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Gabrislasi Judgment– Bagatz 8425/13 THE SUPREME COURT IN THE CAPACITY OF THE HIGHT COURT OF JUSTICE HIGH COURT OF JUSTICE 7385/13 HIGH COURT OF JUSTICE 8425/13 Before: The Honorable Chief Justice A. Grunis The Honorable Senior Associate Justice M. Naor The Honorable Justice E. Arbel (retired) The Honorable Justice S. Joubran The Honorable Justice E. Hayut The Honorable Justice Y. Danziger The Honorable Justice N. Hendel The Honorable Justice U. Vogelman The Honorable Justice I. Amit Petitioners in High Court Eitan – Israeli Immigration Policy Center, et al. of Justice 7385/13 Petitioners in High Court 1. Zari Gebreselaissie of Justice 8425/13 2. Tadros Habithamarim 3. The Hotline for Refugees and Migrants 4. The Association for Civil Rights in Israel 5. ASSAF- Aid Organization for Refugees & Asylum Seekers in Israel 6. Kav LaOved – Worker’s Hotline 7. Physicians for Human Rights in Israel 8. ARDC – African Refugee Development Center Requesting to join in High 1. Kohelet Policy Forum Court of Justice 8425/13 as 2. Concord Center “Amici Curiae”: v. Respondents in High Court 1. The Israeli Government of Justice 7385/13 2. The Prime Minister 3. The Minister of Defense 4. The Minister of Interior 5. The Minister of Public Security 6. The Minister of Finance 7. The Minister of Justice 1 8. The Minister of Economics 9. The Administrator of the Population and Immigration Authority 10. The Attorney General to the Government 11. The Head of Border Control in the Ministry of Interior Respondents in High Court 1. The Knesset of Justice 8425/13 2. The Minister of Interior 3. The Minister of Defense 4. The Minister of Public Security 5. The Attorney General to the Government Opposition to the Order Nisi Date of the Sessions: 22 Tevet 5774 (May 25, 2013) 4 Nissan 5774 (April 1, 2014) In the Name of the Petitioners in High Court Adv. Doron Taubman Justice 7385/13: In the Name of the Petitioners in High Court Adv. Oded Peller, Adv; Yehonatan Berman; Justice 8425/13: Adv. Anat Ben-Dor; Adv. Elad Kahana; Adv. Assaf Wiezen; Adv. Osnat Cohen-Lifshitz In the Name of the Respondent in High Court Adv. Dr. Gur Blei Justice 7385/13: In the Name of the Respondents in High Court Adv. Yochi Gennisin; Adv. Ran Rosenberg; Justice 8425/13: Adv. Yitzchak Barret; Adv. Noam Moulla In the Name of Respondent 1 requesting to join Adv. Ariel Erlich; Adv. Dr. Avishay Bakshi as “amicus curiae” in High Court Justice 8425/13: In the Name of Respondent 2 requesting to join Adv. Avinoam Cohen as “amicus curiae” in High Court Justice 8425/13: JUDGMENT 2 Justice U. Vogelman Table of Contents I. Introduction ……..………………………………………..…………………………..4 II. Ruling in the Adam Case……………………………………..……………………….6 III. Amendment 4, the Legislative Process, the Principles of the Amendment and its Application……………………………………………………………………………8 IV. The Petitions before Us ………………………………………………………………9 A. Summary of the Claims of the Petitioners in High Court Justice 7385/13 ………9 B. Summary of the Claims of the Petitioners in High Court Justice 8425/13…...…10 The State’s Position……………………………………………………………..11 C. The Knesset’s Reaction ………………………………………………………...14 D. Parties Requesting to Join as Amici Curiae……………………………………..15 V. Deliberation and Ruling …...……………...………………………………………...16 A. High Court Justice 8425/13……………………………………………………..16 1. The Constitutional Analysis………………………...………………………16 2. The “Infiltrators” Phenomenon, Applications for Asylum and their Contents ……..………………………………………………………..20 (a) Background – the “Infiltrators” Phenomenon………………………….20 (b) The Dimensions of the Phenomenon - A Recent Glance………...........28 (c) Interim Summary……………………………………………………….30 3. Article 30A of the Law………………………………………………..….…31 (a) The Infringement on the Constitutional Rights……………………...…34 (b) “ For a Proper Purpose” ……………………………………….……….36 (i) Identification and Exhaustion of the Departure Channels for Deportation…………………………………………………….36 (ii) Preventing the Recurrence of the “Infiltrators” Phenomenon………………………………………...…………37 (c) Proportionality ……………………………………………..…………..38 (i) The Rational Relationship Test ………………………..……………38 (ii) The Least Offensive Measure Test ………………….……………..41 (iii) The Proportionality Test in the Strict Sense…...…………………..44 (d) The Remedy…………………………………………………………….51 4. Chapter 4 of the Law………………………………………………………..53 (a) The “Holot” Residency Center ...………...…………………………….55 (b) Millin Academy ………………………………………………………..59 (c) Infringement on Rights and the Structure of the Examination ………...60 (d) “For a Proper Purpose” …………………………………………….…..61 (i) Preventing Settling Down and Integration into the Work Force ………………………………………….…………….…62 (ii) Response to the Needs of the ”Infiltrators” …………………...62 3 (iii) An Additional Claimed Purpose: Encouragement of “Voluntary” Returns ……………………………………………...