Constitutional Law

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioners in HCJ 2141/20:               1.         Adalah – Legal Center for Arab Minority Rights  in Israel

                                                            2.         The Joint List

Petitioner in HCJ 2187/20                              The Union of Journalists in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

Attorney for the Petitioner in HCJ 2109/20: Pro se

Attorneys for the Petitioner in HCJ 2135/20:  Dan Yakir, Adv., Gil Gan-Mor, Adv.

Attorney for the Petitioner in HCJ 2141/20: Hassan Jabareen, Adv., Suhad Bishara, Adv.

Attorney for the Petitioners in HCJ 2187/20: Moran Svorai, Adv.

Attorney for Respondents 1-7 in JCJ 2109/20 & Respondents in HCJ 2135/20: Reuven Eidelman, Adv., Shosh Shmueli, Adv.

Attorney for Respondents 8-9 in HCJ 2109/20: Avital Sompolinsky, Adv.

 

 

Petitions for order nisi and interim order

 

Israeli Supreme Court cases cited:

[1]       HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, (April 7, 2020) [https://versa.cardozo.yu.edu/opinions/yedidya-loewenthal-adv-v-prime-minister]

[2]       CA 6455/19 Yeruhamovich v. Official Receiver, (Jan. 28, 2020)

[3]       HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481 (1998) [https://versa.cardozo.yu.edu/opinions/rubinstein-v-minister-defense]

[4]       HCJ 4491/13 Academic Center of Law and Business v. Government of Israel, (July 2, 2014)

[5]       HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016) [summary of judgment: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]       HCJ 5936/97 Oren Lam v. Ben Tzion Dal, Director-General Ministry of Education, Culture and Sport, IsrSC 53(4) 673 (1999) [https://versa.cardozo.yu.edu/opinions/lam-v-dal]

[7]       HCJ 7510/19 Orr-Hacohen v. Prime Minister, (Jan. 9, 2020)

[8]       CrimA 1302/92 State of Israel v. Nahmias, IsrSC 49(3) 309 (1995)

[9]       CA 439/88 Registrar of Databases v. Ventura, IsrSC 48(3) 808 (1994)

[10]     LCA 2558/16 A. v. Claims Officer of the Ministry of Defense, (Nov. 5, 2017)

[11]     AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority, (May 19, 2005)

[12]     LCA 8954/11 Doe v. Doe, IsrSC 66(3) 691 (2014) [https://versa.cardozo.yu.edu/opinions/doe-v-doe]

[13]     HCJ 8070/98 Association for Civil Rights in Israel v. Minister of the Interior, IsrSC 58(4) 842 (2004)

[14]     HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-israel-police]

[15]     HCJ 6298/07 Ressler v. Knesset, (Feb. 21, 2012) [https://versa.cardozo.yu.edu/opinions/ressler-v-knesset]

[16]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[17]     HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services, (May 8, 2012)

[18]     HCJ 466/07 MK Zahava Gal-On v. Attorney General, (Jan. 11, 2012) [https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]

[19]     HCJ 7040/15 Hamad v. Military Commander in the West Bank, (Nov. 12, 2015)

[20]     LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality, (July 27, 2017)

[21]     Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[22]     CrimApp 8823/07 A. v. State of Israel, IsrSC 63(3) 500 (2010) [https://versa.cardozo.yu.edu/opinions/v-state-israel-0]

[23]     AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority, (Feb. 11, 2008)

 

United States Supreme Court cases cited:

[24]     United States v. United States Dist. Ct., 407 U.S. 297 (1972)

[25]     Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

 

Judgment

(April 26, 2020)

 

President E. Hayut:

            The joined petitions before us challenge the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), with the consent of the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee, to collect, process and use “technological information” regarding persons who have tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asks that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.

            I will already note at the outset that the petitions were also originally directed at an additional Government Decision of March 16, 2020 (which was amended pursuant to remarks by this Court on March 25, 2020), that authorized the Israel Police, by virtue of Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations), to supervise the isolation requirement and enforce it upon those required to remain in isolation. This was to be accomplished by authorizing the police to receive location-data samples from the telecommunication companies in order to check whether the address where a person was required to isolate matched the location of that person’s cellphone. On March 23, 2020, the Governmental Respondents informed the Court that they intended to enshrine the police authorization in this regard in primary legislation, subsequent to which the Criminal Procedure (Enforcement Authorities – Telecommunication Data) (Temporary Order – Novel Coronavirus) (Receiving Location Data for the Purpose of Supervision of Isolation Orders) Bill, 5780-2020 (hereinafter: the Telecommunications Data Bill) was presented to the Knesset plenum. The Telecommunications Data Bill passed its first reading, but on April 23, 2020, the Respondent informed us that following several debates in the Foreign Affairs and Defense Committee, the Government decided not to present the Bill for second and third readings in the Knesset at this time. The Governmental Respondents further informed us that on April 22, 2020, the Police Regulations will expire, and that the authorities granted thereunder would not be exercised at this time.

            Therefore, for the present, the hearing in regard to the Police Regulations, and the interim order requested in that regard by the Petitioners in HCJ 2141/20, has become moot. This judgment will, therefore, focus upon the Enabling Decision in regard to the activity of the ISA.

 

Factual Background

1.         These are days of  national and worldwide crisis of dimensions and scope the likes of which we have not known (see: HCJ 2435/20 Loewenthal v. Prime Minister [1], para. 1 (hereinafter: the Loewenthal case). The coronavirus epidemic that began to spread throughout the world several months ago, and that has cost so many lives in various countries, did not spare the State of Israel. Since the first infected person was discovered here, two months ago, there have been over 15,000 verified cases, and some 200 people have perished from the illness. For about a month, the majority of Israeli citizens have been sequestered in their homes, and the education system is closed. Many economic branches are at a standstill, while others are on the verge of collapse or their activity limited, and the resulting daily economic harm to the marketplace approaches more than a billion shekels. The data of the government agencies shows that there are more than a million unemployed in Israel. Entire cities and towns have been placed under quarantine, and movement between cities has been prohibited for days at a time. The activity of Ben Gurion Airport has been disrupted and almost brought to a standstill. This year, we celebrated Passover with only our nuclear family members who live with us, and the situation in some countries – including countries with advanced, developed health systems – is even worse.

2.         In order to contend with the spread of the virus, the Israeli Government adopted a policy of “social distancing”, and the isolation of verified patients and those who came into close contact with them. To that end, a number of very exceptional steps were adopted over time, among them, authorizing the ISA to aid in epidemiological investigations through the use of the technological means at its disposal, for the purpose of identifying, as quickly as possible, the route of the movement of anyone who tested positive for the virus during the 14 days prior to the diagnosis, and locating all the people who were in that person’s close proximity for more than a quarter of an hour (hereinafter: contacts).

            In this regard, we would note that the ISA was originally authorized to perform the said activity by promulgating emergency regulations (hereinafter: the ISA Regulations). The original petitions challenged that decision, focusing upon issues related to the authorities granted to the Government by virtue of a Declaration of a State of Emergency, and the possibility of promulgating emergency regulations for the purpose of contending with a civilian health crisis, like the spread of the coronavirus epidemic. Following the hearing of the original petitions, on March 19, 2020, an interim order was granted that stated in regard to the ISA Regulations that “if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision,” and the restricting of the ISA Regulations only to verified patients.

3.         Following the swearing-in of the 23^rd Knesset, the Arrangements Committee was established on March 24, 2020, along with several temporary Knesset committees, among them the Knesset Foreign Affairs and Defense Committee and the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee (hereinafter: the Services Committee). That same day, the Government passed Decision no. 4916, according to which the ISA was authorized, by virtue of sec. 7(b)(6) of the ISA Law, to collect and process “technological information” regarding persons who have tested positive during the 14 days prior to their diagnosis, for the purpose of identifying that person’s route of movement and identifying the people who were in that person’s close proximity during that period, so that the Ministry of Health could instruct them to self-isolate at home.

4.         Section 7(b)(6) of the ISA Law permits the Government to authorize the ISA to perform activities in an area that is not among the core areas of its authorized activity under the ISA Law, subject to meeting the conditions set forth under the section, which we will address below, and subject to the consent of the Service Committee. The Government’s decision was therefore presented to the Service Committee, which held five debates on the issue, three of which were unprecedented public hearings. In the public hearing on March 26, 2020, conducted as a video-conference – with the participation of representatives of the Knesset and the relevant government agencies, and public representatives, including representatives of some of the Petitioners – questions were raised in regard to the period during which the use of the surveillance authorizations granted to the ISA would be required. The representatives of the Ministry of Health pointed out that the use of these authorizations would be necessary as long as the Government’s policy is premised upon home-isolation of those who have come into close contact with people who have tested positive. They added that, in their opinion, in the event of a decision to relax the isolation policy, the use of the ISA for tracking would not become superfluous, but on the contrary – to the extent that restrictions would be eased, the need for the ISA’s “contact tracing” would become all the more necessary. In view of these circumstances, the Ministry of Health stated that it was unable to delimit the timeframe in which the ISA’s assistance would be required.

5.         On March 29, 2020, the Security Committee held a closed-door session, and the open session continued on March 30, 2020 – this time, only with the participation of members of the Knesset and the Government. The debate addressed four possible paths for authorization of the ISA’s use of its technological resources for the purpose of epidemiological investigation: (1) amending the ISA Law in a regular legislative process, and adding the said authority to the law; (2) enacting a separate law designated for that purpose; (3) promulgating emergency regulations by the Government, by virtue of sec. 39 of Basic Law: The Government, similar to the approach adopted prior to the swearing-in of the 23^rd Knesset that was the subject of the original petitions; (4) granting Government authorization to the ISA to conduct this activity by virtue of sec. 7(b)(6) of the ISA Law, by means of an enabling decision.

            The Committee’s legal advisor, Advocate Miri Frenkel-Shor, presented the advantages and disadvantages of each of the alternatives, and recommended adopting the last approach, i.e., that of an enabling decision, which was actually implemented following the swearing-in of the 23^rd Knesset.

6.         The Service Committee held another meeting, on March 31, 2020, in which it approved Government Decision No. 4950 – i.e., the Enabling Decision – following several changes and amendments made pursuant to comments by the Service Committee. This decision grants the ISA the authority “to receive, collect, and process technological information for the purpose of aiding the Ministry of Health in carrying out an examination in regard to the 14 day period prior to the diagnosis of the patient, for the purpose of identifying location data and routes of movement of the patient and identifying persons who came in close contact with that person, in order to locate those who might have become infected by that person” (sec. 2(a) of the Enabling Decision). At present, the Enabling Decision will remain in force until April 30, 2020, and its definition of “patient” was restricted in accordance with the decision of this Court in the interim order. The term “close contact with a patient” was defined as – contact that is likely to lead to infection in accordance, to the extent possible, with the clinical directives presented by the Ministry of Health in regard, inter alia, to the distance from the patient and the period of exposure, as shall be established in instructions that will be published on the Ministry of Health’s website, which will be updated from time to time, and brough to the attention of the Service Committee. General directives were established in regard to the protection of the information and its processing by the ISA. A provision was added that establishes that while the Enabling Decision is in force, the Minister of Health will periodically examine the need for the continued assistance of the ISA, in view of the restrictions upon activity imposed upon the public, or the availability of alternatives for achieving the purpose of the decision. In addition, a duty to notify the Service Committee was established, requiring that details in regard to the number of patients for whom the Ministry of Health requested the collection of data, the number of persons located by the ISA due to their proximity to a patient, and the steps taken by the Ministry of Health on the basis of the requested data, be presented to the Committee every six days, and to the Attorney General every three days.

7.         The mechanism established in the Enabling Decision for permitting assistance from the ISA and for employing its technological means for tracking contacts is as follows: after diagnosing a patient with a positive laboratory test for the virus, the Ministry of Health requests that the ISA track the patient’s movement over the course of the 14 days prior to the diagnosis, and identify the people who were in the patient’s proximity for more than a quarter of an hour during that period. To that end, the Ministry of Health gives the ISA the patient’s name, identification number, cellphone number, and the date of the diagnosis. At that point, the patient is sent a text message informing him that his particulars have been given to the ISA. After processing the necessary information, the ISA informs the Health Ministry of the route of the patient’s movement over the 14 days prior to the diagnosis, and details of the relevant contacts. These details include the name of anyone in close contact with the patient, as defined in the Enabling Decision, their identification number, telephone number, date of birth, and the date and place of exposure. At this point, a text message is sent to each of the people whose particulars were transferred to the Ministry of Health as persons who had come into close contact with the diagnosed patient, and they are asked to begin self-isolation at home for 14 days, and to report that on the Ministry of Health’s website.

8.         In view of this development, we permitted the Petitioners in all the petitions to amend their petitions accordingly. The amended petitions were submitted on April 5, 2020, the responses to them were submitted by April 12, 2020, and the hearing, which was held on April 16, 2020, was broadcasted to the public by livestream. With the consent of the Petitioners, a closed-door, ex parte hearing was also held in the course of the hearing, and the Respondents agreed that the petitions would be deemed as if an order nisi had been granted.

 

Arguments of the Parties

9.         The Petitioner in HCJ 2109/20, Advocate Shachar Ben Meir, the Petitioner in HCJ 2135/20, The Association for Civil Rights in Israel, the Petitioners in HCJ 2141/20, The Adalah – Legal Center for Arab Minority Rights in Israel and the Joint List Knesset faction (hereinafter: Adalah and the Joint List), and the Petitioner in HCJ 2187/20, The Union of Journalists in Israel (hereinafter: the Journalists Union) (hereinafter jointly: the Petitioners) all argue that authorizing the ISA to address a civilian public-health issue is contrary to the ISA Law, and that the Government’s Enabling Decision in this regard was ultra vires. According to the Petitioners, the ISA, as the preventive security agency of the State of Israel, is only authorized to conduct security-related tasks, and therefore sec. 7(b)(6) of the ISA Law – which allows the Government, with the consent of the Service Committee, to authorize the ISA to carry out tasks in another area for the purpose of protecting and advancing “other essential national security interests” – should be narrowly construed. According to the Petitioners, this section should be understood as permitting such activity only in regard to security threats in the “narrow” sense. Alternatively, the Petitioners argue that even if sec. 7(b)(6) of the ISA Law be given a broader interpretation, permitting the ISA to act in extra-security areas, that authority should be exercised only in extreme cases, which the current matter is not. Adalah and the Joint List further argue that the Enabling Decision violates fundamental individual rights, and therefore, in substance, it constitutes a primary arrangement. In their view, sec. 7(b)(6) is merely a “basket clause”, and therefore such a decision cannot be made in reliance upon it.

10.       The Petitioners further argue that the powers granted to the ISA by the Enabling Decision violate individual rights and fundamental principles of the system. Primarily, they argue that the constitutional right to privacy is violated, and Adalah and the Joint List are of the opinion that there is also a no-lesser violation of the constitutional right to dignity. The Petitioners do not dispute that the Enabling Decision was made for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state, nor that there is a rational connection between that purpose the chosen means, but they are of the opinion that there are less harmful means than those chosen, and that the harm caused by those means exceeds its benefit. In this regard, the Petitioners argue that choosing the ISA to carry out a civilian public-health task fundamentally alters the checks and balances of a democratic society, in which mass surveillance of citizens by the security services should be reserved for specific needs of protecting state security. Therefore, they argue, the task should have been assigned to civilian agencies, like private companies, the Ministry of Health, or at least the Israel Police. The Petitioners further insist that the mechanism established by the Enabling Decision is inconsistent with the applicable norms for the protection of the privacy of databases, particularly in view of the compulsory character of the mechanism and the associated lack of transparency.

11.       On its part, the Journalists Union raises arguments concerning the implications of the Enabling Decision for journalists in the State of Israel. According to the Journalists Union, the Enabling Decision infringes freedom of the press and the confidentiality of journalists’ sources, as it may create a chilling effect upon sources, who may fear exposure to “location tracing” performed by the government authorities. The Journalists Union stresses the importance of protecting journalistic sources, particularly in these unusual times, and emphasizes that the number of persons holding press credentials in Israel is not great – totaling some 5,000 persons. Therefore, in its view, the danger of excepting that group from the established arrangement is defined and limited. The Journalists Union therefore petitions for excepting journalists from the application of the Enabling Decision, or at least, that special conditions be established for exercising the authorities therein in regard to journalists.

12.       As opposed to this, Respondents 1-7 in HCJ 2109/20, which are the relevant governmental organs (hereinafter: the Government Respondents), and Respondents 8-9 in HCJ 2109/20 and HCJ 2135/20 – the Knesset and the Chair of the Service Committee, Knesset Member Gabi Ashkenazi (hereinafter: the Knesset Respondents) (jointly: the Respondents), argue that the phrase “other national interests vital to the national security of the state” in sec. 7(b)(6) of the ISA Law encompasses broader areas than security in the narrow sense, in view of the language and purpose of the section. It is further argued that the epidemic caused by the coronavirus, and the need to confront it and stop its spread, fall within the scope of cases in which the ISA can be empowered by virtue of sec. 7(b)(6) of the ISA Law. The Government Respondents do not deny that that the Enabling Decision infringes the constitutional right to privacy, but they are of the opinion that the violation is proportionate. The Government Respondents further note that, at the outset, the Ministry of Health conducted individual epidemiological investigations in which each confirmed patient was interviewed, and his movements over the two weeks prior to his isolation were published on the website of the Ministry of Health and the broadcast media. But as the number of confirmed cases in Israel rose, individual interviews became impractical, and the professionals in the Ministry of Health concluded that the use of technological means was required in order to identify the movement of those positively diagnosed  as quickly as possible, and in order to locate all the people who were in close proximity of such persons for more than a quarter of an hour during the 14 days prior to the positive diagnosis. To that end, the Ministry first considered employing technologies offered by private companies, but those alternatives were found to be inadequate, and attempts to obtain the assistance of large international companies that have technological means that might be of use did not receive positive replies. Assigning the task to the Israel Police, which would receive the telecommunications data from the telecommunications companies, was also considered, but the relevant professionals found that there was a clear gap between the ability of the Police and that of the ISA in this regard. The Respondents further emphasize that the undeniable infringement of the right to privacy must be viewed against the right to life of the citizens and residents of the State of Israel, and the stability of the Israeli marketplace. According to the Respondents, under these circumstances, the weight of the latter rights and interests exceeds that of the violation of the right to privacy.

13.       As for the arguments of the Journalists Union, the Respondents argue that the powers granted under the Enabling Decision do not infringe freedom of the press, as claimed. This is so, inasmuch as if a journalist is positively diagnosed, his personal details will only be provided to the ISA and the Ministry of Health (and only to those granted access to the data in those bodies). The Respondents emphasize that the process of locating and processing the technological information in regard to the patient’s contacts is largely automatic. They further point out in this regard that the possibility of excepting journalists and others entitled to privilege was considered, but the importance of saving lives and stopping the chain of transmission is greater than the need to protect privileges.

 

Examination and Decision

14.       The central question before the Court concerns the legality and constitutionality of authorizing the ISA to employ the means at its disposal to assist the Ministry of health in conducting epidemiological investigations by collecting and processing “technological information”. Examining this question requires addressing it on three levels: First, in terms of authority – we must examine whether sec. 7(b)(6) of the ISA Law grants the Government the authority to employ the ISA in a purely civilian area that concerns a danger to public health. For that purpose, we must construe the meaning of the phrase “other essential national security interests” in sec. 7 of the ISA Law. Second, if the answer to the first question is positive, then we must further enquire as to the whether it was proper, under the circumstances, to use a Government Decision under sec. 7(b)(6) of the ISA Law for the purpose of empowering the ISA, or whether it would have been preferable to enshrine that authority in primary legislation. Lastly, if the answer to the second question is that it was not necessary to enshrine the authority in primary legislation, then we must consider whether the Enabling Decision is proportionate. That, given the undeniable infringement of human rights resulting from authorizing the ISA to act as stated.

 

The Issue of Authority – The Normative Framework

15.       The ISA Law was enacted in 2002, reflecting the view that the activity of the preventive security service of the State of Israel should be addressed in appropriate primary legislation that would define its authority, establish its subordination to the civil authorities, and the oversight of its activity. For the matter before us, the provisions concerning the purpose of the ISA, detailed in sec. 7(a) of the Law, and its functions, as detailed in sec. 7(b) are of relevance. These sections state as follows:

7.         (a)        The Service is responsible for protecting state security, the democratic regime and its institutions against terrorist threats, terrorism, subversion, espionage, and revealing state secrets, and the Service will also act to protect and advance other essential national security interests of the State, as the Government shall decide, and subject to any law.

(b)       For the purpose of subsection (a), the Service shall perform the following tasks:

(1)       Frustration and prevention of illegal activity intended to harm state security, the democratic regime or its institutions;

(2)       Protecting people, information and places as decided by the Government;

(3)       Establish directives in regard to security classification for roles and positions in the civil service and other bodies, as shall be decided by the Government, with the exception of elected officials and judges, and establishing the security compatibility of a person for a classified role or position, including by means of polygraph examination, as shall be established in rules. For the purpose of this section: “Judges” – a person holding judicial authority under Basic Law: The Judiciary, with the exception of candidates for judgeships and a military judge under the Military Justice Law, 5715-1955;

(4)       Establishing security procedures for bodies as decided by the Government;

(5)       Conducting intelligence research and providing advice and situation evaluations to the Government and other bodies as decided by the Government;

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State;

(7)       Collection and acquisition of information for the protection and advancement of the matters detailed in this section.

 

            The parties to the petitions are divided as to the meaning of the phrase “essential national security interests of the State” that appears twice in sec. 7 of the ISA Law. According to the Petitioners, the ISA Law expresses a sensitive balance between granting very broad powers to the ISA, on the one hand, and restricting the use of those powers solely for security purposes, on the other hand. The Petitioners argue that coronavirus epidemic – as complex and difficult as it may be – is not among the situations that would justify “crossing the Rubicon” and authorizing the ISA to employ its abilities – that are rooted in preventive security – in order to assist in performing epidemiological research in the framework of a health crisis that does not present a threat to the very existence of the state. As opposed to this, the Respondents are of the opinion that the use of the term “national security” rather than “state security” in sec. 7 of the ISA Law indicates that it is possible to authorize the ISA to carry out missions that are not “security related” in the narrow sense. However, the Respondents agree that expanding the ISA’s activity beyond the narrow area of security for which it is responsible is problematic, and must be resorted to only in exceptional cases.

            In order to resolve the dispute between the parties as to the proper interpretation of the provisions of sec. 7(b)(6), we must make recourse to our system’s accepted rules of interpretation.

 

Section 7(b)(6) of the ISA Law – The Interpretive Process

16.       The interpretive journey begins with the language of the provision we seek to interpret (CA 6455/19 Yeruhamovich v. Official Receiver [2], para. 9 (hereinafter: the Yeruhamovich case)). Section 7(b)(6) of the ISA Law speaks of “Activity in another area […] intended to protect and advance essential national security interests”, and it would appear that the words “national security” are the key words requiring interpretation.

            The term “national security”, and the aspects comprises, does not have a universally accepted definition (Greg Carne, Thawing the Big Chill: Reform, Rhetoric and Regression in the Security Intelligence Mandate, 22 Monash U. L. Rev. 379 (1996) (hereinafter: Carne)). The conceptions of security differ from country to country. They derive from their different characteristic security challenges, and from the differences between the bodies and institutions responsible for security in each state. Even in Israel, the concept of “national security” does not have a comprehensive statutory or case-law definition, and therefore, it is possible that its scope may differ in regard to different matters, in accordance with the context in which it appears.

            In the present matter, it may be possible to argue that the language of sec. 7(b)(6) of the ISA Law does not allow for authorizing the Israel Security Agency to engage in matters that are not in the field of security. As opposed to this, the legislature chose to employ two different terms is sec.7 – “national security” and “state security” – and we presume that the legislature did not do so for esthetic purposes, as a mere “linguistic adornment”. For interpretive inspiration, the Government Respondents went to great lengths in comparing other laws that employ the term “national security”, noting that this term has been broadly construed in various contexts, including aspects of national resilience in the socio-economic sphere. The Government Respondents further pointed to decisions in the field of international law in which the term “national security” was construed as comprising, inter alia, economic crises. Therefore, from a linguistic perspective, we cannot rule out the interpretation suggested by the Respondents, according to which the use of the term “national security”, as opposed to “state security”, granted the Government – by virtue of the section and the consent of the Security Committee – the authority to extend the activity of the ISA to another area that is not at the core of security activity, to the extent required for the purpose of protecting and advancing “essential national security interests” related to security in the broad sense. We would emphasize that in their arguments, all of the Respondents stress that we are not speaking of any “national interest” in any sphere, but rather the authorization applies only to exceptional cases in which there is an essential need to do so.

17.       In terms of the interpretive possibilities that the language “tolerates”, we must choose the interpretation that best realizes the normative purpose under examination (see: the Yeruhamovich case, para. 9). The subjective purpose of the law can be learned from its legislative history. In this regard, the fact that the Knesset Respondents went to the trouble of presenting the transcripts of the deliberations of the Knesset committees that addressed the enactment of the relevant section of the ISA Law is worthy of note and praise. These transcripts, which were classified until now under sec. 6(b) of the ISA Law and restrictions imposed by the Knesset Rules of Procedure, were appended, with the consent of the parties, as appendices to the Knesset’s response thanks to its efforts to permit their release. Although parts of the transcripts were blackened out for reasons of national security, they can serve to show the purpose of sec. 7(b)(6) of the ISA Law, and the serious reflection in its enactment.

18.       The Israel Security Agency Bill, 5758-1998 (hereinafter: the Bill) was submitted by the Government in 1998. In that framework, the original language of sec. 7(b)(6) established that one of the tasks of the Service was “activity in another area decided by the Government, with the consent of the Knesset Secret Service Committee, intended to protect and advance essential interests of the state”. In the course of the deliberations on the Bill, several members of the Subcommittee for the ISA Law expressed the fear of the possibility that the Government might improperly exploit the authority established under sec. 7(b)(6) of the Bill, and significantly expand the powers of the ISA to areas that deviate from the security matters for which it is expressly responsible. Thus, Knesset Member Ze’ev Binyamin Begin noted that the phrase “essential interests of the state” is understood as referring to “market, economic, and perhaps social” interests, and warned that the use of this power for such purposes might violate individual rights in matters that have nothing to do with security (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 24, 1998, pp. 23, 31). Knesset Member Ran Cohen joined in expressing those fears, emphasizing that “the ISA should deal with security matters, and the police should focus on purely civilian matters” (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 26, 1998, p. 10). Professor Mordechai Kremnitzer, who attended one of the sessions, was of the opinion that the ambiguous description of the ISA’s tasks, particularly the possibility for significantly expanding them by virtue of sec. 7(b)(6) of the Bill, might lead to the Government employing the ISA for purposes for which it was not created.

19.       In view of these comments, the end of sec. 7(b)(6) of the Bill was changed to “essential national security interests of the State”. Then Deputy Attorney General Meni Mazuz explained that this change was meant to limit the scope of the provision in the original Bill, explaining as follows:

The term “national security” is somewhat broader than the term “security” in its narrow sense. For example, if an enemy state intends to flood the State of Israel with counterfeit money, that is something that could harm national security, in the sense that the state could collapse. These are matters that are not security in the sense we are used to, of armed security, terror, army (transcript of the meeting of the Subcommittee for the ISA Law of Dec. 30, 2001, p. 33).

 

            The Deputy Attorney General went on to present a number of examples from areas that might be considered “essential national security interests of the State”. In this framework, he noted such economic issues as industrial espionage and transnational crime, as well as serious international crimes, and “things that are done around the world in which an organization like the ISA or parallel organizations have a certain professional advantage over the regular police” (ibid., p. 40). The ISA Legal Advisor at the time, Advocate Arie Rotter, later explained that the term “essential national security interests”, as such, allows for granting authority to the ISA “in a broad manner, beyond security matters” (Arie Rotter, The Israel Security Agency Law – Anatomy of a Law, 75, fn. 202 (2010) (hereinafter: Rotter) (Hebrew)). Ultimately, on Feb. 11, 2002, the ISA Law was approved by the Knesset plenum, and the language of sec. 7(b)(6) of the Law is the amended language of the Bill that we have just examined.

20.       As we see from the legislative history described above, due to reservations expressed by Knesset Members in regard to the significant expansion of ISA authority, the possibility of the Government employing the ISA was restricted only to areas directly related to the national security of the State. In this regard, it would appear that sec. 7(b)(6) of the ISA Law was not intended, as a rule, to expand the role of the ISA to civilian areas. However, from the discussions of the Bill, we learn that it was the legislative intent to include matters that deviate from the narrow meaning of “national security”.

21.       As for the objective purpose of sec. 7(b)(6) of the ISA Law and its ramifications for the interpretation of the term “national security”, an overly broad, ambiguous definition of the expression “national security” in this context might loosen the reins and permit employing the ISA’s abilities for missions that have absolutely nothing to do with the purpose of a preventive security organization. As noted, the ISA Law limits the purpose of the ISA, and grants it defined tasks that are meant to enable the State of Israel to contend with the security threats that are part of our daily reality, primarily by means of collecting preventive intelligence, providing personal protection for personages, and other security activities (see: Eli Bachar, Legal Advice in a Security Service, 52 (2013) (Hebrew); Isser Harel, Security and Democracy, 162 (1989) (Hebrew); for a comparative survey, see Ariel Zimmerman, The General Security Services Bill – A Comparative Study, (Israel Democracy Institute, 1997) (Hebrew)). To that end, it was provided with broader tools and means than those given the police, which contends with civilian threats and maintaining public order (and compare, for example, the powers of the ISA under sec. 11 of the ISA Law with those granted to the police in this regard in the Criminal Procedure (Enforcement Authorities – Telecommunications Data), 5768-20017). This established the balance between the security needs of the State and the foundations of our democratic regime, primary among them, respect for the rights and freedoms of the individual and the principle of the rule of law. Employing the abilities of the ISA in regard to the State’s citizens and residents who intend it no harm comprises a threat to the existence of a democratic society that, as a rule, is willing to abide a certain, limited and defined infringement of human rights, and occasionally even of the rule of law, in regard to threats to its continued existence. Expanding the situations in which recourse can be made to the preventive security service thus raises serious fears.

22.       For the sake of comparison, in strategic papers published by the United States government over the last few years, the term “national security” comprised such aspects as cyber threats, natural disasters, drug trafficking, shortages of natural resources, and even epidemics (see: Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577, 1722 (2011) (hereinafter: Donohue)). In regard to the latter, it would appear that the original intention was to epidemics resulting from biological warfare, but the federal government of the United States expanded the definition to epidemics not deriving from warfare (see, in this regard, the government’s response to the SARS epidemic in 2003, and to swine flu in 2009: Donohue, p. 1734). However, in view of the inherent ambiguity of the term “national security”, the American courts warned against exploiting its use, and expanding it in a manner that would infringe fundamental rights (see, e.g., United States v. United States Dist. Ct. [24], 314: “Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent”; and see how the United States Supreme Court addressed the broad and “malleable” use of national security considerations in the framework of the war on terror: Hamdi v. Rumsfeld [25], 520). This fear of the expansion of the meanings given to the term “national security” has been expressed over the years, inter alia, in Europe, Australia, and Canada (for an expanded discussion, see: Frank Foley, The Expansion of Intelligence Agency Mandates: British Counter-terrorism in Comparative Perspective, 35 Rev. Int. Stud. 983, 984-989 (2009); Carne, 381-385, 390-391).

            Therefore, there were those who were of the opinion that adding to the tasks of the ISA required the strictest test of protecting and advancing essential national interests for the prevention of an existential threat (see and compare: Rotter, pp. 17-18). As opposed to this, given the complexity of a changing reality, it is possible to accept the view that in certain, defined circumstances, the term “national security” may encompass a broader range of threats than those that are actually existential.

23.       In my opinion, sec. 7(b)(6) of the ISA Law should be construed as a provision that permits the Government to delegate authority to the ISA even in areas that do not concern security in the narrow sense, but the test that should be adopted for the term “national security” in this regard is that of a severe, imminent danger to the citizens and residents of the State or its regime”. In other words, as we move further from the core of security activity, the Government bears the burden of demonstrating that the situation is indeed one that presents a severe, imminent danger to the citizens of the State of Israel or to the national regime to an extent that requires mobilizing all its forces, among them its security services, in order to meet the challenge. This construction is necessary in view of the linguistic difficulty in interpreting the section, the limitation of its scope of incidence that can be discerned from its legislative history, and the emphasis – in Israel and abroad – upon preventing unchecked expansion of the powers of preventive security agencies.

            And note: the severe, imminent danger test that I believe should be adopted in this matter comprises two dimensions – a substantive dimension and a time dimension. The substantive dimension imposes a particularly high threshold of danger to the citizens and residents of the state. This does not necessarily mean an existential threat or a man-made subversive threat, but it is clear that the intention is not to the usual threats to public order that the police and civilian enforcement authorities contend with on a daily basis. As for the time dimension, the immediacy requirement requires that the danger must be such that there is no real, available possibility for developing more appropriate alternatives for confronting it before it is realized. In other words, the expansion of the powers of the ISA by virtue of sec. 7(b)(6) of the ISA Law beyond security matters in the narrow sense is not for an unlimited time period, and it is possible only as long as the immediacy requirement remains, and no other means are available for similarly addressing the severe threat. These strict requirements are necessary in view of the aforementioned fear of authorizing a preventive security service and employing its resources – which are neither transparent nor known, for understandable reasons – such that they be employed in an area that is not of a security nature in the narrow sense, and against citizens and residents of the state who intend it no harm.

24.       In summary, sec. 7(b)(6) of the ISA Law was intended to permit the Government – with the consent of the Security Committee – a certain measure of flexibility in regard to authorizing the ISA to act in circumstances that were unforeseen when the law was enacted. However, the section’s language, legislative history, and objective purpose show that the term “national security” in sec. 7(b)(6) is only slightly broader than the term “state security”, and in appropriate circumstance it can also comprise severe, imminent threats that do not derive from active subversion against the State and its institutions by some hostile entity. However, in expanding the ISA’s activity beyond the core areas of its security mandate in the narrow sense, we are concerned with the very limited expansion applicable to those rare, exceptional cases in which there is a severe, imminent threat to the citizens and residents of the state or its regime, carried out under strict restraint and supervision, and only temporarily.

 

From the General to the Specific: Is the Coronavirus Epidemic comprised by the Term “National Security”?

25.       As we have already noted in various recent decisions, like most countries, we are currently in an emergency situation unlike any we have previously experienced. As Justice I. Amit wrote in regard to another petition addressing the coronavirus epidemic, this situation leads us “from a legal standpoint … through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom” (the Loewenthal case [1], para. 1). In the course of his statement to the Knesset Secret Service Committee, the Director General of the Ministry of Health, Mr. Moshe Bar Siman-Tov, referred to the current situation as “an unparalleled situation in modern times” (transcript of the meeting of the Service Committee of March 26, 2020, pp. 4-5). The National Security Council holds overall responsibility for the crisis, and its span of control for that purpose encompasses most government agencies, the Bank of Israel, the Airports Authority, the National Parks Authority, the IDF, the Israel Police, and other security and civilian entities mobilized in support.

26.       Under these exceptional, unprecedented circumstances, it would appear that even if we are not concerned with security needs in the narrow sense, the outbreak of the coronavirus crisis meets the conditions of the test for a severe, immediate threat to national security, as construed above. These unique circumstances, regarding which the Ministry of Health explained that “every passing hour is important” (statement of Deputy Attorney General Raz Nizri in the transcript of the meeting of the Service Committee of March 26, 2020, p. 24), required mobilizing the ISA in order to provide a quick, effective response to the significant challenge of  preventing the spread of the coronavirus, and permitted authorizing it for that purpose by virtue of sec. 7(b)(6) of the ISA Law.

27.       We should emphasize that not every threat to public health can be deemed a severe, imminent danger to the citizens of the state. However, the country’s situation following the outbreak of the coronavirus – which presents an exceptional challenge to the health system, and comprises devastating consequences in other areas, first and foremost, the economic security of far too many of the country’s families – justifies the finding that the current crisis passes through that narrow gate that permits the rare, exceptional expansion of the ISA’s authority by virtue of sec. 7(b)(6) of the Law. The Legal Advisor of the Service Committee aptly summarized this in stating: “It cannot be said that the ISA cannot be assigned this task in the framework of its purpose as established by law, when we are concerned with a serious, exceptional and unprecedented event, and the situation in which the state now finds itself. But this must be done with restraint, with sharp clarification that we are concerned with an exceptionally extreme situation, while emphasizing the fact that this authority is not at the core of the classic role of the Service, and that it cannot serve as a precedent for the future” (transcript of the Service Committee session of March 30, 2020, p. 3).

 

Authorizing the ISA by means of a Government Decision for contending with the Coronavirus Epidemic

28.       The next issue that must be addressed concerns the question whether the path chosen for the purpose of activating the ISA, and employing it for confronting the coronavirus is the appropriate path, or whether that authorization should be given by means of primary legislation. In this regard, Adalah and the Joint List argued that authorizing the ISA to conduct widespread tracking of citizens for civilian purposes contradicts the principle established in the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [3]) according to which there is an interpretive presumption that the legislature did not intend to authorize the executive branch to establish primary arrangements – i.e., arrangements that enshrine general policy and fundamental criteria in matters that violate basic individual rights or other matters of primary importance (HCJ 4491/13 Academic Center of Law and Business v. Government of Israel [4], para. 26, per President Grunis (hereinafter: the Academic Center case); Yoav Dotan, Non-Delegation and the Revised Principle of Legality, 42 Mishpatim 379, 414 (2012) (Hebrew)) – in the absence of express authorization by the legislature permitting the executive branch to establish a primary arrangement in a particular matter (the Academic Center case, para. 26, per President Grunis).

29.       The Enabling Decision does, indeed, establish a primary arrangement in substance, that permits the ISA to carry out widespread “contact tracing” of the state’s citizens and residents in order to protect public health and prevent the spread of the epidemic. This decision infringes basic rights, primary among them the right to privacy – a violation cannot be denied, as will be explained below – and it also expands the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law expressly permits expanding the authorities of the ISA as established in Government Decision No. 4950.

            It has been held that the urgency of the arrangement can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements (see: HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 61, per Justice N. Sohlberg). Having found that the outbreak of the crisis met the narrow test for the existence of a severe and imminent threat to the state’s citizens and residents, and particularly in view of the urgency inherent in activating the arrangement as pointed out by the professional entities in the Ministry of Health, I am of the opinion that at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision is not repugnant to the primary arrangements principle. As noted, as it presently stands, the decision will remain in force until April 30, 2020. Can it be held that the force of the Enabling Decision can be extended again, rather than address the role of the ISA in the coronavirus crisis in primary legislation?

            In my opinion, the answer is no.

30.       When we are concerned with an arrangement of a temporary character, that was defined as limited in time when it was established, the need to reexamine the process for enshrining that arrangement, and the question of the sufficiency of the authorization upon which it was based, arise every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This is particularly the case inasmuch as several weeks have passed since Decision No. 4950 was made, during which the Knesset could have conducted a substantial debate, and could have properly enshrined the authorization of the ISA in primary legislation. This fact tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation (see and compare the Rubinstein case [3], which held that sec. 36 of the Defense Service [Consolidated Version] Law, 5746-1986, which grants the Minister of Defense authority to exempt a person from military service “for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons”, could not serve as sufficient authority for granting comprehensive exemptions to yeshiva students “for whom Torah is their calling”). This conclusion is brought into sharper view in the present case in light of the Government’s notice in these petitions that it is currently considering the possibility of relying upon sec. 7(b)(6) of the ISA Law for the purpose of a further expansion of the ISA’s activities in the framework of confronting the coronavirus epidemic.

31.       We would emphasize that the question of the “proper path” for addressing the authorization of the ISA is not a technical matter that can be taken lightly. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions” (the Rubinstein case [3], p. 108 [para. 22, per President A. Barak]). This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch (Daphne Barak-Erez, Citizen-Subject-Consumer: Law and Government in a Changing State, pp. 42-43 (2012) (Hebrew)). An additional advantage to conducting a legislative process was well expressed by Justice D. Dorner in HCJ 5936/97 Lam v. Dal [6], 864 [para. 9]):

… generally speaking, the legislative process in the Knesset is more complex, protracted and expensive than the administrative process.  Nonetheless, efficiency is not necessarily an advantage where there is a question involving infringement of the freedom of occupation.  It is precisely the “cumbersome” nature of primary legislation and the requirement of a majority of the people’s representatives in order to pass a statute which provide a kind of institutional guarantee that basic rights will not be violated except where necessary.

 

            An up-to-date example of this can be seen in the developments described at the beginning of this opinion in regard to the legislative steps taken in order to enshrine the authorities that had been granted to the police in emergency regulations promulgated by the Government, which authorized the police to obtain location data from the telecommunications companies of persons required to remain in isolation. The Bill passed a first reading, but pursuant to the opinion of the Knesset Legal Advisor, the Arrangements Committee did not permit holding all three readings that day. In the course of preparing the Bill for a second and third reading, four in-depth meetings were convened by the Foreign Affairs and Defense Committee, which invited experts in the field of privacy protection, public health experts, and civil society organizations. In view of the reservations expressed in the meetings, the Government requested that the Bill not proceed at this time, the Police Regulations elapsed, and the police location-tracing of those required to be in isolation ceased. These developments illustrate the clear advantage of conducting a full legislative process in the Knesset, even at times of emergency, and particularly when a violation of individual rights is concerned.

32.       All of the Respondents insisted that primary legislation presents difficulties under the circumstances, primarily because it can permanently enshrine an exceptional authority and thus create a problematic precedent for the future. However, we should bear in mind that primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. Thus, in appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution, in general, for legislation in a situation characterized by a lack of information and frequent change (see: Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            To this we should add the fact that the current Government – the 34^th Government – serves as a caretaker government whose powers, in general, are more limited than those of a regular government (HCJ 7510/19 Orr-Hacohen v. Prime Minister [7], para. 10). Indeed, the Service Committee of the newly sworn-in Knesset is conducting close, continuous parliamentary oversight – which has even led to the introduction of changes to the ISA’s authorities under the Enabling Decision. However, the temporary Service Committee, composed of a small number of Knesset Members, cannot serve as a substitute for 120 elected Knesset members. Moreover, it should be borne in mind that, as a rule, the meetings of the Service Committee are classified. In the present matter, the Services Committee did, in fact, decide that three of five of its meetings on the Enabling Decision would be open to the public, and representatives of the public, academia, and civilian and security bodies were heard. That is praiseworthy, but it is an exception that is not characteristic of the regular work procedures of the Committee.

33.       Under the unique, exceptional circumstances that developed, and especially given the timeframe imposed by the rapid spread of the coronavirus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, I am of the opinion that the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which, as noted, constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, we cannot but conclude that if the ISA’s continued involvement is required in order to stop the epidemic even after the force of the Enabling Decision lapses on April 39, 2020, then the Government must take steps to establish the basis for such involvement in primary legislation in order to allow for the participation of Knesset Members from all the factions in the decisions related to this important issue. Such legislation should be provisional in nature, and should be enacted as a temporary order.

34.       However, as the attorney for the Knesset Respondents emphasized in the hearing, exhausting the legislative process demands time. Under these circumstances, if the Government continues to be of the opinion that authorizing the ISA for the tasks imposed upon it is still required, the Knesset should be allowed to proceed with the legislation in expedited, but not hasty proceedings that will allow for public comments and appropriate deliberations. Nonetheless, and given the fact that the Enabling Decision will expire on April 30, 2020, I am of the opinion that if the legislative process will move forward, it will be possible to extend the force of the Enabling Decision for a short additional period, not exceeding a few weeks, for the purpose of completing that process.

 

Before concluding – On Violating the Right to Privacy

35.       Having found that the Enabling Decision can no longer be relied upon for the purpose of providing for the ISA’s involvement in the coronavirus crisis after the decision expires, there is no need to examine whether the Enabling Decision meets the proportionality requirement. Nonetheless, inasmuch as the parties argued this point at length, I think it proper to make a few observations in regard to the proportionality of the infringement of the right to privacy caused by the Enabling Decision.

36.       Undeniably – and the Respondents all concede this – the Enabling Decision leads to a serious violation of the right to privacy and intimacy. This right, which achieved constitutional status upon the enactment of Basic Law: Human Dignity and Liberty (sec. 7 of the Basic Law), and was enshrined in other legislation even prior to that, most prominently in the Protection of Privacy Law, 5741-1981, and was recognized in case law as one of the most important human rights (see: CrimA 1302/92 State of Israel v. Nahmias [8], 353; CA 439/88 Registrar of Databases v. Ventura [9] 835). Moreover, on more than one occasion, the case law has stated that the right to privacy “is one of the freedoms that shape the character of the Israeli regime as democratic” (LCA 2558/16 A. v. Claims Officer of the Ministry of Defense [10], para 39, per Justice D. Barak-Erez;  and see: AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority [11], para. 41, per Jusitce E. Arbel). Similarly, my colleague Justice N. Sohlberg wrote in LCA 8954/11 Doe v. Doe [12], 740 [para. 84]:

The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the watchful eye of the state is vital to the existence of a pluralistic society which gives freedom to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression … And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

 

37.       In the present matter, the Chair of the Service Committee, Knesset Member Gabi Ashkenazi, addressed this issue in the course of the deliberations on the Enabling Decision. He observed that authorizing the ISA to employ its technological resources for “contact tracing” grants “the State authority to invade the private areas and spaces of the citizens of the State of Israel” (transcript of the meeting of the Service Committee of March 30, 2020, pp. 39-40). President Grunis once noted, as well, that such cases present “concern about the excess power of the State, which may gather extensive information about citizens and residents and may abuse such information” (HCJ 8070/98 Association for Civil Rights v. Minister of the Interior [13], 856). “This concern increases as the government acquires more sophisticated means, making more extensive infringement of privacy possible” (HCJ 3809/08 Association for Civil Rights v. Israel Police [14], para. 5, per President Beinisch).

38.       The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.

            As for the identity of the entity employing the said means – employing tools that were developed for the purpose of fighting against hostile elements, and aiming them at the State’s citizens and residents who do intend it no harm is a step that might cause any lover of democracy to lose sleep. To this we may add that according to documents published by the Israel Democracy Institute (hereinafter: the Institute), the apparatus employed in Israel that will be used to locate contacts with validated patients is carried out with the aid of the preventive security organ, is exceptional on the international landscape (see: Tehilla Schwartz Altshuler & Rachel Aridor-Hershkovitz,  Surveillance During a Pandemic - International Comparison, (Israel Democracy Institute, March 25, 2020); Rachel Aridor-Hershkovitz,  A Comparative Survey of Europe and the United States – Contact Tracing as a Means for Fighting the Coronavirus, (Israel Democracy Institute, March 31, 2020) (Hebrew)). This fact was not lost upon the Service Committee, which noted in this regard that the Government respondents must make a real effort to show the Service Committee “alternative tools like those available in other countries” (transcript of the meeting of the Service Committee on March 30, 2020, p. 40).

            As for the nature of the chosen means – in order to examine the level of conformity of the mechanism established in the Enabling Decision to the prevailing norms for protecting privacy in databases, we can turn to the legislation that treats of these subjects, and draw inspiration from comparative law in regard to accepted norms in the field of protection of privacy in the administering of sensitive databases (Michael Birnhack, Public Privacy by Design: The Case of Data Transfer to Political Parties, 12 Haifa Law Rev. 15, 25 (Hebrew) [English abstract]. An examination of the mechanism established in the Enabling Decision shows that there was a real effort to circumscribe and confine the infringement of privacy by adopting some of the primary norms prevailing in the field of protection of privacy of databases (see, e.g: secs. 5,7,9,10,15 and 16 of the Enabling Decision). However, the consent of the individual to collecting the information is a “central pillar” of the protection of the right to privacy (Michael Birnhack, Private Space: The Right to Privacy, Law and Technology 252 (2010) (Hebrew)). This is so because when an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated (Michael Birnhack, Control and Consent: The Theoretical Basis of the Right to Privacy, 11 Mishpat uMimshal 9, 13 (2008) (Hebrew); and see the Joint European Roadmap towards lifting COVID-19 Containment Measures of April 15, 2020, which explains that the use of cellphone applications for “contact tracing” must be carried out with full respect for the principles of protection of privacy, including that their use be voluntary).

            In addition, when we are concerned with information collected by the security agencies, transparency should be very strictly observed. In this regard, we would emphasize that the shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them (Amir Cahane, The Chilling Effect: Online Surveillance in the Days of Corona, CSRCL Blog (March 16, 2020)). However, there is some justification for the view that it is “desirable to remove much of the cloak of secrecy surrounding the ‘digital means’ […]. Even if these means in themselves must remain confidential (in order to maintain special intelligence collection capabilities)” (ibid.). Therefore, it would appear that in the present matter, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded.

39.       It cannot be denied that despite the infringement caused by employing the ISA’s tracking mechanism, that mechanism has significant advantages. Its use makes it possible to locate persons who came into close contact with a Corona patient quickly, and that makes a real contribution to saving lives and protecting public health by severing the chain of transmission. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.

40.       Striking the necessary balance is significantly influenced by the point in time when it is made. At the beginning of the outbreak of the virus in Israel, the choice to use the means available to the ISA derived from the “need to provide an effective means at record speed, and that was provided by the Service a short time after the Ministry of Health requested its help” (para. 163 of the Government’s Response of April 12, 2020). However, with the passage of time, it could be expected that in view of the Respondents’ own position that we are concerned with a highly effective means whose harm is undeniable, a serious effort would be made to find alternatives like those adopted elsewhere in the world, among them, use of the “HaMagen” application developed by the Ministry of Health, which are all based upon obtaining the consent of the person being tracked. This was also made clear in the meetings of the Service Committee, in which it was stated that “the State is obligated, together with its use of this exceptional means, this unprecedented means by the Israel Security Agency whose role is different and that was established for another purpose, to examine other, different alternatives” (transcript of the meeting of the Service Committee of March 30, 2020, p. 40). The Service Committee even suggested that seeking an alternative to the said means should be carried out by a competent professional entity that would conduct an organized study with the cooperation of experts in the field (ibid.).

41.       Indeed, the efforts to locate an effective alternative must continue uninterrupted. This conclusion can also be learned from the Enabling Decision itself. Section 13 states that “over the course of the period when this decision is in force, the minister of Health will consider the need for continued recourse to the Service, bearing in mind the restrictions upon the public’s activity imposed by the Government, or the existence of alternative possibilities for achieving the objective of the decision”. This provision reflects the understanding that in view of the extraordinary nature of the means currently in use, the government authorities must always consider whether the immediate needs still justify the severe means that it is employing. The Service Committee addressed this in stating:

Over the course of all the deliberations, the Committee stated that it was not comfortable with the use of the tool, and that it views it as something temporary. I find the need to state that again. The entire situation is exceptional – so we are permitting it with constraints and balances. But if it goes on, we will not be able to continue with this situation. We are not hiding this. We are saying this to everyone concerned. This is not the primary purpose of the ISA. It was not created for this purpose. The State will have to find alternative solutions, significantly reduce the use, or stop it as soon as possible (transcript of the meeting of the Service Committee of March 31, 2020, p. 34).

 

42.       In seeking such an alternative, consideration must be given to the substantive flaws in the current mechanism, and must particularly consider whether it is possible to achieve the necessary, important advantages by means of a transparent, voluntary mechanism.

 

The Journalists Union Petition

43.       The Journalists Union’s petition argues that the powers granted to the ISA in the Enabling Decision violate freedom of the press and the confidentiality of journalistic sources. It further explains that the problem does not end with the question of whether there is actually a technical fear of exposing of sources, but that the very use of a mechanism that affords a preventive security organization a possibility of tracking the “technological information” in all that regards journalists creates a chilling effect that could deter their sources.

44.       In the course of the hearing before us on April 16, 2020, we suggested that the Government Respondents consider a path agreed to by the journalists, by which a list of journalists holding press credentials would be given to the Ministry of Health, and that the Ministry would ask a journalist who tests positive for the virus to consent to providing his details to the ISA. If such consent be given, the mechanism would operate in the usual way. If the journalist would refuse, he will be granted 24 hours to petition the court for an order preventing the transfer of his data to the ISA. At the same time, he will undergo an individual epidemiological investigation, and will be asked to sign a declaration that he undertakes to inform any journalistic sources with whom he was in contact over the 14 days prior to his diagnosis. The Government Respondents considered the suggestion, and informed us, on April 20, 2020, that they could not agree to it. Instead, they offered a different path to which the Journalists Union did not agree.

45.       One cannot overstate the importance of freedom of the press in a democratic state, and preserving this principle is of particular importance during a national crisis of the type we are currently experiencing. In the hearing, the Journalist Union’s attorney pointed out that at this time of “social distancing”, most contacts with sources are conducted by telephone, and do not involve physical meeting. In the ex parte hearing, it was clarified that physical meeting is necessary for “contact tracing” by means of the mechanism employed by the ISA. Therefore, adopting the path that we have now suggested is, in any event, of limited scope, and is not expected to raise and particular difficulty. That being so, I am of the opinion that it should be applied as of the date of this judgment, and that we can expect that an arrangement in this spirit will be included in future legislation.

 

Conclusion

46.       These are unusual times. The outbreak of the coronavirus, and its spread throughout the world, have changed how we live. Under these unique, exceptional circumstances, the Government made a decision to employ technological means at the disposal of the ISA in order to perform epidemiological investigations, with the purpose of locating those who came into close contact with persons who had tested positive for the virus, and to inform them that they had to isolate themselves at home. The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. In my view, the term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation. At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic did, indeed, meet the said test. However, for the reasons stated above, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must me grounded in appropriate, primary legislation, such as a provisional temporary order. This is so given the fact that the means chosen by the State in the framework of the Enabling Decision is invasive and cannot be taken lightly. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. These extraordinary means were adopted in regard to a rare, extraordinary crisis by any metric. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.

47.       Therefore, if my opinion be accepted, I would recommend to my colleagues that we grant the petitions in the sense that, subject to what is stated in para. 34, above, as of April 30, 2020 it will not be possible to authorize the ISA to aid in confronting the coronavirus outbreak by means of the mechanism established under sec. 7(b)(6) of the ISA Law, and that should the State seek to continue to employ the means at the disposal of the ISA, it must take steps to establish that authorization in primary legislation. I would further recommend to my colleagues that in regard to journalists, the outline set out in para. 44, above, will be employed.

 

Justice N. Sohlberg:

1.         I concur in the considered opinion of my colleague the President, as well as with the opinion of my colleague the Deputy President in regard to the precautionary principle. On the margins of the matter, I will note an addition and register a reservation.

2.         Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls – by the language of the law and its legislative purpose – within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic indeed presented such a danger. Just as IDF soldiers are working to offer help in the city streets and in the homes of citizens, so the members of the ISA were mobilized to confront the harm of the coronavirus. The pressing needs of the hour required that such action be taken. The involvement of the ISA, and its attendant the shroud of secrecy, are “not pleasant but not terrible” (in the lenient view), and in any case not intolerable (in the strict view) due to the exigencies of the situation. In any case, the weeks that have passed, and the danger that is no longer what it was, require that we return to the “high road”, i.e., primary legislation, preferably as a temporary order, to allow for the participation of all of the Knesset members in the required decisions. The Government’s Enabling Decision will lapse in the coming days, and if the legislative process begins before that, it will be possible to extend the Government’s decision for the period required for a proper process by a legislature that proceeds quickly.

3.         Without detracting from my colleague’s correct statements on the right to privacy and intimacy, I would like to this: At the present time, when privacy and intimacy are notoriously trampled and “location data” are transmitted in every direction, it would seem to me that the violation of the “marginal utility” of privacy caused by the involvement of the ISA, in the manner that it is carried out, can be tolerated. Indeed, in these difficult times, all are required to show general civic responsibility and solidarity. It is reasonable to assume, and recent opinion polls indeed show a humane readiness to relinquish some measure of privacy in order to aid in the early detection of those infected. There is a clear willingness to stand strictly upon individual rights, due to a sense of responsibility for others and for society.

4.         A person with the coronavirus who has infected those around him – family, congregation, friends – suffers greatly. The Government Respondents correctly state that “the dignity of every person, as such, is expressed in his willingness to defend his family and himself, to act altruistically, and to aid in the defense of others” (para. 219 of the Government’s Response). Indeed, more than the violation of privacy, we have here protection of human dignity and liberty, the saving of one’s own life and that of his neighbor. And note: there is more work to be done to protect and ensure privacy and intimacy, and we must do it, but not necessarily in the given crisis that pits the right of privacy against the right to life and health of people and of the entire public – a life-threatening danger in the plain sense – and a real fear for Israel’s economy.

5.         As for the Journalists Union’s petition, my colleague the President and my colleague the Deputy President are of the opinion that there should be a special approach that would include a 24 hour hiatus during which a journalist who tests positive for the coronavirus can petition the court for an order that would prevent transferring his particulars to the ISA (paras. 44-45 of the opinion of the President; para. 7 of the opinion of the Deputy President). I hold a different view in this regard. It would seem to me that with all due respect for the importance of freedom of the press and journalistic confidentiality, inasmuch as the principle of journalistic privilege (which is, as we know, a relative privilege) is rooted in case law, it would appear to me to be problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press. I am not an expert on leaks, but it would appear reasonable – and so the Journalists Union’s attorney affirmed – that most of a journalist’s contact with sources is conducted by telephone. There is no fear of exposure in regard to such sources. The only fear, and it is very remote, is of the exposure of a source who physically meets with the journalist. And why is that a remote fear? Because the data processing mechanism operates automatically, and as a rule, the files produced are not opened except when a person who receives a text message from the Ministry of health (informing him that he must self-isolate due to exposure to a person who tested positive for Covid-19) questions the accuracy of the information, or in the course of an examination of random samples. Even then, there is only a miniscule chance that such a random examination might specifically hit upon the file of a journalist of such fame that his name will be recognized by the person performing the examination. When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested (paras. 6 and 7 of the Response of April 20, 2020), of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone. I will suffice with that.

6. As stated, I concur in the opinion of my colleague the President, subject to the above.

 

Deputy President H. Melcer:

1.         I concur in the comprehensive opinion of my colleague President E. Hayut.

            However, in view of the importance of the matters under discussion, I will allow myself to add several insights and emphases.

 

The Question of Authority

2.         The question presented to us was whether the Israel Security Agency (hereinafter: ISA or the Service) could be authorized to receive, collect, and process “technological information” concerning persons who tested positive for Covid-19 and those who were in close contact with them, and transfer that information to the Ministry of Health.

            The Respondents argued that the matter fell within the compass of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter: the ISA Law), which states as follows:

For the purpose of subsection (a) [which establishes the purpose of the ISA and its role – H.M.], the Service shall perform the following tasks:

[…]

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State.

            My colleague the President ruled that if the above conditions were met (a Government decision with the consent of the Knesset Secret Services Committee), and in view of the current extraordinary, special situation resulting from the coronavirus epidemic, then while there was a severe, immediate danger to the state’s citizens and residents due to the spread of the virus, it was possible to make limited (in time and substance) use of that subsection, and to make the Enabling Decision and its accompanying arrangement (hereinafter, together: the Enabling Decision).

            Under the circumstances, I concur with this limited ruling, as well as with the reasoning of my colleague the President and what derives therefrom, i.e., that for the purpose of fulfilling this role, the ISA (by means of its staff) is authorized to receive, collect and process “technological information”, and transfer it to those duly authorized in the Ministry of Health, in accordance with secs. 8(a)(1) and (2) and (3) of the ISA Law, and all bearing in mind that the said special activity is intended – under the time, event, substance and place conditions – to protect and advance essential national security interests of the State (that deviate from national security in the narrow sense).

            My colleague Justice N. Sohlberg notes in this regard – by way of comparison – the activity of IDF soldiers in the city streets and in citizen’s homes at this time, and I would like to point out that in order to permit such activity – when necessary – at the time, in 1995, legislative amendments were made (in sec. 18 of the Law and Administration Ordinance, 5708-1948, and sec. 26A of the Defence Service (Consolidated Version) Law, 5746-1986 (hereinafter: Defense Service Law)). See: Defence Service (Amendment No. 7 and Temporary Order) (Service in the Police and Recognized Service) Law, 5755-1995 (hereinafter: Amendment 7).

            In accordance with Amendment 7, sec. 18 of the Law and Administration Ordinance states that the armed forces of the State “shall have authority to do all lawful and necessary acts for the defence of the State and for attaining its national-security objectives” (the emphasized words were added by Amendment 7 in 1995). Pursuant to that, the said Amendment also added sec. 26A to the Defence Service Law, which provided for the possibility of recognized service, that the Minister of Defense would establish by order, with the consent of the Government and the Knesset Foreign Affairs and Defense Committee, in one of the following:

(2)       Service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required.

            For a detailed discussion of Amendment 7 and the possibilities it presents, see: my opinion in HCJ 6298/07 Ressler v. Knesset [15]; my article: The IDF as the Army of a Jewish and Democratic State, in Volume in Honor of Prof. Amnon Rubinstein – Law and Man, 14 Mishpat v’Asakim 347, 358-364 (Sept. 2012) (Hebrew).

            We thus find that in special, exceptional circumstances, and in a defined situation, it is possible to authorize the IDF and the ISA to act for the purpose of attaining national-security objectives that go beyond the defense and security of the State (in the narrow sense).

3.         Moreover, sec. 7(b)(6) of the ISA Law, together with the provisions of the ISA Law that I noted in para. 2, above, provides express authority to perform the activities under discussion in the petitions (under the conditions we established) – in the sense of the first condition of the Limitations Clause in sec. 8 of Basic Law: Human Dignity and Liberty (that is, that the violation be by a law, or by virtue of express authorization in such law). See the majority opinion in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [16] (hereinafter: the Mifkad Haleumi case).

            That case also provides an answer to the argument that the matter should have been arranged (if at all) in a primary arrangement (by primary legislation). Also see: my opinion in HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services [17]. However, in view of the significant dissent of President D. Beinisch and Justice E. Hayut in the Mifkad Haleumi case, it would seem to me that when the stage of pressing need for acting by virtue of sec. 7(b)(6) of the ISA ends (on April 30, 2020), it would be proper to arrange the matter – to the extent that it may still be relevant – in primary legislation by way of a temporary order, as recommended by my colleague the President and my colleague Justice N. Sohlberg, as long as such legislation meets all the other conditions of the Limitation Clause.

            I will now briefly turn to the matter of the proportionality of the path chosen and the arrangement set forth.

Examination of the Path Chosen and the Proportionality of the Arrangement

4.         The path chosen (authorizing the ISA by virtue of sec. 7(b)(6) of the ISA Law) was one of four alternatives examined, and that, after the Government had previously promulgated emergency regulations by virtue of sec. 39 of Basic Law: The Government.

            It seems to me that until the date set (April 30, 2020), that was, indeed, the preferable course under the circumstances. There are several reasons for this:

1. Emergency regulations do not require any “approval” (other than their promulgation by the Government, and submitting them to the Knesset Foreign Affairs and Defense Committee at the earliest possible date after their enactment – see: sec. 38(a) of Basic Law: The Government).
2. Emergency regulations, by virtue of sec. 39(c) of Basic Law: The Government, may alter any law, temporarily suspend its effect or introduce conditions, unless there be another provision by law (see, in this regard: sec. 12 of Basic Law: Human Dignity and Liberty). Here we should note, however, that after presenting the emergency regulations to the Knesset Foreign Affairs and Defense Committee, the Knesset may – by law or a decision of a majority of the members of the Knesset – revoke the emergency regulations (see: sec. 39(f) of Basic Law: The Government).

Thus, until the enactment of primary legislation in the form of a temporary order (if at all), there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.

At this point we should note that the Service Committee (chaired by MK Gabi Ashkenazi) admirably fulfilled its role in this regard, and conducted in-depth deliberations (some of which were open to the public) on the Enabling Decision that is the subject of the petitions, and added restrictions, changes, and various duties of notification (it also instigated the process that led to halting the advancement of the law to amend the Telecommunications Data Law – see para. 1 of the opinion of my colleague the President).

5.         Without detracting from what is stated in para. 4, above, concerning the choice to follow the course of an enabling decision until now – the proper course at present, to the extent that it may be needed, is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity (compare: Ittai Bar-Siman-Tov, Parliamentary Activity and Legislative Oversight During the Coronavirus Pandemic – A Comparative Overview (2020); Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            This is the place to make a few observations on the path established – which is the subject of these proceedings – without deciding upon the matter for the future, inasmuch as Prof. Sigal Sadetzky, Head of Health Services in the Ministry of Health, who appeared before us, informed us that the possibility of continuing, and even expanding the arrangement is being considered.

6.         The arrangement adopted in the Enabling Decision (after the changes introduced by the Service Committee), and the date established for its termination (April 30, 2020) met the criteria for proportionality under the Limitations Clause.

            In the framework of the third component of the proportionality requirement, I previously recommended the Precautionary Principle, which under certain circumstances is the lesser evil, inasmuch as better safe than sorry (see my opinion in HCJ 466/07 Gal-on v. Attorney General [18] (hereinafter: the Galon case); and see the opinion of my colleague Justice N. Sohlberg in HCJ 7040/15 Hamad v. Military Commander [19]; LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality [20], para. 37 and the references there; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [21], per Justice M. Mazuz writing for the Court).

            In the current emergency situation due to the Corona epidemic (as opposed to the disagreements that arose on the Gal-On case in this regard), it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle, and they are, indeed, doing so. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe. This is the case when there is a perceived significant threat of wide-spread, irreversible harm, even if it is only of low probability, and when there is no proven scientific certainty that the harm will be realized (the Gal-On case, paras. 34-42 of my opinion [paras. 17-24 of the English summary].

            Nevertheless, even the said principle requires setting limits, or as my colleague Justice E. Rubinstein expressed it in the Gal-On case, cautions must be adopted even in regard to the Precautionary Principle. In order to pass the proportionality test stricto sensu (or “the relativity test”, as my colleague Deputy President E. Rivlin called it in CrimApp 8823/07 A. v. State of Israel [22], and Prof. A. Bendor in his article Trends in Israeli Public Law: Between Law and Judging, 14 Mishpat uMimshal 377 (2012)) that caution requires, in my view, not to continue with the Enabling Decision (other than for a short period after April 30, 2020, as recommended by my colleague the President in para. 34 of her opinion), and to replace it (if at all) by a temporary order in primary legislation.

            There are a number of reasons for this:

1. Over and above the need for immediacy, use of the Precautionary Principle requires – beyond immediacy – parliamentary oversight even in emergency situations (this is so even in the opinion of critics of the principle, like Prof. Cass R. Sunstein, in his book Laws of Fear: Beyond the Precautionary Principle, p. 214 (2005)).
2. The existence of alternative, more proportionate means for achieving the same or similar purpose must be examined (both in terms of the second subtest for proportionality under the Limitations Clause, and under the third subtest of proportionality stricto sensu).
3. We must beware of sliding down the “slippery slope” in the use of the means that will be permitted or their continuation (see: Elyakim Rubinstein, On the Danger of the Slippery Slope, Parashat HaShavua, no. 65 (Ministry of Justice) (Hebrew); Dr. Menachem Finkelstein, The Slippery Slope, Judge Baruch Judges Bulletin, no. 4, p. 1 (Feb. 2011) (Hebrew), and see: AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority [23], para. 7(1) of the opinion of my colleague Justice E. Rubinstein, who stated:

Open for Me an opening like the eye of a needle and I will open for you an opening that wagons and carts can pass through (Shir HaShirim Rabba 5).

            In the hearing in the present matter, Prof. Saditzky explained that serological tests will be approved in the next few days, and that they may be able to replace – by mass testing (with immediate results) – the need to locate those who were in contact with persons who tested positive (in this regard we would emphasize that until now, due to the lack of sufficient test kits, and at the instruction of the Ministry of Health, not everyone who was located by the ISA as having been in contact with a person who tested positive was necessarily tested).

            Thus, given that until now there was no available alternative for achieving the objective of locating those who had come into contact with persons who had tested positive for the coronavirus, or to identify those who had contracted the virus, those who had not, and those who had developed antibodies, and the ISA had the ability to use its resources to help in this area (and thus, the situation differs in regard to what the ISA stated in the Gal-On case), it was possible to utilize the mechanism at the ISA’s disposal for this purpose, since it met all three criteria of proportionality, including the third subtest of relativity, inasmuch as: One who saves a single life “is considered as if he has saved an entire world” (Mishna Sanhedrin 4:5; Maimonides, Mishne Torah, Laws of the Sanhedrin 12:3).

            However, it would be appropriate to reexamine the entire complex (which was also the recommendation of the Service Committee), and this should be done by the entire Knesset in the timeframe set by my colleague the President in para. 34 of her opinion, while considering the alternatives that have been created in the meantime. In any case, any arrangement that may be made in the future (if at all) should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.

            This framework should also address the matter of journalistic privilege, which was raised in the Journalists Union’s petition, which I will address in the following subsection.

 

The Issue of Journalistic Privilege

7.         Journalistic privilege raises a special problem, inasmuch as the arrangement deriving from the Enabling Decision may infringe the confidentiality of sources that is fundamental to investigative journalism in general, and at present, in particular, as well as freedom of the press (Dr. Yisgav Nakdimon, Journalist’s Privilege (2013) (Hebrew)).

            In the present matter, I believe that the approach we have recommended, as set out in paras. 44 and 45 of the opinion of my colleague the President, is appropriate, and it would be appropriate to adopt it in any additional arrangement that may be made (if at all), and should be followed from now. This is required by the rule established in HCJ 3809/08 Association for Civil Rights v. Israel Police [14], mutatis mutandis to the present matter, (in that case, I was of the minority opinion that the rule should be extended to all case of privilege, and in the course of the hearing, it became clear that this is indeed the practice in regard to members of Knesset). My colleague Justice N. Sohlberg’s fear for the health of the source will, in any case, be resolved, inasmuch as the approach requires that the journalist himself warn his source.

 

Conclusion

8.         This case raised new issues that the world, the medical profession, and the legal field had not yet encountered. In this judgment, we tried – with the help of the authorities who addressed the entire issue and the accepted legal principles – to treat of a situation and provide solutions that, on the one hand, would save lives, while on the other hand, would protect the accepted constitutional rights by means of appropriate balancing and proportionality. We may hope that we will no longer have need for all of these in the foreseeable future, and that we will see better days. Let us hope.

 

            Therefore, it is unanimously decided to grant the petitions in HCJ 2109/20, HCJ 2135/20, HCJ 2141/20 in the sense that as of April 30, 2020, it will not be possible to authorize the ISA to aid in contending with the outbreak of the coronavirus by means of the mechanism established in sec. 7(b)(6) of the ISA Law, and that if the State seeks to continue to employ the means at the ISA’s disposal, it must act to establish such authority in primary legislation. To the extent that such legislation will progress, it will be possible to extend the force of the Enabling Decision for a short, additional period that shall not exceed a few weeks, in order to enable the completion of that process.

            It is further decided my majority decision (President E. Hayut and Deputy President H. Melcer concurring, and Justice N, Sohlberg dissenting) to grant the petition in HCJ 2187/20 in the sense that, in regard to journalists holding press credentials, the arrangement set out in para. 44 of the opinion of the President will be followed.

 

Given this day, 2 Iyyar 5780 (April 26, 2020).

 

 

           

 

 

 

 

HCJ 2435/20

Petitioners:                              1.  Yedidya Loewenthal, Adv.

                                                2.  David Izacsohn, Adv.

                                                3.  Moshe Lipel, Adv.

                                                4.  Zvi Zaks, Adv.

 

                                                            v.

 

Respondents:                          1.  Prime Minister Benjamin Netanyahu

                                                2.  Minister of Health Yaakov Litzman

                                                3.  Minister of Defense Naftali Bennet

                                                4.  Moshe Bar Simon, Director General, Ministry of Health

                                                5.  Minister of Public Security Gilad Erdan

                                                6.  Minister of the Treasury Moshe Kahlon

                                                7.  District Commander Roni Numa

                                                8.  National Emergency Network

                                                9.  Bnei Brak Municipality

                                                10.  Avraham Rubinstein, Mayor of Bnei Brak

 

Attorney for the Petitioners:   Pro se

Attorneys for Respondents 1-8: Nahi Benor, Adv.; Tehola Roth, Adv.

Attorneys for Respondents 9-10: Yehuda Leibowitz, Adv.; Ariel Yunger, Adv.

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice I. Amit, Justice A. Baron, Justice Y. Elron

 

 

Petition for order nisi and interim order

 

 

Israeli Supreme Court cases cited:

[1]       HCJ 8938/11 “All for Peace” v. Minister of Communications, (Feb. 24, 2015)

[2]       HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[3]       HCJ 5438/19 Jan Chibartkin v. Ministry of Justice of the State of Israel, (Feb. 26, 2020)

[4]       HCJ 13/80 Nun Canning Industries v. Ministry of Health, IsrSC 34(2) 693 (1980)

[5]       HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health, (May 12, 2011)

[6]       HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department, (Aug. 19, 2019)

[7]       HCJ 703/19 MBI Pharma v. Ministry of Health, (Aug. 26, 2019)

[8]       LAA 2199/20 Peshe Brook v. Ministry of Health, (March 24, 2020) [https://versa.cardozo.yu.edu/opinions/brook-v-ministry-health]

[9]       HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health, (March 26, 2020) [https://versa.cardozo.yu.edu/opinions/pardes-hanna-karkur-local-council-v-ministry-health]

[10]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 (2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[11]     HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367 (1997)

 

 

Judgment

(April 7, 2020)

 

Justice I. Amit:

1.         The coronavirus epidemic leaves its mark on every area of life. Since the outbreak of the epidemic in December 2019, the world has been contending with the rapidly spreading virus, which has, to date, left a long trail of over a million sick and tens of thousands of dead. Israel has not escaped this struggle, and sadly, as of the date of this writing, over 9,000 people have been diagnosed, and dozens have died.

            From a legal standpoint, the epidemic leads us through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom. Basic constitutional rights, like the right to privacy and property, freedom of occupation and freedom of movement in Israel are dumbfounded in the face of terms like closure, quarantine, encirclement, roadblocks, cellphone location tracking by the I.S.A., social distancing, etc. All of these file before us like a dystopian nightmare in a democratic state founded upon freedom of the individual. In normal times, such means would be summarily rejected as manifestly unlawful, but these are not normal times, and due to the “need of the hour” (TB Yevamoth 90b, Sanhedrin 46a), there is no alternative but to punish the public, although it did not sin and is not worthy of punishment.

2.         The present petition was submitted by four lawyers, residents of Bnei Brak, who ask that we issue an order nisi requiring that the Respondents explain why Government Decision no. 4958 of April 2, 2020, which declared the Bnei Brak municipal district as a “restricted zone” for six days (hereinafter: the Government Decision) not be revoked. The Petitioners also ask that we issue an interim order instructing the Respondents to refrain from exercising their authority under the said declaration until the petition is decided.

            Alternatively, the petition asks that we order the Respondents to provide basic food items to the city’s healthy and ailing residents, and to provide them with appropriate food, that is certified as kosher-for-Passover under rabbinical supervision acceptable to the city’s residents.

3.         The petition was brought before me last night. Due to its urgency, and with Passover soon upon us, I ordered Respondents 1-8 (hereinafter: the State) to respond to the petition by this morning at 10:00 AM (which was extended several times at their request, and the response was ultimately submitted at about 4:00 PM). In addition, I also allowed Respondents 9-10 (the Bnei Brak Municipality and the Mayor (hereinafter, collectively: the Municipality)) to submit their response.

 

Arguments of the Petitioners and the Municipality

4.         The Petitioners argue that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way relates to the prevention of its spread among the residents of Bnei Brak themselves. The Petitioners describe the severe consequences of the declaration, among them, they argue that the city’s residents have difficulty obtaining food, medicine, and medical treatment; that it mortally violates the residents’ freedom of occupation, their liberty, dignity and their freedom of movement. The harm is particularly severe given that we are concerned with a socially and economically deprived population that is characterized by large families and a low standard of living, given that the families have been imprisoned in their homes since several days prior to the imposition of the quarantine. The Petitioners describe the situation that has been created as “collective punishment”, and take this opportunity to complain of incitement against the ultra-Orthodox community in general, and the residents of Bnei Brak, in particular, and of the humiliation suffered by the city’s residents of ultra-Orthodox appearance, when they go out to purchase food and drugs.

            In addition, the Petitioners argue that the declaration was made “contrary to the obligatory constitutional norms”, that its provisions violate the International Covenant on Civil and Political Rights, that the provisions should have been established in primary legislation, and that the declaration does not meet the tests of proportionality. Lastly, they argue that the declaration was made without public debate, without sufficient evidentiary grounds, and in violation of the right to be heard. According to the Petitioners, they addressed a demand to revoke the declaration to the Respondents, but received no reply (I would note that contrary to what is stated in the petition, the Petitioners’ letter to the Respondents was not appended to the petition).

5.         The Municipality admitted, both at the beginning and at the end of its response, that all involved are working around the clock in the holy effort of aiding the residents of Bnei Brak.

            On the merits, the Municipality supports the petition, and joined its arguments. In its response, it argued that “the blood of the residents of Bnei Brak is no less red than that of the residents of Israel’s other cities,” and that from the outset, the Municipality expressed its opinion to the authorities that “it is wrong to adopt the historically unparalleled, draconian measures taken against the city of Bnei Brak alone”.

            The Municipality complained of the manner of making the decision that is the subject of the petition. It argues that before declaring Bnei Brak a restricted zone, the authorities should have heard its opinion, as it is better acquainted with the lifestyle of the city’s residents than any regulator, and is deeply involved in the city’s ongoing affairs. It claims that decisions affecting the fate of thousands of large families and thousands of elderly should not have been made without first obtaining complete, comprehensive information from the Municipality’s social services department, and without familiarity with the unique characteristics of the city’s population. For example, the Municipality (and the Petitioners) pointed out that a large portion of the city’s residents rely on “kosher” phones that cannot receive SMS messages intended to provide information to the city’s residents. Against this background, the Municipality asks that even if the Petition be denied, the Court order the end of the quarantine no later than the originally established date, and that no extension be made without prior, professional, interdepartmental consultation, and primarily, after consultation with the Municipality.

6.         The Municipality listed the following failures, one by one: The 104 call center of the National Emergency Network did not undergo basic training in regard to the special character and needs of the residents, and was not available for hours; there was no food delivery, and as a result, residents thronged the food distribution centers; there was a lack of even a basic response for support and solutions for the many sick people throughout the city; large families struggled to obtain food, drugs, and medical services. Doctors and other essential workers and service providers cannot enter the city, and those who are willing to do so just give up in the face of demands for presenting permits that no one knows how to obtain, if they can be obtained at all; people sent into quarantine in hotels complain of being ignored and abandoned; and the lack of supply of goods and food items, hygiene and other basic needs prevents the residents from properly preparing for Passover. The Municipality further complains that there was no consideration of the possibility of forbidding soldiers and security forces from moving about the city with their weapons, nor consideration of the fact that the very presence of thousands of soldiers, police and border patrol officers had a traumatic effect upon many of the city’s residents.

7.         On the legal plane, it is argued that the means adopted are disproportionate, and that they, therefore, do not meet the conditions set out at the end of sec. 12 of Basic Law: Human Dignity and Liberty, which establishes:

This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.

According to the Municipality, the trampling of the public’s basic rights to freedom of movement and liberty “for the medical needs of the handful of sick persons in Bnei Brak” is disproportionate. At the very least, no consideration was given to the possibility of isolating certain sick persons, given that their number is only about 900, some of whom are members of the same family, or to impose a quarantine only upon certain areas of the city rather than on the entire city. According to the Municipality, the harm caused by the quarantine outweighs its benefits, inasmuch as the overwhelming majority of the city’s residents are completely healthy, but they, too, have been imprisoned in the city due to the quarantine, and people suffering from chronic ailments who require medicine and treatment have also been harmed. It is further argued that the purpose of the quarantine is to prevent the transmission of the virus outside the city, and thus the fear that the State seeks to use the city’s residents as “guinea pigs” in order to test the herd effect, which is an improper purpose, and moreover, its effectiveness has not been proven.

8.         Like the Petitioners, the Municipality also emphasizes in its response that in addition to the harm caused and that will be caused to each and every one of the city’s residents, “no less important is the public harm and the stigma attaching to all the residents of Bnei Brak like a mark of Cain”. It is argued that the quarantine has resulted in wild incitement against the Bnei Brak public, and that the residents may be stigmatized as lawbreakers and “spreaders of disease”. Thus, the Municipality requests and demands that a message and declaration be sent out that “the fate of the residents of Bnei Brak is no different than that of all the citizens of the State of Israel”.

 

The normative framework

9.         In order to contend with the difficult situation created by the coronavirus epidemic, the Israeli Government exercised its authority under sec. 39 of Basic Law: The Government, and promulgated emergency regulations in regard to a number of subjects, which were intended to mitigate the danger of the spreading of the virus (see, inter alia, Emergency Regulations (Novel Coronavirus – Restriction of Activity), 5780-2020 (March 21, 2020); Emergency Regulations (Novel Coronavirus) (Isolation in a State Assigned Place of Isolation), 5780-2020 (April 2, 2020)).

10.       On April 2, 2020, the Israeli Government decided to promulgate Emergency Regulations (Novel Coronavirus) (Restricted Zone), 5780-2020 (hereinafter: the Regulations). This is the text of reg. 2(a) of the Regulations:

                        Declaration of a Restricted Zone

                        2(a)      If the coronavirus has significantly spread in a particular are in Israel, and the Ministerial Committee is convinced of the need for restricting entry and exit therefrom in order to prevent the spread of the illness outside the said area, it may, with the consent of the Government, declare the area a restricted zone, on the condition that during the period when the declaration is on force, there will be appropriate supply of necessary goods and services in the area.

            Pursuant to that, reg. 3 details a list of restrictions that would apply to a “restricted zone”, which treat of prohibiting exiting and entering the restricted zone, and a limited number of exceptions, among them: exiting for medical care, legal proceedings, the funeral of a first-degree relative, and entry by medical teams, social workers and the press, and entry for the purpose of supplying necessary goods and services.

            In addition, reg. 4 details the authorities granted to the police for the purpose of enforcing the provisions of reg. 3. It should be noted that under reg. 7, the Regulations will remain in force for a period of 30 days from the day of publication.

            [Parenthetically: Reg. 3 of the Regulations was amended in Emergency Regulations (Novel Coronavirus) (Restricted Zone) (Amendment), 5780-2020. The amendment establishes that where the Ministerial Committee declared a particular area as a restricted zone, it may also include in the declaration that “all or part of the restrictions listed in reg. 3 will apply, and it may establish exceptions to the application of the said restrictions, in accordance with the circumstances of the restricted zone” (Official Gazette 8460 of April 6, 2020, p. 1036)].

11.       In terms of authority, the promulgation of the Regulations is facially in accordance with the Governments’ authority under sec. 39 of Basic Law: The Government, subject to the various limitations as established by law and precedent. I see no need to address those limitations in the context of this petition, inasmuch as the Attorney General expressed his opinion on the matter in his letter to the Prime Minister of April 6, 2020, and a separate petition in this regard is currently pending before this Court (HCJ 2399/20 Adalah v. Prime Minister).

12.       There was good reason for our lengthy presentation of the arguments of the Petitioners and the Municipality. This is the first time in the history of the State of Israel that a quarantine was imposed upon a city within the Green Line.[1] Naturally, this unprecedented decision raises a variety of problems for implementation in the field. This petition, although it misses the mark here and there in terms of exaggeration and analogies to dark periods of history that were better left unmentioned, expresses the authentic distress of the residents of the city of Bnei Brak, which was placed under quarantine, such that none may leave or enter its gates. It is a bitter irony that Passover has changed from the festival of freedom to a holiday of families sheltering together, imprisoned between the four walls of their homes.  Indeed, the quarantine weights heavily upon the residents of Bnei Brak, and their cries have risen to Jerusalem and the Supreme Court.

13.       With all due understanding of the distress expressed in the petition and the Municipality’s response, in view of what is stated in the State’s response, the petition must be denied.

            On April 4, 2020, the day the Regulations were promulgated, the Government made the decision to declare the Bnei Brak municipal area “restricted zone” for a period of six days. From that perspective, the petition was submitted late – four days after the declaration and two days before the end of the original date set for the end of the period.  I would note that in their response, the Respondents have informed us that the present intention is to extend the period until April 10, 2020.

14.       In practice, due to the pace of events, with one decision following on the heels of another, the petition became partly “moot” within hours of its submission, due to the intention to impose a general closure upon the entire state, such that the residents of Bnei Brak will not stand alone in the campaign. However, the Municipality argues that precisely the fact that a quarantine is being imposed at this very hour upon other places throughout the country emphasizes the discrimination against the residents of Bnei Brak, inasmuch as the imposition of the quarantine to other places is more balanced and reasonable, and is more considerate of the needs of the residents.

15.       The declaration of Bnei Brak as a “restricted zone” followed a large number of incidents of infection in the city, and the fear of the unrestrained transmission of the virus. As noted, the petition before us challenges the legality of that declaration. According to the Municipality, two preconditions for declaring the city a restricted zone were not met: the quarantine is not necessarily required to stop the spread of the virus, and there is an absence of “appropriate supply of necessary goods and services in the area”. In the Municipality’s view, a distinction should be drawn between sheltering-in-place and quarantine, and the decision was made without data and without information.

16.       However, as we learn from the State’s response, the decision to impose a quarantine was not taken lightly, but was made only after consultation with the relevant professional bodies. Thus, the State pointed out that the decision was made on the basis of an expert epidemiological opinion of the Deputy Director of the Public Health Service in the Ministry of Health, Dr. Udi Kleiner, which was also signed on April 4, 2020.

            In that opinion, appended to the State’s response (Appendix R/3), Dr. Kleiner addressed the illness caused by the coronavirus, its spread in the world and in Israel, and the steps that had been taken in Israel in order to contend with the virus. It was pointed out that Israel has adopted a general policy of “social distancing” to lessen the outbreak of the virus, and while this policy has proven itself in terms of slowing the pace of the rise in cases over the last few days, there are still areas and towns in which there are indications of significant concentrations of illness and high rates of transmission. It was also noted that these concentrations are of both local and national significance, inasmuch as they may become the source of morbidity. Dr. Kleiner emphasized that imposing strict limits upon movement in a limited area in which there is significant morbidity and a high rate of transmission, inasmuch as this means “is more effective in preventing the spread of the epidemic than increasing the restrictions upon the entire state. This will make it possible to lower the rate of transmission in the restricted zone […] and in other areas, due to a reduction in the export of infection from the restricted zone to other areas”.

            Further on, the opinion sets out the criteria for establishing a restricted zone subject to additional limitations, which are: a high level of incidence relative to other areas; a significantly higher level of incidence that in the general population; high population density; and clear concentrations of respiratory ailment in the area in the report of the Israeli Center for Disease Control (hereinafter: ICDC). It was explained that meeting most or all of the criteria adds support for deciding to declare an area as a restricted zone.

            The opinion listed the following data in regard to the city of Bnei Brak:

            (-)        The number of sick in the city stands at 966 to date (the 2^nd highest rate of incidence and number of patients in the Israel), 418 of them were added over the last three days (about a fifth of the number of people testing positive over those days);

            (-)        The rate of incidence stands at 492.1 per 100,000 residents (no. 4 in Israel among towns with a population exceeding 5,000 persons), as opposed to a rate of 76.1 in Israel (according to a rate of incidence of 6,852 among 9 million residents);

            (-)        A population density of 26,368.4 persons per square kilometer (the most densely populated city in Israel by a significant margin among towns with a population exceeding 5000);

            (-)        A clear concentration of respiratory illness according to the ICDC analysis, and over time.

            We should note that the opinion was accompanied by a report of concentrations of the ICDC, and a slide detailing the ten leading towns in terms of illness and number of patients in Israel as of April 1, 2020.

            The position of the opinion’s author was that in weighing the data, “the city of Bnei Brak currently constitutes an exceptionally significant center of illness, which will undermine the national effort to lessen the coefficient of contagion”. It was noted that the city of Bnei Brak meets all of the criteria for establishing a restricted zone, and accordingly, severe restrictions upon movement must be imposed.

            As stated, on the basis of the opinion, the Government made a unanimous decision to declare the municipal area of Bnai Brak a restricted zone for a period of six days. It is that decision that is challenged by the petition.

17.       It is settled law that when the Court reviews a decision by a governmental agency, it does not presume to stand in its shoes and make decisions for it in its area of expertise. It is not the practice of this Court to intervene in matters of the agency’s policy, and this is particularly so in regard to policy that is based upon clearly professional data, and where the decision is of a clearly professional nature under the agency’s authority and expertise. That is the case in general (see, among the many cases: HCJ 8938/11 “All for Peace” v. Minister of Communications [1], para. 18; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [2], para. 11; HCJ 5438/19 Jan Chibartkin v. Ministry of Justice [3], para. 16), and it is particularly the case in regard to professional matters concerning public health (HCJ 13/80 Nun Canning Industries v. Ministry of Health [4], 695-696; HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health [5], para. 39; HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department [6]; HCJ 703/19 MBI Pharma v. Ministry of Health [7], para. 19; and see the recent cases concerning the coronavirus epidemic:  LAA 2199/20 Peshe Brook v. Ministry of Health [8], para. 6; HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health [9]).

            While we are not concerned with a regular administrative decision, but rather with a Government Decision by virtue of emergency regulations, we are concerned with a clearly professional matter. The Ministry of Health outlined a policy of reducing contact, to the extent possible, among the population, together with isolation of validated patients. In that framework, as fully explained in the response, various restrictions were imposed that were intended to prevent congregating, which is a fertile ground for infection, restricting movement in the public domain, closing educational, cultural and leisure institutions, and places of work and commerce. According to the data and the status report, this policy has borne fruit in the form of a slowing of the pace of the increase in patients. The general status report for the state shows areas and towns in which the concentration of incidence is significant and the rate of transmission high. This has both local and national impact. Thus, the position of the professional organs is that severe restrictions on movement be imposed on these areas, in the form of declaring the area a “restricted zone”, with the resultant extreme limitations on going out in public areas and restrictions upon entering and exiting the area. This was done to reduce the “export” of infection to other areas, and to prevent the entry of infected persons who might further increase the number of those infected. As stated, as of the present time, the professional bodies have established a number of parameters for examining whether and when to declare a particular area a “restricted zone”: the number of infected persons in the area as compared to other areas; the rate of morbidity in the area relative to the general rate in the population; population density; and locating a clear concentration of respiratory illness in the area.

            On the basis of these parameters, and as stated in the aforementioned expert opinion, the data showed that Bnei Brak is a significantly exceptional center of illness – the number of patients, the morbidity, and the population density required adopting the unprecedented step of declaring the city a “restricted zone”.

18.       The stage theory  that applies constitutional review is well known: a violation; the limitations clause with its four stages (by law or by virtue of a law,  befitting the values of the State of Israel, for a proper purpose, and proportionality in accordance with the three subtests), and the remedy (Aharon Barak, The Constitutional Right and its Violation: The Three-Stage Theory, 19 Mishpat Umemshal 119 (2018) (Hebrew). I will now examine the challenged decision in accordance with the three-stage theory that applies to constitutional review, as briefly as possible, and without digressing into dissertations. The time for that will come after the plague has passed and the dust has settled, and we will leave it to the academic scholars to expand.

19.       Clearly, the declaration of Bnei Brak as a restricted zone involves a number of violations of basic rights, like freedom of movement. The purpose of the severe restrictions imposed upon the city’s residents is clear – protecting the health and lives of the city’s residents and the residents of the entire State of Israel. In accordance with the professional discretion, and the data available to the decisionmakers – the scope of illness in the city, the rate of infection, and the population density – there was no recourse but to declare the city of Bnei Brak a “restricted zone”, and thus the declaration was made for a proper purpose.

20.       The three subtests are well known: the rational connection test, the necessity test (the less harmful means), and the proportionality test stricto sensu.

            There is a clear rational connection between the means and the purpose, and I see no need to elaborate. The second subtest – the less harmful means – examines the matter on a metaphoric ladder: was it possible to adopt a “lower” rung on the ladder that would be less harmful to the right? In the present case, there is no denying that the means of quarantine, or more precisely, declaring the city of Bnai Brak as a “restricted zone”, is a very high rung on the ladder. However, it is not sufficient to show that there are other means that would violate the right to a lesser degree. The requirement is that the means to achieve the purpose do so in an appropriate and necessary manner (see, among many: HCJ 10203/03 Hamifkad Haleumi v. Attorney General [10], para. 51 per Justice Naor). Weighing the less harmful means where there are several alternatives is contingent upon whether the means realize the law’s purpose equally (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [11], 387).

            The State proceeded up the ladder in adopting the means employed. The declaration did not appear as a bolt from the blue and as the first step adopted. It was adopted after less harmful means, of the type imposed on the general population, were imposed but did not yield the desired results. In view of the number of people infected and the rate of transmission, and against the background of the city’s extreme density, there were no the less harmful means available that could provide the necessary response for stemming the spread of the virus outside the Bnei Brak area at this time. Thus, the second subtest was met.

            In regard to the proportionality stricto sensu test – a cost-and-benefit test – we can only rely upon the professionals, who are of the opinion that there was no recourse but to impose the restrictions of a “restricted zone” in order to stem the spread of the virus. The cost, which is certainly high from the perspective of the city’s residents, “is worthy of the king’s trouble” [Esther 7:4] when it is preserving the health and lives of the residents of city and the entire State of Israel.

21.       The quarantine is not hermetic, as we see from the exceptions established in the regulations themselves, and in light of the details provided in the State’s response, inter alia: the National Emergency Network was authorized to permit individual requests in areas not listed in the Regulations; a mechanism was established for addressing exceptional cases; the SMS response of the 104 call center can be received by “kosher” phones; and in addition, the development of a liaison system through the police is currently underway.

22.       We have noted the State’s undertaking that the Homefront Command is acting and will continue to act to assist the city in regard to necessary goods and services. We were informed that, to date, 13,800 meals, including food packages for individuals and families, have been distributed; informational material appropriate to the city’s unique population was distributed; and special assistance was provided to at-risk populations, with emphasis on food and medicine. The State is working on the removal of validated and isolated patients from the city to dedicated apartment hotels that have been specially prepared for that purpose, in order to prevent circles of infection around the patients. The hotels were prepared and adapted with a mind toward the special needs of the ultra-Orthodox population in general, and in particularly in view of Passover.

            We further note that there are ongoing evaluations of the situation in accordance with updated data, and where there is no further justification for the restrictions, or where it is possible to suffice with less restrictive means, the restrictions will be eased or removed.

23.       We face an unprecedented situation of fear of the rapid spread of the coronavirus in large numbers, with all that portends in terms of morbidity, death, and the collapse of the health system. In the horizontal balancing of rights, we now place the violation of fundamental liberties and rights like freedom of movement against the right to life and physical integrity – an uncommon situation in our state. In that horizontal balance, the right to life prevails.

 

Before concluding

24.       While we write these lines, the Petitioners have filed a request for an interim order and for an expedited hearing of the petition. This is brought in response to the State’s announcing its intention to extend the declaration for two additional days, until April 10, 2020, and that the Government will hold a teleconference to approve the extension.

            That decision has not yet been made, but in any case, in view of the above, we find no cause for granting an interim order. It would not be superfluous to point out that, according to what has been reported by the media, the extension of the various restrictions until April 10, 2020 is intended to apply to all residents of the Israel.

 

Conclusion

25.       We see no grounds for intervening in the Government’s decision. Even if we can understand the painful sense of humiliation expressed between the lines of the petition – the humiliation of the residents of Bnei Brak – we need only point to the State’s response, which completely rejected the claim of discrimination against the residents of Bnei Brak for their social and religious affiliations. We act under the presumption that, in this matter, the Government made its decision on the basis of the recommendations of the professional organs, and solely for relevant reasons.

            Although we have denied the petition, we find it proper to observe that the Government’s response provided no real answer to the Municipality’s claim that the decision was made without conferring with it. This may be because the Municipality’s response was submitted shortly before the State submitted its response, and thus it did not have adequate time to respond in that regard. In any case, without addressing the factual veracity of the claim, if this was not done, it would seem that there is merit to the Municipality’s complaint, and the State must take note of this, unless there are material reasons for not doing so.

26.       This is a time of distress for all Israel, as is reflected in this petition. Let us hope that the coming festivals of Passover, Easter, Ramadan and the Prophet Jethro (Nabi Shu’eib) will mark a turning point.

            The petition is denied without an order for costs.

 

Justice A. Baron:

            I concur.

Justice Y. Elron:

            I concur.

Decided as stated in the opinion of Justice I. Amit.

Given this day, 13 Nissan 5780 (April 7, 2020).

 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioner in HCJ 2141/20:                             Adalah – Legal Center for Arabl Minority Rights in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

Petitions for order nisi and interim order

 

Decision

 

1.         These three petitions challenge the Government’s decision to promulgate two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to aid in the national effort to limit the spread of the new corona virus), 5780-2020 (hereinafter: the ISA Regulations); (2) Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations). The regulations permit the collection, processing and use of “technological data” of persons who have contracted the new corona virus (hereinafter: the virus), in order to combat the spread of the corona epidemic.

2.         In a hearing on the petitions today – March 19, 2020 – serious legal issues were raised concerning – inter alia – the absence of parliamentary oversight of the process of promulgating the regulations and the manner of their implementation, as well as constitutional questions that require examination.

3.         The petitions in HCJ 2135/20 and HCJ 2141/20 were filed immediately prior to the time set for the Respondents to submit their response to the petition in HCJ 2109/20, which had been filed on the previous day. That being the case, the Respondents did not have sufficient time to prepare their written response to the arguments raised in these two petitions prior to the hearing. The Respondents requested that we permit them to submit a supplementary response in this regard. In view of the urgency of the matter, we order that it be submitted by Sunday at five p.m. In their supplementary response, the Respondents will address the following fundamental questions:

            (a)        Does the declaration of a state of emergency under sec. 38 of Basic Law: The Government also relate to emergency situations that do not arise from security concerns?

            (b)       Can the Israel Security Agency be granted authority to act in areas that do not concern state security by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002?

            (c)        Does sec. 39(d) of Basic Law The Government, which states: “Emergency regulations may not […] infringement upon human dignity”, impose an absolute restriction upon violating the right to human dignity, or is such a violation subject to the conditions established under sec. 12 of Basic Law: Human Dignity and Liberty?

4.         At this stage, we are making an interim order, stating:

A.        As regards the ISA Regulations – if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision.

B.        Without derogating from the above sec. A., the ISA Regulations will be implemented at this stage exclusively for the purpose of locating persons who were in the vicinity of persons with a positive laboratory result for nCoV, and in accordance with the classified directives presented to us ex parte, with the consent of the Petitioners, which were approved by the Attorney General.

C.        If a decision is made to impose a general closure before Tuesday, March 24, 2020, it will be possible to reexamine the need for implementing the authorities under the ISA Regulations and the compatibility of the interim order with that situation.

D.        At this stage, and until another order, there shall be no implementation of the authorities granted under the Police Regulations. In this regard, we would note that in the hearing before us, the Respondents informed the Court that, at this stage, the procedure mentioned in sec. 4(A2) of the Criminal Procedure (Enforcement – Authorities Telecommunication Data) Law, 5768-2007) (hereinafter: the Telecommunication Data Law), which was added to that law by virtue of the Police Regulations, had not been completed. Therefore, these regulations have, in any case, not been implemented. It was further explained that, at this stage, there is no intention to make use of the authorities granted to the police under these regulations by virtue of sec. 4(A1)(1)(a) of the Telecommunications Data Law.

