The approach of my colleague Justice Fogelman This leads to the fact that there is virtually no room left for the legislature to maneuver. In my colleague's opinion, one year is too long and apparently a period of six months would have been acceptable to him. And what about an eight-month period?! The presentation of the question in this way teaches that if my colleague's opinion is accepted, the court becomes a body that determines the norm almost precisely, with no real room for maneuver for the legislature. I cannot agree with this constitutional position, since according to which the court becomes a legislator, if not in practice, then in practice.
Therefore, if my opinion is heard, we will refrain from declaring the cancellation of the Section 30A to the Anti-Infiltration Law.
Chapter 4 of the Prevention of Infiltration Law - Establishment of a Residency Center for Infiltrators
- The second pillar of Amendment No. 4 to the Prevention of Infiltration Law is the establishment of a residency center for infiltrators, and the determination of its characteristics and methods of operation (Chapter 4' to the law). My colleague the judge Fogelman Describe in detail the arrangements that have been established In Chapter 4' to the Law Regarding the Establishment of the Residency Center (paragraphs 82-85 of his opinion). In summary, I will mention that the transfer of an infiltrator residing in Israel to the detention center, whether he is in custody or not, is done by the Border Control Commissioner (hereinafter also – The Supervisor), if he found it difficult to deport an infiltrator (Section 32IV(A) to the law). The Commissioner may issue the infiltrator a "stay order" requiring him to stay in the center until he leaves the country or until another date (Sections 32IV(A) and32D(b) to the law; For a discussion of the criteria underlying the issuance of stay orders, see paragraphs 86-89 of the opinion of my colleague Justice Fogelman). We note that the question is whether there is an obligation to hold a hearing Before The issuance of a stay order is an issue that is pending before this court (AAA 2863/14 Ali v. Ministry of Interior - Population and Immigration Authority [Posted inNevo]). In the framework of the aforementioned proceeding, the respondents announced that as of June 6, 2014, a "pilot" has been implemented, according to which a hearing is held before the issuance of a stay order, and not afterwards. The said proceeding remains pending, since the question of the status of the stay orders issued up to the date on which the respondents began carrying out the aforementioned "pilot" has not yet been decided (see, the partial judgment of August 10, 2014 inAAA 2863/14 above). In any event, the Prevention of Infiltration Law further states that an infiltrator who is subject to a stay order cannot receive a visa and a permit to reside in Israel according to the The Entry into Israel Law, 5712-1952 (Section 32IV(IV) to the law; Below – The Entry into Israel Law). Moreover, the law clarifies that an infiltrator residing in the center is not allowed to work in Israel (Section 32and to the law). However, the law stipulates provisions that enable the employment of the person staying at the center for maintenance work and ongoing services there, in exchange for a "reasonable remuneration" (Section 32VII(A)-(II) to the law; But see Section 32VII(III) to the law that stipulates that between the person residing in the center and the state will not apply employee-employer relations; And see Prevention of Infiltration Regulations (Offenses and Jurisdiction) (Employment of Occupants for Maintenance Work and Routine Services) (Temporary Order), 5774-2014).
- One of the arrangements that have the greatest impact on the character of the residence center was established In the section 32VIII to the law, which deals with the presence at the center of the stay and leaving it. Section 32VIII(II) The law stipulates that the stay center will be "closed" at night (between 22:00 and 06:00), and that during these hours the person staying outside will not be found outside. With regard to daylight hours, Section 32VIII(A) The law requires that a person staying at the residency center must report three times a day for the purpose of registering attendance, on the dates to be determined in the regulations by the Minister of the Interior, with the consent of the Minister of Public Security. It must already be noted that Section 32VIII(IV) The law authorizes the Minister of the Interior to determine the dates for reporting to the center for the purpose of registering attendance, provided that "the dates of such reporting are determined in a manner that will not allow the resident to work in Israel." It has already been noted above that the Minister of the Interior has enacted regulations regarding the hours of attendance at the center, these are the regulations for attendance at the center. In the aforementioned regulations, it was determined that those staying at the center must report for registration at any time between the following hours: 07:30-06:00 in the morning, 13:00-14:30 in the afternoon, and 22:00-20:30 in the evening. It should be noted, however, that In the section 32VIII(III) The Border Control Commissioner was authorized, at the request of the resident and for special reasons, to exempt a resident from the obligation to report or from a prohibition on staying at the center at night, for a period not exceeding 48 hours, and in special cases, even for a period of time exceeding 48 hours (medical hospitalization of the resident or a first-degree family member). It should be noted that the aforementioned section allows for an application to the Infiltrators Custody Review Tribunal, which is entitled to examine the Director-General's decision. In the respondents' response, it was stated that as of March 5, 2014 Approved by the Director-General, about 96% of the requests for an exemption from attendance according to Section 32VIII(III) (See paragraph 218 of the respondents' response).
- Instructions Chapter 4' They do not specify a maximum period of time during which an infiltrator can be instructed to stay in the detention center. In addition, the law does not prescribe grounds for exemption from the obligation to stay at the residence center. However, section 14 of Amendment No. 4 explicitly states that some of the provisions set forth therein, including Rule The provisions relating to the accommodation center will be in effect for three years from the date of the commencement of the law. My colleague the judge Fogelman Review extensively the other provisions that have been established In Chapter 4' of the law, including: those relating to the operation of the center and the maintenance of security, safety, order and discipline (Section 32J to the law); those that grant various powers to the Center's employees (Sections 3214, 32Tu, 32Taz and32T to the law); and the provisions authorizing the Border Control Officer to order the transfer of an infiltrator from the detention center to custody, after a hearing, in the event of repeated violations or violations of the conditions of stay at the center. This applies to the various periods of time prescribed by law (Section 32K to the law).
- At the outset, it must be noted that the unequivocal position of my colleague Justice Fogelman is that within the framework of the legislature's maneuvering space "... There is also the possibility of establishing accommodation centers Open" [emphasis in original – A.C.], so that they can provide a solution to the difficulties inherent in the phenomenon of irregular immigration (paragraph 97 of his opinion). In other words, my colleague does not rule out the possibility in principle of establishing accommodation centers open to infiltrators (see also paragraph 40 of his opinion in the previous petition, where my colleague wrote: "The infiltrators may be obligated to live in accommodation centers Open or Semi-Open, while imposing proportionate restrictions on freedom of movement" [emphasis added - A.C.]). It should be noted that an approach similar to that expressed by my colleagues in the previous petition was also expressed by some of the judges who were part of the panel of judges. Thus, for example, my colleague the judge A. Arbel, which wrote the main opinion in the previous petition, clarified (in paragraph 104) in its judgment there, that:
"It seems to me that it is possible to formulate a variety of alternative measures that can be taken and which will achieve the desired purpose in a less harmful manner. Thus, for example, it is possible to create various reporting obligations and guarantees...; Restrictions on the residence of the infiltrators in a manner that will enable the state to control and supervise the places where they settle and their dispersal to different places of population...; It is possible to consider obliging infiltrators to stay overnight in a accommodation facility that has been prepared for them and which will provide for their needs, while at the same time preventing them from other difficulties..." [Emphasis added - A.C.]
- My colleague the judge Fogelman is of the opinion that the court must order the nullity of the Chapter 4 All of it, and to announce the cancellation of all arrangements that enable the operation of the Accommodation Center. This is in addition to his principled position that there is nothing wrong in principle with the very existence of an open or semi-open accommodation center for infiltrators. In his opinion, my colleague refers to four elements of the law, all of which he finds to be somewhat problematic. My friend refers to First, for the provisions that stipulate the obligation to report to the center three times a day for the purpose of registration, and in more detail, the obligation to report for registration in the afternoon. Second, my colleague discussed an arrangement that stipulates that the detention center will be managed by the Israel Prison Service. In this context, my colleague also refers to the powers granted to employees at the center. Third, my colleague refers to the fact that there is no In Chapter 4' A provision that limits the time spent at the center. This is in addition to the provision in Amendment No. 4, according to which the sections of the law relating to the residence center will remain in effect for three years. Finally, my colleague refers to the authority granted to the Commissioner of Border Controls, to transfer an infiltrator from the open detention facility to custody. My colleague focuses mainly on the fact that, in his opinion, there is no "proactive judicial review" of such a decision.
While I agree that there was a constitutional flaw in the arrangement that obligates those staying at the center to report for three attendance records per day, and therefore it should be revoked, I do not agree with my colleague with regard to his conclusions regarding the other arrangements reviewed by him. In any case, I do not accept the result proposed by my colleague, according to which the Chapter 4' All of it.
