High Court of Justice 8425/13 Eitan Israeli Immigration Policy et al. v. Government of Israel - part 7

(8)       If the infiltrator is deported from Israel on the scheduled date, he and his guarantors will be relieved of their guarantee and the financial guarantee will be returned, as the case may be.

(9)       In view of the fact that an infiltrator who has been released on bail has violated or is about to violate one of the conditions of his release on bail, he may order, by order, his return to custody, and he may also order the forfeiture or realization of the bail.

(10)     An order shall not be given regarding the forfeiture or realization of the guarantee as stated in subsection (i) until after an opportunity has been given to the infiltrator or the guarantor, as the case may be, to argue his claims, provided that he can be reasonably located.

42. In order to better understand the operation of this section, we will first discuss the basic provisions of the Prevention of Infiltration Law. Section 1 of the law states that an infiltrator is a non-resident who enters Israel not through a border station.  If he does so, a deportation order can be issued in his case and he can be held in custody (section 30(a) of the law).  A deportation order will only be executed after the Minister of Defense or his designee has determined that it is possible to do so in light of the infiltrator's personal circumstances and the country of destination for his deportation (section 30(a1) of the law).  If the infiltrator has been granted a visa and a permit to reside in Israel under  the Entry into Israel Law, the deportation order will be revoked (section 30(a2) of the law).  An infiltrator who wishes to attack the decision of the competent authority to issue a deportation order or to keep him in custody by virtue of  sections  30-30A of the law may file an appeal to the Appeals Tribunal in the districts in which he exists (see  High Court of Justice 4747/14 Orberim v. State of Israel, [published in Nevo], paragraph 2 (July 31, 2014) (it should be noted that until June 1, 2014, the way to attack the decision of the competent authority was by filing an administrative petition to the Court for Administrative Affairs – and not an appeal to the Tribunal). For appeals (see the Entry into Israel Law (Amendment No. 22), 5771-2011, S.H. 1068; Entry into Israel Order (Amendment No. 22) (Initially and Gradually Applied), 5774-2014, K.T. 1152; Entry into Israel Regulations (Procedures and Administration in the Appeals Tribunal), 5774-2014, K.T. 1152; Entry into Israel Order (Amendment of the Addendum to the Law) (Temporary Order), 5774-2014, K.T. 1162).  An administrative appeal against the decision of the Appeals Court may be submitted to the Court for Administrative Affairs.  In addition, an infiltrator may appeal in an administrative appeal against the decision of the Custody Review Tribunal of Infiltrators – which conducts a periodic review of his detention (section 30D of the law) – to the Court for Administrative Affairs (section 30f(a) of the law).
43. Section 30A of the Law – which is the subject of our examination – is found in Chapter 3 of the Law, which deals with the powers of deportation and detention. The provisions of Section 30A of the Law regulate the powers of the Border Control Commissioner in all matters relating to detention and release from custody.  The section authorizes the Commissioner to hold the infiltrator for a period of one year (section  30a(c) of the law) – and even more so if the infiltrator does not cooperate with his deportation (section  30a(d)(1) of the law), or if his release is in danger (section  30a(d)(2) of the law) – unless there are special circumstances that justify his release earlier (section  30a(d)(b) of the law).
44. This section, in its current version, differs from section 30A as drafted in Amendment No. 3, in a number of ways. First, the application of the section is prospective – that is, its provisions apply only to those who entered Israel illegally after Amendment No. 4 came into effect, and not to the entire population of infiltrators.  Second, the maximum period in which an infiltrator can be held in custody has been shortened from three years to one year (subject to the exceptional grounds for release listed in section 30A(b) of the Law; as well as the authority to hold an infiltrator for a longer period of time for the  reasons listed in section 30A(d) of the Law).  Third, the power to release an infiltrator in accordance with the grounds for release set forth in the law (unless the exceptions listed therein are met) was formulated as an "obligatory" authority and not as an authority (see  the Adam case, at paragraph 96).  Fourth, it was determined that failure to meet the deadlines for processing an application for a visa and a residence permit (such as an application for political asylum) will constitute an independent ground for releasing an infiltrator from custody if three months have passed since the application was submitted and the processing has not yet begun; and if no decision was made after six months (sections  30a(b)(5)-(6) of the law).  At the same time, the time periods during which the case of an infiltrator in custody will be brought to judicial review by the court has been shortened: it was determined that an infiltrator held in custody will be brought before the court no later than 5 days from the date of the beginning of his detention (as opposed to 14 days in the previous law) (section  30a(a) of the law); and that he be brought before the court for a periodic examination of his case every 30 days (as opposed to 60 days in the previous law) (section  30d(a)(1) of the law).  As for the current situation regarding the number of people actually held in custody by virtue of the section, according to data provided by the state's representative in the hearing before us, since the beginning of 2014, 18 infiltrators have entered Israel to whom the provisions of section 30A of the law have been applied.  Thirteen infiltrators were held and are still being held in custody, two women were transferred to a women's shelter and three left the State of Israel.
45. Before we proceed with the constitutional examination itself, I will note that in the petition before us, both the constitutionality of  section  30A of the Law as a whole (against the background of the abusive power set forth in it to hold infiltrators in custody for a maximum period of one year), and the constitutionality of some of its specific arrangements, which, according to the petitioners, are particularly offensive (in particular  sections  30a(b)(1), 30a(b)(3), 30a(a), 30e(1)(a), and 30a(d)(2) to the law).  In our case, in view of the conclusion that I have reached that section 30A of the Law is entirely tainted by unconstitutionality that requires that we declare all of its provisions null and void; and since I did not find that it is necessary to grant a different remedy in relation to any of the specific arrangements of this section, I did not see fit to address the petitioners' arguments as to the constitutionality of the individual arrangements of  section 30A of the Law.