5.         When the material mentioned in para. 3, above, ahs been collected, we will decide upon the how these all these petitions shall proceed.

Given this day, 23 Adar 5790 (March 19, 2020).

 

 

CrimA 9203/18

 

 

 

 

Appellant:                              Elad Gabber

                                                     

                                                      v.

 

Respondent:                           Attorney General

                                                           

 

 

On behalf of Appellant:         Adv. Avigdor Feldman; Adv. Yahel Ben-Oved; Adv. Yemima Abramovich

 

On behalf of Respondent:      Adv. Avi Kronenberg; Adv. Shiran Cohen

 

 

In the Supreme Court sitting as a Court of Criminal Appeals

 

Appeal on the judgment of the Jerusalem District Court (Judge C. M. Lomp) in Extradition Case 62059-12-17 (Oct. 21, 2018).

 

 

Israeli Supreme Court cases cited:

 

[1]       HCJ 8501/11 Gabber v. Judge Alexander Ron, (Dec. 15, 2011).

[2]       CrimA 2490/18 Journo v. State of Israel, (January 8, 2019).

[3]       CrimA 4596/05 Rosenstein v. State of Israel, IsrSC 60(3) 353 [2005] https://versa.cardozo.yu.edu/opinions/rosenstein-v-state-israel

[4]       CrimA 6182/98 Sheinbein v. Attorney General, IsrSC 53(1) 625 [1999].

[5]       CrimA 2258/11 Dern v. State of Israel, (June 20, 2012).

[6]       CrimA 2144/08 Mondrowitz v. State of Israel, (Jan. 14, 2010) https://versa.cardozo.yu.edu/opinions/mondrowitz-v-state-israel

[7]       CrimA 3439/04 Bazak v. Attorney General, IsrSC 59(4) 294 [2004].

[8]       CrimA 3915/15 Yam v. State of Israel, (Sept. 6, 2015).

[9]       CrimA 5227/10 Yuval v. State of Israel, (April 2, 2012).

[10]     CrimA 8801/09 Mayo v. Attorney General, (Sept. 21, 2010).

[11]     CrimA 7376/10 Novak v. Attorney General, (May 16, 2011).

[12]     CrimA 2521/03 Sirkis v. State of Israel, IsrSC 57(6) 337 [2003].

[13]     A. v. Attorney General, (March 12, 2009).

[14]     CrimA 6384/11 Ben Haim v. Attorney General, (Feb. 5, 2014).

[15]     CrimA 739/07 Efrat v. Attorney General, (June 7, 2007).

[16]     CrimA 6328/12 State of Israel v. Poldy Peretz, (Sept. 10, 2013).

[17]     HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 53(3) 289 [1999].

[18]     CrimA 7621/14 Gotsdiner v. State of Israel, (March 1, 2017).

[29]     LCrimA 1611/16 State of Israel v. Vardi, (Oct. 31, 2018) [English summary: https://versa.cardozo.yu.edu/viewpoints/summary-cases-2018-19-term#LCrimA1611].

[20]     CrimA 4855/02 State of Israel v. Borovitz, IsrSC 59(6) 776 [2005].

[21]     CrimA 7014/06 State of Israel v. Limor, (Sept. 4, 2007).

[22]     CrimA 8080/12 State of Israel v. Olmert, (Aug. 6, 2014).

[23]     CrimA 4506/15 Bar v. State of Israel, (Dec. 11, 2016).

[24]     CrimA 1690/09 A. v. State of Israel, (Oct. 10, 2010).

[25]     CrimA 3680/09 Silverman v. State of Israel, (Nov. 9, 2009).

[26]     CrimA 6717/09 Uzipa v. Attorney General, (Dec. 6, 2010).

 

 

 

J U D G M E N T

 

(July 14, 2019)

 

 

Before: Justice U. Vogelman, Justice D. Barak-Erez, Justice Y. Willner

 

 

 

Justice U. Vogelman:

 

            This is an appeal on the judgment of the Jerusalem District Court (Judge C. M. Lomp), in which the Appellant was declared extraditable to the United States pursuant to sec. 9(a) of the Extradition Law, 5714-1954 (hereinafter: the “Extradition Law”).

 

Summary of the Relevant Facts

 

1.         On March 13, 2017, the United States Government filed a request to extradite the Appellant, born in 1982 (hereinafter: the “Extradition Request” or the “Request”). According to the Extradition Request, during the years 2010-2011, the Appellant initiated contact with female minors through on-line platforms for the purpose of documenting them while performing sexual acts. The Appellant recorded the minors, sometimes without their knowledge, and sometimes while presenting himself has a teenager. Thereafter, the Appellant approached the young women via social networks and solicited them to perform acts of a blatant sexual nature, while broadcasting live video. According to the Request, this was done by threatening that the documentation  in his possession would be forwarded to their acquaintances and parents if they were to refuse. Many of the young women succumbed to the Appellant’s extortion. Others refused, and the Appellant carried out his threats. According to the Request, the Appellant approached approximately 150 female minors, aged 12-17, in this manner, and held a large number of pictures and videoclips in his possession.

 

2.         According to the Extradition Request, on August 15, 2014, a grand jury returned an indictment, filed against the Appellant in the Federal District Court of the State of California, for producing child pornography; coercing and soliciting a minor to perform sexual acts; extortion; and distributing child pornography. The indictment includes acts that relate to 19 female victims. Concurrently, an arrest warrant was issued against the Appellant.

 

3.         The Extradition Request was supported by an affidavit of prosecutor Lana Morton-Owens (hereinafter: the “Morton-Owens Affidavit”). The affidavit details the evidence against the Appellant: the victims’ testimonies, information from the platforms that the Appellant used, the content of the digital devices that were seized, and more. On November 1, 2017, the Minister of Justice instructed that the Appellant be brought before the Jerusalem District Court in order to determine whether he is extraditable.

 

            It should be noted that concurrently with the filing of the petition to declare the Appellant extraditable, a request was filed for his arrest until the completion of the extradition proceedings. Upon the consent of the parties, the Appellant was placed under electronic monitoring while the proceeding was being conducted.

 

4.         To complete the picture, it should be noted that a number of years before the Extradition Request was filed, on February 2, 2012, the Jerusalem Magistrates Court (Judge A. Ron) convicted the Appellant, based on his guilty plea, of offenses of willful infringement of the privacy of another and unlawful penetration into computer materials. The Appellant was sentenced to six-months of imprisonment to be served by community service, as well payment of compensation and a fine (CrimC (Jerusalem Magistrates) 36144-08-11 State of Israel v. Gabber (Feb. 22, 2012)). In that proceeding, the victims of the offense were Israelis, and some of the offenses were committed directly upon the victims and not via a computer. The Appellant’s argument that the information should be amended and that he should also be convicted of additional offenses to which he confessed, was rejected, as was his appeal (CrimA (Jerusalem District) 44985-02-12 Gabber v. State of Israel (May 9, 2012)). Additionally, a petition that the Appellant filed in this matter with the High Court of Justice (HCJ 8501/11 Gabber v. Judge Alexander Ron [1] (December 15, 2011) (hereinafter: “HCJ Gabber”)) was denied.

 

The District Court’s Judgment

 

5.         On November 29, 2018, the Jerusalem District Court (Judge C. M. Lomp) ruled that the Appellant was extraditable to the United States. The court first found that there is an extradition treaty in force between Israel and the United States, as required under sec. 2A(a)(1) of the Extradition Law, and that the “double criminality” requirement was met in the Appellant’s case, meaning that the offense for which he was charged in the United States is an offense in Israel that carries a sentence of imprisonment of one year or more. It was further held that there was sufficient evidence for the Appellant to be brought to trial in Israel – or a “basis for the charge” – and that the Appellant did not dispute this, except with regard to item no. 53 of the indictment – a claim that the court held should be clarified in the primary proceeding.

 

            The court found that the offense’s “center of gravity” is not in Israel, but rather in the United States. While it was indeed stated that the offense was committed and the investigation took place in Israel and that the Appellant is an Israeli citizen, however, the court held that where offenses that are committed via the internet are concerned, there is less significance to the physical location of the computer from which the offenses were committed. The court held that in this case the legally protected interest is of the citizens of the United States, whose authorities initiated the investigation. Additionally, the court stated that the fact that the Appellant’s case had already been addressed in Israel does not indicate that the majority of contacts is in Israel, inasmuch as he had stood trial in Israel for acts that were directed against Israeli victims, as specified above, some of which were even committed directly upon the victims of the offenses and not via a computer. It was held that it would be inappropriate to interfere in the discretion of the prosecutorial authorities that chose to charge him only for offenses that were committed vis-à-vis Israeli victims, and not for the remaining alleged offenses. It was further held that the fact that the Appellant admits to what is attributed to him does not make a difference in this context, and that the conclusion does not change in light of the enactment of Basic Law: Israel – The Nation State of the Jewish People (hereinafter: “Basic Law: The Nation State”).

 

            As to the delay in filing the Extradition Request, it was held that the extradition does not violate public policy. The court stated that the exception should be applied narrowly, and that a heavy burden of proof is required in light of the important interests inherent in extradition laws. The court ruled that the delay, which indeed occurred in filing the request – approximately 6 years from the time the evidence against him was discovered until it was filed – does not justify not extraditing the Appellant, since at issue are not “exceptionally exceptional” circumstances of delay within their meaning in case law. The court stated that the investigation was prolonged due to the identifying of the many victims and interviews that were held with many of them; the examination of a large volume of digital material; and additional evidentiary obstacles, which were not influenced merely by manpower considerations, as the Appellant argues. The court stated that the relevant instance in the United States will be able to address the matter of delay as part of examining the claim of alleged miscarriage of justice.

 

            The court also rejected the Appellant’s claim of selective enforcement in comparison to CrimC (Tel Aviv District) 37053-04-17 State of Israel v. Anonymous [2] (Nov. 22, 2018) (hereinafter: the “Anonymous case”). It was found that the Anonymous case concerned offenses of possession of obscene materials of minors, while the present case also concerns indecent acts, i.e. acts actively committed, attributed to the Appellant. The court stated that in the present case there are victims who might be required to come to Israel in order to testify if the Extradition Request were denied, while in the Anonymous case the evidence comprised only documents and media files.

 

            Finally, the court rejected the argument that the anticipated term of the Appellant’s imprisonment in the United States is very lengthy compared to the situation in Israel, since it is presumed that whoever commits an offense shall bear the punishment that is customary in the country whose citizens he harmed, and since examining applicable punishment would render extradition law a nullity. The court stated that the Appellant would be able to request to serve his sentence in Israel, pursuant to sec. 1A of the Extradition Law.

 

            And now to the appeal before us.

 

The Appellant’s Arguments

 

6.         The Appellant argues that he should stand trial in Israel and should not be extradited to stand trial in the United States. According to the Appellant, the center of gravity of the offenses that are attributed to him is in Israel, since the offenses were committed in Israel and the investigation material was gathered here. According to him, during his trial in 2011 he admitted to all the offenses for which he was investigated, including those that are included in the American indictment, and requested to stand trial for them in Israel. According to him, his request was denied since the investigation regarding the other offenses had not yet been completed at that time. The Appellant claims that in light of his admission, and in light of the fact that the charges are based on materials from his computer, there is no need at all to bring the victims of the offenses to testify. The Appellant further argues that given the enactment of Basic Law: The Nation State, which establishes the connection between Jewish Israeli citizens and their state as a fundamental principle, it should be held that he – as a Jewish Israeli citizen – should stand trial in Israel, since in the present case, the Basic Law indicates that the center of gravity is in Israel. According to him, a proceeding of deporting – even temporarily – an Israeli citizen may not be compatible with the values of the State of Israel. The Appellant argues that in the present case there is no explicit contradiction between the Extradition Law and Basic Law: The Nation State, as opposed to the situation in CrimA 2490/18 Journo v. State of Israel [2] (January 8, 2019) (hereinafter: the “Journo case”).

 

7.         According to the Appellant, the American indictment was filed with significant delay, even though it is based on materials that were already gathered in 2011, and without a satisfactory explanation being provided. The Appellant argues that there is no basis for the argument that such extended time was necessary in order to complete the investigation. The Appellant further argues that he has been living in the shadow of the risk of extradition for 7 years, and this has taken heavy psychological and economic tolls on him and his mother, his only family, and that this amounts to a miscarriage of justice and violates his right to due process. It was argued that it was inappropriate to leave the discussion on this matter to the American instance. The Appellant states that he never fled the law and that he took responsibility for his actions, and argues that this should be given consideration in the decision regarding his extradition.

 

8.         The Appellant raises a number of additional arguments. As to the offense of extortion that is attributed to the Appellant, he states that its statute of limitations under American law lapsed in 2016, such that the double criminality requirement is not met, and he should not be extradited for such offense. Additionally, the Appellant alleges selective enforcement compared to the case of Anonymous, who, as noted, was not extradited to the United State, despite many points of contact. According to him, these cases are not different. The Appellant further argues that there are no grounds for charge no. 35 in the American indictment, since it relates to a time when the Appellant was under arrest, and therefore could not have committed the acts attributed to him.

 

The Respondent’s Arguments

 

9.         The Respondent argues that there is no cause to intervene in the District Court’s decision and that the declaration of the Appellant as extraditable should remain in effect. According to the Respondent, the majority of contacts of the offenses that were allegedly committed by the Appellant are in the United States, since the harm to the victims occurred there and the legal proceedings against the Appellant were initiated there. It was argued that the center of gravity is not in Israel, since the Appellant could have committed his actions in any other state, and that the investigation in Israel was carried out pursuant to a request for legal assistance that was filed by the United States. According to the Respondent, it is proper to allow the victims of the offenses to participate in the legal proceeding in their country and in their language, and to allow them to choose whether to testify. According to the Respondent, the prosecution has broad discretion, and it chose not to try the accused for his actions that were directed towards minors in the United States, but only for his actions that were directly committed in Israel. The Respondent states that the Appellant’s argument that it was appropriate to consolidate the charges against him had already been rejected. As to the implications of Basic Law: The Nation State, it was argued that, as had already been held, it cannot prevent the extradition of an Israeli citizen, particularly in light of the exception prescribed in sec. 1A of the Extradition Law, which allows an Israeli citizen to serve the sentence – if such shall be imposed – in Israel.

 

10.       Regarding the argument of delay, the Respondent argues that no delay that amounts to a violation of public policy occurred, in light of the complexity of the investigation and the ongoing relationship between the authorities in Israel and in the United States. It was argued that the indictment was only filed in 2014 because there was a large number of victims – approximately 150 minors – who were spread across the United States, that extradition proceedings take a considerable amount of time, and that in that framework the authorities were also required to perform supplementary actions in order to verify the affidavits that had been taken.

 

11.       As for the other arguments, as far as the claim of selective enforcement is concerned, it was argued that the said Anonymous case is not similar to the case at hand, and that the analysis of the center of gravity in this case is completely different. With regard to the Appellant’s argument that the statute of limitations of the extortion offense had lapsed, the Respondent argues that the statute of limitations should be examined in light of Israeli law, pursuant to sec. 2B(a)(6) of the Extradition Law, and that since the offense of blackmail by threats is a felony – its statute of limitations has not yet lapsed, and that in any event, the investigation and the filing of the indictment stopped the clock on the statute of limitations. Finally, with regard to charge no. 53, it was argued that the indictment states that the act was committed “on or about” a certain date, and that the issue is a defense that should be examined in the framework of the criminal proceeding by the trial court in the United States.

 

Request to Introduce New Evidence

 

12.       The Appellant filed a request to introduce new evidence on appeal – psychological diagnoses that he underwent after the judgment had been delivered – which, he argued, could change the ruling. It was argued that it emerges from the expert opinion that the Appellant has second (of three) degree autism and personality disorders, a condition requiring behavioral and communication support. The Appellant states that while he did not claim in the District Court that his condition prevents extradition, the court was aware of the situation and took it into consideration in the decision not to order that he be held in custody. According to the Appellant, his condition should be taken into consideration, since he cannot conduct himself independently. Additionally, according to him, the justification not to extradite the accused in the Anonymous case was due to him suffering from autism, a fact that has relevance to the question of selective enforcement in the case at hand.

 

13.       The Respondent argues that the request should be denied. It is argued that the Appellant’s condition was already known since the beginning of the extradition proceedings, and that it was even agreed that he be released from arrest in order to receive medical opinions – but the Appellant refrained from filing them during the proceeding. It was argued that case law indicates that arguments regarding anxiety caused by the uncertainty involved in the extradition proceeding are to be rejected, and that it must be remembered that despite the Appellant’s alleged communication difficulties, he successfully convinced approximately 150 minors to perform sexual acts.

 

14.       Following the hearing we held on the appeal on May 2, 2019, the Appellant filed an additional request to introduce new evidence. The Respondent maintained his objection to the introduction of the evidence. In our decision dated June 17, 2019, we allowed the Appellant to introduce the said evidence, without taking any position on the merits of the matter. On June 24, 2019, the Appellant submitted the evidence, which includes a diagnosis by a medical committee of the National Insurance Institute, headed by Prof. Baruch Shapira, dated April 30, 2019, which states that a medical impairment of autism was found – as well as a confirmation of a permanent, weighted medical disability of 50%, as well as a confirmation of entitlement to a general disability allowance in the amount of NIS 3,312, due to 100% incapacity. In its response dated July 1, 2019, the Respondent argued that the documents that were filed do not determine anything regarding the Appellant’s ability to understand the extradition proceeding, and that if and to the extent that his medical condition has an impact on his criminal liability, he will be able to raise his arguments in the framework of the criminal proceeding in the United States.

 

Discussion and Decision

 

15.       I will already state at this point that after reviewing the appeal and the parties’ written and oral arguments, I have reached the conclusion that the appeal should  be denied in its entirety, and that the declaration of the Appellant as extraditable should be upheld.

 

The Normative Framework – Extradition Law

 

16.       In another case I discussed the general normative framework of extradition law  at some length, stating:

 

The extradition proceeding is a cooperative proceeding between states in criminal matters (see: CrimA 4596/05 Rosenstein v. State of Israel [3], 406 (2005) (hereinafter: the “Rosenstein case”); CrimA 6182/98 Sheinbein v. Attorney General [4], 639-640 (1999)); Shneur Zalman Feller, Extradition Law, 24 (1980)). A number of objectives underly the extradition proceeding, the main purpose of which is to balance the public interest – both national and international – in eradicating cross-border crime and preventing offenders from fleeing the law, against the right to freedom of the person whose extradition is requested (see CrimA 2258/11 Dern v. State of Israel [5], para. 11 (June 20, 2012) (hereinafter: the “Dern case”). For a review of the objectives of the extradition proceeding, see: CrimA 2144/08 Mondrowitz v. State of Israel [6], para. 32 (hereinafter: the “Mondrowitz case”)). In Israel, the proceeding is governed by the Extradition Law, which establishes that a person may be extradited from the State of Israel to another state if he committed an “extradition offense” (sec. 2A of the law), which is defined in sec. 2(a) of the law as an offense which, if committed in Israel, would be punishable by imprisonment for at least one year, provided that there is a treaty for the extradition of offenders between the State of Israel and the requesting state. The law further instructs – in regard to a person who has not yet been convicted, and whose extradition is requested in order to for him to stand trial – that he be declared extraditable if it be proven that there is sufficient evidence to try him for a parallel offense in Israel (sec. 9(a) of the law). The customary threshold for examining the sufficiency of the evidence in the extradition proceeding is a “basis for the charge”, see: the Dern case, para. 48; CrimA 3439/04 Bazak v. Attorney General [7], 299-300 (hereinafter: the “Bazak case”)). Alongside the aforesaid conditions, the law establishes exceptions, one or more of which will prevent the extradition of a person located in Israel to the requesting state (CrimA 3915/15 Yam v. State of Israel [8], para. 8 (hereinafter: the “Yam case”)).

 

17.       In the present case, there is no dispute that the preliminary conditions for extraditing the Appellant to the United States have been met: there is an extradition treaty between the Government of Israel and the Government of the United States; the offenses that are attributed to the Appellant are extradition offenses within their meaning in the law; and the evidence presented in the Appellant’s matter meets the evidentiary threshold required for the purpose of extradition. The Appellant disputed this last condition with regard to one item in the indictment, and we shall address this below.

 

18.       The dispute in this case revolves around a number of other questions that I will address in the following order: whether the “center of gravity” of the offenses  attributed to the Appellant is in the United States or in Israel, and the implications of Basic Law: The Nation State on the matter; whether there was a delay in the Appellant’s extradition proceedings to an extent that amounts to a violation of public policy or a miscarriage of justice that would justify not extraditing him; whether his extradition constitutes selective enforcement; whether there is a health justification preventing his extradition; and additional arguments that the Appellant raised.

 

            I will examine these questions below.

 

The Center of Gravity of the Offenses

 

19.       There does not appear to be any dispute that both states have jurisdiction to try the Appellant for his actions in the present case (for a detailed discussion, see: the Rosenstein case, para. 36). The State of Israel has jurisdiction that stems from the Appellant’s Israeli citizenship and by virtue of the territorial nexus, as the offenses were committed within the state’s territory (sec. 7(a)(1) of the Penal Law, 5737-1977 (hereinafter: the “Penal Law”)). The United States has jurisdiction that stems from a broad territorial nexus that applies to criminal acts that were intended to occur within the state’s territory or the commission of which impacted the state (CrimA 5227/10 Yuval v. State of Israel [9], para. 85  (hereinafter: the “Yuval case”); CrimA 8801/09 Mayo v. Attorney General [10] para. 15 (hereinafter: the “Mayo Case”); the Rosenstein case, paras. 24-25). The acts were committed in Israel via the internet, by an Israeli citizen, and the investigation materials were seized in Israel, but the acts were directed against victims in the United States, and the law enforcement authorities in the United States began the investigation in the case and “motivated” the investigation in Israel after their approach for legal assistance.

 

20.       In such a situation, in which both states have the capability to try the case, the question that arises is which state takes precedence for the legal proceedings. This Court has held that the decision should be made in accordance with the majority of the offenses’ contacts – or “links”, in other words, the location of the “center of gravity” of the attributed offenses (the Yuval case, para. 87; the Mayo case, para. 16;, the Rosenstein case, p. 416). In general, preference will be given to the physical location where the offense was committed, but this does not tip the scales, and each case will be examined on its merits, in accordance with its contacts (the Rosenstein case, p. 419).

 

21.       I am also of the opinion, as was the District Court, that the center of gravity in this case is in fact located in the United States and not in Israel. Indeed, the commission of the offenses and the investigation were in Israel, and the Appellant is an Israeli citizen, and accordingly there is a linkage to Israel. However, offenses of the kind that the Appellant committed are not limited to a narrow territorial area. An inherent characteristic of internet and computer offenses is their extra-territorial nature. This nature allows crossing borders in the blink of an eye and jeopardizing residents of states abroad. In the Rosenstein case, the Court emphasized that the expansion of the territorial linkage is meant to address this nature of offenses, “which, inherently, are not restricted to the borders of a single state” (the Rosenstein case, para, 30). In the case of offenses of such a nature, and particularly given the acceleration of technological development of on-line communications, the significance of the geographical location of the perpetrator of the offense diminishes (cf: the Rosenstein case, p. 433). The perpetrator can commit his actions from any state around the world and can send his arrows in any direction. All he needs is a network connection (the Mayo case, para. 17; see: Asaf Harduf, Cybercrime: An Introduction (2010) (Heb.)). Therefore, in these circumstances it is proper to locate the center of gravity based on the location of the victims (the Mayo case, para. 18; the Yuval case, para. 88; CrimA 7376/10 Novak v. Attorney General, [11], para. 14; the Rosenstein case, p. 432). The acts that the Appellant committed were directed at victims in the United States. That is where the victims were harmed, and the protected interests that were infringed are primarily located there.

 

            Even if the Appellant committed similar acts upon Israeli victims, that is not sufficient to divert the center of gravity in the case attributed to him, as they can be perceived as distinguished offenses. Firstly, because the offenses at issue were mainly direct acts against victims in Israel that were not limited to an on-line medium. Secondly, the Appellant has already been tried for those offenses.

 

22.       In this context, the Appellant claimed that the  center of gravity is located in Israel since he was already put on trial in Israel and admitted to all the offenses – even those that were included in the American indictment and were not part of the criminal proceeding in his matter in Israel. I cannot accept this argument. The prosecution decided not to charge the Appellant for his actions that were directed at victims in the United States. The Appellant objected to this decision, and his objections were rejected (the Gabber HCJ case). The Appellant also objected to the court’s decision not to convict him of additional offenses pursuant to sec. 39 of the Penal Law, and his objections were rejected both directly in the ruling and on appeal, and indirectly in the petition to the High Court of Justice. I am of the opinion that there is no cause to revisit these decisions.

 

            Indeed, it is true that when it was decided not to put the Appellant on trial in Israel for the said actions, the Extradition Request had not yet been filed on behalf of the United States. At present, the circumstances seem to have changed, since there is a pending request. However, I am not of the opinion that this is sufficient to change the ruling that was given in this matter. The authorities decided not to put the Appellant on trial for the actions that were attributed to him while they were aware of the investigation that the authorities in the United States initiated – since they were the ones that “motivated” the proceeding in Israel as well – and of the possibility that a request to extradite the Appellant may be filed. The basic principle that applies in extradition laws is prosecute or extradite (Aut dedre aut judicare; the Mayo case, para. 23). In this case, the State of Israel decided not to prosecute, but rather to extradite. It had its reasons, and there is no cause to deviate from previous judicial rulings concerning this decision.

 

23.       The Appellant further argued that in light of his admission to the acts that are attributed to him, and due to the fact that the charges against him are based on digital material that was seized on his computer, there is no need for the victims of the offenses to testify, and he even undertook that he would refrain from summoning them to testify. It is true that the proceedings in the Appellant’s matter are not expected to be as complicated as in other cases, since he chose not to conduct a defense and to confess to what was attributed to him. I am willing to assume that the complexity of the proceedings may be a possible consideration in examining the offenses’ center of gravity, which could indicate that the majority of contacts are to one legal system or another (cf: the Mayo case, para. 18; the Yuval case, para. 88). However, in the case at hand, even if the Appellant’s admission will obviate the need to hear evidence regarding the commission of the offense and save judicial time, it does not nullify the linkage between his acts and the United States and the interest in having him stand trial particularly there. It is the prosecution in the United States that holds the discretion for conducting the proceedings, and they shall decide how to do so, but the system’s interest in putting the Appellant on trial for infringing the protected  interests cannot be exhausted by a criminal proceeding conducted in Israel. The victims, whose naivety was abused by the Appellant, are entitled to have their voices heard, and to do so in their language and in their country Thus, the Appellant’s interest to conduct the proceedings in his country does not prevail.

 

24.       The Appellant further argued that the enactment of Basic Law: The Nation State tilts the scales in favor of not extraditing him to the United States, due to the right the emerges therefrom to stand trial in Israel as a Jewish-Israeli citizen. The Appellant emphasized that he is not arguing that Basic Law: The Nation State always rules in favor of not extraditing, but that in the circumstances of the present case, it adds weight to the scales. I cannot accept this argument. I am also of the opinion, as has already been held, that the enactment of Basic Law: The Nation State does not change the conclusion that the Appellant is extraditable. The Basic Law is not meant to protect offenders in Israel. Its provisions do not address extradition or related matters, directly or indirectly (the Journo case, para. 33). We should note that the legislature clearly expressed objection to extraditing Israeli citizens. However, the legislature chose to change the existing law and amend the Extradition Law such that it will allow extradition from Israel (the Extradition Law (Amendment no. 6), 5759-1999; for a broader discussion, see: the Rosenstein Case, paras. 58-59). Basic Law: The Nation State has not changed this normative situation. Our case law has already addressed the constitutionality of the Extradition Law in the past, as it infringes the right to freedom pursuant to sec. 5 of Basic Law: Human Dignity and Freedom, and it was held that it is not an unconstitutional law (see: ibid, para. 37). In this context as well, the normative situation has not changed in light of the addition of Basic Law: The Nation State to Israel’s constitutional tapestry.

 

Moreover, the Appellant will be permitted to request to serve his sentence in Israel, pursuant to sec. 1A of the Extradition Law, such that the concern that he will be “exiled” has no substance.

 

Public Policy and Delay

 

25.       According to sec. 2B(a)(8) of the Extradition Law, a possible exception for extradition is violation of public policy or of a vital interest of the State of Israel. The term “public policy” in this context has already been developed in our case law (see: the Yam case, para. 10 and the references there). Suffice it to say that extradition shall be deemed contrary to public policy if it will materially violate the sense of justice, morality and fairness of the public in Israel (CrimA 2521/03 Sirkis v. State of Israel [12], IsrSC 57(6) 337 (hereinafter: the “Sirkis case”)). If it is found that extradition is contrary to public policy within its meaning in the Extradition Law, the court will refrain from ordering it, even if the other conditions are met (ibid, para. 18). However, it must be remembered that given the important public interests that the law of extradition fulfills, such arguments will be accepted sparingly and only in unusual, exceptional cases (see: the Mondrowitz case, para. 114; CrimA 250/08 A. v. Attorney General [13] para. 31; the Sirkis case, p. 346).

 

26.       Violation of public policy may thus take many forms, one of which is delay. This Court has already ruled that in certain circumstances, a delay in extradition proceedings could amount to a violation of public policy (CrimA 6384/11 Ben Haim v. Attorney General [14], para. 25 of the opinion of Justice S. Joubran (hereinafter: the “Ben Haim case”); CrimA 739/07 Efrat v. Attorney General [15], para. 12 (hereinafter: the “Efrat case”), the Sirkis case, pp. 346-347)). The criteria that have been formulated in our case law point to a number of aspects that must be examined in order to determine whether there has been a delay that justifies not extraditing:

 

The length of the delay, considering the complexity of the extradition proceeding; its circumstances, including the severity of the offense, the extent of the fault of the authorities and of the requested person in prolonging the proceedings and the requested person’s conduct in the years that elapsed since the offense occurred; the extent the delay prejudices the requested person’s ability to conduct his defense; and whether the period of time that the delay added to the proceedings in the requested person’s matter will lead to his extradition creating an unjust and disproportionate outcome (the Yam case, para. 12).

 

27.       Moving from the general to the specific in this matter, I am of the opinion that it cannot be said that the delay, which did indeed occur in the extradition proceedings in the Appellant’s case, is unusual to a degree that justifies not extraditing him. As to the duration of the delay and its circumstances – indeed approximately 6 years elapsed from the investigation in the Appellant’s matter and until the time the Extradition Request was filed. During this period the Appellant experienced uncertainty regarding the future and the Sword of Damocles hovered over his head. It should be noted in the Appellant’s favor that he did not flee from the fear of the law, but rather admitted to his actions. However, the severity of the offenses must also be considered. It is difficult to overstate the severity of the attributed actions, and they were committed against a large number of victims over a not inconsiderable period of time. Accordingly, the scope of the investigation was broad: approximately 150 victims across the United States were identified, and it was necessary to interview them and turn their testimonies into an indictment comprising 68 charges in the matter of 19 victims. The evidence also included the examination of a large volume of digital material, much of which was translated from Hebrew to English (para. 1 of prosecutor Joey Blanch’s letter dated August 28, 2017 (hereinafter: the “Blanch Letter”). Indeed, it is regrettable that from the time of the filing of the indictment in 2014, additional significant time elapsed until the filing of the Extradition Request. However, there was some explanation for this in the need to verify the affidavits – due to the time that had passed – and to formulate the Extradition Request (the Blanch Letter, para. 2). This is contrary to the Appellant’s arguments that the delay stemmed solely from manpower issues. Additionally, it should be noted that the delay of the proceedings did not prejudice the Appellant’s ability to conduct his defense, inasmuch as he does not deny his actions.

 

28.       I am thus convinced that even if part of the delay was not inevitable,  this is not enough, under the circumstances, to justify not extraditing him, since what is at issue is not an unjust, disproportionate outcome (see: the Yam case, para. 15; the Ben Haim case, para. 36, and cf: the Mondrowitz case, para. 128). It must be remembered that an extradition proceeding, which involves authorities from various states, requires complex coordination and cooperation, which may take not inconsiderable time. It must be hoped that the authorities will act as quickly as possible in order to prevent an unnecessary delay of justice. However, not every prolonging of an extradition proceeding justifies stopping it.

 

29.       It should be further stated, in this regard, that the Appellant argued that the period of time during which he waited for the Extradition Request amounts to a violation of his right to due process, due to the psychological toll it took on him and his mother – his only family. Our case law has already held that the right to due process also applies in extradition matters, and that in cases in which it is materially violated, this could amount to a violation of public policy which would justify not extraditing (the Mondrowitz case, para. 112, the Mayo case, para. 25). However, I did not find that the Appellant argued that the criminal proceeding itself, as it shall be conducted in the United States, may be unfair, and arguments that relate to the difficulty of conducting a legal proceeding in a foreign legal system, and particularly in the United States, have already been rejected in our case law (see the Mayo Case, para. 25; the Rosenstein case, paras. 55-56). Rather, the Appellant argued that the mere delay in filing the Extradition Request violated his right to due process. I cannot accept this argument. We examined whether this delay amounts to a violation of public policy which justifies not extraditing, and we reached the conclusion that this is not the case. The Appellant’s right to due process, insofar as it relates to conducting the extradition proceeding, was not violated due to the period of time that elapsed since the acts were committed, or, at least, was not violated to a degree that justifies not extraditing him. Indeed, the delay certainly exacted no small toll from him and his mother, but this is not enough to justify not extraditing. In any event, I am confident that the Appellant will be able to raise his arguments regarding miscarriage of justice in the framework of the criminal proceeding in the appropriate instance in the United States, and it is presumed that the court will examine the matters thoroughly and will rule on their implications.

