Case Number

HCJ 2442/11

Date Decided

6-26-2013

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.]

A petition which focuses on the question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") which were added to the Detention Law, in the framework of Amendment no. 8 to the Law, which was legislated by the Knesset on March 14. 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Courts decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, as well as appeals on District Court decisions regarding matters of bail, will be appeals by permission and not as of right (meaning, that from now on the option of a second appeal will be by permission only). The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond the nine months, for a period of up to 150 days (and to re-order this from time to time), in such cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

The High Court of Justice (by President A. Grunis, Justices E. Rubinstein and H. Melcer concurring) denied the petition on the following grounds:

The arguments regarding the legislative process of the amendment to the Detention Law: The legislative process of the Amendment to the Detention Law indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws (which focus on the specific voting procedures in the second and third readings of bills to which reservations have been submitted). However, these deviations from the provisions of the By-Laws do not constitute a flaw "that goes to the root of the process", which severely and significantly infringes on the fundamental principles of the legislative process in Israel in a manner that would lead to the Courts intervention and the declaration of the Law void. (The fundamental principles of the legislative process, so it was held the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process).

The arguments regarding the Law's arrangements infringement of the right to freedom: The Petitioner's arguments in this matter were general and unclear, however, in light of the importance of the right, the merits of the arguments were addressed.

As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement.

Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights. Obviously, there is a reciprocal relation between the two stages, but each of the stages has its own balances and independent objectives. Therefore, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria

Do the arrangements of the Law infringe on the right of freedom? Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, given the importance and centrality of the right – in and of itself and as a means to promote and realize other rights – it should not be interpreted in a narrow way, as applying only to the initial detention decision, but rather the right of freedom should be interpreted as a right that also applies to procedural protections that are directly and tightly related to the protection of the right and the its realization, with each case being examined on its own merits.

As for the first arrangement, which provides that the option of a second appeal will be by permission only, the High Court of Justice is of the opinion that this arrangement does not infringe on the right of freedom, since, according to president Grunis' position, the scope of the constitutional right of freedom does not extend to grant the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system. The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will, as a rule, only be held by permission. In light of the conclusion that the first arrangement does not infringe on the right of freedom, this ends the constitutional examination of the first arrangement.

As for the second arrangement, which addressed the possibility of extending the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days, there was no dispute between the parties that this arrangement does infringe on the right of freedom. Therefore, the High Court of Justice examined whether this arrangement satisfies the conditions of the limitation clause and reached the conclusion that it does (the main question that was ruled upon was the arrangement's compliance with the proportionality condition). In this matter, it was clarified that this is an arrangement that was designated for special cases "in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of many defendants or multiple witnesses", and it consists of means which balance between the infringement of the detainee's freedom and the need to adjust the possibilities of extending detention in such complex cases, in which it is clear to the Court that a 90 days extension will not be sufficient). It follows that the infringement deriving from this arrangement to the right to freedom is constitutional.

There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. The legislator has leeway when amending the law, between the legal threshold prescribed before the amendment (which was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional.

The result is that both parts of the petitions are denied.

Justice E. Rubinstein joined the above opinion, subject to certain remarks. Regarding the second arrangement relating to the extension of the detentions by 150 days, it is necessary to distinguish between the authority and the its exercise. As mentioned, the authority in and of itself is within the boundaries of constitutional proportionality. As for its exercise, Justice Rubinstein raises a small warning flag that when the case at hands relates to the denial of freedom from a person who is presumed innocent, relatively frequent judicial review should be allowed, and five months is a long time, and therefore one must be extremely diligent in complying with all of the conditions of the law, and the extension of 150 days should certainly be the exception in practice.

As for the second appeal, that is a third instance hearing of a case (the amendment of Section 53) – in light of the workload imposed on the Supreme Court, there can be no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. The situation in Israel until the amendment – deliberating detention in two instances as of right – does not exist in any nation. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that one appeal as of right indeed already exists.

Justice H. Melcer also joined the above opinion and emphasized two insights:

(a) Alongside the right to appeal – the option to request permission to appeal is also a right, while it may be narrower than the former. However, this limited option can also be deemed as a means of review of the decision which is the subject of the application for permission to appeal and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law.

(b) The arrangement amending Section 62 of the Detention Law, that allows a Supreme Court judge to extend a detention for up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (which is also referred to as the "boundaries of proportionality"), albeit, in the opinion of Justice Melcer, it is situated at the "far end" of such boundaries. It follows that it is not appropriate to grant a constitutional relief, since intervention of such nature in such circumstances is reserved only for the most extraordinary cases, and this is not the case here. The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we, Supreme Court Justices, act.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Judicial Review, Constitutional Law -- Prisoners’ Rights, Criminal Law -- Criminal Procedure, Criminal Law -- Detention

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