SUMMARY OF HIGH COURT RULING 8425/13

MAJORITY OPINION: JUDGE FOGELMAN

1. Context:
The first part of the decision includes a short description of situation In Eritrea and Sudan
and the Israeli policy regarding Eritreans and Sudanese: Israel does not return Eritreans
based on the principle of non-refoulement which is a customary principle deried from 1!"1
Conention and C#T. $udge %ogelman does not express an opinion on Israel&s ground for not
returning Sudanese' which is not based on the principle of non-refoulement' but rather on
practical difficulties of expulsion stemming from the absence of diplomatic relations
between the two states.
$udge %ogelman notes that most asylum-see(ers in Israel claim to be entitled to a refugee
status. )e stipulates that Israel is a party to the 1!"1 Conention that although not
incorporated into Israeli law nonetheless has legal significance pursuant to the
*compatibility presumption+ between Israeli and international laws. %urthermore' Israel
iews itself as obligated by the Conention. That being said' according to Israeli State
Comptroller' Israel did not begin to examine asylum claims by Eritreans and Sudanese until
end of ,-1.. This is significant. In other countries' an asylum claim triggers with it a different
set of rules than those applicable to other illegal immigrants. /otably' in Israeli law' such
distinction barely exists between those who submitted asylum claims and those who hae
not 0for example' they are e1ually eligible to be detained in Saharonim prison or sent to
)olot residence Centre2. Israel also differs from other countries in that less than 13 of
asylum claims by Sudanese and Eritreans hae been accepted compared to other countries
where according to 4/)C5 5eport recognition rates are 61.!3 and 76.,3 respectiely.
$udge %ogelman also notes the current statistics of infiltrators in Israel and the current
challenges associated with the phenomenon: he refers to both the sharp decline in the
numbers of infiltrators entering and staying in Israel as well as the difficulties dealing with
the large number of infiltrators currently in Israel. In this context he also refers to relocation
agreements signed between Israel and third countries' but stresses that they enable the
relocation of only a small number of people.
,. 8ecision on the constitutionality of #rticle .-# 0mandatory 1-year detention2
9ost of the discussion concentrates on two conditions for constitutionality: 0a2 whether the
proision in #rticle .-# is for a legitimate purpose and 0b2 whether the iolation of the rights
is proportionate in relation to that purpose.
Leg!"#!e $%&$'(e:
8etention for the purpose of identification:ensuring aailability of permissible
deportation 0for the purpose of possible deportation2 is legitimate and in line with
the Israeli and international norm that detention designed to enable deportation is
legitimate as long as deportation is feasible.
8etention for the purpose of deterrence of other infiltrators from entering Israel is
legally problematic. $udge %ogelman states he is not coninced that by itself it could
be considered legitimate in cases where the people detained cannot be returned. )e
states that there is no need to decide this point because the proision fails the other
constitutional re1uirement: that of proportionality:
P&'$'&!')#*!+: composed of three sub-tests:
First sub-test ; whether there is a rational lin( between the measure and the
purpose:
o $udge %ogelman finds that there is no rational lin( between the 1-year
detention and the purpose of identification:ensuring aailability of
permissible deportation because the law does not include a proision
excluding from detention persons who cannot be returned< nor is there a
proision establishing a reiew mechanism on whether return is possible in a
reasonable time< nor does the law distinguishes between persons who are
identified and those who are not nor between those who can be returned in
a reasonable time and those whose return is not feasible in the foreseeable
future. %urthermore' most detainees are nationals of countries to which
Israel does not return and return to third countries can be an option for =ust
a few. This excludes the possibility of return within a reasonable period
which is a re1uirement for permissible detention under international law.
o >n the other hand' $udge %ogelman is willing to consider that a rational lin(
exists between the detention and the purpose of deterrence of the arrial of
further infiltrators' een if fear of detention does not constitute the only
preentie consideration on their part.
The conclusion is that it can be assumed that the first sub-test is met.
Second sub-test ; whether an alternatie' less harmful measure that could similarly
achiee the purpose is aailable:
o ?ith respect to the purpose of identification:ensuring aailability of
permissible deportation - 8etention is effectie in ensuring that a person
does not escape while his identity is being erified. >ther alternaties to
detention such as open centers or electronic monitoring are not similarly
effectie in ensuring the presence of the person for identification and
preenting his escape in case he is to be returned. This is enough to meet
the second sub-test.
o ?ith respect to the purpose of deterrence: other alternaties' such as the
fence or the legal prohibition on ta(ing out property from Israel' are also not
as effectie as detention in deterring people from arriing to Israel.
It is held that alternatie measures suggested by the petitioners cannot e1ually
achiee the purpose and therefore the second sub-test is met.
Third sub-test ; whether appropriate balance exists between the expected public
benefit from the measure under examination and the constitutional iolation:
o The benefit foreseen by the state was the reduction of the detrimental
implications of infiltrations: reduction in aailable labors' deteriorating
sense of security of residents liing nearby infiltrators' changes in the social
fabric of the areas in which infiltrators lie' all of which re1uires resources
from the state to handle the new population. $udge %ogelman emphasi@es'