- I will begin with the common denominator between the position of my colleague, the judge Fogelman, and my own position. Even in my view, the obligation to report for attendance three times a day constitutes a severe and significant restriction on the constitutional right to liberty. Indeed, this infringement is not equivalent in severity to the infringement of the right to liberty caused as a result of custody, i.e., in a closed facility from which it is not possible to leave at all. However, the obligation to report for three attendance records a day comes very close to negating the right to liberty. This is because, as a result of this obligation, the resident at the center is required to report for attendance at periods of time that make it significantly and obvious difficult to effectively leave the limits of the detention center. In this context, it is imperative to note two facts that intensify the violation of the constitutional right in this case. First, at the basis of the provision established in the law, regarding the obligation to report for three attendance records per day, is the fairly obvious assumption of the legislature, according to which the attendance records (three in number) must be spread throughout the day, i.e., in the morning, in the afternoon and in the evening. Admittedly, the legislature did not clarify in Rachel, your little daughter, that the obligation to report for registration applies in the morning, afternoon and evening. The legislature left the authority to determine the exact time frames to the Minister of the Interior. However, it is clear that the legislature's intention was that the second obligation to appear in the number (each day) would be in the afternoon and not in the morning or evening. This can be learned, among other things, from the above In the section 32(IV) A clause to the law, which stipulates that the dates of appearance will be determined in the regulations by the minister in charge "...In a way that will not allow the resident to work in Israel[Emphasis added: 1:3]. Indeed, in the Attendance Regulations at the Center, the Minister set time ranges for reporting in the morning, afternoon and evening hours. The second factor that makes the constitutional violation particularly severe relates to the geographical location of the residence center. As is well known, the only residence center that was established following the passage of Amendment No. 4 to the law is the one known as Holot. The center is located in the south of the country, within the Ramat Hanegev Regional Council, about 60 km from Be'er Sheva (see Order for the Prevention of Infiltration (Offenses and Jurisdiction) (Declaration of a Residency Center for Infiltrators) (Temporary Order), 5774-2013). The obligation to report for attendance even in the afternoon, along with the geographical location of the accommodation center, makes the possibility of leaving it extremely difficult from a practical point of view. As a result, the constitutional right to liberty is seriously violated, as my colleague noted. Given this conclusion, I do not see room to address the question of whether the obligation to report for attendance at noon, in and of itself, violates the constitutional right to dignity, and more specifically the right to personal autonomy, as my colleague states in his opinion. It is sufficient for us to determine that there is a severe violation of the right to liberty in order to appeal to the examination, if this violation meets the conditions of the limitation clause. I will clarify that I have not lost sight of the respondents' argument that the infiltrators staying in the center have the option of using the means of public transportation, and that there is an intention to increase the number and frequency of bus lines. All of this, in a way that should make it easier to leave the center of your stay throughout the day. However, I did not see any reason to attribute much weight to this figure, taking into account, as noted, the geographical location of the detention center and the obligation to report for attendance even in the afternoon.
- I agree with my colleague the judge Fogelman, that the obligation imposed on those staying at the Residency Center to report for three attendance records per day (and in view of the dispersion of the hours of attendance) does not satisfy the conditions of proportionality in the "narrow" sense (i.e., the third subtest of proportionality) and therefore constitutes an infringement of the right to liberty that does not meet a reasonable proportion to the benefit of the law. As my colleague notes, two main goals are at the basis of the establishment of the detention center: preventing the infiltrators from settling and integrating into the labor market, and providing a response to their human, economic, and social needs. While my colleague refrains from expressing a position on the question of whether the first purpose mentioned is proper, he is of the opinion that the second purpose is proper. My colleague also mentions the petitioners' argument that the real purpose of the arrangement that was established In Chapter 4' of the law, is to "break the spirit" of the infiltrators in order for them to agree to leave Israel voluntarily (the respondents, for their part, argued Valid because this is not the purpose of the law). Like my colleagues, I will not address the question of whether this is indeed one of the goals of the law. Moreover, my colleague examines the conditions of proportionality only in relation to the purpose of preventing the infiltrators from settling down. This is because the parties did not address the conditions of proportionality in connection with the purpose of providing a response to the needs of the infiltrators. I agree that in this sense the arrangement passes the first two sub-tests of the conditions of proportionality. However, like my friends, I too believe that the obligation to report for attendance even at noon makes the residence center "almost closed" in nature. This is especially true in light of the center's location. I agree with my colleague, and on his behalf, that this provision does not maintain a proportionate and proper relationship between the infringement of the constitutional right to liberty and the benefit that arises as a result of the desire to prevent the infiltrators from settling in and integrating into the Israeli labor market.
- In summary, the instruction In the section 32VIII(A) of the law, which stipulates that "a resident shall report to the center three times a day, on the dates to be determined in the regulations according to the Subsection (d), for the purpose of registering attendance", disproportionately violates the constitutional right to liberty. As a result of this order, an infiltrator staying at the center is required to report for attendance even in the afternoon. The obligation to report at noon, in addition to this obligation in the morning and evening, makes the accommodation center such that it cannot be defined as an "open" or even "semi-open" accommodation center. These reporting obligations prevent the practical possibility of leaving the stay center during the day, in view of the location of the center. For these reasons, I believe that we should declare Section 32H(a) to the Prevention of Infiltration Law as an unconstitutional provision of the law, which contradicts the Basic Law: Human Dignity and LibertyTherefore, it is doomed to be annulled.
- As I have noted, my colleague the judge Fogelman It is not satisfied with cancellation Section 32H(a) to the law. In his opinion, the All its provisions of Chapter 4 to the law, and thus effectively cancel the comprehensive arrangement established by the legislature regarding the establishment of a residency center for infiltrators. My colleague comes to this conclusion after he "attaches" to the inherent harm In section 32h(a) The law has three elements that it finds problematic. These elements are: the lack of "proactive judicial review" regarding the decision to transfer an infiltrator from the detention center to custody; the management of the center by IPS personnel; and the absence of a provision limiting the time spent in the compound. With regard to these elements, and those Only, after all, my colleague's opinion is that "[]not only that some of the arrangements of the Chapter 4 are disproportionate to the law, butAccumulation of Aspects The unconstitutional provisions in this chapter stain the entire arrangement, and make it disproportionate" (paragraph 187 of my colleague's opinion [emphasis added - A.C.]). All this, as you may recall, despite the fact that my colleague does not find a flaw Actually, The possibility of establishing a residency center open to infiltrators (as he also said in the previous petition). I cannot agree with this approach of my colleague Justice Fogelman. First, I do not believe that the three elements mentioned indicate a problem with the intensity that my colleague pointed out. Beyond that, however, even if I would agree with my colleague that some of the arrangements reviewed by him do indeed raise a constitutional problem, I still do not agree that their "accumulation" should lead to the cancellation of the legal arrangement All of it, which enables the establishment and operation of the Accommodation Center. I will first discuss the three elements to which my colleague relates.
- The first legal arrangement to which my colleague Justice refers Fogelman (apart from the time of reporting for registration), he is concerned with the provision established by the legislature in relation to the management of the detention center by the Prison Service, as well as with respect to service personnel (paragraphs 136-146 of his opinion). It should be emphasized that the exact legal provision to which my colleague refers is Section 32C of the law, which states that "if the Minister of Public Security declares a detention center, he shall appoint a senior prison guard for the purpose of managing and operating the center, who shall be the director of the center; The commissioner will appoint prison guards who will be employees of the center, provided that they have undergone appropriate training as instructed." Ultimately, Abstained, my friend from determining that Section 32C The Law of Founders In and of itself An independent violation of a constitutional right. According to him, it is sufficient to determine that this provision "intensifies and exacerbates" the infringement of the rights of the infiltrators, "and has implications for the proportionality of the entire arrangement" (paragraph 146 of his opinion).
My friend's attitude seems to me to be difficult. As I mentioned, I do not believe that nullification should be ordered Chapter 4' Law All of it, due to the "cumulative infringement" of the rights of the infiltrators, and I will address this issue later in my remarks. In any event, it is possible to point to considerable difficulties at the basis of the approach, which sees the operation of the detention center by the Israel Prison Service as an arrangement that establishes, In and of itself, an independent violation of the rights of the infiltrators. I am of the opinion that caution should be exercised against sweeping statements that cast doubt even on the qualifications of the IPS personnel and the degree to which they are suited to perform the duties assigned to them by law. It should be noted that in order to examine the existence of such an injury, we must ask ourselves what the alternative, hypothetical, legal system would have been if the Israel Prison Service had not been in charge of managing the detention center. In my view, we should not ignore the difficulty inherent in the possibility that the entity that will manage the stay center will be a private entity, or another non-governmental entity (such as associations or organizations). It should be recalled, in this context, that in the Privatization of Prisons The arrangement that stipulated that a prison would be established would be run by a private entity, and not by the state, was subject to constitutional scrutiny. This court held that the said arrangement violates the right to personal liberty by "subordinating the prisoners to a private body that operates for economic motives" (Name, at pp. 612-613 (the President D. Beinisch)). Against this background, it is possible to understand the preferred approach that the entity that operates the detention center will be the Israel Prison Service and not any other entity. I do not ignore the fact that the way an infiltrator is treated must be different from the way someone is treated in prison after being convicted. This is if only because the infiltrator was not convicted of criminal offenses, and his stay at the detention center came against the background of the impossibility of deporting him from Israel. However, the management of a residential center by a private entity also raises at least some of the problems addressed by this court in the Privatization of Prisons.