Let us, therefore, turn to the examination of the constitutionality of the Section 30A to the law, in accordance with the stages of constitutional analysis accepted in our system.

(I)             The Violation of Constitutional Rights

46. There is no dispute that holding a person in custody violates his right to liberty. Even according to the state's approach, section 30A of the law as it currently exists violates the constitutional right of the infiltrators who are held by virtue of it in custody of personal liberty.  My colleague, Justice (ret.) Arbel, discussed at length the importance of the right to liberty in the judgment in the Adam  case (ibid., at paragraphs 71-76), and I will not answer this except briefly.  The right to personal liberty is one of the foundations of a democratic regime.  It was recognized in Israel as a basic right of the highest order, which is the basis of the values of the State of Israel as a Jewish and democratic state (see, for example,  Beer Sheva 1/87 Danashvili v. State of Israel, IsrSC 41(2) 281, 288 (1987); High Court of Justice 6055/95 Zemach v. Minister of Defense, IsrSC 35(5) 241, 261-262 (1999) (hereinafter: the Zemach case); Criminal Appeal 111/99A Schwartz v. State of Israel, IsrSC 55(2) 241, 272 (2000); High Court of Justice 3239/02 Mar'ab v. Commander of IDF Forces in the Judea and Samaria Area, IsrSC 57(2) 349, 364 (2003); The Privatization of Prisons, at pp. 573-574).  The right to personal liberty was also enshrined in Section 5 of  the Basic Law: Human Dignity and Liberty, according to which "a person's liberty shall not be taken away or restricted by imprisonment, detention, extradition or in any other way."  It is given to any person residing in Israel – regardless of his civil status and the question of how he entered the country and whether he resides there legally (see High Court of Justice 11437/05 Kav LaOved v. Ministry of the Interior, [published in Nevo], para. 36 (April 13, 2011) (hereinafter: Kav LaOved II case)).  At the basis of the right to personal liberty is the right to physical liberty – the right not to be held behind bars (see, for example,  Civil Appeal  4463/94 Golan v. Prison Service, IsrSC 50(4) 136, 153 (1996) (hereinafter: the Golan case)).  But the right to liberty is not limited to this.  The infringement of the right to personal liberty has far-reaching implications.  From a practical point of view, the right to liberty is a condition for the realization of other basic rights.  As  Justice Y. Zamir noted, "The infringement of personal liberty, like the striking of a stone in the water, creates an expanding circle of infringement of additional basic rights: not only freedom of movement, but also freedom of expression, privacy of the individual, the right to property and other rights... Only a free person can fully and properly realize his basic rights.  And personal freedom, more than any other right, is what makes a person free.  Therefore, the deprivation of personal liberty is a particularly severe infringement" (Tzemach, at p. 261).  As stated, in our case it is agreed that the power to hold a person in custody by virtue  of section 30A of the Law violates the right of the infiltrators to liberty.  This is a very powerful infringement – both when liberty is deprived for a period of up to three years, and when it is deprived for a period of one year.
47. Alongside the violation of the right to liberty, section 30A of the law also violates the right to dignity.  We are not dealing only with an accompanying infringement of the right to liberty – which is connected to daily subordination to rules of conduct and discipline that govern the lifestyle of the detainee in custody (cf. the privatization of prisons, at pp. 579-580) – but also with an independent infringement, which stands on its own feet.  Section 30A of the law prevents the infiltrator from fulfilling his desires and desires, connecting his life story and being the master of his fate.  An infiltrator in custody is in a closed and closed facility, and he is forbidden to leave it.  He is not free to choose when he leaves his room; What will be his agenda; when and how he will spend time with his relatives and family members; What objects he will hold; with whom he will share his room; What crafts will he engage; with what he will satisfy his appetite; And so on and so forth.  As such, section 30A of the law violates the right of the infiltrators to autonomy – a right that is part of the right of every person to dignity (later on, within the framework of the discussion in chapter 4 of the law, I will discuss at length this meaning of the right to dignity).
48. When we find that section 30A of the law violates constitutional rights, we must move on to the second stage of the constitutional analysis, in which we will examine whether the infringement is lawful, i.e., whether the four conditions of the limitation clause have been met. The parties did not elaborate on the first two conditions of the limitation clause (an infringement of the law; the law is consistent with the values of the State of Israel).  Therefore, we will assume that the first and second conditions of the limitation clause have been met, and we will proceed to examine its last two conditions – whether the offending law is intended for a proper purpose, and if its infringement does not exceed what is required.

