Case Number
HCJ 1892/14
Date Decided
6-13-2017
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 asked that the minimum living space allotted to every prisoner and detainee in Israeli prison and detention facilities be set at 4 square meters, exclusive of lavatory and shower areas. The Petition was grounded upon two primary legal provisions: sec. 11(B(b) of the Prisons Ordinance, which was introduced to the Ordinance by the Prisons Ordinance (Amendment no. 42) Law, 5772-2012, (Amendment 42) according to which: “A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”, and the identical provision in regard to detainees in sec. 9(a) of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (the Arrest Law). In establishing concrete criteria for the implementation of sec. 11B, Amendment 42 incorporated reg. 2(h) of the Prisons Regulations, which establishes – similar to reg. 3(e)(3) of the Arrest Regulations, which concerns the living space of detainees – that the average area allocated to an inmate in a cell will not be less than 4.5 square meters, including the lavatory, sink and shower area. Regulation 8 of the Prisons Regulations (similar to the end of the parallel reg. 3(h) of the Arrest Regulations) establishes an application provision under which the said standard of 4.5 square meters per prisoner will apply to existing facilities only in the framework of planning and renovation, and only “to the extent possible”.
On the basis of the term “to the extent possible”, the Respondents argued that the State enjoyed absolute discretion in deciding upon the living conditions of inmates in existing facilities, in accordance with budgetary considerations and priorities that it may establish. It should be noted that according to the current data, the floor area per prisoner in Israel is 3.16 square meters. Only 21% of Israeli inmates reside in cells in which the average floor area meets the 4.5 square meter standard. Some 40.5% of all prisoners are in cells in which the average floor space per prisoner is less than 3 square meters.
The Petitioners argued that placing a person behind bars without giving him a minimal living space of 4 square meters (exclusive of the lavatory and shower area) – in accordance with various standards established in international law – does not qualify as “appropriate conditions”, and therefore violates the prisoner’s dignity in a manner repugnant to the said laws and to Basic Law: Human Dignity and Liberty.
The High Court of Justice (per Deputy President E. Rubinstein, Justices U. Shoham and H. Melcer concurring) granted the petition for the following reasons:
The Court has held in the past that “every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard…”. It has also been held that the right to dignity includes a right to basic dignified existence. There is no doubt that an inmate’s physical living space is one of his most basic, existential needs. But the living space allocated to an inmate throughout the prison facilities stands at only 3.1 square meters, including beds, storage spaces, and lavatory and shower spaces. In other words, the free space allotted to an inmate for his day-to-day activity does not reach 3 square meters. The overcrowding in the prisons “violates the movement and breathing space of the inmate in the prison compound,” infringes the inmate’s privacy to the point of nullification, and allows only limited movement. The consequences of overcrowding on the lives of inmates are an increase in friction among the inmates, which in turn leads to violence and disciplinary breaches, and impairs the availability and accessibility of various services in the prisons. It cannot be denied that much has been done over the last few years to improve the situation. Prisons have been renovated and new ones have been built, and there are proven good intentions, but that is not enough.
It is generally neither the practice nor the place of the Court to intervene in setting priorities for the division of state resources by putting itself in the authority’s shoes, but that is not what the concern here. No one disputes that basic rights cannot retreat before budgetary considerations. The present matter stands at the core of human dignity— the realization of the right to a minimal dignified existence in the most basic sense – and budgetary considerations cannot justify their continued violation over the course of decades.
Moreover, the picture provided by the comparative law survey is complex, and it is therefore difficult to draw a direct analogy to the situation in this country. However, despite the differences among the various laws in regard to the scope – and at times, even the very existence – of a minimum standard for living space, there would appear to be a growing willingness, both by international systems and the legal instances of the various states, to exercise active means to remedy the problem of overcrowding. The survey also shows the absolute majority of Israeli inmates “enjoys” living space that is lower, by any standard, from what is acceptable in civilized states.
Justice Rubinstein devoted a lengthy section (paras. 69-86) to the subject of “The treatment of prisoners in the Jewish heritage”, and also addressed the status and place of Jewish law in the Israeli legal system (paras. 87-101).
Justice Rubinstein then proceeded to examine the relevant legal provisions. The discussion focused upon 11B(b) of the Prisons Ordinance, and the question of whether the expression “appropriate conditions” should also be taken to comprise the minimum living space to which a prisoner – and similarly, a detainee – is entitled in the State of Israel. The Court’s answer was affirmative.
As noted, minimal living space is an indispensable condition for preserving human dignity and a person’s right to minimal dignified human existence. It is not disputed that the absolute majority of Israel’s inmates live under conditions that, by the standards established by the State itself, are not consistent with minimal living conditions for an inmate’s dignified existence (only 21% of all of Israel’s prisoners are held in cells that meet the standard of 4.5 square meters). This is repugnant to the fundamental principles of Israeli law, the constitutional right to dignity enshrined in Basic Law: Human Dignity and Liberty, Jewish heritage, the position of international law, and to what is acceptable according to comparative law, as was shown in detail. Moreover, having found that the subjective purpose of the law is not unambiguous, but the objective purpose of the law clearly favors the position of the Petitioners, and since in interpreting a law concerning human rights, as in the present case, significant weight should be given, a priori, to the objective purpose, it can only be concluded that sec. 11B should be interpreted as establishing a principle of minimal living space that must be applied to every prisoner – and correspondingly, to every detainee – in Israel.
The State relied upon reg. 8 of the Prisons Regulations, according to which the above standard would apply to places of imprisonment whose construction planning began after the initial day [June 2010], and to the extent possible, even to planning and renovation of existing places of imprisonment. From the phrase “to the extent possible”, the Respondents learned that the State has absolute discretion in deciding the living conditions of prisoners in the existing prison facilities, in accordance with budgetary considerations and priorities that it establishes.
In this regard, the Court held that by employing the expression “to the extent possible” in reg. 8, the subsidiary legislator intended to say that the minimum standard would gradually be put into effect for all prisoners in all prisons within a reasonable period of time, as is customary when we are concerned with an administrative agency.
In the present matter, some two decades have elapsed since the relevant regulation was established in the Arrests Regulations, and many years have also passed since the parallel regulation was enacted in the Prisons Regulations. That cannot be accepted as a reasonable time when a fundamental right of the first order is concerned, and where the infringement is severe and disproportionate, and surely when the State’s response reveals that the matter is not expected to change substantially in the near future. Moreover, the Court could not accept an interpretation by which the subsidiary legislator intended to establish an arbitrary rule that would discriminate among prisoners in manner that would infringe their basic rights simply due to budgetary considerations, and under which there would be no minimum standard that would apply to every inmate as such, but rather would be subject to the (actually, absolute) discretion of the executive. In any case, the interpretation given by the subsidiary legislator is but one of the elements that the Court must consider in interpreting a statute, and an interpretation by which no minimum standard applicable to every inmate would be set would be incompatible with other sources by which the purpose is determined – fundamental principles of the system, otheconstitution as expressed in the Basic Laws, human dignity in Jewish law and the comparative and international law cases cited.
Given the undeniably severe situation, judicial intervention was required. The Court held that the minimum living space for every prisoner and detainee shall be set at 4 square meters, exclusive of the lavatory and shower area, as requested in the petition (or 4.5 square meters inclusive of the lavatory and shower area). To that end, the State was ordered do what is necessary so that, within 9 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower area; within 18 months of the issuing of the judgment, the living area of every prisoner and detainee will be at least 4.5 square meters including the lavatory and shower area, or 4 square meters without them.
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, Criminal Law -- Prisons Ordinance