- My colleague the judge Fogelman He notes that the IPS personnel do not specialize in managing an open detention facility whose characteristics are civil and non-punitive. However, In the section 32III The legislature clarified that "the commissioner will appoint prison guards who will be employees of the center, provided that they have undergone appropriate training as instructed[Emphasis added: 1:3]. We see, therefore, that the guards serving in the detention center are not "the same" guards who serve in the "regular" prisons, and thus, in my view, we find a solution to the difficulty that my colleague pointed out. Indeed, my colleague also referred to the fact that the guards serving in the detention center had undergone appropriate training and did not wear guards' uniforms, but rather "civilian" clothes. It may be further argued that it is appropriate for a government entity other than the Prison Service to be the one in charge of managing the detention center, for example, welfare agencies or other officials from the public service. However, the choice of such a solution, over the existing arrangement, is, in my opinion, clearly within the scope of the legislature's maneuver. In any case, an arrangement such as this may raise a difficulty from a different angle. What I mean is that the presence of many people concentrated in one accommodation facility, by its very nature, is liable to lead to problems from various disciplinary and other aspects. Therefore, in order to maintain order in the detention center, it would not be far-fetched to determine that prison service officials are best suited to prevent various disturbances of the peace, having undergone appropriate training aimed at the special treatment of the civilian population.
In a nutshell, I presented my position on all the issues relating to entrusting the management of the center to the Israel Prison Service. This is because even my colleague Justice Fogelman does not state that Section 32III The Law of Founders In and of itself An independent violation of a constitutional right. In the continuation of my remarks, I will address the question of whether this section, along with other arrangements in the law, indicates a cumulative violation of the rights of the infiltrators, in a manner that justifies the cancellation of the Chapter 4' to the law.
- Another matter in connection with the accommodation center, to which my colleague the judge refers Fogelman, is that which pertains to the duration of the detention center period. My colleague points out the difficulty that stems from the fact that they were not determined In Chapter 4' The law has all grounds for release, and no maximum period of stay at the center has been determined. However, my colleague emphasizes, and rightly so, that from a practical point of view, this is not a period of stay that is not limited in time, since Chapter 4' The law was enacted As a temporary order valid for three years (See section 14 of Amendment No. 4). I agree with my colleague that the absence of grounds for release, and the failure to limit it during the period of detention (subject to the validity of the temporary provision), constitute a constitutional violation of the right to liberty. Naturally, the violation of the right to liberty is closely related to the duration of a person's detention, whether in a closed detention facility, or in an open or semi-open detention center. It should be noted that in view of my conclusion with regard to the violation of the right to liberty, I will refrain from addressing the possibility that the said arrangement should be regarded as an infringement even of the right to dignity, and that there is no violation of the right to dignity due to the uncertainty regarding the date of release from the detention center. At the same time, I do not agree with my colleague that the current arrangement does not, at this time, meet the conditions of proportionality. This is due to a number of cumulative reasons. The First Taste is that the current arrangement regarding the maximum period of stay should be examined, taking into account the conclusion that the arrangement that establishes the obligation to report in the afternoon hours should be canceled. If my position is accepted, and we order the cancellation of the arrangement that requires those staying at the center to report for attendance even in the afternoon, this will weaken the intensity of the violation of the right to liberty stemming from the length of their stay at the center. In addition, it must be taken into account that although no specific grounds have been established for release from the detention center, it should not be said that an infiltrator who has received a stay order cannot leave the center in any way. We can learn about this From Section 32IV(A) to the law, which regulates the authority of the Border Control Commissioner to issue a stay order to an infiltrator. In the stay order, the Commissioner may determine how long the infiltrator will stay at the center. This is how it was determined in the license of Section 3224(A) To the law:
"If the Border Control Commissioner finds that there is difficulty in carrying out the deportation of an infiltrator, he may order that the infiltrator stay in a detention center until his deportation from Israel, until his departure from Israel, or until another date to be determined..."