 

Selective Enforcement

 

30.       As noted, the Appellant claims selective enforcement in comparison with the Anonymous case. Arguments of such nature have been recognized in our case law as part of the general “equitable defense” doctrine, which also applies in extradition proceedings – whether as part of general criminal law or as part of the public policy exception in the Extradition Law (see the Mondrowitz case, para. 117; the Rosenstein case, para. 10; for a discussion on the matter whether selective enforcement can also be argued as part of administrative judicial review in criminal procedure, see CrimA 6328/12 State of Israel v. Poldy Peretz [16] paras. 29-31 (hereinafter: the “Peretz case”)). Selective enforcement is such that “infringes equality in the sense that it distinguishes, for the purpose of enforcement, between similar people or between similar situations in order to achieve a wrongful purpose, or based on an irrelevant consideration or out of pure arbitrariness” (HCJ 6396/96 Zakin v. Mayor of Beer Sheva [17], 305). Indeed, over the years various positions have been expressed regarding the scope of this argument (see: the Peretz case, para. 23; CrimA 7621/14 Gotsdiner v. State of Israel [18], para. 56 of the opinion of Justice Barak-Erez, and the supporting references there); LCrimA 1611/16 State of Israel v. Vardi [19], and cf: CrimA 4855/02 State of Israel v. Borovitz [20],  814; CrimA 7014/06 State of Israel v. Limor [21]). However, there can be no dispute that a fundamental condition for the claim is proof of discrimination, and in the present case I am of the opinion that the Appellant has not met this requirement.

 

31.       Indeed, there is a certain similarity between the Anonymous case and the present case – the accused there used his computer in Israel to commit offenses that were directed at the United States, and was charged, inter alia, with possession and publication of obscene materials of minors, and his punishment was even reduced due to his being diagnosed as autistic (the Anonymous case, p. 18). However, I am of the opinion that the differences outweigh the similarities. The main difference, as the District Court stated, relates to the fact that the indecent acts and extortion involved the Appellant’s active conduct. As opposed to the accused in the Anonymous case who possessed obscene material, in the present case the Appellant acted in order to obtain them, and while doing so seriously harmed a large number of young women. It should be noted in this context that if the proceeding were to be conducted in Israel, it is possible that the victims would need to come to Israel in order to deliver testimony, even if only regarding the matter of the harm that was caused to them, even though the Appellant admits to his actions. This is contrary to the Anonymous case where the evidence was based solely on documents and media files. These considerations tilt the center of gravity towards the United States, in comparison to cases of possession of materials alone. The young age of the accused in the Anonymous case, who was prosecuted as a minor in Juvenile Court, was also a consideration in favor of not extraditing.

 

32.       To this one must add that infringement of equality where there is a clear, consistent policy is not the same as one distinct case. The Appellant could not have demonstrated – and in any event he did not attempt to claim – that he relied on the authority’s consistent enforcement policy, and that not putting him on trial was tainted by male fide on the authority’s behalf (the Peretz case, para. 32). Therefore, even if we were to assume, for the sake of argument, that the enforcement was somewhat different, this is not a severe flaw in the authority’s conduct that would justify intervention (ibid, paras. 33-34).

 

Not Extraditing due to the Appellant’s Medical Condition

 

33.       The Appellant argues that he has high level autism and has personality disorders, and that he is unable to conduct himself independently, and therefore, he should not be extradited. As noted in the framework of his request to introduce evidence on appeal, the Appellant presented a document confirming his disability (as specified above in para. 14).

 

34.       Regarding the request to introduce new evidence on appeal, in general, the appeal instance will not accept new evidence, except if “this is required in order to do justice”, in which case the appellate court is permitted “to take evidence or direct the previous instance to take such evidence as it may direct” (sec. 211 of the Criminal Procedure [Consolidated Version] Law, 5742-1982). The case law of this Court has prescribed three considerations which should be taken into account in this context: First, whether the petitioner had the possibility of obtaining the additional evidence during the hearing in the previous instance. Second, the interest in preserving the principle of finality. Third, the nature of the additional evidence and the prospects that its submission will lead to a change in the outcome reached by the previous instance (CrimA 8080/12 State of Israel v. Olmert [22], para. 11). This last consideration is of primary importance (CrimA 4506/15 Bar v. State of Israel [23], para. 76; CrimA 1690/09 A. v. State of Israel [24]). In the present case, I am not of the opinion that the Appellant’s request meets the said criteria. As I indicated above, it is doubtful whether the Appellant was unable to present the evidence – or at least a part thereof – and, as shall be specified below, the additional evidence does not change the final outcome.

 

35.       Even if I were to assume that the new evidence was before us and that the Appellant has autism at the level that was determined, I am not of the opinion that the argument that his condition prevents extradition should be accepted.

 

            First, the Appellant did not argue in the District Court that his medical condition prevented his extradition, although his condition was known, even if the medical disability had not been formally determined. The Appellant also received the Respondent’s consent to leave the electronically monitored arrest for the purpose of examining his medical condition and receiving opinions, but he refrained from filing them prior to the appeal, despite the fact that he claims that his condition has been making it difficult for him to conduct himself in an independent manner for years.

 

Second and of primary importance, our case law has held that the suffering by the person requested in an extradition proceeding is inherent to the proceeding itself and does not contradict the basic principles of society (the Yuval case, para. 97; the Mondrowitz case, para. 115), and public policy necessitates refraining from extraditing a person only if it will lead to severe abuse and indescribable suffering (the Sirkis case, p, 347). This also holds true when the extradition relates to a person who suffers from health problems, since “a fragile health condition cannot grant a person immunity from bearing the consequences deriving from his actions” (CrimA 3680/09 Silverman v. State of Israel [25], para. 9). In the present case, the Appellant’s condition does not prevent him from standing trial – and even he does not claim otherwise. Furthermore, the Respondent justifiably stated that the Appellant’s condition and his communication disabilities did not prevent him from maintaining on-line contacts with approximately 150 young women and soliciting them to perform various sexual acts. There is no dispute that the Appellant’s condition may limit his ability to conduct himself independently, and that conducting a criminal proceeding in a foreign state is not easy, but this is not a violation of an intensity that justifies not extraditing him.

 

36.       The Appellant’s arguments regarding his condition will be raised at the appropriate place and time for the purpose of sentencing. It is presumed that the authorities in the United States will provide a solution that is suitable to the Appellant’s condition during the conducting of the proceeding. To this one must add that the sentence can be served in Israel, and at that stage, as well, it is presumed that the authorities will consider the Appellant’s condition and give it appropriate weight in deciding upon his matter.

 

Additional Arguments

 

1. The Statute of Limitations for the Extortion Offense

 

37.       The Appellant argues that the offense of extortion that is attributed to him was committed in 2011, and its statute of limitations under American law already lapsed in 2016. Therefore, he claims that the double criminality requirement was not met for this offense and he should not be extradited for it. This argument must rejected. In the past, the Extradition Law prescribed a “double” criterion for examining the statute of limitations, in the framework of which the laws of both the extraditing state and the state requesting the extradition were examined. At present, the normative situation has changed. Section 2B(a)(6), which was added to the law in 2001 (Extradition Law (Amendment no. 7) Law, 5761-2001), prescribes that a possible exception to extradition is if the statute of limitations for the offense (or the punishment therefor) lapsed pursuant to the laws of the State of Israel (see: Extradition Law (Amendment no. 8) Bill, 5761-2000). Meaning, we are not examining the laws of the statute of limitations in the state to which the extradition is requested, but rather according to our laws (see: the Efrat case, para. 4; the Mondrowitz case, para. 59). It should be noted that there is an opinion that even at present, following the amendment of the law, the statute of limitations laws of the requesting state should also be examined, and this has not been decided in our case law (See: CrimA 6717/09 Uzipa v. Attorney General, [26], para. 62 (hereinafter: the “Uzipa case”); the Bazak case, para. 21). I am of the opinion that there is also no need to rule on this question in the present case, for reasons upon which I shall elaborate below.

 

38.       In terms of Israeli law, the Respondent is correct that the statute of limitations for blackmail by threats under sec. 428 of the Penal Law – which corresponds to the offense for which the Appellant is charged – has not yet lapsed. This is due to the fact that we are concerned with a felony (sec. 24(1) of the Penal Law), for which the statute of limitations is 10 years (sec. 9(a)(2) of the Criminal Procedure [Consolidated Version] Law, 5742-1982 (hereinafter: the “Criminal Procedure Law”)). Therefore, it is not necessary to examine whether – as the Respondent argues – the investigation, the filing of the indictment and the filing of the Extradition Request stopped the clock on the statute of limitations, in accordance with sec. 9(d) of the Criminal Procedure Law (cf: the Mondrowitz case, para. 71).

 

39.       As for the law of the State of California, which applies to the Appellant’s matter, the Extradition Request clearly states that the statute of limitations for the offenses attributed to the Appellant has not lapsed. The Morton-Owens Affidavit refers extensively to the question of limitation, and clarifies that for the offense of extortion, for which the punishment is two years of imprisonment, there is a 5-year statute of limitation – while the indictment against the Appellant was filed in 2014, less than 5 years after the acts were committed (para. 26 of the Morton-Owens Affidavit), and this is sufficient to stop the clock on the statute of limitations. This is an affidavit that was given by an American prosecutor who is well versed in the applicable statute of limitations law, and in the indictment and investigation proceedings in the matter of the Appellant. I am satisfied that this is sufficient for the purpose of the extradition proceeding (see: the Uzipa case, para. 62). Additional arguments that are raised in this matter should be examined in the framework of the criminal proceeding before the appropriate instance in the United States.

 

2. Charge no. 53

 

40.       The Appellant argues that charge no. 53 of the indictment does not have an evidentiary basis because it refers to a time when the Appellant was under arrest. As the Respondent stated, para.111 of the indictment states that the act was committed on or about July 16, 2011. The Appellant was under arrest as of July 11, 2011. This difference is not sufficient to undermine the alleged evidentiary grounds of the charge, considering that the court does not examine the credibility and the weight of the evidence in the framework of the extradition proceeding as long as at issue is not evidence that is prima facie worthless (the Uzipa Case, para. 9). As the District Court correctly stated, this argument should be examined in the primary proceeding, since an extradition proceeding is not a full criminal proceeding that determines the accused’s guilt or innocence (the Bazak case, para. 12).

 

Conclusion

 

41.       Thus, I have found that the Appellant’s arguments should be rejected, and that there is no cause to intervene in the District Court’s judgment. The majority of the contacts in regard to the offenses attributed to the Appellant are tightly linked to the United States, and it follows that there is no place to intervene in the determination regarding extraditing the Appellant to that country for the purpose of standing trial. Additionally, I have not found that the delay in initiating the proceedings against the Appellant amounts to a violation of public policy to an extent that justifies not extraditing him. This is also the case in regard to the suffering that the extradition may cause him due to his medical condition. I have also not found that the Appellant has an equitable defense claim, as it has not been proven that the decision in his case is tainted by selective enforcement. The Appellant’s additional arguments are also rejected.

 

            I do find it appropriate, prior to signing, to state that the difficulty in the Appellant’s condition was not unnoticed. It is presumed that the authorities in the various states will provide a suitable solution, and the Respondent should communicate the need to consider his disabilities to the relevant authorities (in Israel and in the United States). Additionally, if the Appellant will be convicted and sentenced to imprisonment, then – as stated – the possibility is open for him to serve it in Israel, and this could, to a certain extent, alleviate the difficulties which he is expected to face, and it is presumed that consideration will be given to his medical condition and to what it entails.

 

            In conclusion. I  recommend to my colleagues that the appeal be denied, such that the declaration of the Appellant as extraditable to the United States shall remain in effect.

 

                                                                                                           

 

Justice Y. Willner:

 

I concur.

 

                                                                                                           

 

Justice D. Barak-Erez:

 

1.         I concur in the opinion of my colleague Justice U. Vogelman, but would like  to clarify my opinion regarding two points raised in that opinion.

 

2.         First, I wholeheartedly concur with the decisive statement that  Basic Law: Israel – The Nation State of the Jewish People bears no relevance to the discussion of questions of extradition. Not only were these matters already clarified in previous case law, but it is proper to reiterate – from the aspect of basic considerations of justice – that one cannot conceive that our legal system would grant different treatment to people standing criminal trial based on their religious or national origin. It appears that it would have been better had such an argument never been raised at all.

 

3.         Secondly, considering the additional difficulty involved in conducting a criminal proceeding from the perspective of a person with disabilities (see and cf: Sagit Mor and Osnat Ein-Dor, Invalid Testimony: Disability and Voice in the Criminal Procedure, 16 Mishpat U’Mimshal 187 (2015)), I would like to reinforce the words of my colleague as to the presumption that applies to the authorities in the United States in all that relates to providing a solution to the Appellant’s difficulties. We are not ignoring the additional difficulty which the Appellant faces due to the detachment from his supportive environment. However, as my colleague emphasized, we must also consider the matter of the complainants. There is some comfort in the fact that if the Appellant will be convicted and be sentenced to imprisonment, he will be able to request to serve his sentence in Israel, pursuant to the Serving a Prison Sentence in the Prisoner's Country of Nationality Law, 5757-1996.

 

                                                                                                           

 

Decided as stated in the judgment of Justice U. Vogelman.

 

Delivered this day, the 11^th day of Tamuz 5779 (July 14, 2019).

 

 

 

HCJ 1892/14

 

 

 

Petitioners:                  1.         The Association for Civil Rights in Israel

                                    2.         The Ramat Gan College of Law and Business

                                    3.         Physicians for Human Rights

 

                                                            v.

 

Respondents:              1.         Minister of Public Security

                                    2.         Prison Service Commissioner

                                    3.         Minister of Justice

 

In the Supreme Court sitting as High Court of Justice

[June 13, 2017]

 

Before: Deputy President E. Rubinstein, Justices H. Melcer and U. Shoham

 

On behalf of the Petitioner:  Advocates Anne Sucio, Oded Feller, Sigal Shahav

On behalf of the Respondents: Advocates Ran Rozenberg, Reuven Eidelman

 

Israeli cases cited:

[1]        HCJ 337/84 Hokma v. Minister of Interior, IsrSC 38(2) 826  (1984).

[2]        PPA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136 (1996).

[3]        HCJ 2245/06 Dobrin v. Prisons Service (2006).

[4]        HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 (2009).

[5]        LHCJA 4937/14 Albazian v. Attorney General, (2014).

[6]        LHCJA 328/15 Zalum v. Attorney General, (2015).

[7]        HCJ 161/94 Atari v. State of Israel, (1994).

[8]        HCJ 4905/98 Gamzu v. Yeshayahu, IsrSC 58(3) 360 (2001).

[9]        HCJ 10662/04 Hassan v. National Insurance Institute, IsrSC 65(1) 782 (2102).

[10]      LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver, IsrSC 58 (1) 214 (2003).

[11]      HCJ 5578/02 Manor v. Minister of Finance, IsrSC 59(1) 729 (2004).

[12]      AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality, IsrSC 59 (4) 769 (2004).

[13]      HCJ 1384/04 B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior, IsrSC 59(3) 397 (2005).

[14]      HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005).

[15]      HCJ 1163/98 Sadot v. Prisons Service, IsrSC 58(4) 817 (2001).

[16]      HCJ 451/94 Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

[17]      HCJ 9134/12 Gavish v. Knesset, (2016).

[18]      MApp 1/87 Dananashvili v. State of Israel, IsrSC 41(2) 281 (1987).

[19]      CrimA 344/81 State of Israel v. Segal, IsrSC 35(4) 313 (1981).

[20]      HCJ 5304/92 Perah Association v. Minister of Justice, IsrSC 47(4) 715 (1993).

[21]      HCJ 114/86 Weil v. State of lsrael, IsrSC 41(3) 477 (1987).

[22]      MApp 3734/92 State of Israel v. Zaki Azazmi, IsrSC 46(5) 72 (1992).

[23]      FH 13/80 Hendels v. Kupat Am Bank Ltd., IsrSC 35(2) 785 (1981).

[24]      CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd., IsrSC 51(5) 337 (1997).

[25]      HCJ 5185/13 Anonymous v. Great Rabbinical Court, (2017).

[26]      LCA 296/11 Najar v. Aliyan, (2012).

[27]      CA 191/51 Skornik v. Skornik, IsrSC 8 141 (1954).

[28]      LFA 7141/15 A. v. B., (Dec. 22, 2016).

[29]      CA 8954/11 Doe v. Doe, (2014).

[30]      CFH 7325/95 Yediot Aharonot Ltd. v. Kraus, IsrSC 52(3) 1.

[31]      CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum, IsrSC 46(2) 464 (1992).

[32]      CrimApp 537/95 Ganimat v. State of Israel, IsrSC 49(3) 355 1995).

[33]      CA 522/70 Alkutub v. Shahin, IsrSC 25(2) 77 (1971).

[34]      HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education, IsrSC 56(5) 834 (2003).

[35]      HCJ 2065/05 Maher v. Minister of Interior, (2005).

[36]      HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs, IsrSC 48(4) 441 (1994).

[37]      HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance, (2017).

[38]      HCJ 221/80 Darwish v. Prisons Service, IsrSC 35(1) 536.

[39]      HCJ 355/79 Katlan v. Prison Service, IsrSC 34(3) 294.

[40]      HCJ 2442/11 Shtanger v. Speaker of the Knesset, (June 26, 2013).

[41]      HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999).

[42]      HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society, (May 20, 2014).

[43]      HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424 (1953).

[44]      HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March, 27, 2016).

[45]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister, (April 13, 2016).

[46]      HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense, (July 18, 2010).

[47]      HCJ 2902/11 Association for Children at Risk v. Ministry of Health, (Sept. 4, 2015).

[48]      HCJ 4541/94 Alice Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

 

 

 

 

Judgment

 

Deputy President E. Rubinstein:

1. This petition concerns the conditions of confinement of prisoners and detainees, particularly in regard to the living space allotted to each prisoner and detainee.

 

Background

2.         The problem of prison overcrowding is not new. It has existed for at least four decades. Various commissions have been established over the years to address the subject, among them the Commission for the study of Crime in Israel of 1978 (the Shimron Commission), the Commission of Enquiry for the Investigation of Prison Conditions in Israel of 1981 (the Kenet Commission), the Commission to Assess Methods for Alleviating Overcrowding in Prisons of 1987 (the Karp Commission) (for details, see the 43^rd Annual Report of the State Comptroller for 1992 and Financial Report for the 1991 Fiscal Year, 345-346 (1993)). Since it was established, over two decades ago, the Public Defender’s Office has addressed this issue in the framework of its periodic reports in regard to prison conditions in Israel (see, for example, The Public Defender’s Report on Prison Overcrowding of 2013, hereinafter: The Public Defender’s Report). The findings of the various published reports show that overcrowding – and no one denies its very existence – derives from a lack of space in the prison facilities, on the one hand, together with a continual rise in the number of imprisonments and arrests, on the other. We should note that while new prisons and detention facilities have indeed been established over the last decades, and the it can be assumed that the Prison Service is making efforts in this regard, it cannot be denied that the tendency towards misbehavior by prisoners who enjoy good conditions would lessen. However, at the end of the day, this desirable effort has not – as yet – led to a significant increase in the average amount of living space allotted to each prisoner and detainee, which has remained at about 3 square meters per person for the last 25 years, and is now 3.16 square meters, as will be described below.

3.         The legislature addressed the issue of prison overcrowding in 2012, in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42), which establishes, inter alia, in sec. 11B(b) of the Prisons Ordinance: “A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. Since 1996, there has been a similar section in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law) in regard to detention facilities. We should recall that the Arrest Law was enacted under the influence of Basic Law: Human Dignity and Liberty, and the spirit of that law imbues it. Amendment 42 incorporated the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations), in which reg. 2(h) establishes a similar arrangement to that in reg. 3(e)(3) of the Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations), under which:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

            Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

Thus, according to the current normative situation, new prison facilities must provide at least 4.5 square meters of living space for each prisoner or detainee. But note that according to these legal provisions, the standard of 4.5 square meters per inmate will apply to existing facilities only in the framework of planning and renovation, and only if feasible (“to the extent possible”).

4.         Current data provided by the Prisons Service show that the average area per inmate in Israel is 3.16 square meters at present. In this framework, some 21% of the inmates are held in cells in which the average space per inmate is greater than 4.5 square meters; some 18% are held in cells in which the average space per inmate is between 4 and 4.5 square meters; and some 61% are held in cells in which the average space per inmate is less than 4 square meters, of whom two thirds – some 40.5% of all inmates – are held in cells in which the average space per inmate is less than 3 square meters (see the State’s supplementary notice of April 3, 2017, para. 32). It should be noted that the calculation of living space comprises the area of the entire cell, including beds and cupboards, as well as the areas of the lavatory and shower, to the extent that such are in the cell. For the sake of clarity, we would already point out that the petition argues for a minimum are of 4 square meters not including the lavatory and shower areas, while the said reg. 2(h) calls for 4.5 square meters including the area of the lavatory, sink, and shower.

5.         Here are the primary points of the petition before the Court.

The Arguments of the Petitioners

6.         The petition is premised upon the argument that the current living space allotted to most prisoners and detainees infringes their right to dignity, physical and emotional integrity, and privacy to a disproportionate extent and without express legal authority. It is further argued that we are concerned with an infringement of the right of the prisoners and detainees to liberty to an extent that exceeds what is necessary, and which the Petitioners argue is tantamount to cruel, inhuman and degrading punishment.

7.         It is argued that as a consequence of the overcrowding in Israeli prison and detention facilities, the living space allotted to each inmate – an average of some 3.16 square meters – is too small to meet the most basic needs of the inmates. Moreover, the Petitioners are of the opinion that ensuring proper living conditions requires examining data in addition to the size of the cell alone, such as the number of hours during which an inmate is permitted to be outside of his cell, the number of inmates in a cell, the size of the area outside the cell that is accessible to an inmate, the length of imprisonment, and more. It is therefore argued that the living space in the cell particularly affects the quality of life of inmates held in closed wings, who compose some 50% of the total held in prison facilities. Such inmates are permitted to leave their cells for only a few hours, during which they eat their meals, use the lavatories, shower, and spend their free time.

8.         The Petitioners argue that the average living space allotted to an Israeli inmate is far below the standard accepted in Western states, which runs between 6 and 12 square meters per inmate, as well as below the minimal appropriate space in accordance with Prisons Service’s own position, which is 6.5 meters, as expressed in the National Master Plan for Prisons (hereinafter: NMP 24 or the NMP). The Petitioners further argue that this area is even smaller than the standard established in the Arrest Regulations and the Prisons Regulations for new prison facilities, which stands, as noted, at 4.5 square meters per prisoner and detainee.

9.         In addition to the living space allotted to each inmate, it is noted that the overcrowding in the prisons and detention facilities is also expressed in the number of prisoners or detainees held in the cells. In this regard, the Petitioners point to the data of the Prisons Service, which show that some 85% of the total number of inmates are held in cells of four inmates or more, of whom some 43% share their cell with 8 additional inmates. This is the case despite the standard established in reg. 3(e)(2) of the Arrest Regulations and reg. 2(g) of the Prisons Regulations for new prison facilities, under which there should be no more than 4 beds in a cell.

10.       It is further argued that the overcrowding in the prisons harms the accessibility and availability of the services offered to the inmates. If more inmates are held in a facility relative to what was originally intended, the services provided in the facility – i.e., social assistance, medical and psychological treatment, educational and rehabilitation frameworks, as well as the various public infrastructures in the facilities, such as the cafeterias and the yard – are divided among a greater number of people. Citing academic publications in the area, and reports by the Public Defender in regard to the conditions in Israeli prison facilities, the Petitioners argue that each inmate indeed enjoys less of the resources offered to the general population of inmates in the prison as a result of the overcrowding.

11.       According to the Petitioners, the existing normative foundation lacks a standard obligating the Respondents to supply prisoners and detainees a defined minimum living space. This is the case inasmuch as the Arrest Regulations and the Prisons Regulations refer to future prison facilities, and therefore do not address the minimum living space to which every prisoner and detainee is currently entitled. On the contrary, it is argued that since the establishment of the 4.5 square meter standard for detention cells in 1997, there has been no advancement toward meeting that standard, and the living space of detainees remains as it was. The Petitioners further argue that despite the widespread construction efforts made over the last years, in which eight new prisons were erected and many wings in existing prisons were renovated, the problem of overcrowding was only slightly improved – inter alia, due to the constant increase in the rates of imprisonment – such that the average living space per inmate increased from 2.9 square meters in 1992 to merely 3.16 square meters at present. It is argued that other means adopted over the last few years to reduce overcrowding, such as administrative release, contributed little to significantly increase the living space allotted to each inmate. The Petitioners are of the opinion that in the absence of an obligatory norm in regard to the appropriate living space to be provided to all prisoners and detainees currently held in Israeli prison facilities, this population continues to remain in unbearable living conditions, with no discernable solution. It is further argued that existing plans for minimizing overcrowding in the prison facilities are insufficient in and of themselves, even if they would be granted the appropriate approvals and budgets.

12.       It is argued that the current overcrowding greatly influences the daily lives of the prisoners and detainees. The limited living space creates crowding and congestion in the cells, limits the movement of the inmates more than is necessary, increases friction among them and adds to their mental distress, exacerbates the violation of their privacy, and leads to poor hygiene and a rise in the spread of illness. The Petitioners argue that these stresses make living in the cells “inhuman”. This argument is supported by affidavits taken from six prisoners and detainees in various prison facilities throughout the country, by affidavits taken from former senior Prisons Service employees, and by the reports of the Public Defender referenced above. Citing research published in the field, it is further argued that in addition to the direct influence upon the lives and health of the inmates, the overcrowding in the prisons also has consequences for public welfare by undermining the possibility of an inmate’s rehabilitation under such conditions.

13.       In light of the above, the Petitioners are of the opinion that the constitutional right of the prisoners and detainees to proper living conditions is infringed. This right is anchored in sec. 11B of the Prisons Ordinance, and in sec. 9(a) of the Arrest Law, respectively, which create an obligation to hold prisoners and detainees in appropriate conditions that will not harm their health and dignity. It is argued that every prisoner and detainee also has a right to adequate living space on the basis of the constitutional regime, inasmuch as it derives from the right to dignity. It is also argued that holding prisoners and detainees in the aforesaid living space violates other fundamental rights, among them the right to physical  and emotional integrity, the right to privacy, and the right to liberty, all of which are, in the opinion of the Petitioners, infringed in these circumstances to an extent that exceeds what is necessary.

14.       It is further argued that the living conditions of the majority of prisoners and detainees in Israel contravene the rules of international law, in view of the obligation to ensure appropriate living space, and the prohibition upon imposing cruel, inhuman or degrading punishment. In regard to appropriate living space, the Petitioners refer to art. 10(1) of the International Covenant on Civil and Political Rights of 1966, which states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. In this regard, reference is also made to the U.N. rules of 1955 that establish Standard Minimum Rules for the Treatment of Prisoners, and expressly note the right to minimum floor space, as well as similar rules in the European Prison Rules adopted by the Council of Europe in 1987.

15.       According to the Petitioners, the average floor space per prisoner in Israel is lower that the accepted standard of democratic states, and even lower than the minimum established by the United Nations Committee against Torture, which is 4 square meters exclusive of the area of the lavatory and shower. That being the case, holding prisoners and detainees in Israel in an average living space of some 3 square meters per person (including the area of the lavatory and shower, and as noted, we are currently looking at 3.16 square meters per person) is, it is argued, tantamount to cruel, inhuman or degrading punishment, as defined under art. 7 of the International Covenant on Civil and Political Rights. In this regard, the petition cites several court decisions from around the world that addressed similar petitions against overcrowding in various prisons. Thus, for example, the petition cites the 2013 decision of the European Court of Human Rights in Torreggiani v. Italy, no. 43517/09, ECHR 2013 (hereinafter: the Torreggiani case)), which held that holding prisoners in living space less than 3 square meters per person constituted a violation of the prohibition upon cruel punishment and inhuman treatment, and held that Italy must find a solution to the problem of overcrowding within one year. Also cited is the United States Supreme Court decision in Brown v. Plata, 131 S.Ct. 1910 (hereinafter: the Plata case), which concerned the California prison system. The Court addressed the infringement of the rights of inmates due to overcrowding, and ordered the state to reduce the number of inmates by some 40,000 within two years. We are also referred to the 1998 decision of the Polish Constitutional Court (cited by the European Court of Human Rights in Orchowski v. Poland, no. 17885/04, § 85, EHCR 2009 (hereinafter: the Orchowski case)), that overturned legislation that permitted holding inmates in an area less than 3 square meters, and gave the prison authorities an eighteen-month period to increase the size of the prison facilities.

16.       In light of the above, the Petitioners request an order nisi in the following language:

A.        Why will every prisoner and detainee (hereinafter: inmate) not be ensured appropriate living space in the cell within a reasonable time period, and that the following steps be taken to that end:

1.         Establishing the appropriate living space for an inmate;

2.         Preparing a plan that will establish the course of action for attaining appropriate living space for an inmate;

3.         Establishing a reasonable timetable for realizing the plan that will be established.

B.        Why will the necessary steps not immediately be taken to ensure every inmate living space of 4 square meters (excluding the lavatory and shower areas) necessary to prevent cruel, inhuman or degrading punishment.

The Position of the Respondents

17.       The Respondents are of the opinion that the petition should be dismissed for lack of an actionable cause for the intervention of the Court.

18.       First and foremost, it is noted that a standard for the minimal cell area for each prisoner and detainee has already been established by the Israeli legislature in the framework of the Prisons Regulations and the Arrest Regulations, and it is 4.5 square meters. Therefore – according to the Respondents – the first remedy requested in the petition is superfluous. Moreover, it is argued that the arrangement under the regulations, according to which the standard will apply to new prison facilities, and to the extent possible, to the planning and renovation of existing facilities, expresses the balance struck by the subsidiary legislator between the need to increase the average cell size per inmate, on the one hand, and the required investment of resources for the immediate expansion of all the prison facilities, on the other hand. Inasmuch as the said standard was established in primary legislation by virtue of Amendment 42, the State’s actions in accordance therewith – both in regard to the construction of new facilities and the renovation of existing facilities – is, it is argued, in accordance with the law.

19.       As for the second remedy, concerning immediately ensuring 4 square meters of living space per inmate, the Respondents are of the opinion that there are no legal grounds for granting the petitioned remedy. It is argued that the appropriate criterion established for an inmate’s living space – i.e., 4.5 square meters, subject to the said balance between the construction of new facilities, and the renovation of existing facilities, to the extent possible – expresses the entire complex of required considerations. It is not clear to the Respondents upon what basis the Petitioners derive a duty to establish an alternative standard to that decided upon by the subsidiary legislator on the basis of primary legislation. The State further explains that immediately ensuring an average living space of 4.5 meters for each inmate – the standard established, as noted, by the State – would require massive construction of new prison facilities, expansion of current prison spaces, and the addition of over 1,300 employees, at an estimated expense of some 2.7 billion NIS. Granting the requested relief would mean changing the government’s budgetary priorities as established in the Budget Law, and this in regard to an issue that, as noted, the legislature specifically addressed.

20.       It is further argued that the there is an inherent tension between the two heads of the petition that further militates against it. The first head employs valve concepts[1] (“reasonable time”, “appropriate living space”), whereas the second head seeks to establish a concrete standard immediately. Moreover, the Respondents argue that these remedies were not defined in a manner that reflects their precise legal nature, inasmuch as they are located on the constitutional plane – in view of their inherent demand to change a legal arrangement established in primary legislation – and not in the administrative plane, as may appear from the language of the petition. It is argued that inasmuch as reasons for annulling the relevant regulations for unconstitutionality were not presented, the petition should be denied. The Respondents are further of the opinion that the first head actually seeks even more far-reaching intervention – viz., establishing an alternative standard to that established by the State, as well as a time frame, which would be tantamount to judicial legislation. It is argued that the rights of prisoners are not absolute but relative, and it is therefore necessary to balance the granting of those rights against competing considerations, like budgetary limitations, the security of the prisons, and so forth, as the legislature did in the present matter.

21.       Lastly, the Respondents argue that extreme caution should be exercised in regard to the comparison that the Petitioners make between Israeli prison policy and that of other countries. In general, it is argued, comparative law is, at most, a source of inspiration, and the legislature is accordingly granted a particular constitutional margin that derives from the State’s unique normative arrangements. This is particularly true where the question of the constitutionality of a specific legislative arrangement is concerned, and especially when we are concerned with a remedy that, if granted, would be tantamount to judicial legislation.

22.       In response, the Petitioners are of the opinion that the Respondents’ argument that the standard established under the regulations – i.e., 4.5 square meters of living space per inmate in prisons to be constructed in the future – renders the first remedy superfluous, should not be accepted. It is argued that the Prisons Regulations and the Arrest Regulations are irrelevant to the question of the conditions appropriate for current inmates, and thus the need for establishing a concrete standard – as recommended in the petition – that will apply immediately. It is also argued that granting the petition does not require a change in the existing normative situation.