howeer' that the expectations of the state notwithstanding' the Court
needs to consider the actual benefit expected from the law and to what
extent said benefit could be achieed by other measures. In this context
there is releance to preiously mentioned factors: the fact that the rational
lin( between the detention and purpose of identification 0for the sa(e of
return2 is in doubt< the fact that while detention is the most effectie
measure to achiee the stated purposes' it is by no means the only aailable
measure< and the fact that the numbers of new infiltrators has substantially
declined< all this leads to the conclusion that the added benefit of detention
as a measure is in fact limited.
o #gainst that benefit' the seerity of the constitutional iolation should be
considered. The different changes made to the preious proisions in
#mendment do not suffice to reduce the seerity of the iolation in a
manner that would meet the third sub-test. 8etention must be necessary'
absent alternatie means and for a reasonable duration. The default in
#rticle .-# ; # 1-year detention of persons who cannot be returned - does
not conform to these principles or to constitutional standards. Indeed'
comparatie reiew demonstrates that a 1-year detention of persons who
cannot be returned is unacceptable 0examples: %rance' Canada' Aritain'
Berman' #ustria' Spain' South-#frica' /ew-Cealand' 4S' Italy' Breece. Aut
see #ustralia' 9alta' both critici@ed2. This comparatie oeriew is beyond
necessary as the same conclusion is reached based on Israeli constitutional
law: 1-year detention of indiiduals who cannot be returned in the
foreseeable future' not as punishment for their actions and without being
able to ta(e action to adance their release ; constitutes a seere iolation
of their rights 0this is particularly true for those among them who are
asylum-see(ers2. 8etention ta(es a toll on the detainee: depries his liberty
and iolates his dignity' priacy' autonomy. It free@es his ability to manage
his life and exercise his autonomy.
The result is that the deep' core iolation of #rticle .-# of constitutional rights
exists also in the current ersion of the law. It is much more seere than the
benefit produced. It is therefore disproportionate and unconstitutional.
Re"e,+: >nce the central proision in #rticle .-# is found to be unconstitutional' there is
no choice but to declare the annulment of the article in its entirety and leae it to the
Dnesset' should it chooses' to set a new arrangement in its stead.
?e propose the same outline as in the #dam case: reerting bac( to the constitutional order
preceding #mendment .: the Eaw on Entry. 8etention orders should be reiewed pursuant
to #rticle 1. thereof. There is no need to grant a !--day stay of this order in iew of the
small number of detainees under the proisions.
.. Chapter 8 05esidence Center2
S%""#&+ '- C').*%('): $udge %ogelman clarifies that the )olot residence center is more
a(in to a closed center. ?hile the establishment of a residence center could in principle
coincide with Israeli constitutional standards' the specific legislatie outline for the center in
Chapter 8 disproportionally iolates the rights to liberty and dignity and must therefore be
annulled.
Me!/','*'g+ '- #)#*+((: In its analysis' $udge %ogelman proided a description of both the
normatie framewor( of the center and the actual operation of the )olot center since its
establishment.
In the latter context he referred to the C&!e&# for stay in the center issued by the
state 0long-staying Eritreans and Sudanese2 and commented that the rationales for
these criteria were not made clear to the Court and that' absent good reasoning'
they could amount to selectie enforcement. )oweer' he made no determination
on this point as he did not find it releant in the context of the present appeal.
The analysis of the constitutionality of Chapter 8 is twofold. %irst' the
constitutionality of indiidual proisions is examined. Second' the constitutionality
of the Chapter as a whole is examined.
P%&$'(e '- !/e Re(,e).e Ce)!e&:
Freention of infiltrators from settling in populated centers and integrating into the
labor mar(et: 8espite $ustice #rbel&s determination in the #dam case that this
purpose is legitimate' %ogelman refrains from ma(ing such determination in iew of
the failure of the Chapter to meet the proportionality tests.
Froiding for the needs of infiltrators: in itself a legitimate purpose' especially
considering the unregulated status of infiltrators in Israel and the denial of ade1uate
access to health and social serices they face. 8oes the center in fact fulfill that
purposeG /otably' the law does not proide for education and religious serices'
cultural and sport actiities or legal counseling. This leaes the administratie
authority with wide discretion as to how the center should be operated 0its actual
operation exceeds the scope of the constitutional issue at hand2. Fursuant to this
Court&s =urisprudence' een absent express directions in legislation' it is clear that
the right to dignity implies not only an obligation to proide detainees with basic
physical needs' but also cultural and emotional needs. Since the parties did not
focus their claim on this issue' it is left undecided.
Encouraging HoluntaryH departure 0claimed by the petitioners to be the real
purpose of Chapter 82: a state cannot remoe a person contrary to the principle of
non-refoulement. >n the other hand' a state must respect the constitutional right of
a person to choose to depart to a state where his life and liberty might be at ris(.
?hen would such a decision be considered to be based on free willG %ogelmanIs
position is that a state is said to be deporting a person when it ta(es extreme and
seere measures specifically designed to put pressure that would lead him to
HoluntarilyH leae the country. %ree choice is only possible when a person is
soereign to ta(e an informed and conscious decision out of a number of options
that do not place him in an impossible life reality. This is a principle in the Israeli
=udicial system. #ccording to the IEC' deportation could be attained ia Hconstructie