(II)           "For a Proper Purpose"

49. In its response, the State insists on two main purposes that section 30A of the Law is intended to fulfill, which differ from one another in the target audience to which they are addressed: The first purpose is aimed at the population of infiltrators who actually entered the State of Israel, after Amendment No. 4 came into effect.  The purpose of  section  30A of the Law in the matter of these persons is to enable the State to exhaust the identification procedures, while allocating the required period of time for the formulation and exhaustion of avenues for their departure from Israel.  This purpose is argued by the State for the first time in the petitions before us, and it was absent from the hearing in the Adam  The second purpose is aimed at the population of potential infiltrators  who are considering making their way to Israel or are already on their way to Israel.  In relation to this population, the section is intended to prevent the recurrence of the phenomenon of infiltration and the attempt to settle in Israel.  In addition to the aforementioned purposes presented by the state, the petitioners claim that there is an additional, hidden purpose, to Amendment No. 4 – to "break the spirit" of the infiltrators, with the aim of encouraging them to leave the country "voluntarily".  Taking into account the fact that this argument was made in more detail in relation to the detention of the infiltrators in the detention center, I will discuss this issue later in the section dealing with chapter D of the law.  At this stage, therefore, it is necessary to examine the two declared purposes of the law, as claimed by the state.

(i)            Identification and exhaustion of exit channels for deportation

50. Let us first discuss the first purpose of section  30A of the Law, which is concerned with clarifying the identity of the infiltrators and exhausting the avenues for leaving the country.  In this regard, the custody is intended, as the explanatory notes to the bill indicate, to give the authorities "a reasonable and appropriate period of time in the circumstances to clarify the identity and country of citizenship or residence of the infiltrators, taking into account the unique characteristics of the population that has infiltrated into Israel in recent years on a large scale, without an official document of a foreign state and in an undocumented manner.  This period of time is necessary for the conduct of the clarification process, which in the unique circumstances of that population is a comprehensive and complex process.  In the absence of the possibility of conducting such an inquiry, a difficulty arose to examine the possibilities of removing infiltrators from the State of Israel and actually removing them" (Explanatory Notes to Amendment No. 4, at p. 124).
51. This purpose – in itself and detached from the factual data that I will discuss later – is appropriate. The question of who will be allowed to enter the country's borders is a question of a clear sovereign nature.  The state has a broad prerogative to determine who will enter its gates, for how long and under what conditions, in a manner that will enable its proper operation and the protection of the rights of its citizens and residents (see High Court of Justice 482/71 Clark v. Minister of the Interior, IsrSC 27(1) 113, 117 (1972); High Court of Justice 431/89 Kandel v. Minister of the Interior, IsrSC 46(4) 505, 520 (1992); High Court of Justice 1031/93 Pesaro (Goldstein) v. Minister of the Interior, IsrSC 49(4) 661, 705 (1995); The Kav case for the second employee, at paragraph 24).  Alongside the state's right to determine who enters its territory, it also has the right to remove from its borders a person who enters it in an irregular manner, subject to internal Israeli law and international law to which Israel is obligated.  For this purpose – and for this purpose only – the state may hold a person in custody.  The case law in the matter of section 13 of  the Entry into Israel Law, which is also applicable to our case, states that the detention of a person against whom a deportation order has been issued is legitimate when it is intended to ensure the implementation of the deportation proceedings from the country.  It is permissible as long as its purpose is deportation, but it is prohibited when there is no effective deportation proceeding in the case of the detainee, or when there is no possibility of deportation from the country on the horizon (High Court of Justice 1468/90 Ben Israel v. Minister of the Interior, IsrSC 44(4) 149, 152 (1990) (hereinafter: the Ben Israel case); See also Al-Tay, at p. 851; Civil Appeal 9656/08 State of Israel v. Saidi, [published in Nevo], para. 26 (December 15, 2011)).  The conclusion is that there is no flaw in the purpose of the law, which is intended to enable custody for the purpose of carrying out effective deportation proceedings.

