As you can see, one of the means mentioned was a night "accommodation facility" for the infiltrators. Amendment No. 4 does establish a closed accommodation facility at night, but in addition, the infiltrator is required to report three times a day. The stay in this facility is not done with the consent of the infiltrator, but against his will, and it is not limited in time. It is impossible to ignore the location of the detention facility, which is far from any community center, and whose nearby cities, Be'er Sheva and Yeruham, are also about 60 kilometers away. It is still not possible to ignore the instructions accompanying the detention facility, which are managed by the Israel Prison Service and the powers given to the center's employees, including powers to search, demand identification, seizure of objects, detainment, use of force, transfer an infiltrator to custody for violating the conditions of stay, and more.
- The general picture that emerges from all of the above is that we are dealing with the same lady – the one of Amendment No. 3 – who is changing her mantle. There is no "stay" in an open or overnight "facility" but in a custody facility. It may be a custody facility with some leniency, but it is still a facility that significantly restricts the liberty and life of a person who is placed in it against his will and indefinitely. In addition to the required overnight stay in the facility, a resident of the facility cannot leave and come at will due to the distance from a place of settlement and the need to report at noon for registration, otherwise he is expected to be transferred to custody. This means that most of the detainee's time must be spent within the walls of the facility, unable to live his life as he wishes, to fulfill his desires, desires and aspirations. He cannot hang out, meet family and friends, make the errands he needs, learn and develop his skills as he wishes, etc. His liberty is therefore significantly limited and he is not given a horizon to aspire to, since his stay in the facility is not limited in time (while the stay in the detention facility established under Amendment No. 3 was limited to three years). I do not, therefore, see a significant difference between the constitutional analysis I conducted on the matter דוברAdam, and the required analysis regarding the detention facility that was established accordingly Chapter 4' to the law. Even if it is said, and indeed it is, that the infringement of the infiltrator's liberty is less, this reduction is not significant enough to reach the required balance with the benefit inherent in it. All this, it should be remembered, when about 2,000 of the infiltrators are staying out of a population of about 50,000 people, and when the data indicate that only a few infiltrators have been in the State of Israel for about a year and a half. The benefit, which is therefore also questionable, does not outweigh the damage and harm to the freedom and dignity of the infiltrator.דובר
I also agree with the comments of my colleague, Justice Vogelman, regarding President Grunis's position on the issue. I am also of the opinion that the cancellation of the obligation to report in the afternoon hours is not sufficient in order to make the arrangement proportionate, mainly due to the lack of a time limit in practice of staying in the facility, and also due to the lack of proactive judicial review. The proportionality of the arrangement depends on the combination of various parameters from which it is constructed. Thus, the greater the infringement of liberty, the shorter stay in the facility will be required in order to maintain the proportionality of the arrangement. In my opinion, even the obligation to report twice a day, in the morning and in the evening, without setting a limit on the stay in the open accommodation facility, infringes on the freedom and autonomy of those staying in the facility in a disproportionate manner. One should not take lightly the violation of the liberty of a person who is required to spend a large part of the day in a certain place, is not allowed to come and leave it as he wishes, is not allowed to live in a place with whomever he wishes, and his choices in accordance with the constraints imposed on him are significantly reduced. Nevertheless, I was prepared to assume that the benefit would outweigh the harm if it were a matter of limited time that provides the resident at the Ofek facility with the hope and aspiration to it, from which he will enjoy full freedom as all residents of Israel.
- As then, I would like to emphasize today that I do not ignore the cry of the residents of south Tel Aviv, who are forced, without justification, to shoulder the main moral burden that is placed on all of us as citizens of the state. As I noted at the time, I believe that these residents should be relieved and solutions should be found that will share the burden and alleviate the distress of these residents, without unduly violating the rights of the infiltrators. I will remark again that even if we were to look at the detention facility through utilitarian glasses only, we would discover that no remedy is given to the distress of the residents of south Tel Aviv, since only a very small fraction (only about 4%) of the infiltrators are currently in the detention facility.
- I would also like to point out that I have no doubt that the amendment was made with the aim of solving a real, painful and difficult problem, out of the belief that the amendment to the law will bring about its solution. However, in the overall balance, I still believe that it is wrong and inappropriate to try to solve the complex problem of infiltrators and the difficulties that accompany it in the most harmful and difficult way, such as taking away a person's freedom.
It seems to me that what I said in conclusion regarding Adam, with the necessary changes, is still true today with regard to Amendment No. 4, and I will conclude with these words: