of custody set out in section 32K of the Law as a derivative of the nature of the violation (ranging from 30 days to a full year).  In this context, the state argues that the nature of the authority is deterrent-disciplined, and that the duration of the period is proportionate.  However, in my view, placement in custody for long periods (up to a year) crosses the line between a "disciplined" sanction, which is essentially deterrence, and a "punitive" sanction that is essentially rewarding.  Since there is no dispute that the power to punish is not supposed to be vested in the Border Control Commissioner, such a sanction cannot stand – and this is regardless of whether it is followed by judicial review or not.  In view of my aforesaid conclusion regarding the disproportionate infringement of the legislative arrangement on the right to due process and the cancellation of the entire arrangement (as will be explained below), I am not required to make a conclusion on this question at the present stage; However, I will emphasize that in outlining a new legislative arrangement, to the extent that it is decided, the period of custody must also be examined very carefully.  A period of detention that is too long may also be disproportionate (in and of itself) in light of its severe violation of the right to liberty – even if the Director-General's decision is accompanied by proactive judicial review.  Obviously, this does not detract from the state's right to conduct criminal proceedings in appropriate cases, which allow, naturally, the imposition of harsh penalties.

We have completed the detailed examination of the various legal arrangements.  Now let's look at Chapter 4' It's all in a bird's-eye view.  Does this chapter meet the tests of proportionality?

(VI)         Chapter 4 as a Whole and the Requirement of Proportionality

185. In Chapter 4 of the Law, the legislature created a legislative framework intended to regulate the establishment and operation of a residency center for infiltrators in Israel. This center of residence is unlike its counterparts in the world. The restrictions imposed by him on the freedom of the infiltrator are much broader than those known in other Western countries.  The violation of the dignity of the infiltrators is more severe than that caused by similar facilities.  Some of the arrangements for chapter 4 of the law that I have discussed – which do not exhaust all aspects of this chapter that give rise to constitutional difficulties – have created independent violations of protected basic rights.  Other arrangements intensified and exacerbated the aforementioned infringements, even if they did not in themselves violate these rights.  Even if we assume that the means chosen by the legislature are suitable for the realization of the purpose of the legislation; And even if we assume that there is no other measure whose infringement of rights is less – so that chapter 4 of the law passes the first and second tests of proportionality – my opinion is that the benefit to the public does not justify the severe violation of the constitutional human rights available to every person, whoever he is.
186. I do not deny the social advantage that arises from the placement of infiltrators in detention centers. The center of the stay is intended to alleviate the distress of some of the residents of the big cities, who have almost single-handedly borne the burden of absorbing tens of thousands of infiltrators. However, not all benefits have the same weight.  The existence of a proper relationship between benefit and harm is also connected to the relative social importance of the various principles that underlie the public benefit expected from legislation.  The more severe the infringement of the right, the more powerful a public interest is required to justify the infringement.  A severe violation of an important right, which is intended only to protect a public interest whose weight is not on the same level, may be considered an infringement to an extent that exceeds what is required (the Privatization of Prisons, at pp. 602-603; the Zemach case, at p. 273).  Legislation that promotes the prevention of harm to human life on the one hand, and legislation that helps prevent the negative effects associated with irregular immigration – no matter how difficult it may be – separately.  The former may justify a broader violation of human rights than the latter.
187. In our case, I am of the opinion that the benefit inherent in chapter D of the law does not justify the violation of human rights that this chapter causes to the infiltrators. The picture reflected in the legislative arrangement in chapter 4 of the law is a bleak picture. It shows the image of an infiltrator who does not control his daily routine; that his daily routine is dictated by prison guards, who have been given search and disciplinary powers; an infiltrator who is exposed to transfer to custody, by the decision of an administrative body that does not receive judicial review initiated to the extent necessary; that his hours pass idle, since he has no real opportunity to leave the center during the day; And that his stay at the center has a beginning, but it has no apparent end.  All of these add up to an unbearable violation of his basic rights, first and foremost the right to liberty and the right to dignity.

These words, which we discussed at length above, are even more true in relation to particularly vulnerable populations. Chapter 4' The law is not darker than them.  The first is the children's population, whose current structure of Chapter 4' The law allows it to be held in the residence center (after enacting appropriate regulations, which, according to the state's announcement, have not yet been enacted; see Section 322 to the law).  This fact raises considerable difficulty.  Children are a particularly vulnerable population to the harsh consequences of deprivation of liberty.  They experience the violation of the right to liberty as a more severe violation (see and compare:Sara Mars et al., Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention, 10 Austl.  Psychiatry 91 (2002); Aamer Sultan & Kevin O'sullivan, Psychological Disturbance in Asylum Seekers Held in Long Term Detention: A Participant-Observer Account, 175 Med.  J.  Austl.  593 (2001)).  The difficulties are not limited to the violation of children's right to liberty, but they also touch on children's right to dignity.  The dignity of every person is entitled to protection; The dignity of a child – for special protection.  As it has already been ruled, "The violation of the child's dignity is part of the violation of human dignity, but it has a special dimension of its own, because of the special harm of children, young in their years, who have not yet accumulated the physical and mental strength to cope with life's struggles and unacceptable social phenomena.  As precious and sacred as human dignity is, the dignity of a child is much more sacred, since he needs the protection of society even more than the adult." Tabqa, at pp. 848-849).