(iii)       Limitation of the length of stay at the center and grounds for discharge from it 99

1)     The Violation of Constitutional Rights. 99

2)     Proportionality. 104

1. a) The Rational Connection Test. 104
2. b) The test of the means that is less harmful 104
3. c) The test of proportionality in the narrow sense. 104

(iv)      Transfer of an Infiltrator to Custody. 107

1)    The Violation of Constitutional Rights. 112

2)     The Constitutional Right to a Fair Trial 113

3)     Proportionality. 121

1. a) The Rational Connection Test. 121
2. b) The test of the means that is less harmful 122
3. c) The test of proportionality in the narrow sense. 122

(f)       Chapter 4 as a Whole and the Requirement of Proportionality. 124

(g)      The Remedy. 127

(8)      After these things. 128

(9)      Final Notes. 133

1. High Court of Justice 8425/13 - Conclusion. 137

VII.     High Court of Justice 7385/13 139

VIII.    Unlocked. 140

1. Conclusion. 141

I.              Opening Words

Tens of thousands of infiltrators from Eritrea and North Sudan have entered the State of Israel in recent years.  The executive and legislative branches sought to deal with the consequences of this phenomenon in several ways – by erecting a "physical barrier" in the form of a fence on the southern border of the country; They are involved in what they call the creation of "normative barriers" by way of legislative amendments.  The petitions before us subject to constitutional review two arrangements that were established in this regard in primary legislation.  By virtue of the first arrangement, infiltrators against whom a deportation order has been issued can be held in custody for a period of one year; By virtue of the second arrangement, it is possible to order the transfer of infiltrators to an "open" accommodation center indefinitely.  Are these arrangements constitutional? These are the questions for us to decide.

1. We have before us two petitions that were scheduled for hearing before an expanded panel and their hearing was consolidated (in a decision of December 25, 2013). One (High Court of Justice 8425/13) attacks the constitutionality of the Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment No. 4 and Temporary Order), 5774-2013, S.H. 74 (hereinafter: Amendment No. 4 or the amendment to the Law) due to its infringement on the rights of infiltrators.  The second (HCJ 7385/13) mainly attacks the manner in which Amendment No. 4 is implemented, and is based on the argument that the state is not doing enough to ensure the rights and safety of the residents of south Tel Aviv in light of the phenomenon of infiltration.
2. Tens of thousands of people have entered Israel in recent years without a border crossing. Prior to the enactment in 2012 of Amendment No. 3 to  the Prevention of Infiltration Law (Offenses and Jurisdiction) (Amendment No. 3 and Temporary Order), 5772-2012, S.H. 119 (hereinafter: Amendment No. 3), these infiltrators were placed in custody by virtue of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry into Israel Law), but were released after a relatively short period of time, in view of the restrictions on the duration of custody in the arrangements in the Entry into Israel Law.  The enactment of Amendment No. 3 is intended to apply to infiltrators a unique and more stringent legal arrangement than that which applies to illegal aliens under  the Entry into Israel Law, in view of the difficulty in ascertaining the identity of those who entered the territory of the State without identification documents and in an undocumented manner; and because their entry into Israel was illegal in the first place (Explanatory Notes to  the Prevention of Infiltration (Offenses and Jurisdiction) Bill  (Amendment No. 4 and Temporary Order);  5774-2013, Government Bill 122, at p. 122 (hereinafter: the explanatory notes to Amendment No. 4)).  Section 30A, which was added to the Prevention of Infiltration Law (Offenses and Jurisdiction), 5714-1954 (hereinafter: the  Law or the Prevention of Infiltration Law), within the framework of Amendment No. 3, allows for the custody of infiltrators against whom a deportation order has been issued for a period of up to three years, subject to grounds for release established by law.  This court declared the clause unconstitutional and ordered its cancellation (High Court of Justice 7146/12 Adam v. Knesset [published in Nevo] (September 16, 2013) (hereinafter: the Adam Case)).  As a result, the Knesset enacted Amendment No. 4 to the Law.  Amendment No. 4 focuses on two arrangements: first, the re-enactment of  section  30A of the law that was repealed in the Adam  case, while shortening the maximum period of custody to one year and with other changes; and second, a normative arrangement by virtue of which it is possible to establish – and indeed in practice – a "detention center" for infiltrators (hereinafter: the detention center, center or facility), to which it will be possible to transfer any infiltrator who finds difficulty in deporting him (section  32D(a) to the law).   As of  April 30, 2014, more than 2,000 infiltrators are staying at the Holot facility, which has been declared a detention center by virtue of Chapter D of the law.
3. In the Adam case , we required the constitutionality of Amendment No. 3.  The question of the constitutionality of Amendment No. 4 now stands for our decision.  I will say at the moment: In my view,  section  30A and chapter D of Amendment No. 4 do not pass constitutional review.  As for section 30A of the law in its new version, like its predecessor, which was disqualified, it disproportionately violates the right to liberty and the right to dignity.  Even the establishment of the residence center unlawfully violates basic constitutional rights.  Therefore, the law of section  30A and chapter D of the Prevention of Infiltration Law are null and void.
4. And this will be the order of things: First, we will discuss the main points of the judgment in the case of Adam. We will then present the legislative change that focuses on these petitions, namely Amendment No. 4.  Later we will discuss the arguments of the parties in the present proceeding.  Finally, we will put the two pillars of the law – section 30A and chapter D – to the test of constitutional review.
5. Before we set off, I would like to make an introductory remark. The law that we are required to examine in this case is the Prevention of Infiltration Law.  An "infiltrator" (as defined in this law) is a person who is not a resident, who enters Israel other than through a border station determined by the Minister of the Interior.  In the Adam case  , I discussed the difficulty of using the adjective "infiltrator" in relation to those to whom the legislative arrangement is the subject of our discussion.  The term "infiltrator" was originally intended to describe those who entered Israel for the purpose of committing hostilities and crimes (paragraph 10 of my opinion).  As I noted there, the rhetorical choices of the legislature are not subject to our examination, but we must not let them obscure the essence.  We must remember that there is no claim that the "new" infiltrators sought to enter our borders in order to carry out hostile acts, and that many of them define themselves as asylum seekers.  In light of this comment, I will also make use of this opinion – as I did in the Adam case  – the term prescribed by law.