(ii)           Preventing the recurrence of the phenomenon of infiltration

52. In contrast to the first purpose that we have discussed, the second purpose of section  30A of the Law – to prevent the recurrence of the phenomenon of infiltration – is not without difficulties.  According to the explanatory notes to the law, the arrangement in section 30A is intended to reduce "[...] The economic incentive of infiltration into Israel, since a potential infiltrator currently residing in the country of origin knew that if he chose to come to the State of Israel outside of a border station, he would be held in custody, according to the proposed arrangement, for a year, and it would not be possible for him to settle in the city centers in Israel and be employed in Israel, and this would make it difficult for him to recoup the high cost involved in his arrival in Israel" (Explanatory Notes to Amendment No. 4, at p. 126).  According to the state,  section  30A of the law is intended to serve as a "normative barrier" that will change the system of incentives for potential infiltrators who are considering coming to the State of Israel, and thus prevent the recurrence of the phenomenon of infiltration.  The state believes that the fact that this purpose is prospective and is now directed only at "potential" infiltrators ensures that this is a proper purpose.  As for myself, I am not convinced of this.  It seems to me that the simple meaning of this purpose is deterrence.  My colleague, Justice (Ret.) Arbel, noted the difficulty of deterrence in the context in which we deal at length in the Adam case  (ibid., paragraphs 85-93), and I will say only these brief things in this regard: The custody proceeding is not a punitive proceeding.  It is not intended to punish individuals who entered Israel illegally.  This is an administrative proceeding, with a specific and practical purpose – to clarify the identity of a person who entered Israel in an irregular manner and to implement his deportation proceedings from the country.  There is no doubt that the outcome of this process could be daunting for others who are considering whether to make their way to Israel.  There is no flaw in the fact that the arrest of an infiltrator, which is intended to advance his deportation proceedings, is accompanied by a deterrent effect (Al-Tay, at p.  However, this should not be inferred that an infiltrator can be kept in detention for the purpose of deterring others, even after his identity has been clarified, and even after it has been found that there is no effective possibility of deporting him from the country (Adam Case, at para. 86).  However, I am prepared to refrain from setting rivets for this purpose, on the grounds that in my view, section 30A of the Law does not meet the tests of proportionality, which I will now meet.