expulsionH through coercion or threat. The prohibition on constructie expulsion has
been critici@ed and narrowly construed. >ne of the important aspects in identifying
free choice is the legal status of the protected sub=ects in the host states. If the
rights of infiltrators are not recogni@ed' if they are sub=ect to pressure and
limitations and are held in closed camps' their decision to return cannot be said to
be out of free will according to 4/)C5 )andboo(. This position is accepted also in
this Court&s =urisprudence. $udge %ogelman concludes: the 1uestion of whether an
indiidualIs choice to leae a country is made by free will or whether it is the
product of impermissible coercion is tied to bac(ground conditions in the host state.
4nreasonable pressure and means of duress could transform the departure into
impermissible forced expulsion. %ogelman decides not to ma(e a determination as
to the claim of the petitioners' despite commenting he cannot deny it out of hand.
Re$'&!)g &e0%&e"e)!( ) !/e .e)!e&:
5esidents are obligated to report to the center . times a day and to stay therein oernight.
Violation of rights: The restriction of the freedom of moement is so seere that it
amounts to a iolation of the right to liberty 0the test is a matter of degree per
EC)5Is =urisprudence2. The noon reporting re1uirement further impedes the right to
dignity' which infiltrators are entitled to by irtue of their humanity. The reporting
re1uirement effectiely limits the ability to stay outside the walls of the facility. This
depries the ability to deelop personality' meet a partner' adopt hobbies' and meet
friends. The current structure of Chapter 8 preents infiltrators from fulfilling their
autonomy in a manner that conforms with the obligation of the state' including the
Dnesset' to guarantee their dignity. This is intensified in the context of )olot. Its
remote location raises the probability that the infiltrator will choose ; to the extent
this could be described as a choice ; to remain inside for most hours of the day.
*Eets not let the title ; Jopen %acilityI ; to fool us. The thrice-a-day reporting
re1uirement' coupled with the ast distance from the area towns' negates almost
any possibility for routine departures from the center. Is it' therefore' an Jopen
facilityIG+ This conclusion would apply also if the center was located in a city center
since the reporting re1uirements transform the center into a facility more a(in in
essence to a closed facility.
Proportionality of the violation: examination of proportionality is made is-K-is the
purpose of preenting infiltrators from settling in populated centers and integrating
into the labor mar(et.
o The first sub-test is met since there is a rational lin( between the reporting
re1uirements' which ma(e it difficult for residents to leae the facility' and
the purpose of preenting infiltrators from settling in city centers and
integrating into the labor mar(et. /otably' the small capacity of the center
preents it from haing an effectie impact on purpose of preenting the
settling in city centers and integrating into the labor mar(et 0especially in
iew of the stateIs obligation not to enforce the prohibition of their
employment2 of the general infiltrators community. )oweer' considering
that )olot seres as a pilot program' $udge %ogelman is ready to assume
that the test is met.
o The second sub-test' lac( of alternatie' similarly effectie' means is also
met. The reporting re1uirements ensure the center of life of infiltrators is in
)olot. >ther alternaties' such as bail' better enforcement of labor laws to
preent cheaper hiring costs of infiltrators' or raising the employment wages
in the facility' are not similarly effectie. That being said' $udge %ogelman
notes that these alternaties should be considered.
o Third sub-test is not met. The benefit of the law is clear: it preents the
integration of infiltrators in city centers and labor mar(et. )oweer' there is
no appropriate ratio in comparison to the in=ury to the infiltrators. The title
of the facility is of less conse1uence that its essence in determining its
nature. %or most infiltrators it is a closed facility which preents them from
deeloping lies of meaning and substance. The seere implications of the
reporting re1uirement are made clear by comparatie reiew. $udge
%ogelman proides an oeriew of different types of centers and reporting
re1uirements in Aritain' %rance' the /etherlands' Spain' Aulgaria' )ungary'
Italy' Aelgium' Foland and Sweden 0open centers that constitute financial
benefit2' #ustria 0reporting does not exceed once a day re1uirement2'
Bermany' Canada 0community-based alternaties2' /orway 0once eery
three days2' 8enmar( 0up to once a day2' Eithuania 0up to once a day'
coupled with oernight stay ; has been critici@ed2 and 9alta 0between once
a day and three times a wee(2. The obligation of residing in a closed facility
for days' wee(s' months is a seere iolation of dignity and liberty which is
not =ustified by the law&s benefit.
A,")(!&#!') '- !/e F#.*!+ 1+ !/e I(&#e* P&(')( Se&2.e #), !/e A%!/'&!+ '- G%#&,(
$udge %ogelman opines that the administration of the facility by the IFS exacerbates the
in=ury to the rights of the residents. #n open residence facility should maintain the sense of
liberty of its residents. The IFS' on the other hand' speciali@es in operating closed centers
and dealing with specific criminal populations. %or this reasons' operation of centers in other
countries is usually not placed with prison serices' but' inter alia, immigration officers' the
5ed-Cross' priate contractors and /B>s. The law also proided )olot guards with extensie
authorities such as search and sei@ure' preenting entrance of those who would not identify
themseles and maintaining order. They therefore come across residents in many points
during the day. The symbolism in their presence has actual effect on the way the residents
perceie their stay.
The conclusion is not that this set-up constitutes an independent iolation of rights. 5ather'
that it is exacerbates pre-existing iolations of the rights to liberty and dignity and has an
effect on the proportionality of the oerall arrangement.