II.           The Judgment in the Adam Case

6. There are currently close to 50,000 infiltrators in the State of Israel, who have arrived in its territory in various ways. As will be further detailed, the question of the characterization of these infiltrators is subject to a polar dispute between the state and the petitioners.  According to the state's position, most of the infiltrators' population – immigrants from North Sudan and Eritrea – are immigrants who came to the State of Israel for economic reasons, with the aim of working and earning money in order to improve their standard of living and support their families who remain in their countries of origin.  The petitioners, on the other hand, hold the opinion that the population of the infiltrators is composed mostly of asylum seekers who have fled countries where their lives or bodily integrity are in real danger.  Either way, for reasons that will be detailed later, most of the population of infiltrators in question is not expellable from the territory of the state.
7. This massive and untimely migration of tens of thousands of infiltrators to Israeli territory has posed complex challenges to the state and its residents. In Amendment No. 3, the legislature sought to deal with the phenomenon of infiltration by enacting section 30A of the Prevention of Infiltration Law.  The main provision of this section – which was enacted as a temporary provision – was that an infiltrator could be held in custody for a period of up to three years.  On September 16, 2013, the judgment in  the Adam case was given by my colleague Justice (ret.) Arbel (and from now on, all references to the judgment in the Adam case that appear without mentioning the author's name will relate to her opinion).  In an expanded panel of nine justices, this Court found that the arrangement set forth in section 30A of the Prevention of Infiltration Law was unconstitutional, in view of its disproportionate infringement of the right to liberty enshrined in the Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law).  In the opinion of the majority, we ordered the cancellation of all the arrangements set forth in the various provisions of section 30A of the Law (my colleague, Justice N. Hendel, was of the opinion that there was room to order the nullity of section 30A(c) only, and there was no need to cancel the Temporary Provision in its entirety, as determined by the majority justices).  It was also determined that with the repeal of Section 30A of the Law, the custody and removal orders issued to the infiltrators – by virtue of which they were held in custody at the Saharonim facility – will appear to have been issued under the Entry into Israel Law.  It was also determined that the process of individual examination and release of all those held in custody must begin immediately.  The review process in the case of all the infiltrators who were in custody was limited to a period of 90 days from the date of the judgment in order to grant the state a necessary period of organization, despite the ongoing violation of the constitutional rights of the detainees.  To complete the picture, it should be noted that the petitioners were of the opinion that the rate of release of the infiltrators after  a judgment was not satisfactory.  Two motions filed under  the Contempt of Court Ordinance were  rejected (decisions of November 7, 2013 and December 9, 2013), although in its later decision, this court noted that it was uncomfortable with the pace at which the examinations and decisions were made to carry out the judgment.

III.         Amendment No. 4 - The Legislative Process, the Main Points of the Amendment and its Implementation

8. About two months after the judgment was handed down in the Adam case, on November 25, 2013, the Knesset passed Amendment No. 4 to the Prevention of Infiltration Law. According to the explanatory notes to the bill, Amendment No. 4 is intended to provide an appropriate response to the phenomenon of infiltration, after it was found that the normative framework set forth in  the Entry into Israel  Law – which remained in place after the repeal of section 30A of the Law in  a human  judgment – does not allow us to deal effectively with the phenomenon.  The main points of the amendment were two: first, section 30A of the law, which was declared unconstitutional in the Adam case, was re-enacted in such a way that the maximum period allowed for detention by virtue of it was shortened from three years to one year, and the section applied only to infiltrators who infiltrated into the State of Israel after the new amendment came into effect.  In the second change, Chapter D was  added to the law, which allows for the declaration of a certain facility as a "residence center" in which infiltrators who arrived in Israeli territory before Amendment No. 4 was enacted, and who cannot be removed from Israel at this time.
9. Amendment No. 4 was enacted in a short timeframe. Following the repeal of Amendment No. 3, on November 7, 2013, the government published a memorandum of a bill to amend the Prevention of Infiltration (Offenses and Jurisdiction) Law  (Amendment No. ...) (Temporary Order), 5774-2013.  On November 17, 2013, the government approved the proposed memorandum, and three days later, on November 20, 2013, it placed on the Knesset table the Prevention of Infiltration (Offenses and Jurisdiction) Bill  (Amendment No. 4 and Temporary Order), 5774-2013, Government Bill 122 (hereinafter and hereinafter: the bill).  Five more days passed, and on November 25, 2013, the bill was approved in the first reading in the Knesset plenum.  The Knesset's Internal Affairs Committee held four meetings on the bill, in which the government's position and the opinion of the Knesset Legal Advisor were presented, and the positions of various organizations were heard.  On December 9, 2013, a discussion of the bill was held in the Knesset plenum, at the end of which the bill was approved in the second and third readings.  Amendment No. 4 was therefore the law.
10. From the date of the enactment of Amendment No. 4 to the occupancy of the residence center – the establishment of which was regulated in Chapter D of the Law by virtue of this amendment – not long did not pass. As early as November 24, 2013, the government passed a decision regarding "an integrated and coordinated plan to deal with the phenomenon of illegal infiltration."  The government ordered, inter alia, that the establishment of a residency center for infiltrators be completed by December 12, 2013; that the various ministries will prepare for this and determine the manner in which they will operate in or around the facility; and that the Ministry of Finance will allocate budgets for this.  The government also decided to cut the various ministries in order to finance the operation of the facility (Decision 960 of the 33rd Government, "An Integrated and Coordinated Plan for Dealing with the Phenomenon of Illegal Infiltration" (November 24, 2013) (hereinafter: Government Decision No. 960)).  On December 11, 2013, in accordance with Section 32B of the Law,  the Order for the Prevention of Infiltration (Offenses and Jurisdiction) (Declaration of a Detention Center for Infiltrators) (Temporary Order) was published in the Official Gazette, 5774-2013, K.T. 306 (hereinafter: the Order or the Declaration Order).  In this order, the Minister of Public Security declared the Holot facility to be a detention facility for infiltrators in accordance with Chapter D of the law.  The day after the publication of the order declaring the Holot facility (on December 12, 2013), the Population and Immigration Authority began transferring the infiltrators who had been held in custody and had not yet been released, as required by the judgment in the case of a person from the detention facility to the detention center, the Holot facility, in accordance with the provisions of Amendment No. 4.