(III)         Proportionality

(i)            The Rational Connection Test

53. In accordance with the first test of proportionality, we must examine whether there is a rational connection between the harmful means chosen by law and the purpose it is intended to achieve. The question in our case is whether the placement of an infiltrator in custody for a period of one year (subject to the grounds for release set forth in sections 30A(b)(1)-(6) of the Law, as well as the grounds that allow for the extension of custody, as stated in sections  30A(d)(1)-(2) of the Law) fulfills the two declared purposes underlying the legislation: to exhaust the avenues of exit from the country and to prevent the recurrence of the phenomenon of infiltration.
54. First, for the purpose of clarifying the identity of the infiltrator and exhausting and formulating channels of exit from the country. There is no dispute that keeping an infiltrator in custody makes it easier to ascertain his identity in an orderly and supervised process – a matter that is of great importance in light of the special characteristics of the population of infiltrators, who entered the country without an orderly border crossing and without official identification cards.  It is also understood that custody assists in the implementation of the deportation proceedings from Israel, since it ensures that a person will not "disappear" and saves possible locating difficulties later on (and compare section 13f(a)(2) of the Entry into Israel Law).
55. However, an examination of the aforesaid purpose against the details of the arrangement set forth in section 30A of the Law and the criteria set therein casts doubt on the question of whether the legal outline that was created is capable of realizing the purpose of the legislation (compare: High Court of Justice 1030/99 Oron v. Speaker of the Knesset, IsrSC 56(3) 640, 666 (2002)). The provisions of section 30A of the law lack an arrangement that stipulates that an infiltrator must be released when there is no effective deportation procedure in his case.  In addition, there is no mechanism for periodic review of the detention of an infiltrator whose purpose is to ensure that there is a horizon of removal in his case that is expected to materialize within a reasonable period of time (see also the Adam case, at paragraph 34 of my opinion).  The law also does not distinguish between infiltrators whose identities are known and those whose identities have not yet been ascertained. And between infiltrators who have a tangible exit channel and those who have no apparent possibility of deporting them.  All of these make it difficult to determine that there is a rational connection between the purpose and the chosen legal means (compare: The Commitment Association, at pp. 506-507).
56. On the aforesaid side, it should be added that the factual picture – which stands in the background of the constitutional examination, even though it is not based on it – also does not assist the State's arguments regarding the existence of such a rational connection. As is well known, at this time, Eritrean and Sudanese nationals (who constitute the bulk of the infiltration population) are not deported back to their countries.  Arrangements signed so far with third countries – which establishe, according to the state, "safe exit channels" – require that the exit of infiltrators in this way be done in a gradual and moderate manner, and that the infiltrator's consent to leave the country be obtained.  Contacts that the state continues to conduct with the aim of formulating similar arrangements with other countries have not yet matured.  In this state of affairs, it is not clear that in practice there is indeed an effective deportation channel in the case of most of the infiltrators who are in custody by virtue of section 30A of the Law.  There is no need to mention a rule rooted in our case law according to which a person should not continue to be held in detention in circumstances in which the possibility of his deportation from the country is not on the horizon in the foreseeable future (Ben Israel case, at p. 152).  The question of the existence of an "effective" deportation proceeding, and the limitations on the length of time within which such a procedure is to be carried out, is also a standard accepted in international law (seeHuman Rights Comm.  Communic’n 1014/2001, Baban v.  Australia, 78th Sess., July 14-Aug.  8, 2003, U.N.    CCPR/C/78/D/1014/2001 ¶7.2 (Sep.  18, 2003);;Human Rights Comm.  Communic’n 1050/2002, D & E, & Their Two Children v.  Australia, 87th Sess., July 10-28, 2006, U.N.  Doc.  CCPR/C/87/D/1050/2002 ¶7.2 (Aug.  9, 2006) (hereinafter: the D&E case)).  Thus, European law prohibits the detention of illegal aliens in detention unless an effective deportation proceeding is conducted in their case, which is expected to take place within a reasonable period of time (seeDirective 2008/115/EC, of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, art.  15(1), 2008 O.J.  (L 348) 98, 105.  (available here); and see also the ruling of the European Court of Human Rights: Chahal v.  United Kingdom, 1996-V Eur.  Ct.  H.R.  1831, 1863 ¶113, and the European Court of Justice: Case C-357/09 PPU, Kadzoev, 2009 E.C.R.  I-11189, ¶ 63).  Similarly, various Western countries have determined in their domestic law that the detention of illegal aliens cannot last beyond a reasonable time; and that the objective inability of the state authorities to carry out the deportation order cannot establish grounds for continued detention (Alice Edwards, U.N.  High Comm’r for Refugees, Div.  of Int’l Prot., Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants 56-60, U.N.  Doc.  PPLA/2011/01.Rev.1 (2011).  (available here) (hereinafter:  UNHCR Document 2011)).  It is clear, therefore, that insofar as there is no effective removal procedure in the case of infiltrators who are in custody, which is expected to take place within a reasonable period of time, it is not possible to continue to hold them only for the purpose of "formulating" exit channels that are not applicable at the current point in time.
57. The existence of a rational connection between the chosen means and the second purpose of the law, which is to prevent the recurrence of the phenomenon of infiltration, becomes clearer. Indeed, the question of what are the factors that have the power to curb the phenomenon of infiltration is a complex one (see the Adam  case, at paragraphs 98-101).  The decline in the number of illegal immigrants to Israel, which I discussed above, can be explained, among other things, by geopolitical developments in Egypt (which have affected the immigration routes to Israel); the enactment of the provisions of the law that prohibited infiltrators from taking property out of Israel; opening up the possibility of immigrating to other countries in the world; and rumors circulating among the potential infiltrator population regarding instability in Egypt and the existence of "torture camps" in the Sinai Peninsula (Kritzman-Amir, p. 33).  It is also clear that a significant part of this descent can be attributed to the fence that was completed on the Israeli-Egyptian border.  This fence, which constitutes a "physical barrier," was erected along Israel's southern border in parallel with the enactment of Amendment No. 3 and Amendment No. 4 to the Law, which were intended to serve as a "normative barrier" to the entry of infiltrators (see also the Adam case, at paragraph 23 of my opinion).  Had the state waited several months with the enactment of  section  30A of the law until the construction of the fence on its southern border was completed, it might have been possible to more accurately assess the contribution of each of the aforementioned "barriers" to curbing the phenomenon (see in this context the data from 2012 regarding the decline in the number of infiltrators who entered Israel in parallel with the progress in the construction of the fence – The Adam Affair, at paragraph 99).  However, there is no doubt that a "physical barrier" does not have the power to completely prevent the phenomenon of infiltration.  As noted by the state, in the period following the enactment of Amendment No. 4 and until June 2014, 19 infiltrators entered Israel despite the existence of the fence, while crossing it, and hence the fence alone does not completely block the entry of infiltrators.
58. Alongside all this, I am willing to assume that the "normative barrier" also has an impact on the set of considerations of the "reasonable infiltrator" who wishes to make his way towards the State of Israel. The knowledge that he is expected to be taken into custody is likely to have a greater impact on the set of considerations of an infiltrator who makes his way to Israel for reasons of economic immigration (and as noted, I accept that some of the infiltrators wish to come to Israel specifically for these reasons; see also the Adam case, at paragraph 22 of my opinion); And the fear of being held in custody – that is, the abusive means chosen by the legislature in section 30A of the Law – may even determine the destination of his journey for a person who is fleeing from the dangers he faces in the country of origin.  If he is expected to be taken into custody, he may choose not to try to come to Israel, but to other countries that apply more favorable normative arrangements.  In other words, although several causal factors have the power to explain – at least partially – the downward trend in the number of infiltrators who have entered Israel in the past two years, and despite the existence of "causal ambiguity" as to the exact contribution of each of the aforementioned means, it can be assumed that the custody arrangement set out in section 30A of the Law is an additional "deterrent" layer that helps achieve the deterrent purpose (the difficulties inherent in it have already been discussed).
59. The question of the rational connection in our case therefore reveals a side here and there. However, I am correct to assume that section 30A of the Law meets the first test of proportionality – even though it is understood that the doubts raised will have an impact on the continuation of the constitutional examination (see the Hassan case, at para. 61; the Adam case, at para. 101).

(ii)           The test of the means that is less harmful

60. The second test of proportionality requires the legislature to choose, among all the means that fulfill the proper purpose of the offending law, the measure with the least violation of human rights. In our case, when we meet this test, we are commanded to be especially careful, when the legislature has chosen a particularly severe means of harm – custody – which means a complete denial of the right to liberty.  When the most harmful means are chosen, "it must be [within the fence] of the last measure" (HCJ  316/03 Bakri v. The Board of Film Critics, IsrSC 58(1) 249, 268 (2003)), and the court must make it even more certain that there is indeed no less harmful alternative means that can achieve the purpose of the legislation (cf. Sections 13(b) and 21(b)(1) of the Criminal Procedure Law  ).Enforcement Powers – Arrests), 5756-1996 (hereinafter: the Arrests Law); CA 8788/03 Federman v. Minister of Defense, IsrSC 58(1) 176, 188 (2004) (hereinafter: the Federman case)).
61. The petitioners sought to point to a multitude of alternative means that can realize the purposes of the law while less violating the rights of the infiltrators. In my view, an examination of these measures – which I will discuss immediately – shows that they cannot achieve the same or similar extent the two declared purposes of the Law, so that  section 30A of the Law meets the second test of proportionality.  And I will explain.
62. With regard to the purpose of clarifying the identity of the infiltrator and formulating and exhausting avenues for leaving the country, it seems that it is difficult to dispute that placing an infiltrator in whose case an effective deportation proceeding is being conducted in custody helps to alleviate the fear that he will flee and thus thwart the procedures for clarifying his identity and removing him from the country.  But are there other means that lead to a similar result, which infringe on rights less? The first alternative measure that should be considered is open or semi-open accommodation centers, which help to supervise the population of infiltrators (see the Adam case, at paragraph 104; paragraph 4 of the opinion of my colleague Vice-President Naor; paragraph 40 of my opinion).  There is currently a residential center in Israel at the Holot facility, which was established only recently by virtue of the provisions of Chapter D of Amendment No. 4 (which I will address later).  There is no doubt that the violation of the right to liberty of this center, which allows certain movement to and from it, is less.  However, it is clear that a facility of this type, from which it is possible to leave without a return (as 105 infiltrators did as of March 11, 2014, according to data provided by the state), is not a means that fulfills the purpose of the law with equal effectiveness.
63. I will also note that in some countries around the world, additional measures are accepted that contribute to the realization of the distancing purpose. To illustrate, since 2004, in the United States, alternatives to "supervised release" have been developed, including the Intensive Supervision Appearance Program (ISAP) and  the Electronic Monitoring Device Program (EMD).  As part of these programs, the detainees are released, as a rule, without the requirement for significant physical appearance, but rather subject to electronic monitoring means, supervision visits to their homes, and the obligation to report by telephone to a system that operates voice identification devices.  Another technology employed is Radio Frequency (RF) Monitoring, which includes electronic handcuffing (see Memorandum from Wesley J.  Lee, Acting Dir., U.S.  Immigration & Customs Enforcement, to Field Office Dirs., Eligibility Criteria for Enrollment into the Intensive Supervision Appearance Program (ISAP) and the Electronic Monitoring Device (EMD) Program (May 11, 2005) (available here); Alison Siskin, Cong.  Research Serv., RL 32369, Immigration-Related Detention: Current Legislative Issues 15-16 (2012) (U.S.) (available here); however, see the argument that the application of these measures too broadly could worsen the situation of those who are not in custody in the first place: Anil Kalhan, Rethinking Immigration Detention, 110 Columbia L.    Side Bar 42, 55-56 (2010); for further examples of alternative means of detention in this context that are practiced in other countries around the world, see the Adam case, at para. 107).

