Case Number

CrimApp 8823/07

Date Decided

2-11-2010

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: The appellant was arrested on suspicion of membership in an illegal organization, and had been the subject of: a. a decision by the authority in charge to postpone the appellant’s first meeting with an attorney by three days; and b. a decision, rendered two days after his arrest, to extend his detention by an additional ten days. The Jerusalem District Court rejected the state’s request to have the appeal of the detention extension decision deliberated in the absence of the appellant; and the state successfully appealed that decision to the Supreme Court. The appeal against the extension of the detention was thus deliberated in a hearing conducted in the appellant’s absence, in which the appeal was denied. The respondent next requested that the hearing regarding a second extension of the detention be conducted in the appellant’s absence, and in response the appellant argued in the Magistrates Court against the constitutionality of the statutory provision allowing for such a hearing. The Magistrates Court rejected this argument, and the District Court upheld its decision. An appeal to the Supreme Court followed.

As an arrestee suspected of having committed a security offense, the appellant was subject to the possibility of having detention hearings and appeals thereof held in his absence, pursuant to s. 5 of the Criminal Procedure (Arrest of a Security Offense Suspect) (Temporary Provision) Law, 5766-2006. The constitutionality of this section was attacked indirectly in the appeal originally heard by the Supreme Court, but not considered by the Court because it had not been raised in the earlier stages of litigation. The issue had become moot by the time the case reached the Supreme Court.

Held: (Vice President Rivlin) First, the Court could consider the constitutional issue despite its mootness, in light of the importance of the issue and the likelihood of its recurrence in other situations in which it would also become moot by the time its constitutionality could be determined by the Supreme Court. Next, regarding the substance of the appeal, the right to be present at a criminal proceeding (including at the detention hearing stage) is a core part of the constitutionally guaranteed right to due process, as currently established in the Basic Law: Human Dignity and Liberty. The right applies at all stages of a proceeding, including detention hearings. Because it is a constitutionally protected right, the denial of the right is permissible only if it meets the four conditions established in the limitations clause of that Basic Law. Here, compliance with the first two conditions (a legislative basis, and conformity with the values of the State of Israel) was not in question. The purpose of the section (the enabling of a continuous and effective interrogation of the suspect, without there being a need for an interruption for the purpose of bringing the suspect to court) is an appropriate one, and the third condition is thus met. The constitutional status of section 5 therefore depends on its compliance with the proportionality condition of the limitations clause, which it fails.

Compliance with the proportionality condition has been determined through the use of three sub-tests: a. whether there is a rational relationship between the measure that violates a right and the appropriate purpose it is intended to help achieve (a test which was met here); b. whether the measure involves the least possible violation of the right, in light of the purpose it is intended to achieve; and c. the “narrow sense” proportionality test which requires that the measure be one that creates a violation which is proportionate in terms of the appropriate purpose that is being achieved.

The measure here fails the last two sub-tests because of the depth of the violation involved — it is thus neither a measure that causes the least possible violation, nor is it one that represents a proportionate balancing between a violation of a right and the need to achieve a legitimate purpose. The depth of the violation involved is especially marked, given that the measures described in s. 5 of the Temporary Provision can be combined with a measure established in s. 35 of the Criminal Procedure Law (Enforcement Powers — Arrests), 5756-1996, which establishes the possibility of delaying a meeting between a suspect and his attorney. The suspect can thus be prevented both from appearing in court at a hearing regarding his case, and from meeting with an attorney in order to assist in presenting his case — leading to his utter inability to enjoy due process during the proceedings held in his absence. The section is therefore an impermissible violation of a constitutionally protected right, and the Arrests Law is to be interpreted as if s. 5 had not been enacted.

Justice Naor, concurring in part, wrote that while s. 5 was invalid on constitutional grounds, the Knesset should be given a six month period in which to enact a more proportionate arrangement. Justice Naor considered the option of allowing the provision to stand in cases of a near certainty of frustration of the prevention of harm to human life, but ultimately decided that a full invalidation was necessary because there would always be the potential for disproportionate periods of detention. In Justice Naor’s opinion, the decision that a statutory provision is unconstitutional as a result of its “cumulative effect” when combined with another statutory provision is a complex issue that should be left for further discussion. President Beinisch and Justice Rubinstein took a different view regarding the need for deferment and the utility of a new legislative arrangement, both finding that any alternative proportionate legislation would cover such a small number of cases that it would be pointless. Justice Grunis wrote that alternative legislation could be enacted, but that there was no need to defer the declaration of the section’s invalidity for any period of time; to the contrary, an immediate invalidation would provide an incentive for the legislature to act promptly.

Appeal allowed.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- State of Emergency and National Security, International Law -- Laws of war

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