The present proceedings

23.       We will briefly describe the progression of the proceedings from the time of the submission of the petition. On July 13, 2015, the first hearing was held before President M. Naor and Justices H. Melcer and Z. Zylbertal. In the course of the hearing, the attorneys for the Respondents updated the Court in regard to a wide-ranging plan for the construction of new prisons that, they argued, had the potential of providing a response to the remedies requested in the petition. At the end of the hearing, the Court decided to grant the Respondents a four-month period to submit an updated notice on the matter.

24.       On Jan. 8, 2016 – following the granting of a continuance – an updated notice was submitted. First, the Respondents informed the Court that an agreement had been reached between the Ministry of Finance and the Ministry of Public Security to double the annual construction budget of the Prisons Service for 2016 for the purpose of adding 200 new prison spaces. Second, we were informed that prior to the preparation of the State budget for 2017, long-term solutions for increasing the average living space per inmate would be considered – in a positive light – while also examining alternatives like building new prison facilities and renovating wings of existing facilities. Third, it was noted that in the course of deliberating the State budget for the years 2015-2016, it was decided to grant an additional 86 million NIS to the Prisons Service for expanding rehabilitation and educational services for inmates in the framework of a plan to execute Amendment 42. The Respondents are of the opinion that this step can be expected to result in a reduction of recidivism, and thereby to a reduction in the number of inmates in looking to the future.

25.       A second hearing of the petition was held on Jan. 25, 2016, before the same panel. At the outset of the hearing, the Petitioners argued that the position of the Respondents reflects a failure to internalize the seriousness of the problem at hand, and requires that an order nisi be granted to move the matter forward. For their part, the attorneys for the Respondents argued that the Petitioners’ demand for an immediate increase in the living space of every inmate is dramatic, and would require a significant budgetary commitment. In view of the position of the Respondents that, in principle, the petition did not present a cause for judicial intervention, the State’s attorneys argued that there is no room for an additional budgetary realignment beyond that already decided. At the conclusion of the hearing, an order nisi was granted as requested, as noted in para. 16, above.

26.       The Respondents submitted a reply on Sept. 7, 2016. In that reply, they reiterated their position that the petition should be denied for lack of cause. It was further stated that the Respondents had made significant advances toward improving the living conditions of inmates in Israel since the date of the submission of the petition, such that the claims made in the petition had been blunted.

27.       Pursuant to the above, the Respondents presented a list of steps that had been adopted to improve the living conditions of prisoners and detainees. First, they noted NMP 24, which had been approved by the Government on March 7, 1982, and which provided for constructing new prisons in seven sites around the country, and noted change no. 3 to that NMP, of June 8, 2015, that provided for adding additional prisons to the plan with the approval of the National Planning and Building Council. Under the provisions of the NMP, at least 75% of the planned cells are expected to be for individual inmates, and they will be no smaller than 6.5 square meters, while the others will be for three inmates, and each inmate will have at least 5 square meters. Second, a multi-year plan was presented that, in principle, would increase the average cell space allotted to an inmate. The plan was prepared by the Prisons Service following the filing of the petition (hereinafter: the plan-in-principle). The plan focuses upon building new prison facilities, on one hand, and on closing old facilities that provide a low living standard, on the other. The plan was approved by Respondent 1, and was presented to the Government. It is argued that its realization will lead to a significant improvement in the living conditions of the inmate population, including an increase in the average cell size per prisoner. Third, our attention was directed to the Prisons Service’s plan to execute Amendment 42, which has a budget of 86 million NIS for the years 2016-2018, and which will emphasize improvements in the treatment, rehabilitation, medical, and educational services offered in the prisons. Fourth, the Respondents noted Decision no. 1840 of the 34^th Government, of Aug. 11, 2016 (hereinafter: Decision 1840), which established a series of steps for making the penal and rehabilitation policies more efficient, among them: expanding the community-court model, with a view to limiting punishment by means of imprisonment; a suggestion to enact authorization for the courts to order community service for up to nine months (rather than the current six months); the allocation of 75 additional electronic monitoring devices to the Rehabilitation Authority for prisoners on conditional release. Fifth, the Respondents noted that in preparing the State budget for the years 2017-2018, an agreement was reached between the Ministry of Internal Security and the Ministry of Finance for the establishing of a Prisons Service building fund that would be allocated 20 million NIS in the Prisons Service’s basic annual budget, and that would rise to 60 million from 2019 onward. To summarize this matter, it was argued that the steps enumerated – which are being carried out, as noted, in accordance with the balance inherent in the application provisions of the regulations – provide a full response to the first remedy sought by the petition.

28.       The Petitioners submitted their reply on Sept. 25, 2016. While the Petitioners were of the view that the steps enumerated in the Respondents’ reply were welcome, they argued that there was no obligation to increasing the living space of inmates, even by mere centimeters, and certainly not in any defined time period. As for reducing the inmate population by means of alternatives to incarceration, the Petitioners are of the opinion that that provides no guarantee that the living space of inmates will be increased when it was not defined in advance as an independent objective, along with the establishing of a rigid standard and an orderly plan for its achievement. Thus, for example, it was argued that the administrative-release mechanism – in place since 1993 – has not itself led, as yet, to an improvement in the living conditions of the inmates. The Petitioners do not expect that the steps taken to reduce recidivism and the changes in penal policy will lead to a significant reduction in the number of inmates. It is argued that these plans affect a very limited number of inmates, and therefore, cannot serve to increase the living space allotted to the general inmate population in any acceptable manner. As for the Respondents’ updates on the matter of plans for constructing new prison facilities and the renovation of existing facilities, the Petitioners are of the opinion that these, too, cannot provide a response to the problem of overcrowding in the absence of a predetermined minimum standard for living space that will be allocated to each prisoner and detainee when the plans are realized. It was further argued in regard to the plan-in-principle, that the Respondents’ reply lacks specifics as to its concrete objectives, the projected timeframe for its completion or its estimated budget, all of which the Petitioners believe are required in order to evaluate the actually expected effect on the living space of prisoners and detainees.

29.       On Feb. 8, 2017, a hearing was held before the present panel on the objection to the order nisi. The attorney for the Respondents argued that tremendous progress had been made since the issue was brought before the Court, and this alone justifies denying the petition. The construction fund mentioned in the reply was specifically noted, and the Respondents requested additional time to provide a more detailed update in regard to the concrete timetables expected to be established in that regard. Given what was presented, the Respondents were granted 30 days to submit an updated notice, and the Petitioners were granted 10 additional days to reply.

30.       On April 3, 2017 – after requests for continuances, and without blaming the “messenger” – an updated notice was submitted on behalf of the Respondents. It stated that following a complex administrative review by the Prisons Service, with the cooperation of the Attorney General, who was also involved in the matter, the plan for building additional prison spaces in a number of new, high-standard facilities was examined, as well as a proposal for increasing the living space in the existing prisons. It was submitted that as of the date of the filing of the notice, the Respondents were as yet unable to crystallize a final position as to the said alternatives, and more time was requested in order to update the Court on the results of the review. We granted the request in our decision of April 9, 2017.

31.       The Respondents submitted a supplementary notice on April 21, 2017. That notice presented an update in regard to a number of solutions that had been developed, in addition to the steps already detailed in the reply. First, it was submitted that it had been decided to erect a new prison to replace the Neve Tirzah women’s prison, which would comprise 311 prison spaces at a cost of 171 million NIS. In this regard, it was noted that the living space allocated to prisoners in Neve Tirzah is currently 3.1 square meters on average, whereas building the new facility would lead to increasing the living space to some 6.5 square meters. Second, the Respondents updated the Court as to a plan for expanding cells in some of the existing prison facilities by removing 200-500 empty beds. Third, we were informed that the Prisons Service, in cooperation with the Ministry of Finance and the Ministry of Public Security, would begin detailed planning for the construction of a new prison – in addition to the facility intended for women – together with the closing of an old prison. It was stated that the sum of up to 15 million NIS would be allocated for the purpose of preparing the detailed plan for the facility, which would be addressed in the framework of the 2019 budget, and it was noted that there is already an approved development plan. The Respondents further updated the Court as to the progress made in regard to the execution of Decision 1840, and particularly in regard to the elements related to alternatives to imprisonment.

32.       The Respondents submitted their reply on April 27, 2017. It stated that the Respondents’ notice did not change their principled position according to which an order absolute should be granted. It was argued that the steps enumerated above do not constitute an undertaking in regard to increasing the living space of inmates, and are, in any case, far from providing a solution to the problem of overcrowding. That is the case inasmuch as some of them are – it was argued – of a theoretical and speculative character, whereas the concrete steps noted (such as building an alternative facility for Neve Tirzah) relate only to a limited prison population. That being the case, the Petitioners are of the opinion that even if these steps would increase the prison spaces by some amount – under what they deem the unreasonable assumption that the rate of incarceration and arrest will remain steady – it will not be an amount with the potential of achieving an appropriate average living space for each and every prisoner and detainee.

Review and decision

33.       It is a fundamental principle 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…” (HCJ 337/84 Hokma v. Minister of Interior [1] 832, per Justice M. Elon). And note: a prisoner – even if he is lawfully imprisoned and is not one of the thirty-six righteous – is deprived, first and foremost, of his right to liberty, along with additional restrictions that derive from the purpose and nature of imprisonment. But the prisoner is not denuded of his rights as a person, and he does not lose those freedoms granted to every person as such, unless it is required for the purpose of incarceration. Prison walls are not a “normative black hole” beyond which there are no rights or protections. On the contrary. A prisoner – who is, of course, subject to certain duties of conduct in prison – is in the custody of the State, and the State has heightened responsibility for him:

When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison … Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly (PPA 4463/94 Golan v. Prisons Service (hereinafter: the Golan case [2]) 172, per Justice M. Cheshin).

And further on (at p. 175):

… a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack.

34.       However, as we know, the basic principle of the Israeli constitutional system that a person’s – any person’s – basic rights must not be infringed is not absolute, and such infringement is possible where there is “a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this” (HCJ 2245/06 Dobrin v. Prisons Service [3], para. 13, per Justice A. Procaccia).  However, “the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law” (HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance (hereinafter the Prison Privatization case [4],  595, per President D. Beinisch).

35.       Of course, in establishing the scope of the protection of the human rights of a prisoner, we must also address considerations inherent to incarceration and the duties imposed upon the Prisons Service: the need to protect all the prisoners and their rights; to maintain order and discipline in the prisons; and to ensure the welfare and security of the other prisoners and of the prison staff (the Golan case [2], 150).

Human dignity and the dignity of the prisoner

36.       Another basic principle: the right to human dignity is anchored in Basic Law: Human Dignity and Liberty. The Basic Law establishes a prohibition upon violating the right to dignity, as well as a duty to protect it:

1A. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

2. There shall be no violation of the life, body or dignity of any person as such.

…

4. All persons are entitled to protection of their life, body and dignity.

…

11. All governmental authorities are bound to respect the rights under this Basic Law.

            A prisoner does not enjoy liberty – one of the two elements of the title of the Basic Law – inasmuch as he is incarcerated. Section 5 of the Basic Law, which states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”, does not apply to prisoners, particularly in view of the limitation clause entitled “Violation of rights” (sec. 8), which states: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (and see: LHCJA 4937/14 Albazian v. Attorney General [5], paras. 11-12; LHCJA 328/15 Zalum v. Attorney General (hereinafter: the Zalum case [6]), para. 35).

37.       This Court has long held that human dignity comprises a broad field of rights, inter alia, and with nuances that this is not the place to elaborate, the right to freedom of religion and freedom from religion, the right to freedom of expression, the right to one’s good name, and the right to family life (A. Barak, Human Dignity: The Constitutional Value and its Daughter Rights (2014), chap. 13 (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]). The Basic Laws do not expressly recognize social rights, and the courts have refrained from unequivocally stating that the government has a duty to respect social rights (B. Medina, Human Rights Law in Israel (2017) (Hebrew)). However, it has been held, and this is perhaps the main point, that the right to dignity also includes a right to basic dignified existence.

38.       In HCJ 161/94 Atari v. State of Israel [7], and later in HCJ 4905/98 Gamzu v. Yeshayahu [8], the Court recognized the right to minimal dignified human existence – ensuring basic human subsistence (and see: HCJ 10662/04 Hassan v. National Insurance Institute [9]). These judgments, and in many subsequent judgments (LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver [10]; HCJ 5578/02 Manor v. Minister of Finance [11], 736; AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality [12], 779; B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior [13]) recognized a basic right to a dignified human existence as a right to dignified socioeconomic existence, inasmuch as in “the free world”, the right to a dignified existence is intimately tied to economic welfare, and the possibility of maintaining it requires economic means. As opposed to this, the subsistence of prisoners behind bars is not contingent upon their economic capabilities, and it is by nature more modest. It consists primarily of the possibilities available to maintain his daily life within the confines of the prison and the purpose of imprisonment. “Indeed, the human right to dignity is also the right to have living conditions that allow an existence in which he will realize his liberty as a human being” (HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance [14], 480, per President A. Barak). The prisoner cannot, of course, realize his liberty while imprisoned, but he , of course, does not stop being a human being, and looking to the future, his humane treatment also benefits society and contributes to preventing recidivism, to the extent possible (see: H. Cohn, The Law (1991) (Hebrew), hereinafter: Cohn, The Law).

39.       It would not be an exaggeration to say that an inmate’s physical living space is one of his most basic existential needs. It is essential in every respect that there be a space in which the inmate can live his life within the limits deriving from his imprisonment. We are concerned with the core of human dignity, the nucleus of the right: “We are speaking of human dignity in its plain meaning, the core of human dignity, of human dignity as expressed and understood in plain language” (HCJ 1163/98 Sadot v. Prisons Service [15], 857, per Justice Cheshin). We should bear in mind that even were the conditions those established by the legislature, and every inmate were allocated 4.5 square meters of living space, it would hardly be wildly generous, and privacy would, nevertheless, be limited. But the word of the legislature, even if qualified, must remain before our eyes, and to it we must strive.

40.       But the living space allocated to an inmate throughout the prison facilities stands at only 3.1 square meters. This space is “all included” – it comprises the beds (some 1.5 square meters), storage spaces, and lavatory and shower areas. 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” (the Prison Privatization case [4], para. 32 of the opinion of Justice Procaccia), infringes the inmate’s privacy to the point of nullification, and allows only limited movement. The Petitioners enumerated a long list of the consequences of overcrowding for the lives of inmates, and well described how it can inherently lead to the spread of disease and to difficulties in maintaining good hygiene (see: The Public Defender’s Report, pp. 17-19). This is the case even if I do not doubt that the Prisons Service, its headquarters, district commanders and prison wardens work hard to improve the situation and maintain the health of the inmates. However, research shows that overcrowding leads to an increase in friction among the inmates, which in turn leads to violence and disciplinary breaches (Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 Wash. U.J.L & Pol’y 265 (2206); Gerald G. Gaes, The Effects of Overcrowding in Prison, 6 Crime and Just. 95 (1985). Truth be told, there is no need for research to know this – it is clear from experience and common sense. The research also points to the physical and psychological decline of inmates, an increase in the sense of pressure, tension and anxiety, as well as an increase in self-starvation (N. Dagan, “Early Prison Release: The Releasing Authority and its Discretion in Designing Penalties” (Ph.D. diss, 2013) (Hebrew); and see: Jack Call & Terence Thornberry, Constitutional Challenges to Prison Overcrowding: The Scientific Evidence of Harmful Effects, 35 Hastings L.J. 313, 319 (1984)). It is superfluous to say that overcrowding impairs the availability and accessibility of various services in the prisons. These services are divided among a larger number of prisoners, and the same is true for public spaces. We will now turn to the “terrible overcrowding in the prisons” (not necessarily in regard to Israel, and see: Cohn, The Law, 552).

41.       The Public Defender’s Report (Conditions of Detention and Imprisonment in the Prison Facilities of the Prisons Service in the Years 2013-2014 (2015) (Hebrew)) states, for example, in regard to ventilation conditions:

In the Maasiyahu Prison [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.7 square meters – Appendix P/1 – E.R.] the cells were found to be dark, and there were no means for proper air conditioning and ventilation, other than in the staff offices. In a visit in July 2014, when the weather was very hot, the inspectors met inmates who all, without exception, complained of the severe heat in the prison, and noted that the few fans that were given to them were insufficient to alleviate it. The inspectors themselves suffered from the intense heat in the cells, and noted that some of the cells were dark (p. 47).

            As for the sanitation and hygienic conditions:

In the Nitzan Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.4 square meters – Appendix P/1 – E.R], the inspectors were exposed to particularly severe sanitation conditions. The inmates complained of hard living conditions in terms of overcrowding, hygiene and the available equipment, and also showed the inspectors insect, lice and flea bites. According to them, the matter has not been addressed by the Prisons Service, and there has been no spraying of insecticide in the wing for over five months. The prisoners also complained of a lack of facilities for hanging laundry, such that they are required to hang wet laundry in the cell. In one cell, the inspectors saw many cockroaches around an empty plate, and there was a sense of severe suffocation and a stench that made it difficult to remain in the place for more than a few minutes. In another cell, the inspectors found that there was no dining table and the inmates eat while sitting on the beds. There was no trash can, and the trash was thrown into a bag on the floor. There were signs of severe damp, the paint was peeling from the walls, and there was a water leak. In another cell, which held eight inmates, overcrowding and stench. The shower and lavatory were in an inner room, but the water continuously ran out of it into the cell. Insects and cockroaches were observed in the cell, which cause the inmates itching and sores. There is a large window in the cell, without glass due to the extreme heat in the room. It was reported that in the winter, rain water enters the room through the window and wets the beds… (p. 51).

And further:

In the Hadarim Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 3.6 square meters – E.R], the inspectors noted the lack of hygiene in the cells of detainees being held under day-to-day arrest. The bathroom was neglected and dirty, and the metal (stainless steel) toilet and sink were dull and stained, the floor was filthy, trash was spread about the cell, on the walls and ceiling there were mildew, dirt and stains. The walls of the cell are covered in graffiti, and are completely peeling. The mattresses on the beds were torn, dirty and full of holes, and were nothing more than bare pieces of foam. There were gray woolen blankets on the beds, which were also partly torn and covered in stains. A bad odor emanated from the mattresses and blankets. Some of the beds were broken. In another cell, visited by the inspectors at lunchtime, there were three inmates who sat on the beds around a plastic table. The inmates crowded their trays on the narrow table or held them in their laps, and it was clear that eating was uncomfortable. Next to the table, there was an improvised trash bin, made from a large food can. This cell, too, was filthy, the blankets were dirty, and the inmates complained that they were used and had been left in the cell by other inmates. The inmates told that they wanted to clean the cell, but instead of being given cleaning supplies, the prisoner detail sprayed a little water and soap in the middle of the cell, and they removed the water from the cell with a squeegee. The inmates noted that the only cleaning material around is dishwashing soap, and even that is not accessible to them (ibid.).

42.       The Public Defender’s Office also noted that many prison facilities lack a partition between the shower and the toilet, such that the inmates have to shower while standing over the place where other inmates relieved themselves.

43.       The above is given concrete expression in the prisoners’ affidavits appended to the petition. We will quote some of them:

In that cell we were 8 inmates for 22 consecutive hours a day. Not enough daylight entered the room, so it was mostly dark. There was no air flow, so the room was suffocating and stank. There was no space in the room to stand and walk and stretch, so most of the time we would all lie on our beds … in 2005, I spent a year … in the Ayalon Prison. There we were twenty inmates in 35 square meters of living space, with only 14 beds in the room, and I had to sleep on a mattress on the floor. At night, inmates who went to relieve themselves stepped on me. Inmates threw things at me from their beds. There was a lot of violence in the room, and very frequently due to the severe overcrowding, and directly related to the issue of distributing the beds in the room and telephone times (P/11, Affidavit of Prisoner D).

            And:

The wings in which I was held for my 21 years of imprisonment until now were very crowded, filthy, not whitewashed, and certainly unfit for human habitation (P/12, Affidavit of Prisoner E).

44.       And this is how the situation was described by Mrs. Gilada Hellman, who held various positions in the Prisons Service, including warden of the Hermon Prison and District Prisoners Officer for the Northern District:

In a large part of the cells, there was such great overcrowding that there was no room to put a table or a chair in the cell, and the inmates, in such cases, had to eat while sitting on their beds with the plate on their knees, or they had to fight over the little available empty space … in a large part of the cells, there is also no room for keeping personal belongings … as a result, there are a lot of thefts and disputes among the inmates … the severe overcrowding conditions also negatively impacted the prisoners’ hygiene … (P/14).

45.       On a personal note: Over the years, beginning with my tenure as a District Court judge, and particularly during my term as Attorney General, and my tenure in this Court, I felt it was important to examine the living conditions of inmates by relatively frequent visits, without prior coordination other than a notice to the Legal Advisor of the Prisons Service immediately prior to the visit, and spontaneously choosing the prison. I also often wanted all the clerks in my office to see the prisons from the inside. I would note that a Supreme Court justice, as well as the Attorney General, may visit any prison in accordance with sec. 72 of the Prisons Ordinance. I recall what I was told by my late friend, and justice of this Court, Dr. Moshe Etzioni, who, when appointed to the Magistrates Court in 1945, asked the senior British judge for permission to visit a prison “in order to know where I am sending people”. I would also add at this juncture that I greatly appreciate the Prisons Service for its work – important and hard work – and I have always been impressed by the efforts of the commanders and their staffs to treat the inmates properly and respectfully. What will be said here is not intended to detract from that in any way. In those visits, after speaking with the prison warden, I would randomly visit the cells in the various wings as I chose, and talk to the inmates. I was always impressed by the efforts of the staff and all involved in providing, to the extent possible, suitable conditions and various services that would afford the inmates a real opportunity to leave the cycle of crime for a normative life, as far as possible, and attain “local quiet” to the extent possible. However, I saw crowded cells, with hardly adequate ventilation, particularly in the hot summer days, and a lack of space heaters in the winter in the old buildings. Thus, for example, after visiting the Ayalon Prison on July 23, 2008, I wrote to the Deputy Commander of the Central District and the Warden of the Ayalon Prison: “The Ayalon Prison is based upon an old building from the Mandate period, and it is clear that parts of it that remain from that structure are completely inadequate in terms of the living conditions of the inmates, where 12- 14 inmates reside in a cell that is not large enough for such a number, and the shower is over the toilet. We understand that three new wings are currently under construction, and that there is an intention to upgrade the existing ones thereafter. It is to be hoped that this process will be accelerated, as it is hard to accept such cells in the 21^st century … and this is not meant as criticism of the work of the staff, but rather of the unacceptable situation” (my letter dated July 24, 2008). After my visit to the Nitzan detention center on March 1, 2011, I wrote to the Prisons Commissioner that “in the renovated wing, living conditions are good and the lavatories are at a good level … in the ‘old’ wing as well, although it is much more crowded, we heard no complaints from the prisoners or detainees, and on the contrary, praise for the treatment by the staff. Nevertheless, the conditions require improvement, and it is to be hoped that the renovation will be carried out quickly” (my letter of March 2, 2011). After my visit to the Shatta (Shita) prison, I sent a letter to the prison warden in which I noted, among other things, that “at the basic level, we are concerned with old prisons, and the crowding is, therefore, not insignificant in some of the cells” (my letter of March 6, 2017). Actually, there is a high degree of overcrowding in certain Israeli prison facilities because they were built long ago, some in the British Mandate period, and there is even a remnant of the Ottoman period (the Russian Compound). Certain police stations that comprise detention rooms suffered from overcrowding. In the closing days of my tenure as Attorney General, I visited one of the police stations in the Judean foothills that comprised detention cells. A very crowded cell that was “intended” for six detainees in three bunk beds (and would even then be very crowded), held 12 people, and in addition to the six in the beds, two slept on the shelf over the shower that was in the cell, two shared beds with others (good lord), and two on the floor, who in certain conditions – if they did not pose particular danger – would be taken out into the hall to sleep in the air of the hallway rather than in a suffocating room. I turned, almost in a frenzy, to the Ministry for Public Security, and I was promised that the matter would be resolved quickly.

46.       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. As noted, a number of reports addressed the issue of prison conditions over the years, committees were convened, and the complex reality of budgeting and logistics led to a situation in which, for years, efforts have been made, plans devised, and steps even taken – and I say this with no intention to offend anyone – but an appropriate solution in the field has not been provided for a large part – too large a part – of inmates.

47.       We will already state that we are aware that, at the end of the day, the hurdle is economic and concerns the priorities of the decision makers, and “the needs of your people are many”.[2] None of the decision makers wishes to harm the prisoners and detainees, but the absolute majority of inmates “enjoys” living space that is lower, by any standard, from what is acceptable in a civilized state, as we shall elaborate below. While it is generally neither the practice nor the place of this Court to intervene in setting priorities for the division of state resources by putting ourselves in the authority’s shoes, that is not what we are concerned with here. No one disputes that basic rights cannot retreat before budgetary considerations (HCJ 451/94 Miller v. Minister of Defence [16]), inasmuch as “the rhetoric of human rights must be backed up by a reality that places those rights at the forefront of national priorities. Protecting human rights costs money, and a society that respects human rights must be willing to carry the financial burden” (Aharon Barak,  Interpretation in Law – Constitutional Interpretation, vol. 3, (2013) 528 (Hebrew) (hereinafter: Barak, Interpretation in Law); and also see HCJ 9134/12 Gavish v. Knesset [17] and references there). As noted, 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.

International and comparative law

48.       In their petition, written responses, and oral arguments before the Court, the Petitioners made many references to international and comparative law. Indeed, the subject of the appropriate living space for prisoners and detainees has been addressed by many countries, of all types, both among those considered progressive and those that do not enjoy a good reputation in this area, and has been widely addressed by international enforcement agencies and other international bodies. While this is not lost upon the Respondents, who are of the opinion that caution should be exercised in comparing these laws to the balance struck by the Israeli legislature, and it is clear that every state has its own character, needs and abilities, I am of the opinion that the scope of comparative law’s interest in the area – together with the fact that we are concerned, to a great extent, with a universal question of human dignity – requires that we train our sites abroad. That clearly does not imply entirely adopting an arrangement of any particular country into our legal system. The survey is meant to enlighten us in our search for a solution to the problem we face. An incarcerated person, as such, is one and the same throughout the world. History and literature are laden with commentary and stories concerning imprisonment and the conditions of imprisonment in regimes to which we have never been, and will not be similar in any shape or form, not only in the distant past, but even in recent generations and in our own time, even close to us, whether a calaboose or a gulag. Israel seeks to be and to appear as the most civilized of nations, and while this area may physically be situated “behind closed doors”, it is a moral showcase.

International law

49.       We will, therefore, begin with the position of international law. The relevant requirement established under art. 10(1) of the International Covenant on Civil and Political Rights of 1966, states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. While the phrase “with humanity and with respect for the inherent dignity of the human person” is inherently of a general nature, minimal floor space is among the basic conditions to which every prisoner is entitled under the United Nations Standard Minimum Rules for the Treatment of Prisoners, last amended in 2015:

All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation (rule 10, emphasis added – E.R.).

            It should be noted that despite the express requirement to provide minimum living space, the rules do not specify a concrete standard that must be met.

50.       An additional source for interpreting the requirement for the appropriate care of prisoners can be found in the work of the UN Human Rights Committee, whose task is to supervise the execution of the Covenant (not to be confused with the Human Rights Council and its well-known discriminatory attitude towards Israel). The Committee addresses the issue of prison overcrowding as part of its periodic review of the member states, as well as in reviewing petitions submitted to it concerning the violation of their obligations under the Covenant and the Rules. An examination of cases reviewed by the Committee reveals that providing appropriate living space is indeed part of the obligation to treat prisoners “with humanity and with respect for the inherent dignity of the human person”. However, it is difficult to discern any rigid standard for appropriate living space in the Committee’s reports.

51.       International law also examines the conditions of imprisonment from the perspective of the prohibition of cruel, inhuman or degrading punishment. This prohibition, while worded in a general manner, is anchored in art. 5 of the International Covenant on Civil and Political Rights, and in art. 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Israel in 1991.

52.       According to the Petitioners, providing less than 4.5 square meters of living space per prisoner, independent of lavatory and shower areas, in a shared cell constitutes a violation of the said prohibition. Support for this view can be found in the reports of the UN Committee against Torture, which note that member states must provide living space of at least that scope (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Estonia at its Fiftieth Session, U.N. Doc. CAT/C/EST/CO/5 (Jun. 17. 2013)., para. 17; Comm. against Torture, Concluding observations on Bulgaria at its Forty-seventh Session, U.N. Doc. CAT/C/BGR/CO/4-5 (Oct. 31. 2011), para. 21). However, in most cases, the Committee does not require the reviewed state to meet a concrete objective in regard to the average living space per prisoner, but rather suffices with a general statement as to the need to observe the Rules (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Colombia at its Fifty-fourth Session, U.N. Doc. CAT/C/COL/CO/5 (May. 29. 2015), para. 17; and see: Comm. against Torture, Concluding observations on the third periodic report of Philippines at its Fifty-seventh Session, U.N. Doc. CAT/C/PHL/CO/3 (Jun. 2. 2016), para. 27).

53.       A minimum standard of 4 square meters per prisoner, excluding lavatory and shower areas, and a total 6 square meters per prisoner, including those areas, for a prisoner in a single-occupancy cell, was recently established by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), which is responsible for the execution of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1950. It is significant that while the UN Committee views 4 square meters as an appropriate criterion, the European Committee regards that as a rigid minimum standard that is not, itself, sufficient to ensure proper living conditions:

Clearly, the aforementioned examples suggest that the 4m² per prisoner standard may still lead to cramped conditions when it comes to cells for a low number of inmates. Indeed, given that 6m² is the minimum amount of living space to be afforded to a prisoner accommodated in a single-occupancy cell, it is not self-evident that a cell of 8m² will provide satisfactory living space for two prisoners. In the CPT’s view, it is appropriate at least to strive for more living space than this. The 4m² standard is, after all, a minimum standard (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment, Living Space per Prisoner in Prison Establishments: CPT Standards, CPT/Inf (2015) 44, para. 15 (emphasis added – E.R.)).

54.       In addition to the establishment of the said standard, the European Court of Human Rights – which acts under the authority of the European Convention – addressed a large number of applications in regard to the prison conditions in various states. In this framework, a clear rule was created on the question of when the incarceration of a prisoner would constitute a violation of the prohibition upon cruel, inhuman, or degrading punishment established under art. 3 of the Convention. Under the case law, meeting the standard of 4 square meters of living space per prisoner (exclusive of additional areas), as stated, is a central consideration in evaluating the conditions of imprisonment (Karalevicius v. Lithuania, no. 53254/99, § 36, ECHR 2005). Moreover, it was held that where the living space allotted to a prisoner is less than 3 square meters, the Court would view the crowding itself as grounds for a violation of the prohibition upon cruel, inhuman or degrading punishment (Ananyev v. Russia, no. 42525/07, § 145, ECHR 2012 (hereinafter: the Anyanev case); Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002; Badila v. Romania, no. 31725/04, § 72, ECHR 2011 (hereinafter: the Badila case); Ostrovar v. Moldova, no. 35207/03, § 82, ECHR 2005; Lonia v. Croatia, no. 8067/12, § 76, ECHR 2014 (hereinafter: the Lonia case)). It should be noted that even when the allotted living space per prisoner is greater than 3 square meters but less than the 4 square meter standard, additional factors – such as the ventilation and heating of the cell, exposure to daylight, basic hygienic conditions and the possibility of using the lavatory without an infringement of privacy – may tip the scales in favor of a finding of cruel, inhuman or degrading punishment (the Badila case; Peers v. Greece, no. 28524/95, § 70, ECHR 2001).

55.       As for the consequences of such a violation, European law – as a rule – grants compensation for non-monetary harm to a person who suffered cruel, inhuman or degrading punishment; and see in this regard: Olszewski v. Poland, no. 21880/03, ECHR 2013, in which  the Court awarded the applicant €5000 for his injuries due to the conditions of his imprisonment – foremost among them, being held in a space that was less than 3 square meters for a cumulative period of some 5 years; and see Marin v. Romania, no. 79857/12, ECHR 2014, in which the applicant was awarded €15,300, in part due to the crowding in the facilities in which he was held for a period of about 10 years; and see the Lonia case, in which the Court awarded the full sum requested – €10,000 – inter alia due to the fact that the plaintiff was held for a year of his overall incarceration in a living space that was smaller than 3 square meters.

56.       It should also be noted that in some cases the Court exercises its authority under art. 46 of the European Convention, which permits instructing the member states to take operative steps, whose execution is supervised by the Committee of Ministers. Although the Court’s judgments are declaratory in nature, the panel may – under the said authority – establish a timeframe for the execution of its instructions, or recommend concrete steps to be taken by the country to meet them. That was done in the Orchowski case, cited above, which examined the conditions of imprisonment of the applicant in eight different Polish prison facilities over the course of 6 years, as of the date of the judgment. In view of the finding that the applicant had been held for most of that period in an area that was less than 3 square meters, and at times he was allotted even less than 2 square meters, the Court ruled that the prohibition upon cruel, inhuman or degrading punishment had been violated in his regard. In addition to awarding damages for the applicant’s injuries, the Court ruled that that the state had to establish long-term solutions for the problem of overcrowding in the prison system in order to meet acceptable standards. It was further held that if adequate steps were not adopted to improve the conditions of imprisonment, the state must adopt a more lenient penal policy or put in place a system of alternative means of punishment.