There is no doubt that the combination of the various alternatives to custody – open or semi-open detention centers, bail deposits, the obligation to report and monitor by electronic means – is likely to significantly reduce the fear of the infiltrator's "disappearance" in a way that will make it difficult to carry out his deportation proceedings (when an effective deportation channel is found for him).  In this way, these measures may promote the fulfillment of the purpose of the removal.  However, in my view, the effectiveness of the said means is not comparable to that offered closed custody.  This is sufficient to pass the second test of proportionality for this purpose.

64. As to the second purpose of the law – to prevent the recurrence of the phenomenon of infiltration – I also accept that there is no less harmful alternative means that will achieve this purpose to the same extent or to a similar extent. Indeed, it is possible to point to measures that have the power to deter potential infiltrators to one degree or another from making their way to Israel, and whose rights are less violated.  A central means in this regard, which was also discussed at length in Parashat Adam, is the fence built on the Israeli-Egyptian border.  My colleague, Justice (ret.) Arbel, was of the opinion there that Amendment No. 3 did not pass the second test of proportionality, for the reason that she did not see fit to rule out the possibility that the fence is an alternative means that achieves the purpose of containment to a similar extent, with less infringement of rights (Adam Case, at paragraph 103).  My opinion is different.  As I noted there, "for every fence there will be a ladder, and no physical barrier is hermetic" (paragraph 25 of my opinion).  Even now, I am prepared to accept the state's argument that the existence of a "normative barrier" next to the fence helps achieve a higher level of effectiveness for the preventive purpose, compared to the fence alone.  I will also note that within the framework of the hearing of the petitions before us, the state referred to intelligence reports, according to which organized smuggling networks operate in North Africa that have the power to sabotage the fence and transfer infiltrators through it if the motivation to come to Israel increases; And also to start smuggling infiltrators through Jordan – a country whose border with Israel is mostly breached.  In any case, the fact that Amendment No. 4 enacted and until June 2014, 19 infiltrators crossed the fence on the Israel-Egypt border is enough to teach us that the fence is not inviolable.
65. Another alternative measure that must be examined is the new legislation that prohibits the removal of property of infiltrators from the country. Indeed, it seems that this legislation has the power to promote to some extent the deterrence of potential infiltrators who wish to enter Israel mainly for economic reasons.  At the same time, it is clear that this is not a means that will achieve the deterrent purpose with the same degree of effectiveness as custody does.  Similarly, it seems to me that the open or semi-open detention centers, which I have discussed earlier, have not known the same "deterrent effect" as that inherent in custody, in view of the possibility of leaving them forever.  The result is that it is not possible to point to a measure whose infringement of rights is less for the purpose of achieving this purpose.
66. In the absence of an alternative means capable of realizing the purposes of the law to the same extent or to a similar extent to custody, the conclusion is that section  30A of the Law meets the second test of proportionality.  At the same time, the fact that there are many alternative means that advance the purposes of the law to one degree or another will have an impact on the continuation of the constitutional examination (the Adam case, paragraph 27 of my opinion; High Court of Justice 2056/04 Beit Sourik Village Council v. Government of Israel, IsrSC 58(5) 807, 851-852 (2005); High Court of Justice  10202/06 Dahariya Municipality v. Military Commander in the West Bank, [published in Nevo] 21 (November 12, 2012); Barak-Proportionality, at pp. 434-437).