IV.          The Petitions Before Us

Summary of the Petitioners' Arguments in High Court of Justice Case 7385/13

11. Petitioner 1 is an association whose goal is to educate and raise awareness of the issue of immigration to Israel and immigration policy in the world (hereinafter: the association). The association works "to assist the residents of south Tel Aviv in coping with the consequences of immigration and infiltration into Israel."  Other petitioners in this petition are residents of south Tel Aviv and property owners in the area, who believe that "the release of the infiltrators and the continuation of the policy of non-enforcement of the prohibition on their employment will certainly lead to material harm to their personal security, safety and freedom."  In this petition, which was filed on October 30, 2013 (i.e., after the judgment in  the Adam  case and prior to the enactment of Amendment No. 4), it was argued that even though the judgment in  the Adam  case recognized the distress that would be caused to the petitioners as a result of the disorderly release of infiltrators and pointed to possible courses of action to prevent harm to the petitioners, the state did not act to reduce the harm resulting from the expected release of the infiltrators.  The petitioners in this petition also expressed concern about the future release of some 2,000 infiltrators following  a human sentence, and their expected arrival, according to them, to the neighborhoods of south Tel Aviv; and they noted the harsh reality that exists in the area and the violation of their basic rights that will be caused to them as a result.  In light of this, the petitioners argued that the Authority should take alternative measures before releasing the infiltrators, and requested that the respondents be instructed to prevent the expected harm to them; to operate the "Saharonim" facility as an open center; and to announce the start of enforcement actions against employers of those staying at the open center.  It was also requested that the respondents act to transfer the infiltrators residing in south Tel Aviv to open detention facilities "in order to stop the ongoing harm to the residents of south Tel Aviv."

Summary of the Petitioners' Arguments in High Court of Justice Case 8425/13

12. Two petitioners in this High Court of Justice case are Eritrean asylum seekers, and others are a series of human rights organizations (hereinafter referred to as the Petitioners).  Petitioner 1 infiltrated into Israel on August 1, 2012 and a deportation order was issued in his case by virtue  of section 30A of the Prevention of Infiltration Law.  According to counsel for the petitioners, petitioner 1 fled Eritrea after being forced to serve there for 16 years.  During his stay in custody, petitioner 1 filed an asylum application, which was rejected on July 28, 2013.  Petitioner 1 filed a motion for reconsideration of this decision, and according to the reply on behalf of the respondents, this request will be decided in the near future.  On December 10, 2013, a stay order was issued in his case, and since then he has been at the Holot detention center.  Petitioner 2 infiltrated into Israel on June 26, 2012.  The petition claims that he fled Eritrea after refusing to enlist in the army as a permanent there, as he is an Orthodox priest whose faith forbids such service.  On September 5, 2012, Petitioner 2 was issued a deportation order, by virtue of which he was held in custody – first in "Givon" and later in the "Saharonim" facility.  On November 13, 2012, during a hearing before the Infiltrators Custody Review Tribunal (hereinafter: the Tribunal), Petitioner 2 claimed – according to the Respondents, for the first time – that he was seeking political asylum (according to him, he had contacted the Asylum Seekers Unit at the Ministry of the Interior back in July 2012).  On September 17, 2013, petitioner No. 2's asylum application was rejected.  On December 13, 2013, Petitioner 2 was given a stay order, and he was transferred from the Saharonim facility to the Holot Detention Center.  As appears from the state's reply, on December 17, 2013, petitioner 2 left the detention center and refrained from appearing at noon.  As a result, he was warned not to repeat the violation of the stay order.  On December 19, 2013, petitioner 2 left the detention center once more, without appearing at noon.  When he was returned to the center, a hearing was held and it was decided to transfer him to custody for 30 days.  On January 16, 2014, petitioner 2 returned to the detention center, and the next day he left the detention center and returned to it only after about 48 hours, without obtaining permission.  As a result, and after a hearing, it was decided to transfer him to custody for a period of 90 days.  Subsequently, this period was shortened by the decision of the Border Control Commissioner, and Petitioner 2 was returned to the detention center, where he is currently located.
13. The Petitioners' position is that both Section  30A of the Law (as drafted after Amendment No. 4) and the provisions of Chapter D of the Law (which deal with the establishment of the "Accommodation Center") are unconstitutional and therefore null and void.  With regard to the purposes of Amendment No. 4, the petitioners argue that the purposes underlying this amendment are identical to the purposes underlying Amendment No. 3: preventing the infiltrators from settling in Israel and deterring them from coming to Israel.  According to the petitioners, the deterrent purpose is inappropriate, and it raises difficulties that we discussed in the Adam  case (paragraphs 85-86 of the opinion of Justice Arbel; paragraph 4 of the opinion of Justice S. Jubran; paragraph 19 of my opinion); and even the purpose of "preventing settling in Israel" is inappropriate, given that it imposes separation and isolation from Israeli society in relation to those who cannot be deported.  According to the petitioners, in addition to these two purposes, there is another undeclared purpose of the law: "to break the spirit of the prisoners", in order for them to wish to leave Israel "of their own volition".  It was argued that the "encouragement" of people to return "voluntarily" to countries where their lives are in danger, when it is done by way of denial of liberty and personal autonomy, is unacceptable – and therefore this is not a proper purpose.
14. The petitioners add that the two arrangements set forth in the law – section 30A and chapter D – are inconsistent with the requirement of proportionality in the limitation clause in section 8 of the Basic Law:  Human Dignity and Liberty.  With regard  to section 30A of the Law, the petitioners reiterate their main arguments in the Adam case, according to which this section deviates from the principle that in the absence of an effective deportation proceeding, a person should not be held in detention.  It was also argued that from the time  section  30A of the law was  repealed in the Adam case until the date of the petition (about three months later), only four Sudanese men entered Israel.  In this situation, placement in custody for a period of one year is disproportionate.
15. The petitioners' arguments also relate to the provisions of chapter D of the Law. The petitioners do not distinguish between the various provisions of this chapter.  According to them, these provisions together constitute a normative arrangement "that turns the center into a prison."  According to them, in practice, the center denies the liberty of those held there; The law grants a series of exceptional powers, concerning search, jurisdiction and punishment; The application to the center is done in an arbitrary and discriminatory manner, without proactive judicial review; The law does not regulate a time limit on possible stays at the center, so that "a person can find himself in a facility indefinitely."  The remedy sought by the petitioners is an immediate declaration of the nullity of the provisions of Amendment No. 4, and instead the implementation of the provisions of the Entry into Israel Law, as was done in the Adam case.  Alternatively, it is requested that we cancel the provision of section  30A of the Law as well as the provisions of Chapter D of the Law.