57.       The Ananyev case concerned three complaints by Russian prisoners against the conditions of their imprisonment. In addition to the finding that the applicants’ living conditions constituted cruel, inhuman or degrading punishment, the Court ruled that the problem of overcrowding in Russia – which affects various prison facilities throughout the country – requires long-term solutions, with emphasis upon reducing the number of remands in custody, and granting early release to prisoners:

… the Court considers it important for the purposes of the present judgment to highlight two such issues which need inevitably to be addressed by the Russian authorities in their ongoing struggle against persistent overcrowding of remand centres. The first issue concerns the close affinity between the problem of overcrowding, which falls to be considered under art. 3 of the Convention, and an excessive length of pre-trial detention … The second issue, which is closely linked to the first, concerns possible additional ways of combating the overcrowding through provisional arrangements and safeguards for the admission of prisoners in excess of the prison capacity (ibid., para. 196).

            It was further required that Russia present a binding time-frame for the adoption of the said measures, within six months from the date on which the Court’s judgment became final.

58.       In the Torreggiani case, as well, which treated of the conditions in two Italian prisons, the court allotted the state one year to develop a plan for addressing the overcrowding issue, and recommended that the plan include means for reducing the number of remand prisoners, and early release. Another judgment in which the European Court exercised its authority under art. 46 was recently issued in Varga and others v. Hungary (no. 14097/12, ECHR 2015), which addressed the applications of six prisoners, each held in a different facility. The court held that the limited space allotted to the prisoners, along with other poor conditions, constituted cruel, inhuman or degrading punishment, and the state was given a period of six months to present a plan for remedying the conditions of imprisonment and reducing the number of prisoners and detainees.

The United States

59.       The problem of overcrowding in prisons in the United States – generally viewed as one of the most civilized countries – is among the most severe in the Western world (Shepard Simpson & Lauren Salins, Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic, 44 Loy. U. Chi. L.J. 1153, 1157 (2012) (hereinafter: Simpson & Salins); and see, Paul Paulus, Garvin McCain & Verne Cox, Prison Standards: Some Pertinent Data on Crowding, 45 Fed. Probation 48 (1981)). As a result, the question of the average living space per prisoner has not infrequently come up for review before the federal courts. In various petitions filed in regard to prison conditions, it was argued that overcrowding rose to the level of “cruel and unusual punishment”, which is the American equivalent to the said cruel, inhuman or degrading punishment in international conventions, and which is prohibited under the Eighth Amendment to the U.S. Constitution.

60.       The U.S. Supreme Court first addressed the issue in Rhodes v. Chapman (101 S. Ct. 2392 (1981) (hereinafter: the Rhodes case)), which concerned the constitutionality of the practice of “double-celling” – i.e., holding two prisoners in a cell intended for single occupancy. In denying the appeal, the majority held that the overcrowding did not constitute cruel and unusual punishment under the circumstances, inasmuch as the overcrowding did not lead to deprivations of the prisoners’ essential living conditions, such as sanitation, food quality, medical care, and so forth, nor did it increase violence among inmates.

61.       Since the reasoning in Rhodes was specific to the conditions of the concrete case, and refrained from drawing clear lines for a forward-looking comprehensive test, the federal courts were left broad discretion (see: Simpson & Salins, p. 1164), whose approaches could be divided into three primary views (Susanna Y. Chung, Prison Overcrowding: Standards in Determining Eighth Amendment Violations, 68 Fordham L. Rev. 2351, 2362-2371 (2000). According to the first approach, overcrowding alone should not be viewed as a criterion for a violation of human rights, but rather the question to be addressed is whether the prison living conditions as a whole represent a violation of the prohibition upon cruel and unusual punishment. The second approach, which is substantively similar to the majority opinion in Rhodes, holds that the overcrowding must have a negative effect upon the prisoner’s living conditions – e.g., the quality of food served, or the medical care provided – in order to be deemed unconstitutional. According to the third approach, reminiscent of the view of the European Court, holding a prisoner in a small living space may itself constitute cruel punishment.

62.       In 2001, the U.S. Supreme Court was faced with an appeal by the governor of California in the Plata case, challenging the judgment of the federal court in a class action by inmates in the state. That judgment ordered the State of California to reduce the number of prisoners in the state by no less than 38,000 to 46,000 inmates within a period of two years. By a five-to-four majority, the Court denied the appeal and upheld the decision of the appellate court.  Although the majority did not reverse the Rhodes ruling that measured the constitutional infringement in terms of the basic living conditions of the inmates, it held that overcrowding constituted a primary cause of the violation of the prohibition upon cruel punishment, and therefore, there was no alternative but to reduce the number of inmates:

The population reduction potentially required is nevertheless of unprecedented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding (ibid., at p. 1923, per Kennedy, J.).

63.       It should be noted that the Supreme Court’s decision in regard to the existence of disproportionate overcrowding in the prison was not based upon a calculation of the average living space per prisoner, but rather upon data concerning capacity – 200% at the relevant time. Reducing between 38,000 and 46,000 inmates was thus intended to bring occupancy down to 137.5% of capacity, which represented the compromise reached by the appellate court between the demand of the prisoners (130% of capacity) and the limitations of the state. It was further held that it was not necessary that every facility achieve the said standard, but that it would suffice that it be achieved on average:

There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it so the system as a whole remains in compliance with the order (ibid., p. 1941).

64.       It would seem that the decision in the Plata case expressed the Supreme Court’s readiness to retreat from the demand of a direct causal connection between the size of an inmate’s cell and a worsening of his basic living conditions, in favor of recognition – cautious as it may be – of overcrowding itself as a cause for a constitutional violation, in view of its inherent consequences for the services provided in the prison. And note: although the decision did not expressly recognize the right of every prisoner to minimal living space, its consequences were far-reaching in terms of the remedy (“perhaps the most radical injunction issued by a court in our Nation’s history,” per Scalia, J., dissenting) – ordering the state to reduce a concrete number of inmates (although leaving the manner of execution to the state’s discretion) in a clear timeframe.

Canada

65.       In Canada, too, petitions by prisoners against overcrowding are examined from the perspective of the prohibition upon cruel and unusual treatment or punishment anchored in sec. 12 of the Canadian Charter of Rights and Freedoms of 1982, to which this Court has referred on more than one occasion. The Canadian Supreme Court has yet to address the concrete question of average living space per prisoner, but a review of recent decisions of the Court of Queen’s Bench of Alberta can cast some light on the position of Canadian law in principle on the issue before us.

66.       The Trang case (Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6) concerned a petition by some 25 prisoners for declaratory relief stating that the conditions in the facility in which they were being held pending trial constituted a violation of the said prohibition. It was argued, inter alia, that “double-bunking” of inmates in cells intended for single occupancy – ranging in size from 7.9 square meters to 8.1 square meters, i.e., some 4 square meters per inmate – constituted cruel punishment. This is how the court described the overcrowding in the facility:

The evidence shows that the cells are all double-bunked (except medical and segregation), that the cells were originally designed for one person, that there is not enough room for both roommates to walk around or exercise in the cell at the same time, and that there was only room for one person to sit at the table, leaving the bunk bed for the other. There is no toilet privacy (ibid., para. 1013).

            It was held that although double-celling itself is not an inherently prohibited practice (in reliance upon the 1982 decision of the Federal Court of Canada in Collin v. Kaplan (CanLII 2982 (FC)), it could not be tolerated in the present circumstances:

By itself double bunking is not a Charter breach. But many of the Applicants were on strict rotation schedules, which meant that they were only out of the cells for a half hour at a time, and that depending on the rotation, their total time out of cells ranged from 3 hours to 6 hours. Assuming an 8 hour sleep period, this means that they were awake and in the cells for 10 to 13 hours a day.

…

In my view, the amount of time spent reviewing disclosure, out at court, or for that matter, attending medical or dental parade, does not mitigate the fact that these Applicants spent a very significant amount of time in a very small cell, with little access to recreation or other activity. They could not even watch television, since the TVs were in the common area. I conclude that the s. 12 rights of these inmates were breached.

Obviously, it is the combination of double-bunking in small cells for 18-21 hours a day, with limited access to recreation and other activities that leads to this conclusion (ibid., paras. 1013, 1024-1025, emphasis added – E.R.).

67.       The Walters case (R. v. Walters, 2012 ABQB 83), which concerned petitions of remand prisoners being held in that same facility pending trial, addressed the question whether triple-celling – i.e., holding three in a cell intended for one – constituted a violation of the Charter prohibition upon cruel punishment. As noted, we are speaking of 8 square meter cells, such that the living space allotted to each detainee amounted to some 2.6 square meters. In addition, one of the detainees slept on a mattress due to insufficient space for an additional bed. When it was found that the only reason for the overcrowding of the facility was budgetary, the court ruled that holding three people in a cell intended for one constituted cruel punishment, and a fortiori in regard to remand prisoners who enjoy a presumption of innocence.

68.       In conclusion, no one denies that the problem of prison overcrowding exists in many countries – inter alia, as a result of the modern punitive policy that has led to a significant decline in executions and a rise in the number of prisoners – and they seek a variety of solutions to contend with it. Accordingly, the picture provided by the comparative 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. Against this background, we will now return to address the present petition, but not before expressing the view of Jewish law on the subject of the treatment of prisoners.

The treatment of prisoners in the Jewish heritage

69.       The Jewish conception of human rights derives, first and foremost, from the principle stated at the beginning of the book of Genesis in describing the outset of human history:

Then God said, “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals, and over all the creatures that move along the ground.” So God created mankind in his own image, in the image of God he created them; male and female he created them (Genesis 1:26-27; emphasis added – E.R.).

70.       In the same spirit, the poet of the Psalms would later write: “You have made him little less than divine, and adorned him with glory and majesty” (Psalms 8:6; emphasis added – E.R). In the tannaitic period, Rabbi Akiva would explain: “Beloved is man for he was created in the image [of God]. Especially beloved is he for it was made known to him that he had been created in the image [of God], as it is said: For in the image of God He made man” (Mishna Avot 3:14).

71.       With the passage of time, the principle “For in the image of God He made man” would become one of the most centrally important principles that Judaism gave to humanity, and particularly to the free world. Human dignity and liberty are, therefore, a direct result of creation in God’s image. This is a principle that “impliedly and expressly encompasses, instructively and beautifully, the basis and foundation of all society, the grounding of the fundamental norm of the legal world” (Justice M. Elon, In the Image of God He created Him – Human Dignity and Liberty, in Parashat HaShavua – B’resheet 1(A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)). And as Prof. M. Elon also writes:

These two fundamental values – human dignity and human liberty – are interconnected, one influencing the other and uniting as one in our hands. So it is in the sources of Jewish heritage, and so it is in the Western democratic world. In the Jewish world, these two fundamental rights derive from one source – the fundamental principle of the creation of humanity in the image of God (Menachem Elon, Human Dignity and Liberty in Jewish Heritage, 12(1) Mahanayim: “On Halakha and Law” 18 (1995) (Hebrew)).

In his article Shelihut, in Yemei Zikaron (1987) (Hebrew), Rabbi J.B. Soloveitchik writes: “The value of human dignity is a central axis of many halakhot … and it may well be that all the interpersonal mitzvot are based upon the value of human dignity … In his commentary on the verse ‘Let us make mankind in our image, in our likeness’ (Genesis 1:26), Nachmanides refers to the Psalms (8:6), where the expression ‘in our image, in our likeness’ is replaced by ‘and adorned him with glory and majesty’. Thus, the image of God is replaced by the ‘dignity of God’, and its equivalent in the language of the sages is ‘human dignity’.” Also see, N. Rakover, Great is Human Dignity: Human DIgnity as a Supreme Value, 18-26 (1998) (Hebrew) and the many references there; and the Sages have said (Babylonian Talmud Berakhot 19b), “Great is human dignity, as it overrides a prohibition in the Torah”; and see the comprehensive entry in The Encyclopedia Talmudit, vol. 26, 477,  s.v. “kevod ha-beriyyot” (which states, inter alia, “A person must be careful in regard to human dignity – and Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] have written that this is a mitzva – and it is forbidden to embarrass or degrade”).

72.       Under the principles of Judaism, the principle of the creation of human beings in the Divine image requires that prisoners must also be treated with dignity. Indeed, prisoners are incarcerated because of their crimes, which arouse our revulsion and disgust, but they remain human beings, and they are entitled to be treated humanely, in accordance with the accepted criteria of a progressive society, as Israeli society seeks to be. The vulnerability of prisoners derives from two sources: first, from the very fact that they are deprived of their freedom – the greatest of all human rights, along with the right to life – and they are in the custody of the state (see, the Prison Privatization case [4], para. 20 of the opinion of Beinisch, P.); second, because – at least the criminal prisoners – largely “lack a lobby” in the political-public sense, although the Public Defender’s Office fights on their behalf, as do rights organizations (as in the present case), and the Prisoner Rehabilitation Authority in carrying out its mandate. Jewish law in this area begins with the presumption that the rights of prisoners must be respected, and should not be violated except to the extent required by the purpose of their incarceration. “Beloved is man for he was created in the image [of God] – every person, great and small, anonymous and renowned – and we are commanded to protect and preserve all of their rights, even if we are appalled by acts that they committed” (MApp 1/87 Dananashvili v. State of Israel [18], 289, per Elon, J.; emphasis added – E.R.).

73.       Before addressing the scope and nature of prisoners’ rights in Jewish law, we will first note that, as a rule, imprisonment as a means of punishment was unknown to the sources of Jewish law, and it is absent from the list of punishments detailed in the Torah (see, I. Wahrhaftig, “Then you shall select cities to be cities of refuge for you” – Exile as an Alternative to Imprisonment, Parashat HaShavua – B’midbar, 289 (A. Hacohen & M. Vigoda, eds,) (hereinafter: Wahrhaftig) (Hebrew); CrimA 344/81 State of Israel v. Segal [19], 327 (hereinafter: the Segal case); and see, Rabbi E.Y. Waldenberg, Imprisonment as Punishment, B’tzomet haTorah v’haMedina, vol. 1, 389 (Y. Shaviv, ed., 1991) (Hebrew); Rabbi M. Shelpovesky, Imprisonment, op.cit., 401 (Hebrew); Rabbi L. Kaminer, Imprisonment in Israel, 9 Tehumin 147 (5748) (hereinafter: Imprisonment in Israel) (Hebrew)). The sages mention “prison” (see, e.g., Baylonian Talmud Pesachim 91a – and note the distinction there between a “prison of the gentiles” and “a prison of Israel” – which Rashi explains as concerning the compelling of a divorce or the payment of a debt, for example), and Maimonides lists imprisonment among the penalties that a court can impose (Laws concerning Murder, 2:5, and Sanhedrin 24:9). But see, A. Kirschenbaum, Jewish Penology: The Theory and Development of Criminal Punishment among the Jews Throughout the Ages, 428-429 (2013) (hereinafter: Kirschenbaum) (Hebrew)), according to whom “imprisonment was a not a Jewish form of punishment” and was rarely mentioned in biblical and talmudic literature as a form of punishment (ibid., 429)). Indeed, in principle, Jewish law prefers more “proportionate” forms of punishment that do not deprive a person of liberty (see, Aviad Hacohen, Life Imprisonment that is not for Life, and Prisoner Dignity and Liberty: A Jewish Law Perspective, 204 HaSanigor 15 (2014) (hereinafter: Hacohen) (Hebrew)). According to Wahrhaftig, as opposed to imprisonment, “biblical punishment was a one-time penalty that prevented separating the offender from his natural surroundings, and facilitated his reincorporation into society immediately upon the conclusion of the legal process” (Wahrhaftig, p. 291; and see, HCJ 5304/92 Perah Association v. Minister of Justice [20], 744, per Elon, D.P. (hereinafter: the Perah case). This is so even though the Bible was aware of imprisonment as a form of punishment – with a trial or without – in the ancient world in general, and there is no lack of examples in the Bible, such as – in ancient, non-Jewish kingdoms – the story of Joseph in Egypt (Genesis 39-41) and the story of Hananiah, Mishael and Azariah in Babylonia (Daniel 3), and in the Judean kingdom in the case of Jeremiah (chaps. 32-33, 37); the imprisonment of King Jehoiachin (II Kings 25: 27-29); and King Jehoahaz (II Kings 23:37); and King Zedekiah in Babylonia (Jeremiah 52:11); and also see Ezra 7:26. As for the Talmudic period, Kirschenbaum writes that “we have not found that the Sages instituted it for any offense whatsoever” (ibid., 429).

74.       In their article A City of Refuge in a Modern Penal System (Hebrew) (I. Wahrhaftig and S. Rabinowitz, Ir Miklat b’Maarekhet Anishah Modernit – Dugmah Yissumit, miTorat haAnihsah shel haMishpat haIvri, 2 Sha'arei Mishpat 353–81 (2001) and the references there (hereinafter: Wahrhaftig & Rabinovitz), the authors quote various scholars on the subject of the purposes of punishment in Jewish law. Prof. I. Kirschenbaum is of the opinion that “the place of punishment in classical Jewish law, ‘Torah law’, is religious, mystical, educational: it is intended to refine the person, raise his spiritual level and bring him closer to the God of law”. Prof. S. Albeck notes that “the laws of punishments and offenses in the Torah are not intended for society’s good, to protect it from the threat of criminals, their purpose is not to benefit society and keep it from harm, but rather they are meant to teach the individual to conduct himself for his betterment, as offenses are but flaws in the offender … and punishment is but penance”. On their face, these purposes of punishment in Jewish law are not consistent with imprisonment, which is particularly grounded upon the ideas of retribution and deterrence. However, in real life, matters are not so simple and direct. Every society sought means for its protection. Imprisonment is one such means for achieving that, and in the historical-halakhic sense there was a type of gradation.

75.       Ancient Jewish law recognized imprisonment of a person primarily as a means of coercion, or as an intermediate period of detention in contemplation of another penalty imposed upon the offender. It can therefore be said that prisons were originally intended for remand rather than to serve as a criminal sanction (see, M. Elon, Imprisonment in Jewish Law, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 174-178 (Hebrew) (hereinafter: Imprisonment in Jewish Law); and also see, Hacohen, p. 15). This is what Samson Raphael Hirsch (19^th cent., Germany) stated in his commentary to the Bible:

The punishment of imprisonment, with all its loss of hope and the corruption of the morals of those residing behind the prison walls, with all the sorrow and sadness that it brings to the wife and children of the prisoner – has no place in God’s law. The place of the dismal prison towers of criminality are unknown in the kingdom of Torah. Torah law has only arrest and investigation, and this could only be short-term arrest (Hirsch, Commentary on the Torah, Exodus 21:6).

This is lovely to say, and it lends support to the rehabilitative aspect of imprisonment today, which is intended to prevent a further decline into criminality and harm to the family. And yet the question remains, what of protecting society, retribution and deterrence, which are the basis for incarceration today. A brief discussion follows.

76.       Indeed, situations of imprisonment and the attendant suffering of prisoners can be found in the Bible and the Talmud, in both Jewish and non-Jewish contexts. We learn of the sad state of prisoners at the time, and of the harsh conditions to which they were subjected, which are still to be found in some contemporary societies. Here are some examples:

            Joseph’s incarceration in Egypt is described as follows: “And Joseph’s master took him and put him into the prison, the place where the king’s prisoners were confined; he remained there in prison. But the Lord was with Joseph and showed him steadfast love; he gave him favor in the sight of the chief jailer” (Genesis 39: 20-21, emphasis added – E.R.). Nachmanides’ commentary, ad loc., interprets the term “prison” as “a dungeon [or “pit”] built below ground, with a small opening above through which the prisoners enter, and which provides them light”. And indeed, Joseph goes on to say: “For in fact I was stolen out of the land of the Hebrews; and here also I have done nothing that they should have put me into the dungeon [literally: “pit” – ed.]” (Genesis 40:15, emphasis added – E.R.). The dungeon would appear to have been the characteristic prison. The prison was a deep, dark dungeon in which people were bound in iron chains, and starved. It would seem that there are no few places in the world where prisons have remained unchanged since those ancient times.

            The Bible tells of Joshua’s request that Moses imprison Eldad and Medad, two who had prophesied in the camp, fearing that they might undermine Moses’ leadership: “My lord Moses, restrain them!” (Numbers 11:28). Onkelos renders the Hebrew “restrain” [k’la’em] as Aramaic “esarinun”, that is, imprison them, and see one of the two interpretations given by Rashi for the term “k’la’em”: “Put them in prison …”; and also see, Elishai Ben-Yitzhak, “Adoni Moshe K’la’em” – On Imprisonment in Jewish Law, Parashat HaShavua – B’midbar 73 (A. Hacohen & M. Vigoda, eds,) and see the references in fn. 4 (hereinafter: Ben-Yitzhak) (Hebrew).

            Here are additional verses from the Prophets and the Writings that teach us of the suffering of prisoners:

“… to open the eyes that are blind, to bring out the prisoners from the dungeon, from the prison those who sit in darkness” (Isaiah 42:7).        

“Some sat in darkness and in gloom, prisoners in misery and in irons” (Psalms 107:10). Psalm 107 is the biblical source for the rule concerning birkat hagomel [the prayer of thanksgiving for deliverance from danger] or the prayer of personal thanksgiving (Babylonian Talmud Berakhot 54b; Shulhan Arukh OH 219) that four categories of people must express thanks, all of whom are derived from this psalm. One category is that of a person who was “incarcerated in prison and released”.

“As for you also, because of the blood of my covenant with you, I will set your prisoners free from the waterless pit. Return to your stronghold, O prisoners of hope; today I declare that I will restore to you double” (Zacharia 9:11-12).

            Also see the Talmudic statement: “A prisoner cannot free himself from prison” (Babylonian Talmud Berachot 5b), that is, a person who has become used to the hardships of prison life cannot free himself from his chains of bondage, but requires outside assistance. Also see the Talmudic story of Rabbi Akiva who was meticulous in his observance of the mitzva of handwashing while in prison to the point of endangering his life due to his very limited water ration (Babylonian Talmud Eruvin 21b).

77.       In the talmudic period, prison was referred to as “kipa”, which, as noted, was an innovation in terms of the halakhic understanding of punishment. The Mishna notes two situations in which a person is placed in kipa. The first is where the accused has repeatedly committed a severe offense punishable by karet,[3] although he has already been punished twice (or, according to one view, three times) by flogging. The second is where a murderer cannot be sentenced to death by the court due to a procedural flaw (also see, Wahrhaftig, p.3; Arie Reich, The Punishment of Kipa in Jewish Law, 7 Maaliot 31 (1986) (Hebrew); Imprisonment in Jewish Law, 199; Imprisonment in Israel, 147). This is what the Mishna states as to the conditions of kipa imprisonment:

He who was flogged and then flogged again is then placed by the court in kipa and fed barley until his stomach bursts. One who commits murder without witnesses is placed in kipa and fed the bread of adversity and water of affliction (Mishna Sanhedrin 9:5).

            In his commentary to the Mishna, Maimonides explains that what is being referred to is “a cell in the prison that is equal in height to that of a man, and there is not enough room for him to undress or sleep (Commentary to the Mishna 9:5).

            Maimonides states the halakha in this matter as follows:

One who was flogged by the court for an offense punishable by karet, and flogged again for the very same karet offense, such as that he ate forbidden fat and was flogged for it, and ate forbidden fat again and was flogged for it, if he eats for a third time he is not flogged for it, but he is placed in kipa, which is a confined space equal to his height, in which he cannot lie down, and he is given bread of adversity and water of affliction until his intestines narrow and shrink, and then he is fed barley until his stomach bursts (Maimonides, Sanhedrin 18:4; emphasis here and below added – E.R.).

… One who kills and there were no witnesses who saw him together, but rather each saw him one after the other, or who killed in the presence of witnesses but without being warned, or the witnesses were refuted in the examinations but not refuted in the interrogations, all such murderers are placed in kipa and are fed bread of adversity and water of affliction until their intestines shrink, and then they are fed barley until their stomach bursts from the severity of the affliction (Maimonides, Murder 4:8).

            And see, The Encyclopedia Talmudit, vol. 31, 933-935, s.v. “kipa” and references there; and see Kirschenbaum, chap. 9, 256ff, who explains that what is concerned is harsh prison conditions intended to accelerate the offender’s death, as a sort of alternative to the death penalty that should appropriately have been imposed upon the offender, and so it should be understood. It should be noted that the Tosefta (Sanhedrin 12:4) and the parallel talmudic discussion bring an additional case of placing a person in kipa, but in which the means intended to hasten death are not imposed, but rather he is imprisoned until his death. Maimonides also refers to harsh, lengthy imprisonment for murder in circumstances in which the civil authorities did not impose the death penalty: “The [Jewish] court must, nevertheless, flog them severely almost to death, and confine them under severe conditions for many years, and cause them all kinds of suffering in order to frighten and deter other evildoers (Maimonides, Murder and the Preservation of Life 2:5, emphasis added – E.R.); for additional examples of imprisonment in the Talmud, see Imprisonment in Jewish Law, pp. 148-149).

78.       According to some of the commentators, the term “kipa” refers to the harsh conditions that characterized imprisonment, particularly the living space allotted to the offender. According to Mishna commentator Rabbi Ovadia Bertinoro, what was concerned was “a place as high as a person’s height and no more” (Sanhedrin 9:5). Rabbi Nissim Gerondi (14^th cent., Spain) explained that kipa derived from the root k-f-f, which implies that the person in it was bent over [kafuf] (Novellae of the RaN, Sanhedrin 81b (Hebrew)).

79.       Undeniably, the conditions of prisoners as expressed in the talmudic descriptions and in the commentaries on kipa, were very harsh. However, as explained, imprisonment was employed in talmudic times only for the most serious crimes, and primarily as an alternative to the death penalty. In view of Jewish law’s strict rules of evidence, it is reasonable to assume that we are speaking of extremely rare cases (see, Imprisonment in Jewish Law, 134; Reich, 33-35). Nevertheless, in his primary work, Maimonides addressed the human dignity of those punished by the court, ruling:

All of these measures should be applied in accordance with what the judge deems appropriate for the offender and is required in the circumstance of the time, and all he does must be for the sake of Heaven [without ulterior motive or extraneous considerations – ed.], and let human dignity not be taken lightly, for it overrides a rabbinic prohibition … He must be careful not to harm their dignity but only to increase respect for God, for whoever debases the Torah is degraded in the eyes of the people, and whoever respects the Torah will be respected by the people, and there is no greater respect for the Torah than following its laws and statutes (Maimonides, Sanhedrin 24:10, emphasis added – E.R.).

            And see The Encyclopedia Talmudit, s.v. “kevod hab’ri’ot” (ibid., 494), in regard to the possibility deviating from the four cubits of the Sabbath boundaries due to human dignity.

80.       Over time, and in consideration of changing times, the attempts of criminals to evade justice, and changes in methods of punishment in the various legal systems, by the 14^th century Jewish law began to reconcile itself to imprisonment as a “regular” sanction in the framework of “dina d’malkhuta” [the “law of the land”, i.e., the civil authorities – ed.]. From that time on, imprisonment was imposed for various offenses in many parts of the Jewish diaspora (Kirschenbaum, 431-434, and the many references there; Imprisonment in Jewish Law, 190ff; and see Ben-Yitzhak, 4).  While “we do not have many responsa treating of the prison conditions of prisoners” (HCJ 114/86 Weil v. State of lsrael [21], 494, per Elon, J. (hereinafter: the Weil case)), we can plainly say that Jewish law in this regard is clear, inasmuch as Jewish leaders throughout the generations took note and warned of the need to preserve the dignity of a person held behind bars (see: MApp 3734/92 State of Israel v. Zaki Azazmi [22], 79).

81.       We have already referred to what Maimonides wrote. The words of Rabbi Hayim Palaçi (19^th cent., Turkey) on the necessity to provide appropriate conditions for prisoners are particularly appropriate. Rabbi Palaçi ruled that the purpose of remand was only to prevent the prisoner from fleeing before trial, and he should not be subjected to any further suffering due to the conditions of detention. Concerning a person convicted of a non-capital offense, and perhaps under the influence of the conditions in the prisons of the Ottoman Empire at the time, he wrote:

He should not be incarcerated in a prison in which there is filth, that is a place of darkness and gloom, and where a person is in duress and wretchedness … for even if the Torah permits placing him in prison, it was not this type of prison that the Torah permitted … because even though he transgressed and was sentenced to prison, he remains part of the Jewish community (Responsa Hiqeqe Lev, part 2, chap. 5 (Henrew); and see Imprisonment in Jewish Law, 185, fn. 1).

82.       We also find that after the halakhic sages had to reconcile with the imprisonment of a debtor, the creditor was required to provide for the debtor’s maintenance (see, the Perah case [20], 742-743 and references there). Also see Justice Elon’s opinion in the Weil case [21], who turned to the biblical rules concerning the exile of a person who committed manslaughter to a city of refuge to conclude that his dignity should be maintained, and that “he should be provided possibilities for housing and sustenance, study and education, and other such necessities of life” (ibid., 495-497). Justice Elon further mentioned the rabbinic homily on the verse “lest your brother shall be dishonored before your eyes” (Deut. 25:3): “once he has been flogged he is considered your brother” (Mishna Makkot 3:15), and explained that “it is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain” (ibid., 491). These words, even if we do not take the words “your brother and friend” as reflecting actual reality in their plain sense, but rather as an instance of a biblical expression (“For the sake of my family and friends, I will say, Peace be within you” (Psalms 122:8)), they convey the overtone of humanity, or remembering that the prisoner is a person like you and me even if, at present, he is deprived of his rights.

83.       It is interesting to note that even in regard to the biblical story of Israel’s descent to Egypt, one can find an approach that supports protecting the rights of prisoners and respecting their basic needs. When Joseph’s brothers are accused of “spying”, Simeon is placed in an Egyptian prison. The Bible describes the imprisonment as being carried out in public, stating: “And he picked out Simeon and had him bound before their eyes” (Genesis 42:24). But Rashi comments, ad. loc., “He bound him only before their eyes. And when they left, he released him and gave him food and drink” (emphasis added – E.R.; also see in this regard, Aviad Hacohen, Nishama Yetera Bamishpat – Human Dignity and Liberty in Genesis, Parashat Hashavua – B’resheet 336 (A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)).

84.       Justice Elon well described the approach of Jewish law to prisoners and detainees in his opinions over the years (see in this regard, my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew) and references there; A. Hacohen, Menachem Elon: Scholar of Law and Scholar in Law, 6 Sha’arei Mishpat 9, 16-18 (2013) (Hebrew)). Justice Elon’s statement in regard to penalties that the state sought to impose for illegal drug transactions are apt:

… In view of the intolerable situation in some of the prisons in regard to maintaining minimally humane living and diet conditions … it would be proper to prefer imposing heavy, consequential fines rather than imprisonment, as long as this would not be severely inconsistent with the circumstances of the crime and the offender and the need to protect public order and safety. Often, a heavy fine will achieve its purpose of deterrence of the offender and of leading him to a productive life, whereas imprisonment under the current, regrettable conditions in some of the prisons will, in addition to leading the offender to an irreparable entry into criminal society, often result in the degrading of the offender’s Divine image, and that, I fear, is not permitted to us (the Segal case [19], 327).

85.       While the above was written in the early 1980s, and there have undoubtedly been welcome changes in the conditions provided to prisoners, the underlying principle remains pertinent.

86.       In conclusion, underlying the long-standing principles of Jewish law in regard to the subject of prison conditions, beginning with a restrictive view of imprisonment in general, and a process of its acceptance as a necessary evil, stands the need to protect the dignity of prisoners and supply their elementary needs. In this sense, it would appear that the rules of Jewish law were relatively progressive in comparison the “classical” cruelty of imprisonment. “The adoption of imprisonment into Jewish law did not bring with it the attendant phenomena of cruelty and inhuman conditions in regard to diet, sleeping conditions, and so forth, that were common in various countries into the 19^th century” (Imprisonment in Jewish Law, 200). This can be extended even into the 20^th century, from the Russian gulags to the Apartheid regime of South Africa. In any case, it would seem clear that Jewish law requires the maintaining of a balance between the prisoner’s dignity and the punitive purposes of imprisonment. But most importantly for the present case, it seeks to protect the dignity of the vulnerable prisoner who requires rehabilitation. Jewish law would certainly support easing the conditions of prisoners to the extent that it does not undermine the purposes of punishment.