A1(e).e '- L"!#!') ') D%&#!') '- S!#+ #), '- Re*e#(e G&'%),(
The third issue re1uiring examination' which might be the first in importance' concerns the
length of stay in the facility. Chapter 8 does not include proisions limiting the duration of
stay or grounds for release therefrom.
Violation of rights: Since Chapter 8 is a proisional proision in force for three year'
length of stay could be up to three years. )oweer' there is no guarantee that the
proision will not be extended in time' and the Boernment has not ruled out that
possibility. This leaes residents in uncertainty as to the length of their duration.
o The iolation of the right of infiltrators to liberty is thereby intensified. The
longer the depriation of liberty ; the worse the iolation is. #n
arrangement that limits liberty for at least . years constitutes seere
iolation of liberty which will deepen if the force of the proisional order is
extended.
o .-year stay in the facility further iolates the right to dignity. The longer
depriation of liberty is' the more a person is re1uired to gie up his wishes
and desires. Three years us a period during which a person can get married'
begin a family' adance at wor( and attain education. # life chapter lost.
%urthermore' the uncertainty as to the duration of stay is a uni1ue and
independent iolation of dignity as it compounds the agony associated with
depriation of liberty' and might gie rise to depression and anxiety. This
hold true especially with respect to asylum-see(ers who are a ulnerable
population that is susceptible to post-traumatic disorders lin(ed to
depriation of liberty 0reference to 4/)C5Is ,-11 position and to the
obligation in the E4 8irectie to proide protection for the mental health of
those detained2.
Froportionality of the iolation:
o %irst sub-test: $udge %ogelman is ready to assume the test is met as there is
a rational lin( between prolonged stay and the ability to preent his
integration in city centers' which is the intended purpose.
o Second sub-section is also met as prolonged stay is more effectie than a
shorter stay or other incenties.
o Third test ; there is no appropriate ratio between the benefit 0relieing
residents from the burden of incorporation of tens of thousands of
infiltrators' with all the negatie phenomena associated with unregulated
immigration2 and the iolation of the rights. # democratic society cannot
deprie for such a period the freedom of persons who pose no harm and
that are not carrying out a sentence for a wrong committed' een if there is
some benefit in it. #s compared to other states such as the /etherlands'
#ustria' Bermany and Aelgium' where stay is limited in months' the
minimum .-year period in Israel is clearly disproportionate.
In iew of all the aboe' $udge %ogelman is of the iew that there is no escape from
concluding Chapter 8 is disproportionate. )oweer' in iew of the issue of remedy' further
examination of concrete arrangements in the Chapter is underta(en.
T&#)(-e& '- I)-*!&#!'&( !' C%(!',+
The last arrangement which will be reiewed is the one authori@ing the )ead of Aorder
#uthority to order the transfer of residents or infiltrators to detention for iolating arious
disciplinary iolations. These iolations include failure in reporting' behaioral misconduct'
and wor(ing on the parts of residents. /on-resident infiltrators are sub=ect to be transferred
to detention upon failure to renew their isas. Feriods of detention range between .- days
and a year 0for repeating iolations2. /otably' there is no =udicial reiew of the decision of
the )ead of Aorder #uthority to transfer a person to detention. The Eaw proides the
Custody Tribunal for Infiltrators with the authority order the release of an infiltrator but only
for predetermined grounds 0such as humanitarian or health grounds' or that three months
passed since an asylum was submitted and no action was ta(en in its pursuit2. The only
aenue aailable for challenging the decision is filing an appeal in an #dministratie Court.
Violation of rights:
o Transfer to detention is a iolation of the right to liberty which independent
that the iolation caused by the residence in )olot.
o #dditional to the right to liberty' the arrangement stri(es a heay blow on
the constitutional right to dignity by irtue of the in=ury to its subsidiary right
to due process' one aspect thereof is the right to hae legal procedure
determined by an ob=ectie body en=oying personal and institutional
independence. >ther elements of the constitutional right to due process are
procedural guarantees. The more seere the potential iolation of the right
and the higher the normatie status of the right ; the wider the obligation
to ensure procedural guarantees. The normatie status of the right to liberty
and the degree of potential iolation of the right re1uires strict obserance
of the existence of procedural guarantees as prere1uisite of the
constitutional right of due process. These guarantees do not exist in our
case. %irst' the authority to limit and superise liberty is at the hand of the
executie' which is not independent or ob=ectie' instead of the =udiciary.
The option to appeal to the #dministratie Courts is untenable for most
infiltrators who lac( (nowledge of the system' the law or be able to afford
legal representation. >ther procedural guarantees are also not proided for
such as access to the eidentiary materials and right to legal representation.
Their absence intensifies the iolation of the constitutional right of due
process.
o In obiter' $udge %ogelman raises - but ma(e no determination ; the issue of
whether the right to due process mandates =udicial reiew oer the decision
to issue residence orders for )olot. )e does mention that *of course that a
different legislatie arrangement that replaces' if replaces' Chapter 8 in its
current ersion ; that will offer different balances in respect to an open
residence center' and will reduce the iolation of the right to liberty and
other rightsL- might not mandate such =udicial reiew+.
Proportionality:
o %irst sub-test: there exists a rational lin( between detention and the purpose
of the law' as disciplinary measures ensure obserance of the %acilityIs rules'
including reporting re1uirements. Miolation of due process e1ually maintains
the lin( as it eases the operation of the facility and saes costs.
o Second sub-test: the proision offers a cheap' 1uic( and effectie
mechanism to impose sanctions for iolating %acilityIs rules. >ther means
such as =udicial reiew and proision of procedural guarantees would not be
as effectie as they re1uire resources that are needed elsewhere and might
impair the effectieness of sanctions. The test is therefore met.
o Third sub-test: The benefit does not (eep an appropriate ratio compared to
the extent of the iolation. The entire procedure for transferring infiltrators
to detention is not sub=ect to reiew of an independent' neutral'
institutionally independent body. The only aailable option to challenge the
procedure is ia an administratie appeal which imposes substantial burden
on the initiating infiltrator. The heay price in no way obseres a proper
ratio to the benefit of deterring infiltrators from committing iolations. It is a
1uintessential public interest that we obsere that liberty may not be
depried prior to the exercise of minimal protection mechanisms.
o $udge %ogelman comments in obiter that whether the arrangement
constitutes an independent iolation of the right to liberty is unnecessary.
)e is' howeer' of the iew that detention for prolonged periods of time
crosses the line between a disciplinary sanction 0deterrence2 and punitie
sanction 0retributie2. Since there is no dispute that punitie sanction cannot
be imbued in the authority of the )ead of Aorders #uthority' such sanction
cannot stand. )e does state that: *in outlining a new legislatie
arrangementLthere needs to be examined ; strictly' the period of
detention. >erly prolonged detention period might be disproportionate 0in
itself2 een if sub=ect to =udicial reiew+.
C/#$!e& D #( # 3/'*e #), !/e P&'$'&!')#*!+ Re0%&e"e)!
This residence facility is unli(e others in the world. The limitations it imposed on the
freedom of the infiltrator are wider' and its iolation of the dignity of infiltrators is more
accute. The benefit inherent in Chapter 8 does not =ustify the iolation of the human rights
brought on by this Chapter. This is particularly true with respect to children that the current
structure of Chapter 8 allows to hold at the facility 0following enactment of regulations2. This
fact raises considerable difficulty. Children are particularly susceptible to depriation of
liberty. They experience it more acutely. %urthermore' the dignity of the child deseres
special protection.
#nother population desering special attention include those whose particular
circumstances ma(es stay in a residence center more difficult. Currently' the law does not
include a mechanism that enable the wea(est ; the sic(' traffic(ing' torture and rape ictims
; to be excluded from the facility.
The accumulation of unconstitutional aspects of Chapter 8 renders it entire arrangement
disproportionate.
Re"e,+
Chapter 8 in its entirety is unconstitutional and has to be annulled. #n order is gien to
suspend this ruling for a period of !- days to allow the formulation of an appropriate
legislatie arrangement that would meet the limitations of the Aasic Eaw: )uman 8ignity
and Eiberty.
The suspension does not apply to the following proisions:
#rticle .,0)20a2 is to be interpreted as mandating only twice reporting re1uirement' i.e.'
cancellation of the noon reporting re1uirement' effectie ,N September.
#rticle .,0T20a2 is to be interpreted' as of >ctober ,' as allowing the transfer to Saharonim
for maximum of .- days 0for failing to report to )olot' for iolating reporting and behaioral
re1uirements within )olot' and for wor(ing outside )olot2. Fersons already in detention
pursuant to #rticle .,0T20a2 should be released upon sering .- days or earlier if decided by
the )ead of FIA#.
N. Counter-#ppeal by 5esidence of South Tel-#i
?ith the decision on annulment of #mendment N' there is no need to address the appeal
brought by residents of South Tel-#i' which is based on the manner #mendment N was
applied