 I.              The State's Position

16. We will begin with the response of the State Attorney's Office (hereinafter: the State) to the petition in the High Court of Justice case 7385/13, which was filed on behalf of the Association and the residents of South Tel Aviv. The State's position is that the remedies requested in this petition (which, as may be recalled, were submitted before Amendment No. 4 was enacted) were fully answered in the framework of this amendment and Government Decision No. 960.  The state notes that the Minister of the Interior instructed the Population and Immigration Authority to set explicit conditions regarding the prohibition on living and working in Tel Aviv and Eilat as part of the release of infiltrators from custody as part of the implementation of the judgment in the Adam case.  This provides an immediate response to the petitioners' request to act to prevent the expected harm to them as a result of the release of infiltrators as a result of the implementation of this judgment.  It was further argued that Amendment No. 4 to the Law granted the requested relief regarding the establishment of an open residence center; and that the relief requested regarding dealing with "new infiltrators" was answered by way of the re-enactment of  section  30A of the law.  With regard to the petitioners' request for relief relating to enforcement actions against employers of infiltrators who are in the detention center, the state's argument is that this is a preliminary petition in view of the Population and Immigration Authority's declared intention to do so.  With regard to the petitioners' request that an order be issued to transfer infiltrators currently residing in south Tel Aviv to the open detention center, the state points out that as of March 3, 2014, 3,172 infiltrators had been summoned to the center.  It was also claimed that the state allocated NIS 440 million for the implementation of the amendment to the law; that the government is working to outline and implement solutions for the "safe exit" of infiltrators from Israel; that designated funds in the amount of NIS 73 million have been allocated to the Ministry of Public Security for the purpose of promoting a plan to increase the personal security of residents of cities with large population concentrations of infiltrators; and that increased activity by the Israel Police is being conducted in neighborhoods in south Tel Aviv.  For this reason, the state is of the opinion that the petition should be dismissed.
17. With regard to the petition in High Court of Justice case 8425/13, the State's position is that Amendment No. 4 to the Law is constitutional and substantially different from Amendment No. 3 to the Law, which was repealed in the judgment in the Adam case – and therefore this petition should also be dismissed.  According to the state, Amendment No. 4 is an important pillar in a normative and executive system designed to provide a proportionate, reasonable, and balanced response to the phenomenon of infiltration.  The state claimed that the vast majority of those who infiltrated into Israel were not refugees or asylum seekers, but rather those who came from backward countries where the standard of living was low, with the aim of earning a lot of money (compared to their countries of origin).  With regard to the nationals of Eritrea and North Sudan, the State is of the opinion that given the difficulty in returning them to the countries from which they came (which I will discuss later), Amendment No. 4 to the Law is necessary in order to deal with the phenomenon of infiltration and to reduce its severe consequences on the one hand, and to provide basic living conditions for infiltrators who are already within the country's borders, on the other hand.  With regard to the rights of the victims, the State agrees that section 30A of the Law, which deals with custody, violates the right to liberty; however, it argues that even though Chapter D of the Law (which deals with the center of residence) imposes restrictions on the liberty of those residing in the center, it does not negate this right.
18. The state is of the opinion that the infringement of liberty inherent in the provisions of section 30A of the law meets the conditions of the limitation clause. It was argued that the purposes of the section are to prevent the recurrence of illegal infiltration, by changing the incentive system for "potential infiltrators"; and exhausting exit routes from Israel in relation to those who have already entered the country, while providing time to clarify the identity of the infiltrator, are worthy purposes.  It was further argued that the provisions of section 30A of the Law are proportionate.  With regard to the first test of proportionality (the rational connection test), it was argued that from the time of the enactment of Amendment No. 4 to the date of the hearing of the petition, only 18 infiltrators entered Israel (compared to 16,851 in 2011 and 14,747 in 2010), so that the section fulfills its purposes against the background of the decline in the number of infiltrators who entered Israel.  With regard to the second test of proportionality (a measure that is less harmful), the state argued that there is no other measure that is less harmful that will be able to achieve the purposes of the law to the same extent – including not the open residence center, from which it is possible to leave without return.  It was also argued that the fence erected on Israel's southern border is not a sufficient means of preventing the phenomenon of infiltration, since if the motivation to reach Israel increases, professional smuggling networks – which are known to exist from intelligence information – will have no difficulty in transporting infiltrators through the fence.  