(iii)          The test of proportionality in the narrow sense

67. According to the third test of proportionality, which is the test of proportionality "in the narrow sense", we must examine whether there is a proper relationship between the benefit that will arise to the public from the legislation whose constitutionality is on the agenda, and the violation of the constitutional right that will be caused by the application of the harmful measure prescribed in the law. In the judgment in the Adam  case, we reached the conclusion that section  30A of the Law – as drafted in Amendment No. 3 – is unconstitutional, after we found that there is no proportionate relationship between the intensity of its infringement of rights and the benefit inherent in it.  We now have before us the question of whether the new and "softened" wording of section 30A of the Law passes the test of proportionality in the narrow sense.  To this question we are forced to answer in the negative.  Although certain changes in the updated wording of section 30A of the law have reduced the intensity of its infringement of rights, they do not deflect the balance and change our decision in the Adam case.
68. In the balance between benefit and harm, the benefit side is first required. In our case, it is clear what the benefit the legislature saw before its eyes: the phenomenon of infiltration exacts a significant price from the residents and citizens of the state.  Indeed, this phenomenon has economic, social, security, and national implications – it reduces the supply of job vacancies in the labor market. affects the sense of personal security of the residents who live near the infiltrators; changes the social fabric in the areas where the infiltrators live; and demands that the state allocate many resources in order to deal with it.  However, within the framework of the third proportionality test, it is not enough to examine the benefit of the law as the legislator saw it in his mind's eye.  The court has the complex task of considering the expected benefit of the law in practice.  We must assess the extent to which the purposes of the law are fulfilled following the application of the harmful measure set forth therein.  Alongside the value that should be attributed to the desired benefit, consideration must also be given to the extent to which the harmful means (and not other, less harmful means) will promote that benefit.  This work is not simple at all.  But even when the assessment remains controversial, a decision is required.  The decision must be made by the court.  This is the role and this is the authority of the court (Zemach case, at pp. 273-274).
69. We are therefore required to assess the extent to which the abusive power set forth in section 30A of the Law – to hold an infiltrator in custody for a maximum period of one year – is expected to "add benefit" to the attempt to reduce the scope of the phenomenon of infiltration (see also the Adam case, at paragraph 29 of my opinion). In this framework, the conclusions that arise from the examination of the first and second proportionality tests are significant.  As may be recalled, an examination of section 30A of the Law in the first proportionality test raised doubts as to the existence of a rational connection between the first purpose of the Law, which is concerned with exhausting the channels of exit from the country, and the harmful means chosen by the legislature.  These doubts also affect the assessment of the benefit of holding these infiltrators in custody, as required by the third test of proportionality.

Even the existence of alternative means, which I have discussed within the framework of the test of the less harmful measure, has an impact on the estimation of the expected benefit of the law.  As part of the second proportionality test, we discussed additional measures that can advance the purpose of deterring potential infiltrators – including the fence along the Israel-Egypt border, the construction of which has long since been completed, and the new legislation that prohibits infiltrators from removing property from Israel.  We have also mentioned the possibility of ordering the infiltrators to stay in a detention center as an alternative means that can promote (although not to the same degree of effectiveness) both the purpose of deterrence and the purpose of exhausting the channels of exit from the country.  What, then, is the well-known marginal benefit? To the section 30A to the law against the background of the combination of these measures? This question is difficult to answer clearly, and the answer to it is largely speculative (compare: Matter The First Employee Line, at p. 396; High Court of Justice 3648/97 Stamka N' Minister of the Interior, P"4:35(2) 728, 782 (1999)).  Although I do not wish to disagree with this Section 30A The law proposes an "additional benefit" for all of these (since, as the state defines it, a "normative barrier"), the fact that it is only an "additional benefit" – an additional auxiliary measure, which stands alongside other means – has weight within the framework of the constitutional balance.