OOO


CONCURRING OPINIONS:

JUDGE DAN4INGER:
$oins $udge %ogelmanIs opinion.
Emphasi@es that the Court does not belittle the complex nature of the infiltration
phenomenon which has difficult implications especially on the residents of South Tel #i. #t
the same time' the Eegislature is obliged to adopt a constitutional solution by which the
harm will be as little as possible both on the infiltrators and on the residents of South Tel
#i.
555



JUDGE NAOR
#grees with $ustice %ogelmanIs opinion that #rticle .-0#2 and chapter 8 of the #nti-
Infiltration Eaw must be canceled.
1. #rticle .-
#grees with $ustice %ogelman that examining section .-0#2 doesnIt end with the 1uestion
whether the length of time in detention is constitutional but also with whether a person can
be detained in detention where there are no effectie deportation proceedings pending
against him.
Een though the period of detention under .-0#2 is substantially shorter than it was in the
third amendment' it still is e1ually inalid as there is a gap between the declared purpose of
holding a person in detention ; identifying the infiltrator and deeloping hori@ons for exit
from Israel. The current law allows holding a person in detention for one year een if he
cannot be deported. )olding a person in detention for whateer length of time cannot be
without a legitimate purpose. Beneral deterrence is not a legitimate purpose een if its
application is forward-loo(ing. )olding in detention can be a short-term solution for the
purposes of identifying an infiltrator' for erifying his status or where releant for effectie
deportation proceedings. Therefore' detention for one year does not pass the
proportionality test and is therefore not constitutional and therefore section .-0#2 should be
nullified
,. Chapter 8
#gree with $ustice %ogelman that Chapter 8 should be nullified in its entirety. The many
constitutional iolations' including the reporting re1uirement' the unlimited period of time a
person may be held in )olot and the lac( of grounds for release all go to the core of the
arrangement. It is therefore it is unconstitutional and should be nullified.
.. The Counter-#ppeal
The response by the Dnesset and the State didnIt sufficiently address these hardships.
#mendment N would not hae helped the residents of South Tel #i as the capacity of )olot
is only .'--- infiltrators. The State is obliged to protect the security and the rights of
residents of South Tel #i and this re1uires the State to implement creatie solutions'
including allowing the )ead of Aorders Control to limit the geographical area of residency for
infiltrators to allow for a dispersal of infiltrators all oer the country' a practice which exists
in many countries around the world' or opening a residency center where residency is
oluntary' or placing limitations of the ability to receie a wor( permit such as 1ualifications
for a specific field.
The state must find a solution but whateer it is' it must bring into effect the perception that
all persons' een refugees' asylum-see(ers and migrants are entitled to hae their human
rights protected. I hope that any additional legislatie procedures will allow for a new way of
creatie thin(ing regarding the handling of infiltrators which will allow for all the releant
actors' including residents of South Tel #i' to state their positions.

