Case Number

HCJ 8665/14

Date Decided

8-11-2015

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The petition challenged the constitutionality of sec. 30A and Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014, which establish that infiltrators into Israel can be detained in custody for a period of up to three months, and can be ordered to stay in a residency center for up to twenty months.

An expanded panel of nine justices of the High Court of Justice held:

The Court unanimously upheld the constitutionality of sec. 30A of the Law that permits holding infiltrators in custody for a period of up to three months, subject to the Court’s interpretation of the law as requiring an integral connection between holding a person in custody and the process of his identification and exhausting avenues for his removal from Israel.

President M. Naor, writing for the majority (Justices S. Joubran, E. Hayut, Y. Danziger, and Z. Zylbertal concurring), addressed the fact that sec. 30A of the Prevention of Infiltration Law infringes the constitutional right of infiltrators to liberty. In the opinion of President Naor, shortening the period of custody (pursuant to HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) and HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014)) does not itself eliminate the infringement of the constitutional rights of infiltrators. In view of the sec. 30A’s infringement of constitutional rights, President Naor proceeded to examine whether the section met the criteria of the Limitation Clause. President Naor held that in view of the Law’s legislative history and considering the significant reduction of the period of custody that brought it in line with what is generally acceptable in the world, the main purpose underlying sec. 30A is the identification of the infiltrator and exhausting avenues for his removal from Israel, while deterrence is only an ancillary purpose. The President therefore found that the period currently established is proportionate and constitutional, subject to the correct interpretation of the Law according to which if holding an infiltrator in custody no longer serves the purpose of identification and removal, there is no further justification for continuing custody. This is the case even if three months have not passed since the beginning of custody. Subject to this interpretation, sec. 30A passes constitutional review and should not be annulled.

The majority also upheld the constitutionality of Chapter D of the Law, concerning the authority to order that an infiltrator stay in a residency center, with the exception of secs. 32D(a) and 32U, which establish a twenty-month maximum for staying in a residency center. These sections were annulled after a finding that the said period was not proportionate. The majority also ordered that the declaration of the annulment of these sections would be held in abeyance for a period of six months. During that abeyance, the maximum period for holding a person in a residency center under these sections would be twelve months. Residents who had been in the residency center for twelve months or more on the date of the judgment would be released immediately, and no later than fifteen days from the date of the judgment. The Court emphasized that if the Knesset would not enact new provisions in this regard by the end of the six-month period, the authority of the Director of Border Control to issue residency orders to infiltrators would lapse.

Inter alia, President Naor emphasized that the primary purpose of the Law – preventing infiltrators from settling in the urban centers – does not focus upon any individual infiltrator or a threat presented by such a person to society. Rather, it concerns the desire to ease the general burden upon the urban centers and their residents. In order to achieve that purpose, there is no need to hold any particular infiltrator in the residency center, but rather it is sufficient to hold a group of different infiltrators at any given time. Therefore, President Naor was of the opinion that it was possible to suffice with a significantly shorter period of time while still achieving the Law’s purpose.

Justices U. Vogelman and I. Amit (concurring and dissenting) agreed with the above position of the majority in regard to sec. 30A and Chapter D, however they were of the minority view that sec. 32T – authorizing the Director of Border Control to order that a resident of the residency center be transferred to detainment – is also unconstitutional. Justice H. Melcer also agreed with the majority opinion, but subject to the proviso that the government first consider the alternative of geographical restriction. Justice Melcer dissented in regard to the transitional order.

Justice N. Hendel (dissenting) was of the opinion that the petition should be denied in its entirety. In his opinion, even the provision in regard to the maximum period for staying in a residency center passed the tests for constitutionality.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Legislation, Immigration law -- Asylum

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