…………64 (e) The Arrangements of Chapter 4 of the Law -A Concrete Examination. 64 (i) Mandatory Reporting in the Center – Is It Really “Open”? ..…68 1) The Infringement on the Constitutional Rights …………..71 2) The Constitutional Right for Human Dignity …………….72 3) Proportionality ……………………………………………76 a) The Rational Relationship Test ………………………76 The Least Offensive Measure Test ...…………………77 b) The Proportionality Test in the Strict Sense ……….…78 (ii) Management of the Residency Center by the Israeli Prison Service and the Authority of the Prison Guards ………………82 (iii) Restriction of the Duration in the Residency Center and Grounds for Release ……………………………………………….……87 1) The Infringement of the Constitutional Rights……………87 2) Proportionality ……………………………...…………….91 a) The Rational Relationship Test ………………………91 b) The Least Offensive Measure Test……………………91 c) The Proportionality Test in the Strict Sense…..………92 (iv) Transferring an “Infiltrator” to Detention …………………….94 (1) The Infringement of the Constitutional Rights…………..101 (2) The Constitutional Right of Due Process……………..…101 (3) Proportionality…………………………………………...109 a) The Rational Relationship Test………………..…….109 b) The Least Offensive Measure Test…………………..110 c) The Proportionality Test in the Strict Sense………....110 (f) Chapter 4 in its Entirety and the Proportionality Requirement……….112 (g) The Remedy…………………………………………………………...115 (h) Following the Aforesaid ..………………………………………….…116 (i) Final Comments ………………………………………………………121 VI. High Court of Justice 8425/13 – Summary………………………………………...125 VII. High Court of Justice 7385/13……………………………………………………...127 VIII. Prior to Closing the Deliberations………………………………………………….128 IX. Summary ………………………………………………………………………..…129 I. Introduction Over the last few years, tens of thousands of “infiltrators” from Eritrea and northern Sudan have entered into the State of Israel. The executive branch and the legislative branch were requested to cope with the consequences of this phenomenon in several manners – by means of establishing a “physical barrier” in the form of a fence on the southern border of the country and by means of what may be referred to as “normative barriers” through amending the legislation. The Petitions before us place criticism on two constitutional arrangements which were determined in primary 4 legislation regarding this matter. By virtue of the first arrangement it is possible to detain “infiltrators” in detention, who have had a deportation order issued against them for a period of one year and by virtue of the second arrangement it is possible to order the transfer of the “infiltrators” to an “open” Residency Center for an unlimited period of time. Are these arrangements constitutional? These are the questions pending our decision. 1. The two Petitions before us were set for a hearing before the extended panel and their review has been consolidated (according to the decision from December 25, 2013). The first petition (High Court of Justice 8425/13) criticizes the constitutionality of the Law for the Prevention of Infiltration (Offenses and Jurisdiction) (Amendment No. 4 and Temporary Order), 5774 – 2013, legislation ledger 74 (hereinafter: Amendment No.4 or the Amendment to the Law) due to the infringement of the “infiltrators” rights. The second petition (High Court of Justice 7385/13) primarily criticizes the manner in which Amendment No. 4 is applied, whereby the basis of the claim is that the State is not acting sufficiently to secure the rights and safety of the South Tel Aviv residents as a result of the “infiltrators” phenomenon. 2. In the last few years, tens of thousands of people entered into Israel by means other than border patrol stations. In 2012, prior to the legislation of Amendment No. 3 of the Law for the Prevention of Infiltration (Offenses and Jurisdiction) (Amendment No. 3 and Temporary Order), 5772 – 2012, legislation ledger 119 (hereinafter: Amendment No. 3) the “infiltrators” were placed in detention by virtue of the Law of Entry into Israel, 5712 – 1952 (hereinafter: Law of Entry into Israel), but were released after a relatively short period of time in light of the restrictions on the duration of detention according to the arrangements which are set in the Law of Entry into Israel. The legislation of Amendment No. 3 was designated to apply a unique, strict statutory arrangement upon the “infiltrators”, more so than the arrangement applicable to the “infiltrators” by the virtue of the Law of Entry into Israel, in particular in light of the difficulty of clarifying the identity of those individuals that entered into the territory of the country without any identification documents and in an unrecorded fashion; in light of their entry to Israel which in the outset was unlawful (explanatory notes for the Proposal of the Law for the
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