As for the third test of proportionality (proportionality in the narrow sense), it was argued that the provisions of the amendment provide for a softer arrangement than the provisions of Amendment No. 3, which was repealed in the judgment in the Adam case, since the section in its current version applies only to infiltrators who entered Israel illegally after the amendment came into effect; the maximum period of detention was shortened to one year; and additional changes were made that will be detailed below.  The state also argued that another fundamental difference is the existence of arrangements between Israel and third countries that allow the removal of infiltrators from Israel through "safe exit channels," which are currently being used.  According to the state, this "softening" of the harm inherent in the law makes its harm proportionate in view of the great benefit inherent in it.
19. Chapter D of the law is also subject to the  conditions of the limitation clause, according to the state.  As for the purpose of the law, it was argued that chapter D was intended to stop the settlement of the infiltrators' population in Israel's city centers and to prevent their integration into the local labor market, as well as to provide an appropriate response to the needs of this population.  With regard to the first test of proportionality, the State argues that the presence of the infiltrators in the detention center fulfills the aforesaid purpose.  It was emphasized that although the Holot facility cannot accommodate the entire population of infiltrators in Israel's city centers, it was established in a limited "pilot" format in an attempt to test its effectiveness, and in any event, Amendment No. 4 to the law does not limit the number of detention centers that will be established by virtue of it.  It was also argued that the accommodation centers were not intended to prevent the settling of the infiltrators' population in cities alone.  As for the second test of proportionality, it was argued that there is no alternative to certain restrictions on the openness of the center and the imposition of a prohibition on work outside it in order to fully realize the purposes of the law.  With regard to the powers of "punishment", it was argued that these are administrative enforcement measures intended to deal with the harsh reality of repeated and significant violations of the obligation to report to the center that characterized its operation at the outset, without which the possibility of an alternative to open custody would be frustrated.  It was further argued that there is judicial and quasi-judicial review of these decisions, which significantly reduces the intensity of the violation of the right to liberty of those residing in the center.  The state added that infiltrators are referred to the center based on well-known and egalitarian criteria; and that it is not possible to limit the stay of the infiltrators in the center in time, since this means that the purpose of preventing settling in the city centers will not be fulfilled to the same extent.  With regard to the third test of proportionality, it was argued that the great social benefit inherent in preventing infiltrators from settling in cities is reasonably proportional to the limitation of their right to liberty, taking into account the services provided at the center and the fact that the center is open most of the day.

II.             The Knesset's Response

20. The Knesset did not see fit to add to what was stated in the constitutional argument presented in the state's reply. Regarding the process of enacting the amendment, it was noted that following the discussions held in the Knesset's Interior Committee, the original bill underwent changes intended to create a more proportionate arrangement that would reduce the infringement of the rights of infiltrators.  With regard to section 30A of the law, it was argued that, contrary to the previous wording of the section, the authority of the Border Control Commissioner to release an infiltrator on bail after one year of the beginning of his detention was formulated as a mandatory authority and not an authority; the possibility of releasing an infiltrator from custody "for special humanitarian reasons" was no longer limited to only "exceptional cases"; and it was held that a security opinion, according to which an infiltrator is being carried out in his country of residence or place of residence an activity that may endanger the security of the State of Israel,  It can be used to assess the danger posed by an infiltrator – but it will not be an independent grounds for preventing release from custody.  In addition, various deadlines that were prescribed in section 30A of the Law in its previous version relating to bringing an infiltrator before the Border Control Officer and before the Tribunal were shortened; and the period for a periodic examination was also shortened.  With regard  to chapter 4 of the law dealing with the establishment of a residence center, the Knesset emphasized that a clause was added to the chapter authorizing the director of the open facility to order a medical examination of an infiltrator as close as possible to the date of the start of his stay; various restrictions were imposed on the authority to order the transfer of an infiltrator from the detention center to custody (within the scope of "disciplinary powers"); and a provision was added according to which families, women and children were not implemented in the stay center until special regulations were enacted in their case.

III.            Those who wish to join

21. Two organizations have asked to join the High Court of Justice 8425/13 as amicus curiae. The first – the Kohelet Forum (hereinafter: the Forum) – is a public association established by public figures and academics from the fields of constitutional law, political science, and economics.  These are, in summary, the Forum's arguments: On the level of purpose, it was argued that when the question of whether the purpose of a law is appropriate, the purpose of the law should be defined at a high level of abstraction, and therefore in the present case it should suffice to examine the question of whether curbing the phenomenon of infiltration and enforcing immigration policy are proper purposes.  It was further argued that deterring "potential infiltrators" is in itself a proper purpose, since infiltrators who are placed in custody or in a detention center are a party to the matter – as if they themselves entered the country illegally – and hence they were not used only as a means.  As for the detention center, it was argued that being in the center mainly violates the right to freedom of movement – a right that does not exist, according to the forum, for those who entered Israel illegally – and not the right to personal liberty.  Finally, the Kohelet Forum wishes to emphasize that the court has the authority to examine legislation in light of the Basic Laws – and not in light of the rules of international law or vague basic principles.
22. Another body that has requested to join the proceeding as an amicus curiae is the Concorde Center for the Study of the Absorption of International Law in Israel (hereinafter: the Concord Center), which is an academic research institute. The Concord Center sought to emphasize that according to the principles of international law, the deprivation of liberty in order to protect the sovereignty of the state in the field of immigration is permissible for non-punitive purposes; in a proportionate and reasonable manner; and after an individual examination of the necessity of the restrictions was conducted.  It was argued that section 30A of the Law does not meet these principles, because even after the maximum period of time for detention has been shortened, the period of permissible detention is still "default", and it is not directly related to the permissible purpose – the removal from Israel of someone who has entered it illegally.  It was further argued that the provisions of chapter D of the law also do not meet the aforementioned principles, due to the great similarity between the detention center and custody; in the absence of a time limit for the period of stay at the center; and in view of the declared purpose of this part of the law – to separate the infiltrators from Israeli society and the public.

I reviewed the applications to join, and I did not see the need to decide on them.  The material submitted by the applicants and their detailed arguments were brought to our attention, and even in the hearing held before us we heard their counsel.  On the basis of all the data and arguments presented before us, the time for a decision is ripe.

V.            Discussion and Decision

High Court of Justice 8425/13

1.               The Constitutional Analysis

23. The question before us concerns the constitutionality of Amendment No. 4 to the Infiltration Law – with its two parts. The starting point for the constitutional examination is that we have before us a law of the Knesset, which expresses the will of the people's elected representatives.  As such, the court is required to respect it and exercise restraint and caution when examining its constitutionality.  There is no dispute that special caution is required when we are dealing with a law that was enacted a short period of time after its previous version was repealed by this court (in the Adam  case).  However, this caution does not mean that this court is exempt from fulfilling the role assigned to it in our constitutional regime.  We must ensure that Amendment No. 4 does not unlawfully infringe on human rights enshrined in basic laws.  The cautious nature of the examination derives from the balance between the principle of majority rule and the principle of separation of powers, and the court's duty to protect human rights and the basic values that underlie our regime (see, for example, the Adam case, at para. 67; High Court of Justice  2605/05  Human Rights Division v.  Minister of Finance, IsrSC 66(2) 545, 592-594 (2009) (hereinafter:  the Privatization of Prisons); High Court of Justice 6427/02 The Movement for Quality Government in Israel v. Knesset of Israel, IsrSC 619(1) 619, 694-696 (2006) (hereinafter: the Tal Law case); High Court of Justice  1661/05 Gaza Coast Regional Council v. Knesset of Israel, IsrSC 49(2) 481, 552-553 (2005) (hereinafter: the Gaza Coast case)).
24. As is well known, the examination of the constitutionality of a law is conducted in three stages (see, inter alia, the Adam case, at paragraph 68; High Court of Justice 10662/04 Hassan v. National Insurance Institute, [published in Nevo], para. 24 (February 28, 2012) (hereinafter: the Hassan case);  the Privatization of Prisons, at pp. 594-595;  the Gaza Coast case, at pp. 544-545;  the Tal Law, at pp. 669-670; Civil Appeal 6821/93  United Mizrahi Bank in Tax Appeal v. Migdal Kfar Cooperative, IsrSC 49(4) 221, 428 (1995)).  In the first stage, it is necessary to examine whether the law violates the human rights enshrined in the Basic Law.  If the answer to this question is no, the constitutional examination will be completed at this stage.  On the other hand, if the answer is yes, the legal analysis will move on to the next stage.  In the second stage, it is necessary to examine whether the violation of human rights is consistent with the tests of the limitation clause, which is set  forth in section 8 of  the Basic Law:  Human Dignity and Liberty:

