The Subtest The second It is the test of "necessity" or "the least harmful measure," according to which when the other conditions are equal, the measure chosen by law must infringe human rights to the least degree. The legislature must reach that "step in the staircase" in which the proper purpose is achieved, without infringing beyond what is required. In doing so, the legislature is given legislative room for maneuver. The court is commanded to show flexibility in this matter. It must take into account only measures that fulfill the purpose of the legislation to the same extent or to a similar extent to the means chosen by the legislature (see Privatization of Prisons, at pp. 601-602; High Court of Justice 7052/03 Adalah Legal Center for Arab Minority Rights v.' Minister of the Interior, P"46(2) 202, 343-344 (2006) (hereinafter: the The Citizenship Law The first)). It must recognize "the difficulties of the legislature's choice, the impact of its election on the various sectors of society, and the institutional advantage of the legislature in evaluating these data" (Matter Mizrahi Bank, at p. 444; High Court of Justice 1789/13 Lotan v. Minister of Agriculture and Rural Development, [Posted inNevo] Paragraph 19 (June 20, 2013) (hereinafter: the Lotan); See also Aaron Lightning Proportionality in Law - The Violation of the Constitutional Right and its Limitations 415-391 (2010) (hereinafter: Proportionality in Law)).
The Subtest The third It is the test of proportionality "in the narrow sense" or the "cost-benefit" test, according to which there must be a proper relationship between the benefit that will accrue to the public from the realization of the purposes of the law and the violation of human rights that accompanies it. This value test, which is the main of the three sub-tests, is essentially a test of balance. The more severe and deep the violation of the constitutional right, the greater the benefit derived from the law. On the other hand, the more a social goal of great importance or a pressing social need is at the basis of the law, the more severe a violation of basic rights will be found. The third proportionality test is based on our constitutional view, according to which the end does not sanctify all means. The relationship between the public interest and the violation of human rights must be proportionate in order for a piece of legislation to be considered constitutional (see the Adam, paragraphs 26-27 of my opinion; Interest Privatization of Prisons, at pp. 602-603; Interest Adalah, at pp. 25-26; Interest Tal Law, at pp. 707-708). It should be noted that an examination of the last two conditions of the limitation clause will be made, inter alia, taking into account the type and intensity of the infringement of rights. As it was held, "the nature of the right that is violated, the reasons underlying the right and its relative social importance, the intensity of the infringement and the context in which the infringement was committed – all these have implications for the interpretation and manner of application of the requirements of the proper and proportionate purpose [...]" (Interest National Census, at p. 823).
- A violation of protected human rights will therefore be a lawful violation only when the violation meets the four conditions of the limitation clause, including the three subtests of the proportionality conditions. The conclusion is that a law may violate human rights, but it is nevertheless considered constitutional, if the violation satisfies all the conditions of the limitation clause. In this state of affairs, the constitutional examination will end. On the other hand, if he finds that the injury is unlawful, the surgery will move on to the final stage. In the third stage, the consequences of the unconstitutionality in the realm of welfare must be examined. Here it is necessary to examine whether there is room to repeal the unconstitutional provision or to reduce the scope of its application, so that the scope of the violation of the law will be reduced to the most essential (see the Gaza Coast case, at p.
- Below we will examine the constitutionality of Amendment No. 4 according to these stages. The examination will be divided into two parts: First, section 30A of the law will be subject to constitutional review, by virtue of which an infiltrator can be held in custody for a maximum period of one year. First, the question will be examined whether this section violates a human right protected by the Basic Law; We will then examine whether the violation of human rights enshrined in section 30A of the Law is a lawful infringement; and finally, the result of unconstitutionality, if it finds one, in the realm of remedy, will be examined. After completing the constitutional examination of section 30A of the law, we will proceed to examine the provisions of chapter D of the law, which was added to the law in Amendment No. 4, by virtue of which infiltrators can be instructed to be in a detention center. In this framework, we will first examine whether the purposes of chapter 4 meet the requirement of the proper purpose. Afterwards, some of the harmful arrangements in Chapter D of the Law will be subject to constitutional review on an individual basis. Regarding any arrangement that is found to infringe on constitutional rights, we will further examine whether the infringement is lawful. Later on, we will examine whether the manner in which chapter D of the law – as a whole – violates constitutional rights meets the requirement of proportionality. In the final stage, the appropriate remedy that has the power to remedy the constitutional defects that will be found in each of the abusive arrangements as well as in Chapter D in its entirety will be examined.
But even before that, in order to put things in context, let us briefly discuss the phenomenon of infiltration and its scope at this time.
2. The phenomenon of infiltration, asylum requests, and everything in between
(I) Background - The Phenomenon of Infiltration
- Human migration between countries is a worldwide phenomenon that has been on the rise in recent decades. Many countries are required to deal with illegal immigrants who enter their territory illegally without obtaining a permit. Israel's place is not absent from these countries. Since 2007, Israel has been dealing with a large-scale infiltration of citizens of African countries – most of whom are nationals of Eritrea and the Republic of Sudan (hereinafter: Sudan) – who enter its territory illegally, usually through uncontrolled crossing of the Israeli-Egyptian border (a border that was mostly breached until 2012, and is now blocked by a fence built along its entire length). According to data from the Population and Immigration Authority, as of June 30, 2014, 64,464 infiltrators had entered Israel. With the exception of those who left the country, there were 48,212 infiltrators in Israel as of this date (see Population and Immigration Authority – Policy Planning Division, Foreigners in Israel (July 2014) (available here) (hereinafter: Population Authority data); We discussed at length the factual and normative background to the phenomenon of infiltration in Israel in the Adam case. See the Adam case, at paragraphs 2-24; and at paragraphs 1-9 of my opinion).
- Most of the infiltrators who arrived in Israel were young men in their twenties to forties. The State Comptroller's report recently published indicates that many of them live in Tel Aviv-Yafo (and in particular in the neighborhoods of south Tel Aviv), and the rest live mainly in Eilat, Ashdod, Ashkelon, Be'er Sheva, Petah Tikva, Rishon Lezion and Ramla (State Comptroller, "Foreigners Not Subject to Deportation from Israel," Annual Report 64c, 59, 69 (2014) (hereinafter: the State Comptroller's Report)). The state argued before us that the infiltrators' prolonged stay in the country's territory and their settlement in the city centers constitute a real threat to the sovereignty of the State of Israel and to its national, social, and economic resilience. In particular, the state emphasized the tendency of the infiltration population to settle in unstable neighborhoods, which severely harms the social fabric and the personal security of their residents, against the background of the alleged increase in the crime rate among this population. The state also emphasized the economic implications of the phenomenon and its budgetary and economic aspects, in light of the need to provide this population with basic health and education services, and due to the massive and uncontrolled increase in the number of non-local workers. Even without addressing the data that were presented in this context on their merits (at least some of which raised question marks; see the Adam case, at paragraphs 12-18), it is clear to all that the phenomenon of infiltration raises considerable difficulties that state authorities and residents are forced to deal with.
- Who are these "infiltrators"? Why did they make their way to Israel? In the petition before us, the abandoned dispute of principle between the state and the petitioners on the question of the identity of the infiltrators and the question of the main motive for their arrival in Israel – finding work and improving their standard of living, as the state claims, or finding refuge from the danger to their lives and bodily integrity in their countries of origin, as the petitioners claim. The state reiterated that the reason behind the infiltrators' decision to come to the State of Israel was mainly economic; and that interviews conducted with the infiltrators after they entered Israel support this conclusion. As a result, the state has advanced the enactment of various provisions of the law regarding the prohibition of removing the property of an infiltrator from Israel – legislation that is not subject to our examination in the petitions in question (Prevention of Infiltration Law (Offenses and Jurisdiction) (Temporary Order), 5773-2013, 68 S. 78; The Prohibition of Money Laundering Law (Temporary Order), 5773-2013, 68 81). In the framework of this legislation, a section was added to the Prevention of Infiltration Law stating that an infiltrator may not remove property from Israel except upon his departure from Israel (section 7a(b)(1) of this law); A restriction was set on the value of the property that an infiltrator could leave Israel with him (section 7a(b)(1)(b) of this law); and powers have been established regarding the seizure of property (section 7a(c) of this law). Regulations have also been enacted regulating the manner in which an infiltrator may require permission to remove property from Israel (Prevention of Infiltration Regulations (Offenses and Jurisdiction) (Removal of Property from Israel) (Temporary Order), 5774-2013, K.T. 10).