555


JUDGE AR6EL
$oins $ustice %ogelmanIs decision in its entirety.
1. 1!"1 5efugee Conention
The 5efugee Conention raises difficulties not because of what is contained therein' but
rather what it does not. The Conention does not distribute the burden of coping with the
refugee phenomena amongst the nations of the world such that the burden can fall
une1ually on certain countries due to their geographical proximity' economic attractieness
and regulatory obstacles' etc. I therefore beliee that the solution of deporting to a third
country' so long as it meets the conditions under international law' is a proper solution
which should be adance. #lthough the media portrays otherwise' the burden on Israel to
handle asylum see(ers isnIt higher than other western nations and especially not higher
than deeloping nations who surprisingly carry the ma=ority of the burden. This burden
should be accepted with an understanding of the historical bac(ground of the $ewish people'
the alues of the State of Israel and its obligations to human rights een when the person
isnIt Israeli.
,. #rticle .-#
Leg!"#!e P%&$'(e:
%or amendment .' the State claimed that one of the purposes of .-0#2 was to
preent the setting down of roots in Israel and the StateIs coping with the wide
phenomena of infiltration. #t the time' I held that this purpose pose no difficulty.
This purpose is not claimed by the State with regard to .-0#2 of amendment N.
The other purpose for .-0#2' both for amendment . and N' was deterrence of
further infiltration' i.e.' to sere as a *normatie bloc(+. #s a stand-alone purpose it
is problematic since a person is treated not as end but as a means. 4se of detention
of infiltrators for the purpose of deterring potential infiltrators' not because they
present a specific threat and constitutes an infringement of the right to human
dignity as a person should not be seen as a means to achiee a purpose is-K-is
others. If we wanted to punish infiltrators for illegal entry then we should do it
through criminal law. This sanction could be legitimate if proportionate and in
accordance with international criminal law. $udge #rbel refers to 4/)C5Is 8etention
Buidelines which specifically prohibit detaining a person for the purpose of deterring
future asylum-see(ers from coming. She disagrees with the distinction made by
$udge #mit between the rights of prospectie infiltrators and those who are already
in the country since the prospectie infiltrator that enters Israel tomorrow would
e1ually be entitled to the right of liberty and dignity.
#gree with $ustice %ogelman that the purpose of identification:ensuring aailability
of permissible deportation is a legitimate purpose.
P&'$'&!')#*!+:
>ne-year detention does not meet the proportionality re1uirements as one year in
detention is too long for the purpose of identifying an infiltrator. %or infiltrators who cannot
be deported' there is no =ustification for holding them in detention beyond the necessary
time for identifying them. ?hile there is the option of going to a third country' this is a
oluntary option such that holding a person in detention for one year for the purpose of
conincing him to agree to go to a third country is liable to result in his agreement to not be
oluntary. %urthermore' there is uncertainty whether the reduction in influx of infiltrators
arriing to Israel is the result of #rticle .-#. # lot of weight should be placed on this
uncertainty when doing a cost-benefit analysis between the iolation and the benefit. $udge
#rbel notes that proportionality analysis could change should Israel be flooded with
infiltrators and should its ital interests be threatened as the State of Israel cannot harm
itself on the behalf of people from other nations.
.. Chapter 8:
>ne of the solutions offered in the #dam decision was establishing an open residency
facility' but )olot is both compulsory and re1uires residents to report three times a day and
is for an unlimited period of time. The location of )olot also cannot be ignored' nor can the
fact that IFS manages the center and that the centerIs staff hae a ast degree of authority
to carry out searches' to use force' etc. )olot is not an open residency facility but rather a
detention facility as it significantly curbs the liberty of a person placed inside for an
unlimited period of time. Een if the infringement on liberty in )olot is less than the
infringement on liberty under amendment .' it is not a significant reduction of the
infringement in order to be proportional. This should all be iewed in light of the low
numbers of infiltrators coming to Israel in the past year and a half and the capacity of )olot
as compared to the oerall population of infiltrators. It is not sufficient to cancel the
afternoon reporting re1uirement in order to ma(e the arrangement proportional and this is
primarily due to the unlimited period of time for residency in )olot and the lac( of =udicial
reiew. I assume that the benefit would outweigh the cost if the residency center were
limited in time and if the resident was granted something to aspire to where he could
eentually regain full liberty li(e all residents of Israel.
N. South Tel-#i
$udge #rbel states she does not ignore the residents of South Tel #i who bear most of the
burden which is laid on the State of Israel. The State should find solutions which will
distribute the burden without disproportionally harming the rights of the infiltrators.
5egardless' )olot was not the solution to the problem here as its capacity is ery small
compared to the number of infiltrators oerall.
#mendment N was aimed at soling a real problem. Aut it is not right or appropriate to sole
the complex problem of the infiltrators by the most harsh and harmful means such as
depriation of liberty of a person.

555


JUDGE JU6RAN
$oins $ustice %ogelmanIs decision
1. #rticle .-#
The benefit from the one year detention does not outweigh the harm caused and thus
section .-# should be nullified. The State argues that the one year detention is a normatie
obstacle for preenting future infiltration' but there is no proof that this is the case. It is
difficult to estimate the benefit of the one year detention but the harm to the basic rights is
clear.
,. Section 8
Chapter 8 does not meet the conditions of the limiting clause and therefore should be
nullified in its entirety.
P%&$'(e
$udge $ubran' howeer' does not find fault in the purpose of Chapter 8' preenting the
setting down of roots of infiltrators and integrating into the wor( force' and iews it as a
legitimate immigration policy.
P&'$'&!')#*!+
Chapter 8 should be nullified due to its lac( of proportionality. The purpose may still be
legitimate een if it infringes on human rights' but the infringement must be proportional to
the purpose. #ccording to $udge $ubran' the second sub-test is not met as there are
alternatie means which infringe significantly less on the basic rights of the infiltrators' but
still sufficiently achieed the purpose of preenting the setting down of roots.

555


JUDGE HAYOT
1. #rticle .-0#2
#gree with $udge %ogelman that .-# does not pass the constitutional test because
infiltrators cannot be held in detention where there are no effectie deportation
proceedings pending.
,. Chapter 8
$oin the comments made by $udge /aor in sections N-7 of her opinion' and Chapter 8 should
be nullified in its entirety as there are many constitutional iolations' including the reporting
re1uirement' the unlimited period of time a person may be held in )olot' the lac( of
grounds for release and therefore it is unconstitutional and should be nullified.

555


PARTIALLY DISSENTING OPINION: JUDGE AMIT
1. Chapter 8
>ne can understand the StateIs fear that granting access to wor(-welfare-health-housing
will create an incentie for more infiltrators to come. This fear howeer can be dealt with by
seeral measures' through the physical fence and section .-# of the law.
The )alf a billion /IS inested by the State on tracing' deporting' isolating and placing a few
thousands out of the tens of thousands infiltrators could hae been better on inesting in
the welfare of residents of South Tel #i and finding solutions for infiltrators who already
came to Israel. The fact that most chose to settle in the South Tel-#i is not by chance but
rather a result of lac( of policy. Aut it is not for the Court to reiew the wisdom of the law
but rather its constitutionality.
The practical implication of Chapter is essentially the detention-li(e of people for a period
which is *limited+ to three years but this is also uncertain. It must be remembered that we
are dealing with people that hae been in Israel for years and hae established a social-
economic networ(' albeit meager and wea(. #s uncomfortable as this may be ; we must lift
the eil oer the Hbloc(H of infiltrators and loo( straight at each and eery one of them. This
is the essence of humanity' reali@ing eeryone has a name' face and own way to exercise
one&s dignity.
The fact that )olot is run by IFS does not ma(e it' in my opinion' li(e a prison. The fact that
the )ead of Aorder Control is authori@ed to instruct transfer to detention' while strict and
not proportional' could be remedied without re=ecting chapter 8 in its entirety. Aut the
thrice daily reporting re1uirement and the unlimited period of time in )olot are the
elements bringing )olot too close to a prison facility and why Chapter 8 should be nullified
in its entirety. >ne has to wonder whether placing seeral thousand infiltrators in )olot will
sole the problems in South Tel #i where there are tens of thousands of infiltrators.
,. #rticle .-0#2
8isagrees with the annulment of section .-#:
P%&$'(e:
4nli(e the preious proision in #mendment .' the current .-# is forward-loo(ing'
addressing not infiltrators that are currently in Israel but the unspecified group of infiltrators
beyond the borders of Israel. #s such it is a normatie barrier which complements the
physical fence. The State&s responsibility towards people who are already within its borders
is not the same as the StateIs responsibility towards people outside its borders' and
therefore the State is allowed to hae a normatie barrier in section .-# to complement to
physical barrier ; the fence.
4nli(e a residence centre' it should be presumed that #rticle .-# could constitute an
effectie means to preent infiltration' which in itself is a legitimate purpose' intended to
protect to soereignty of the State' is character and national identity' as well as economy'
internal security' public order and welfare. The purpose of deterrence is not always
illegitimate' especially when it applies not to innocent people' but to those committing an
act that is illegal' such as infiltration' and when the detention has other purposes such as
identification and formation of deportation alternaties.
P&'$'&!')#*!+
There exists a correlation between the benefit and the iolation. The benefit of .-# ; the
strong public interest for presering the soereignty of the State ; outweighs the harm
caused to the infiltrator held for one year and the infringement to his right to liberty.
.-# proides authority to the )ead of Aorder Control to release the infiltrator for arious
grounds 0if health is endangered' special humanitarian grounds' etc2' proides for =udicial
reiew once a month' and proides for the release of the infiltrator if he submitted an
asylum claim and if within . months his claim didnIt begin to be handled and if within 7
months no final decision was reached.
Coupled with its perspectie application to an unspecified public outside Israel' the fact that
forming an immigration policy is the prerogatie of the Executie and Eegislatie Aranches'
the fact the former law has once been annulled' and that this is a proisional proision'
there is no reason to nullify .-# of the Eaw

555


MINORITY OPINIONS:

JUDGE GRUNIS
8issents from the ma=ority opinion regarding the annulment of #rticle .-#< #grees that the
proisions concerning the thrice daily reporting re1uirement in )olot disproportionately
iolates the constitutional right to liberty and therefore the noon reporting re1uirement
should be canceled. 8oes not agree that Chapter 8 should be struc( down in its entirety.
Emphasi@es the wide margin of appreciation the Eegislature is ested with. The courts should
not lightly oerturn a law' but exercise caution in deciding on the constitutionality of a law
passed by Dnesset and should not replace its discretion for that of the law-ma(er.
1. #rticle .-#
Stipulates the right to liberty is iolated but points out that the current proision is less
harmful than the proision that was annulled in the #dam case in that it is perspectie< sets
a maximum one-year detention period instead of a minimum three-year period< and
includes stricter procedural guarantees.
P%&$'(e
#grees with the ma=ority opinion that the purpose of identification:ensuring aailability of
permissible deportation is legitimate. $udge Brunis does not determine whether deterrence
is a legitimate purpose but refers to his opinion in the #dam case' where he noted that in
some circumstances it could indeed be considered legitimate.
P&'$'&!')#*!+
Aeliees the when determining whether the third sub-test is met' i.e.' that there is
appropriate ratio between the benefit and the iolation of rights' the wide margin of
appreciation of the legislator to determine what is a proportionate means' should be gien
weight' especially in a case where the issue at sta(e is 1uantities' as in this case 0the
appropriate duration of detention2. #ccording to =udge Brunis' the one-year detention
period is within this margin of appreciation considering the improements made to the
preious ersion of the law and the traditional soereignty of the State to determine
immigration policy. /otably' the ma=ority opinion reiewed comparatie arrangements
where six-month detention periods are permissible. The difference between one-year and
six-month detention periods is not substantial enough to constitute a deiation from the
margin of appreciation of the Dnesset that would =ustify =udicial interention.
,. Chapter 8
The thrice daily reporting re1uirement ma(es leaes from the residence facility impractical'
bringing residence close to an absolute depriation of liberty. The fundamental in=ury to the
right to liberty negates appropriate ratio to the benefit 0the purpose of preenting
infiltrators from settling in centers and integrating into labor mar(et2. It therefore fails the
third sub-test and should be annulled.
8isagrees with the 9a=ority opinion that Chapter 8 should be nullified in its entirety due to
the cumulative effect of three constitutional problems 0namely the lac( of =udicial reiew
oer decisions to transfer from the facility to detention' the fact that the facility is run by IFS
and because of the lac( of maximum time period for residing in the facility2.
8oes not beliee that the unspecified limits for the duration of residence is unconstitutional
since once the noon reporting re1uirement is cancelled the oerall iolation of the right to
liberty is reduced. %urther' the lac( of indiidual release conditions in the law does not
necessary mean that the period of residence cannot be defined. )ead of Aorders Control has
the power to specify in the residence summons the period of residency. Een if this is not
done ahead of time' the indiidual can re1uest such specification subse1uently and refusal is
sub=ect to =udicial reiew. 9oreoer' the releant proisions are proisional' in force for
three years. This in itself =ustifies =udicial restraint for the time being. $udge Brunis clarifies
that under the current circumstances' three years are the maximum acceptable detention
period.
Eastly' $udge Brunis beliees the law in fact allows for =udicial reiew oer the transfer from
facility to detention: section .,d0a2 authori@es the 8etention 5eiew Tribunal to reiew
decisions of the )ead of Aorder Control to transfer a resident of the facility to detention
0section .,T2' as it enables the Tribunal *to authori@e the holding of an infiltrator in
detention+' which would include an examination of whether the )ead of Aorder Control
erred in deciding to transfer a resident to detention. Those transferred from the facility to
detention will therefore be automatically brought before the Tribunal within P days and
thereafter reiewed eery .- days. %urther' decisions of the Tribunal may be appealed to
the #dministratie Court.
Re"e,+
$udge Brunis emphasi@es that the approach by which accumulation of constitutional
difficulties is a ground =ustifying the annulment f Chapter 8 as a whole. )e is not coninced
that this is indeed appropriate' and in any eent' not when only one proision should be
struc( down. Suggests suspending the annulment order for 1"- days during which an
alternatie arrangement should be formulated. Throughout this period' residents should not
be re1uired to report to the facility at noon.

555

JUDGE HENDEL
Concurs with $udge Brunis opinion
1. Section .-0#2
It is possible to hold infiltrators in administratie detention but not for a long period of time<
therefore the disagreement is oer the length of time in detention and not the detention
itself. ?hat is the maximum period of detention which is acceptableG 8isagrees that the
period of six months is the maximum period for detention accepted worldwide. #mendment
N set a mandatory release from detention after one year and therefore passes =udicial
reiew. # one-year detention period is not *outside of the range+ of acceptable periods of
detention and is not much longer than that which is acceptable is many countries. It
therefore well within the constitutional margin of appreciation.
,. Chapter 8 - )olot
It is not sufficient that )olot will be a type of *light detention facility+ but rather that this is a
ery different module of custody. I =oin Fresident Brunis is his instruction to cancel the thrice
daily reporting re1uirement. ?hat distinguishes a detention facility from an open center is
significant freedom of moement' een if limited.
)oweer' $udge )endel ta(es issue with other reserations expressed in the ma=ority
opinion: infiltrators failed to respect IsraelIs soereignty and chose to steal the border and
iolate the law. They are not entirely innocent. %urther' it is not correct to iew them as
presumptie refugees' as experience shows that refugees turn to the competent authorities
with asylum claims. %urther' it must not be assumed' as did the ma=ority opinion' that the
proisional measure will be extended as did the ma=ority< lastly' in comparatie iew' it
cannot be said that the legislatureIs decision to place the responsibility of )olot in the hands
of IFS deiates from what is acceptable in ?estern nations.
Comparatie reiew is helpful but must neertheless not be blind to the specific context of
Israel' which is the only ?estern country by which it is possible to arrie to by way of land
from #frica. This should be ta(en into account when suggesting that detention for een a
period of seeral months is un=ustified. The maximal threshold of a one-year detention
period was chosen is a balanced and proportionate response
Similarly to the accumulation of constitutional difficulty employed by the ma=ority' one
should also ta(e into account of the accumulation of facts. The success of the combined
measures ta(en by Israel in reducing the rates of new arrials must also be ta(en into
account. If the numbers of infiltrators changes dramatically' then the constitutional
balancing point will also change. The situation is so dynamic that there is no way to (now
what the situation will be when the temporary order comes to an end. I beliee that caution
re1uires us not to interene in this legislation at this sensitie stage where the change is so
dynamic and drastic.
$udge )endel further critici@es the ma=ority opinion for not proiding the legislator with
clearer guidelines with regard to future legislation. 5egarding detention' the court should
hae directed the legislature more clearly as to what is acceptable ; is detention to be
re=ected no matter whatG Is the debate regarding the length of detentionG 5egarding )olot'
if the length of time in )olot is limited and the number of reporting re1uirements is reduced'
will this be sufficient according to the ma=ority opinionG
.. Conclusion:
In contribution to the discourse between the Court and the legislator' the ma=ority&s position
is as follows: the threshold should further be reduced and extension of detention must be
sub=ect to the existence of potential release or potential deportation' een if not crystali@ed.
#s for the residence centre' some of the conditions might be changed in accordance with the
ma=ority&s reiew' but otherwise can be operated.

555