25. The examination of a legal provision in light of the limitation clause is based on our constitutional view that human rights protected by the Basic Laws are relative, so that they can be restricted for proper purposes concerning the needs of the public or the rights of other individuals. The limitation clause "[...] It therefore fulfills a dual role – it determines that the human rights set forth in the Basic Laws will not be violated unless certain conditions are met, but at the same time it defines the conditions under which the violation of human rights will be permitted" (The Privatization of Prisons, at p. 620).  The limitation clause establishes four cumulative conditions that any law that violates human rights must comply with in order for the violation to be lawful.  First, the violation of the right must be done by virtue of an explicit authorization in the law.  Second, the law must be in line with the values of the State of Israel.  In this framework, the law must be examined against the values of the State of Israel as a Jewish and democratic state (section  1A of the Basic Law: Human Dignity and Liberty).  Third, the law must serve a proper purpose.  A purpose will be found appropriate if it is "intended to protect human rights, including by establishing a reasonable and fair balance between the rights of individuals with conflicting interests in a manner that leads to a reasonable compromise in the field of granting the optimal rights to each and every individual" and "if it serves important public goals for the state and society in order to maintain an infrastructure for coexistence and a social framework that seeks to protect and promote human rights" (High Court of Justice 4769/95 Menachem v. Minister of Transport,  IsrSC 57(1) 235, 264 (2002)).  The more severe and comprehensive the infringement of the right is, and the more important the violated right is, the more important and substantive purposes will be required for the purpose of the law to be recognized as a proper purpose (see the Hassan case, at para. 55; High Court of Justice 6304/09 Lahav - Bureau of Self-Employed and Business Organizations v. Attorney General, [published in Nevo] 107 (September 2, 2010); Privatization of Prisons, at p. 621; High Court of Justice 10203/03 "The National Census" in Tax Appeal v. Attorney General, IsrSC 62(4) 715, 822 (2008); The Tal Law, at pp. 670-698; High Court of Justice  8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Defense, IsrSC 62(1) 1, 25 (2006) (hereinafter: the Adalah case); High Court of Justice 6893/05 Levy v. Government of Israel, IsrSC 59(2) 876, 890 (2005)).  In the words of President  E. Barak: "When the infringement is a central right – such as life, liberty, human dignity, property, privacy – the purpose must fulfill a fundamental social goal, or a pressing social need" (Adalah case, ibid.; for the doctrinal dispute on the question of the reference to the offensive means and the constitutional right that is violated in the framework of the examination of the purpose, see my opinion in the Adam case, at paragraph 18).  Finally, the violation of constitutional rights must be to a degree that does not exceed what is necessary.  This last condition expresses a test of proportionality, which focuses on the measures taken to achieve the goal.  The proportionality test consists of three cumulative sub-tests, which I will discuss now.

The Subtest The first It is the "rational connection" test or the "suitability test", according to which there must be a substantive connection between the proper purpose of the law and the arrangements set out in the law for its realization.  In other words, the chosen means must lead rationally to the realization of the goal.  In this regard, a "real correlation" is required between the proper means and the proper goal.  It is not sufficient to rely on a faint or theoretical probability alone, since the offending means must lead to the achievement of the purpose with a "serious degree of probability" (Matter Hassan, in paragraph 59; Interest Tal Law, at p. 706; High Court of Justice 1715/97 Israel Investment Managers Association v.' Minister of Finance, P"4:51(4) 367, 420 (1997) (hereinafter: the Investment Managers); See also: Dalia Dorner "Proportionality" The Berenson Book 281, 289 (2000)).