A more moderate upper threshold of one year is now up for discussion. Does this threshold pass constitutional review? My opinion is that this should be answered in the affirmative. The Israeli legislature's choice to set a mandatory upper threshold of one year for custody is not unusual or unusual in light of the general landscape of comparative law in Western countries. There is a common approach for all countries according to which an illegal infiltrator can be held in custody. It is true that there are countries in which the average time for custody is smaller than the upper threshold set by the legislature in Israel. This gap may be derived from differences in principle but also from the concrete circumstances of each and every country. In my opinion, however, the main thing is that the threshold of one year is certainly not "out of bounds", and is not very high than is customary in many countries – perhaps even the opposite. Therefore, in my view, caution must be exercised in constitutional review. Was it possible to set a shorter maximum period for custody? Of course. But this is not the question before this court. Just as there is a scope of reasonableness, so there is a domain of constitutionality. I do not believe that the Israeli model, in all its details, falls outside this scope – not even in the light of comparative law.
Open Stay Center
- The second focus of the petitions before us is the Open Accommodation Center. In general, I believe that a striking substantive distinction should be made between these two tools. In other words, it is not enough to make the open detention center a kind of "light detention facility", but it is necessary to make sure that it is a completely different format of detention.
In this view, I agree with President Grunis that nullity should be ordered Section 32H(a) The law provides for the obligation to report for registration three times a day. The reasons for this were detailed in the President's opinion, and therefore I will not elaborate on them. I will only say that the main difference between the open detention center and the custody lies, in my opinion, in the ability to get out of the way. Providing significant freedom of movement, even if limited, makes the stay center a center Open. This is in contrast to detention, which in practice means holding the infiltrator under conditions of imprisonment or detention. The facility in question is located at a great distance from a place of settlement, and the imposition of the obligation to report three times a day – and not, for example, twice a day – makes the possibility of leaving the facility a high practical hurdle, if not more.
- Before I proceed, I would like to make a few comments regarding what arose from reading the opinion of my colleague Justice Vogelman.
My colleague insisted that the infiltrators are not criminals "in the accepted sense of criminal law." Attention should be paid to the proper caution in the language of the text. It's hard to ignore the fact that we're dealing with those who don't respect the sovereignty of the state, and instead chose to trespass in violation of the law. And don't answer me that we are dealing with those who are "presumed refugees." Experience shows that those who wish to be recognized as refugees turn to the competent authorities. The process of recognizing refugee status is also subject to judicial review, and we have not found that many times a person has been declared a refugee. It would not be correct to assume, automatically, that anyone who is held in the detention center is presumed a refugee.