The petitioners, on the other hand, argued that the infiltrators are mostly asylum seekers fleeing the dangers they face in their countries of origin. They claim that UNHCR recognizes the dangers to Eritrean and Sudanese nationals, and countries around the world grant many of them refugee status. In this context, the petitioners refer to the judgment in the Adam, in which this court noted that "[...] Most of the infiltrators come from countries where living conditions are extremely harsh, where the lives of their residents are often in danger, and the human rights situation there is deteriorating. Some of them went through very difficult experiences, such as kidnapping, torture, rape, etc., before arriving in Israel."Name, in paragraph 112 of my colleague Judge's opinion A. Arbel). The petitioners also insisted that the difficulties encountered by the infiltrators do not end when they leave their countries of origin. Indeed, a recent State Comptroller's report shows that infiltrators reported violence to aid organizations on their way to or while in Israel; and that local authorities in which large groups of infiltrators live reported that these groups sometimes exhibit phenomena characteristic of post-traumatic stress disorder. The State Comptroller went on to elaborate on the difficult living conditions of the infiltrators who arrived in Israel, and pointed to a series of deficiencies in the way the authorities have dealt with the treatment of this population so far (see State Comptroller's Report, at pp. 60-67).
- As I noted in the Adam case (in paragraph 8 of my opinion), the true picture regarding the identity of the infiltrators is certainly more complex than what each side wishes to present. Alongside the economic motive that can be assumed to have motivated many of the infiltrators to come to the State of Israel, it is not possible to casually dismiss the claims that they were fleeing the dangers they faced in their country. In order to put the phenomenon of infiltration in context, it is important to discuss, in a nutshell, what is happening in these countries (for a comprehensive review, see Parashat Adam).
About 73% of the infiltrators in Israel are citizens of Eritrea, a country located in northeastern Africa on the shores of the Red Sea. This country, which is one of the youngest and poorest countries in the world, was established in 1993 after gaining its independence from Ethiopia following a long war of independence. With the establishment of the state, democratic elections were held in Eritrea – the only ones that have been held in the country to this day – in which the president of the country, who still serves as the head of state, the prime minister and the commander-in-chief of the army, was elected. Only one party is represented in the National Assembly in Eritrea, and any political association that is not part of the party or that criticizes the ruling party is prohibited. According to recent reports, the Eritrean government is systematically and extensively violating human rights – civilians are arbitrarily arrested and held in inhumane conditions; Prison sentences are imposed without trial; There is an obligation to serve in the military for an unlimited period of time, during which the servants are exposed to harsh punishments; Severe restrictions are imposed on freedom of religion and freedom of expression, and more (see Special Rapporteur on the Situation of Human Rights in Eritrea, Rep. on the Situation of Human Rights in Eritrea, Human Rights Council, U.N. Doc. A/HRC/23/53 (May 28, 2013) (by Sheila B. Keetharuth) (Available Here); See also:Foreign & Commonwealth Office, Human Rights and Democracy: The 2013 Foreign & Commonwealth Office Report, . 8842, at 201-06 (U.K.); 2014, Cm(Available Here); U.S. Dept. of State, Bureau of Democracy, Human Rights & Labor, Eritrea 2013 Human Rights Report (Feb. 2014) (Available Here)).