Jewish law in our legal system

87.       Inasmuch as this judgment is being given on the day of my retirement from the Supreme Court, and out of a love for Jewish law, I will allow myself the liberty to devote a few words to the status, place and force of Jewish law in our legal system, concerning which there was – and remains to some extent – a dispute among public figures and jurists (see, FH 13/80 Hendels v. Kupat Am Bank Ltd.[23] (hereinafter: the Hendels case)); my book, Paths of Government and Law, 168 (2003) (hereinafter: Paths of Government and Law) (Hebrew); Hanina Ben Menahem, Foundations of Law, 5740-1980 – Obligation to Comply or Obligation to Confer, 13 Shenaton Hamishpat Ha’ivri 257 (1987) (Hebrew); and see the aforementioned article by Aviad Hacohen, Menachem Elon: Scholar of Law and Scholar in Law; and see my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew)). This dispute found expression, inter alia, in the debate between Justices M. Elon and A. Barak in regard to the interpretation of Foundations of Law, 5740-1980 (hereinafter: Foundations of Law) and of the Basic Laws treating of human rights. Briefly, the dispute focused upon the definition of the “Jewishness” of the State of Israel, and on the nature and character of the synthesis required by its being a “Jewish” state and a “democratic” state. The debate began with the meaning of the expression “the principles of freedom, justice, equity and peace of Israel’s heritage”, to which the Court is directed by sec. 1 of Foundations of Law in the case of a lacuna in the law. Justice Elon was of the opinion that the principles of “Israel’s heritage” are the principles of Jewish law, and the legislature had, thereby, granted primacy to Jewish law in judicial interpretation. As opposed to this, Justice Barak was of the opinion that the legislature had not granted “supra-legal” status to Jewish law, and it is not preferred over other legal sources that are employed in statutory interpretation. Years later, with the enactment of the Basic Laws concerning human rights, Justices Elon and Barak disagreed as to the interpretation of the purpose clauses of those Basic Laws, which establish that human rights are to be upheld in the spirit of “the values of the State of Israel as a Jewish and democratic state”. Justice Elon was of the opinion that the Jewish values of the State of Israel specifically include Jewish law, whereas under Justice Barak’s approach, they should be interpreted “at a level of universal abstraction”, that is, in a more general, broad way (for more on this subject, see my article, Malkhut Yisrael l’umat Dina D’malkhuta – Upon the publication of the Book in Honor of Judge Gershon German “Melekh Yisrael”, 22 Mehkarei Mishpat 489, 496 (2005) (Hebrew) (hereinafter: Malkhut Yisrael l’umat Dina D’malkhuta)).

88.       The opposing views presented by the learned Justices Elon and Barak were not resolved, and it is doubtful that they will be. Perhaps common sense allows that they need not be resolved as a binary opposition, but rather by the golden path of the middle road. In this regard, the words of philosopher Prof. Eliezer Goldman, in his article The Law of the State and the Halakaha – Is there a Contradiction, 65 Shedemot 70-79 (1978) (Hebrew) (also published in his book Theoretical Enquiries – Jewish Thought in the Past and the Present, 387 (D. Statman & A. Saguy, eds.) (1996) (Hebrew)), largely remain apt. He wrote (p. 388) that “…a large measure of tact and moderation is required of all parties. A stubborn insistence upon ideological principles of secularism or on the state’s loyalty to halakha might lead to a disintegration of shared national life … no enduring national reality can embody a consistent stance in regard to the Jewish national character or the relationship between the state and halakha. It will reflect an attempt at mutual, practical adaptation among groups whose views on the desirable politico-legal regime for the Jewish State is only partially congruent, and is at odds on some central issues”. Having said that, it would seem on the face of it that there is no dispute, in principle or in general, that Jewish law has a place of honor in our legal system. All would agree that Jewish law is an important source among the sources of Israeli law. All would agree that Jewish law is a treasure trove – particularly from the legal perspective – of intellectual richness and of fundamental values that remain relevant (also see, Aharon Barak, The Place of Jewish Law in the Law of the State, in Selected Essays, vol. 1, 98 (2000) (Hebrew) (hereinafter: The Place of Jewish Law in the Law of the State). Indeed, on its face, the old dispute between Justices Elon and Barak focused upon the character of the State of Israel, its identity and values, and now is not the time to elaborate, as “For everything there is a season, and a time for every matter under heaven” (Ecclesiastes 3:1). However, in my view, it would be appropriate to bridge the gap between the two views to a great extent, rather than say that there is an abyss between them. The Jewish Zionist basis of the rebirth of the nation in its land, and of human rights is shared by both views. President Barak, a Holocaust survivor, said on more than one occasion that for him there are two lessons: the need for a Jewish state so that Jews will have a home, and preserving human rights so that we not treat the other as in the Holocaust. Justice Elon was a liberal religious Zionist, whose devotion to human rights can be seen in his judgments and writings. To enrich the picture, I would note an additional opinion in regard to Jewish law, expressed by Justice Prof. Itzhak Englard (while still in academia, prior to his appointment to the Court), that the use of Jewish law presents the danger of its “secularization” (see, Y. Englard, The Incorporation of Jewish Law in the Israeli Legal System, Jewish Law and the State of Israel, 110 (Y. Bazak, ed., 5729) (Hebrew)). However, it would seem that during his tenure on this Court, Prof. Englard saw giving voice to Jewish law as something of a mission, as though “for such a purpose you were created” (Mishna Avot 2:8). Justice Turkel also addressed the subject (see, in this regard, Yuval Sinai, Jewish Law in the Decisions of the Israeli Courts in the Years 1994-2006, 7 Moznei Mishpat 374 (5770) (Hebrew) (hereinafter: Jewish Law in the Decisions of the Israeli Courts); and see Justice Turkel’s remarks at his retirement ceremony, as published in 23 Mehkarei Mishpat 5,8 (5764); and further see, CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd. [24], 353, where he quoted from Jewish law “in order to exalt the Torah”). Justice N. Hendel has also addressed this (see, e.g., HCJ 5185/13 Anonymous v. Great Rabbinical Court [25], paras. 4-7; LCA 296/11 Najar v. Aliyan [26], para. 9; and see, Jewish Law in the Decisions of the Israeli Courts, 401-402). In his article Jewish Law for Benefit  (pending publication) (Hebrew), my colleague Justice N. Sohlberg emphasized the operative aspect, i.e., how Jewish law can be used in concrete cases, and provided examples. It would not be superfluous to bring a different perspective expressed by Justice Haim Cohn (5792 Hamishpat 10):

The belief in the divine nature and eternity of the law prevented Jewish law from being accepted as the law of the State of Israel. There were those who were of the opinion that it would be unthinkable that we would live in accordance with anything but Jewish law in a Jewish state, and there were those who rightly argued that Jewish law is of sufficient flexibility and scope to be adapted to the needs of a modern democratic state. However, they were overcome by the objections of those who opposed any attempt at even the slightest change in the law of God and His commandments, even if only to adapt it to those needs. And since Jewish law, or any law, cannot be adopted in a democratic state without legislation, the legislature that would impart force to God’s law would also have the power to amend or repeal it – and such power would be nothing other than trespass upon the bounds of the Divine legislator. They even said that the secular legislature lacks authority to change the word of the Sages, sanctified since ancient time, and translate the ancient laws into modern legal language. Thus, Jewish law remains – with the exception of matters within the scope of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 – a broad, breathtaking field that is ploughed only by Torah scholars and legal historians.

            These words express the opinion of a scholar who was born and raised in religious society, and who later changed his view and approach, but who had a great love for Jewish law.

89.       I would like to briefly address the importance of appropriate recourse to Jewish law, and to employing it the interpretation of the law. Indeed, the State of Israel was founded upon “secular” law (with the exception of personal status law, which has, over the course of years, become restricted primarily to the laws of marriage and divorce that are under the jurisdiction of the various religious courts in accordance with their denomination, pursuant to Ottoman and Mandatory arrangements), and the courts do not decide the law on the basis of Jewish halakha, which particularly distressed Israel’s first Chief Rabbi, Rabbi Isaac Halevi Herzog, and see his book The Constitution for Israel according to the Torah (I. Wahrhaftig, ed., 1999) (Hebrew), and see Dr. Wahrhaftig’s comments at xxiiff; and see my article, The Birth of the State and Jewish Law in light of the approach of Rabbi Herzog, Massu’a L’yitzhak, vol. 2, 20 (Jerusalem, 5769) (Hebrew); and my book Judges of the Land, 75-76 (1980) (Hebrew). Rather than carry coal to Newcastle by extensive praise of the virtues of Jewish law, which it does not require from me and those like me, I will say a few words concerning it use, which I believe presents a possibility for synthesis.

90.       In my opinion, such a synthesis is certainly possible. It is primarily a conceptual message from a national, cultural perspective, whose use, of course, depends on the case. Jewish law should definitely not be conceived as “a matter for the religious”. The Jewish library, the Bible, the Mishna and the Talmuds, the Geonic literature, the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.] – among them Maimonides and the Shulhan Arukh [i.e., Rabbi Josef Karo, 1488-1575 – ed.] – and the Aharonim, particularly the responsa literature, and in our generation, the religious literature and research produced by persons – I will name primarily those who are no longer among us – like Justice Prof. Menachem. Elon, Prof. Asher Gulak, Justice Dr. Moshe Silberg, Dr. Avraham Haim (Alfred) Freimann, and Prof. Aaron Kirschenbaum, may their memories be for a blessing, as well Prof. Shalom Albeck and Prof. Nahum Rakover, and other important researchers in the field of Jewish law, and so as not to slight, I will not name them all, and I ask forgiveness of those I have not mentioned – all of these are a treasure trove of the law. We would do well to follow the path of Justice Sohlberg of Jewish law for benefit, and where possible “how good and how pleasant it is” [Psalms 133:1]. But elsewhere, recourse to its legal and moral insights in various is areas is proper as part of the general Jewish cultural fabric.

91.       My view in this regard, which is broadly more aligned with, although not identical to that of Justice Elon, argues for the middle road and for viewing Jewish law from two perspectives: the perspective of Jewish law as part of the national, cultural heritage upon which the State of Israel, as a Jewish and democratic state, may and should draw; and the perspective of its legal richness, overflowing with insights that, even if written long ago, often in archaic Hebrew, still remain vibrant. The Jewish character of the state should be expressed, inter alia, in the incorporation of Jewish law into our legal system (see: Malkhut Yisrael l’umat Dina D’malkhuta, 493). Indeed, from its very establishment, and even earlier, this spirit was expressed in declarations – sometimes only in declarations – by courts and scholars. Moreover, even prior to the establishment of the state, during the British Mandate, the Jewish law researcher, man of “the Hebrew Peace Court”,[4] and one of those who argued for Jewish law as early as the 1920s for nationalistic rather than specifically Orthodox religious reasons, was Israel Prize laureate Prof. Paltiel Daikan (Dickstein), who wrote:

There can be no Jewish state without Jewish law. It is not just the army and power that establish the validity and power of a state, but rather its organizational and legal structure are decisive in the question of its existence and fortitude. And just as it is unimaginable that we might build the state upon foreign cultures and languages, so a Jewish state is inconceivable without Jewish law. We will not forget the precious treasure of the millennia old Jewish legal tradition, nor will we ignore it (There cannot be a Jewish State without Jewish Law, 4 Hapraklit 329-330 (1947) (Hebrew)).

            Several years later, in the early days of the State, Justice S. Agranat explained:

I do this since the very moment that we admit – as we are obliged to admit – the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude – against our will – that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture. It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be (CA 191/51 Skornik v. Skornik [27], 177).

            Not long ago, Justice Barak wrote:

The fundamental values of Jewish law shape our image as a nation and as a state …they are part of the fundamental values of our law … referring to the fundamental values of Jewish law is not referring to comparative law. It is a required reference. It is not a reference to all the values of Jewish law. It is to those values that constitute part of the law of the state (A. Barak, The Judge in a Democracy, 290 (2004) (Hebrew)).

The values of Jewish law are part of the values of Israeli law. The fundamental concepts of Jewish law – this cultural asset of the Jewish people – are the fundamental concepts of Israeli law. These values of Israeli law – among them the values of Jewish law – are part of the general purpose of every legislative act. This expresses the special status of Jewish law – our cultural asset whose values are our values (The Place of Jewish Law in the Law of the State, 102).

            Dr. S.A. Wozner ends his book The Legal Thinking in the Lithuanian Yeshivoth – The Heritage and Works of Rabbi Shimon Shkop (2014) (Hebrew) with an examination of the legal theory of Rabbi Shkop (Lithuania-Poland, 19^th-20^th cent.) and the question of the validity of norms that are not prima facie of Divine origin (like those of a modern state). His answer is that the obligation to obey God’s word derives from the law of human intelligence and the recognition of the autonomous understanding of the receiver (283). For me, this means that the roads of general law are also paved for the religious person, and this provides an entry to the present matter.

93.       It is sometimes argued that the use of Jewish law sources is incompatible with democracy. I believe that such arguments are fundamentally mistaken. As for the interaction between Jewish law and the democratic values of the state, I believe that “we should aspire to harmony, synthesis, and to mutual reconciliation between the Jewish and democratic elements” (Malkhut Yisrael l’umat Dina D’malkhuta, 490). There may, indeed, be different views as to the appropriate balance. However, the effort should focus upon developing law that creates harmony between the elements, that prioritizes the similar and rejects the different. This is what Justice Barak said in his eulogy for Justice Elon: “The relationship between the values of Israel as a Jewish state and its democratic values require, in his view (Justice Elon – E.R.), synthesis and harmony. We agreed on that, and we walked hand in hand” (quoted in 26 The Justice Shmuel Baruch Judges’ Bulletin (Feb. 2013) (Hebrew)). Harmony and synthesis must pave the way.

94.       It would, therefore, appear to me that recourse to the system of Jewish law – whether to ground arguments and judgment, as a source of comparative law, or as a source of inspiration and to broaden the theoretical legal groundwork (and compare: N. Rakover, Jewish Law in the Decisions of the Israeli Courts, 7 (Sifriyat Hamishpat Ha’ivri, vols. 1-2 (1989)), with due attention to the subject, the necessary meticulous examination, and the necessary care – plays a central role in creating the required synthesis between Jewish law and our legal system, which is based upon the laws of the Knesset (compare: the Hendels case [23], 795).

95.       Jewish law thus has national and cultural significance as the societal and moral heritage of the Jewish people from time immemorial. Indeed, it is grounded in the Jewish religion, but recourse to it does not, itself, express a religious or theological stance, and it should not be perceived as such, but rather through a national, legal lens. Jewish law is certainly not the exclusive legacy of religious Jewry, even if it is but natural, and somewhat sad, that most, although not all of those engaged in its study are observant Jews, which impresses it with a “religious stamp”. It would be good and proper if those who are not religiously observant would join their ranks (and see: A. Hacohen, Unjust Enrichment in Jewish Law, 10 Mishpat v’Asakim 183, 185 (5769) (Hebrew) (hereinafter: Unjust Enrichment in Jewish Law)). As I wrote in the past:

What is referred to as “the Jewish bookshelf” is an incomparable treasure of many cultural areas, but perhaps first and foremost of law. In my opinion, one need not identify with a particular conceptual approach in order to be curious about it, learn from it, utilize it, take pride in it, and put it to moral use, each according to his own definition of the moral foundation (Malkhut Yisrael l’umat Dina D’malkhuta, 502).

            At judges’ conferences in Jewish law, I was overjoyed at the participation of judges who were not members of the religious community, and even more so when judges who are not of the religious community made recourse Jewish law in their judgments.

96.       I therefore support the development of a national-cultural approach to Jewish law, its institutions and sources. “We must not close our minds to general cultural and legal legacies, and all the more so in regard to our own cultural legacy (the Hendels case [23], 798, per Elon, J.). Nevertheless, there is no denying that the rebirth of Jewish law, as expressed in our general legal system, remains meager. Recourse to the principles of Jewish law by the courts is not widespread, and their use – as a source of inspiration or as an interpretive tool – is not sufficiently common. Rhetoric that extols the virtues of Jewish law does not reflect reality (see: Unjust Enrichment in Jewish Law, 231). To date, the Foundations of Law did not meet with the success that its legislators had hoped.

97.       Years ago, in my brief article Jewish Law – A Law that calls out to Us (published in the anthology On the Incorporation of Jewish Law (N. Rakover, ed., 1998) (Hebrew), and in my book Paths of Government and Law, 168 (2003) (Hebrew)), I described three hurdles that an Israeli jurist, judge or lawyer must overcome in order to make proper, respectful use of Jewish law sources:

The first is will. This entails a certain ideational approach. The polarization that divides Israeli society in the area of religion and state, like no small number of other issues, can – wrongly, in my opinion – swallow up this subject. That is to say that a jurist who decides in favor of using Jewish law may, at times, see himself as “taking a side” in an internal debate. This approach is – in my opinion – mistaken, as an incomparably rich cultural heritage is not, and should not be the property of any one person, but rather should be the property of the general public, without regard for public controversies. While the source of Jewish law is religious, its message is not necessarily so, and it need not be the legacy of the religiously observant alone. Perhaps the current trend of seeking the treasures of “the Jewish bookshelf” will help ameliorate this problem.

The second hurdle is the need for a certain degree of knowledge in order to make proper, even if modest, use of the sources of Jewish law. The great, welcome contribution of contemporary jurists – among them the Jewish Law Department of the Ministry of Justice, headed by Prof. Nahum Rakover – helps to address this need. Today, the bookshelf of comprehensive research in various fields of Jewish law grows daily. The books are written in modern language, and thoroughly interrelate with the general Israeli law, which allows judges and lawyers who are ready to invest the necessary time, to make respectful, effective and convenient use of Jewish law as a source of inspiration, interpretation, and support for their work and the deepening of their understanding.

And here arises the third hurdle – time – the most precious resource of all. Israeli judges and lawyers are overburdened to the point of collapse. Judges are faced with a heavy docket that must be completed in a timely way. That requires great effort. The same is true for lawyers. Jewish law is like a neshama yeteira – an added dimension of spirituality – whose attainment usually requires an investment of time that is not readily available. However, since the incorporation of Jewish law into legal and judicial work is a rewarding cultural and professional experience, and a challenge that involves reconnecting with thousands of years of Jewish creativity, if one is ready and willing, time will be found (emphasis added – E.R.).

            As can readily be seen, I do not wish to divide the approach to these hurdles in a binary division between religious and non-religious, even if that may seem persuasive to some. On the contrary, if we approach the subject from the perspective of national culture, it need not be affected by the Israeli religious-secular tension, but resides entirely in the “harmony wing”.

98.       I have also had occasion to note:

The Israeli legal system takes a dichotomous approach to Jewish law. On the one hand, all agree, in theory, that Jewish law forms part of our legal heritage, and that it should have a place in Israeli law, even if there is dispute in regard to the scope of the obligation to refer to it … while on the other hand, putting that theoretical statement about the place of Jewish law into practice encountered obstacles in the Israeli legal community, some of ideational and most of a practical nature (Paths of Government and Law, 168; on the various approaches to Jewish law, see: Unjust Enrichment in Jewish Law, 187-195).

            Of late, there have been initiatives to increase support in this area by amending the Foundations of Law, a move that has led to some controversy (see the Israel Democracy Institute paper: Benjamin Porat, A Proposal to Amend the Foundations of Law Act, with an Analysis and Critique, and the accompanying response by M. Kremnitzer (2016) (Hebrew)). This is not the place for discussing that, but in my opinion, even the possibilities afforded by the current version of that law have not been fully exploited,[5] and see in this regard the instructive words of my colleague Justice Melcer (dissenting in LFA 7141/15 A. v. B. [28], para. 18), in support of interpreting sec. 1 of Foundations of Law “as pointing to the basic principles of Jewish heritage as defined by Prof. Elon, but not necessarily to the particular legal arrangements established by halakha”.

99.       Ultimately, in my opinion, the effort to give expression to the intellectual richness and the values of Jewish law in our legal system is worthwhile and even necessary, subject, of course, to the circumstances of each case. “A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law” (CA 8954/11 Doe v. Doe [29], para. 135, per Sohlberg, J.); and see: A. Maoz, The Place of Jewish Law in the State of Israel, 40 Hapraklit 53, 66 (1991) (Hebrew)). For my part, I can say that from the day I began serving as a judge, I have tried to the best of my modest ability to give voice to the place of Jewish law, although I regret that I did not make greater use of Foundations of Law. I have often maintained an awareness of the intellectual treasures of Jewish law and the rich legal tradition that characterizes it, as well as the great value of its incorporation for Israeli law, without, of course, in any way compromising the autonomy of the courts under the state’s law. In this sense, in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

100.     Outlining the aurea mediocritas in all that relates to the extent and scope of recourse to Jewish law, its status and its normative force is a complex task. It requires “patience and tolerance, moderation, equanimity, good will and common sense” (E. Rubinstein & N. Sohlberg, Religion and State in Israel in the Jubilee Year, Minha LeYitzhak 339 (5759) (Hebrew), also published in Paths of Government and Law, 196 (Hebrew)). However, if we are willing to confidently address the national, cultural and moral significance of Jewish law, we will be rewarded by the development of the general law, and we will afford our ancient tradition the respect it deserves, or to paraphrase Rabbi Abraham Isaac Hacohen Kook, we will renew the old, and sanctify – in the national sense – the new. I would add that I do not see this as being in conflict with the equality of Israel’s minorities, but this is not the place to elaborate.

101.     We shall now return to the merits of the matter before us.

The statutory provisions

102.     I would first note that this judgment focuses upon the subject of living space, unrelated – except as anchored in law – to the severity of the offenses,  which may be severe and horrifying, for which the prisoners are serving their sentence. Similarly, we are not addressing the distinction between inmates imprisoned for criminal offenses and those imprisoned for criminal security offenses (with all the complexity regarding the latter), between which the Basic Law makes no distinction. The same holds for the distinction between criminal detainees and administrative detainees, which is not the concern of this case.

103.     The primary legal provisions with which we are concerned are sec. 11B(b) of the Prisons Ordinance, which was added by Amendment 42, and sec. 9(a) of the Arrests Law. Section 11B of the Ordinance states:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity.

            Section 9(a) establishes an identical provision in regard to detainees.

104.     The Petitioners argue that placing a person behind bars without granting him a minimal living space of 4 square meters (that is, 4 square meters exclusive of the lavatory and shower areas) – in accordance with the various standards established under international law – does not meet the standard of appropriate conditions and violates his dignity in a manner repugnant to the said statutory provisions and Basic Law: Human Dignity and Liberty.

105.     As earlier noted, the subsidiary legislator addressed this matter of appropriate living space. Regulation 2(h) of the Prisons Regulations – like reg. 3(e)3 of the Arrest Regulations), which concerns the living space of detainees – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

106.     But the difference between the standard established by the State itself and the actual situation is absolutely clear. According to the current data of the Prisons Service, presented in the updated notice submitted by the State on April 3, 2017, only 21%(!) of prisoners in the State of Israel are being held in prison cells that meet the standard of 4.5 square meters. In other words, despite the State’s efforts that were described at length in its responses, the absolute majority of prisoners and detainees in the State of Israel do not enjoy the minimum standard established by the subsidiary legislator itself for a prison or detention cell in Israel. From a legal standpoint, the State relies upon reg. 8 of the Prisons Regulations, which states:

Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

            From the phrase “to the extent possible”, the Respondents learn 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.

107.     The focus of our discussion is sec. 11B of the Ordinance. The question is 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. We are, therefore, concerned with an issue of interpretation.

108.     As Prof. Barak wrote:

A statute must be interpreted according to its purpose (subjective and objective). The purpose of a statute is the interests, goals, values, aims, policies, and the function that the statute is designed to accomplish. It is the ratio legis (Barak, Purposive Interpretation in Law, p. 398 [English edition (Princeton, 2005), p. 340].

            To this I added in one case:

Purposive interpretation also derives from common sense and life experience. The legislature, or the drafter of a text in general, cannot foresee every possibility, and reality invites a variety of occasions that “your fathers did not know” (Deut. 32:17), and therefore, interpretative tools make it possible to seek the purpose of the text. This is also true in Jewish law, for example, by means of the thirteen hermeneutical rules by which the Torah is expounded (Midrash Sifra, Parashat Vayikra, 13 Principles, chap. 1), or similar systems of interpretation (the Zalum case [6], para. 32).

109.     The subjective purpose of the law is learned from its language and from the legislative intent. As for the language, the legislature established that “a prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. The legislative intent is learned from the Explanatory Notes to the Prisons Ordinance (Amendment no. 42) (Conditions of Imprisonment) Bill, 5772-2012 (650 Government Bills 298 (6 Shevat 5772, January 30, 2012)). These begin with the statement that “the purpose of the proposed law is to establish in the Prisons Ordinance [New Version], 5732-1971, obligatory provisions in regard to appropriate conditions of imprisonment for prisoners, and define their basic rights…” (emphasis added – E.R.). To my mind, common sense says that it is doubtful that “basic conditions” [sic] for a prisoner can be interpreted so as not to include minimal living space. By way of illustration, consider an extreme situation in which a prisoner resides in 2.5 square meters of living space, including his bed (a situation which, sadly, is not very far from the description of some Israeli prison facilities). Is it even conceivable that such a prisoner enjoys “appropriate conditions” for living? Thus, even if the food he is served meets the required standard, even if there are good educational services, even if visiting hours are reasonable – it would remain doubtful that without minimal living space, that prisoner could be deemed to have appropriate living conditions. On its face, it would appear that both the language of the law and the legislative intent show that the legislature sought to establish a minimum standard for a prisoner’s living space, while leaving the precise standard to the subsidiary legislator, as we shall address below.

110.     As opposed to this, there is some justice to the argument that when the legislature sought to establish concrete appropriate standards, it did so expressly. Thus, for example, sec. 11B(3) of the Ordinance refers to basic living conditions to which a prisoner is entitled: a bed and mattress (sec. 11B(3)(2), water and suitable food (sec. 11B(3))3)), clothing and products for maintaining personal hygiene (sec. 11B(3)(4), etc. Additionally, the deliberations of the Knesset Internal Affairs and Environment Committee show that when Petitioner 1 raised a request to establish an express, statutory minimum for prisoner living space, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions” (p. 28 of the Committee protocol of Feb. 21, 2012).  That and nothing more. Indeed, that can be understood to mean – as the Petitioners argue – that the Legal Advisor’s response implies that the expression “appropriate conditions” includes minimal living space. However, it can also be interpreted to mean – albeit with some difficulty, and see the matter of common sense that we noted above – that minimal living space is one of many parameters for a prisoner’s living conditions, such that – for the purpose of illustration – if in making the calculation, the prisoner is afforded fine food or an enhanced educational framework, it is possible to “compromise” on living space in the framework of ensuring “appropriate conditions”. We should again note that we are not concerned here with interpreting the law in accordance with the fundamental principles of the legal system and the Basic Laws, which we will address below, but rather with an attempt to understand the original legislative intent.

111.     To summarize thus far, I am of the opinion that the subjective purpose tends to the interpretation advanced by the Plaintiffs, i.e., that the State is required to provide a prisoner – and as noted, this equally applies to a detainee – “appropriate conditions”, which includes an obligation to provide minimum living space. However, determining the legislative intent in this matter is not entirely doubt free, and it cannot be denied that, on the face of it, there is some logic to the contrary argument – not on the substantive-value level, but rather in terms of the “historical development”. We will now proceed to examine the objective purpose of the law.

112.     As for the objective purpose, it would appear that here – even more persuasively – statutory interpretation leads to the conclusion that sec. 11B of the Ordinance seeks to establish at least a minimal standard for a prisoner’s living conditions, among them his living space in his cell. As opposed to its subjective purpose, the objective purpose of a legislative enactment tries to seek the intent of that reasonable legislator who is guided by the fundamental principles of the system, morality, fairness and justice. The words of Justice M. Cheshin are apt in this regard:

In approaching a law of the Knesset, we do not come empty handed. We come with bag filled with language and terminology, interpretations and meanings, social customs and mores, conventions and axioms, justice and integrity, principles and tenets … all these tenets, values, and principles appear to be extra-legal, but they are the foundation of the statute – of every statute – and no statute can be conceived without them. A statute without that platform is like a house without foundations, and just as the latter will not endure, so a law that has nothing but itself is like a house hanging in midair … As we read a statute, our robes upon us, we carry on our backs “an interpretive quiver”. Some will say an “interpretive kit”. Inside this quiver are the values, principles, and doctrines without which we would not be who we are: fundamental values of the system, morality, fairness, justice. These – and others like them – are fundamental values, and from them subsidiary values are derived (CFH 7325/95 Yediot Aharonot Ltd. v. Kraus [30], 72-74).

            It is additionally clear that the objective interpretation of a law must also be derived from the Basic Laws, and in the present case, Basic Law: Human Dignity and Liberty. Justice Barak addressed this in one case as follows:

The centrality of the value of human liberty is not expressed merely in rhetoric about its importance. It translates into legal language in the positivist conception that human dignity gives rise to rights and obligations, determines authority and powers, and affects the interpretation of every legislative act. In Israel, human dignity is not a metaphor. It is a normative reality that requires operative conclusions (CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum [31], 526).

113.     The “principle of constitutionality”, as President Barak referred to it on the basis of its use in comparative law (and see: CrimApp 537/95 Ganimat v. State of Israel [32], 412), is a basic principle of our legal system, from which we learn that a statute should be interpreted, as far as possible, in a manner that is consistent with the provisions of the Basic Law. The normative hierarchy is clear and well-known, and the basic interpretive presumptions derive from it: it is presumed that subsidiary legislation does not contradict a law, and that a law does not contradict constitutional provisions (Barak, Purposive Interpretation, 422).

114.     In addition to the fundamental principles of the system and the Basic Laws that express them, we saw fit to turn to Jewish law and comparative law, which we discussed above.  Jewish law teaches us “the principles and fundamental values grounding our culture and law” (Barak, Purposive Interpretation, 220). Comparative law teaches us about what has been done in similar situations abroad, in countries we would like to resemble (as opposed to those countries from which we seek to be distinguished). We should further bear in mind that in accordance with the presumption of constitutionality, we must also interpret Israeli law as compatible with the provisions of international law that Israel has adopted, to the extent possible (CA 522/70 Alkutub v. Shahin [33], 80; HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education [34], 846; T. Hostovsky Brandes, Human Rights Law in Israel, Mehkarei Mishpat 2017(Hebrew)).

115.     In the present matter, I am of the opinion that all of the sources point to the fact that the objective purpose – and as noted, the subjective as well – of sec. 11B is to establish appropriate, minimal standards applicable to every inmate, as such, and that the area of his cell is among them. As we have shown, minimal living space is a necessary condition for preserving a person’s dignity and his right to a minimally dignified existence. As stated, there is no dispute that the absolute majority of Israel’s inmates live under conditions that by the standards established by the State itself – and as noted, this is also supported by international law and comparative law – are not consistent with minimal living conditions for an inmate’s dignified existence. This is repugnant to the fundamental principles of our 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 we showed in detail above. 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 (Barak, Purposive Interpretation, 255), we can only conclude 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. I would add the following two points: First, we must examine the subject of a prisoner’s living space through the lens of basic human rights, and ask ourselves how we would feel living in a 3 square meter space over the course of years. Second, even were we to assume that the matter is open to different interpretations, when we are concerned with basic human rights, we must choose the one that realizes broader rights, rather than the opposite.

116.     We would further add that the concrete criteria for the execution of sec. 11B were established in the Prisons Regulations. In the present matter, two primary regulations are relevant, and in view of their importance, I will repeat them. Regulation 2(h) of the Prisons Regulations – which establishes an arrangement similar to that in reg. 3(e) of the Arrests Regulations – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

117.     Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

118.     One might raise the question – as the State holds – that the above is stated looking to the future “to the extent possible”, so why should we not accept the view that what is possible comes in stages, and in the meantime has not been completely met? Before answering this, we would again note two basic principles of our jurisprudence in regard to the effect of these regulations upon the present matter: First, legislation should be interpreted in a compatible manner, and it is therefore presumed that subsidiary legislation is intended to realize the primary legislation, rather than conflict with it (Barak, Purposive Interpretation, p. 422). This is particularly so when all of the purposes of the present provisions are meant to give sec. 11B concrete meaning, by virtue of sec. 11B(f), which states that “the Minister may establish regulations for the execution of this section”. Second, from the other perspective (Barak, Interpretation in Law: Statutory Interpretation, vol. II, 802-803). Therefore, I am of the opinion that we should grant importance to the standard that the subsidiary legislator saw fit to establish as the minimum standard for a prison or detention cell – 4.5 square meters, including the lavatory and shower area – which, in practical terms would appear to be similar to 4 square meters exclusive of the lavatory and shower area. Inasmuch as this criterion is similar to the minimum that the Petitioners seek to establish on the basis of information from comparative law, as noted – albeit less than the appropriate criterion according to the Prisons Service as presented in an internal presentation of the Strategic Planning Branch of the Prisons Service in 2010, which stands at 6.5 square meters (Appendix P/1 of the Petition) – I believe this to be the relevant criterion to which we should aspire as the minimal criterion in the present matter. We would note that many years have passed since the Regulations were enacted, which should also be accorded weight.

119.     Indeed, inasmuch as the subsidiary legislator is presumed not to have intended to contradict the intent of the primary legislator, I am of the opinion that in 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, and in accordance with the rule established under sec. 11 of the Interpretation Law, 5741-1981, that “any empowerment, and the imposition of any duty, to do something shall, where no time for doing is prescribed, mean that it shall or may be done with due dispatch …” (emphasis added – E.R.), and see in this regard, D. Barak-Erez, Administrative Law, vo. I, 407 (2020) (hereinafter: Barak-Erez) (Hebrew). In the present matter, some two decades have elapsed since the relevant regulation was established in the Arrest 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 we are concerned with a fundamental right of the first order, 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. As Justice Levy once noted: “The obligation to act reasonably – which applies to all the acts of the Respondent – is a primary obligation. Reasonableness – we would again recall – means meeting a reasonable timetable” (HCJ 2065/05 Maher v. Minister of Interior [35]; and also see HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [36], 451). Moreover, we cannot 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 this regard, see: HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance [37], para. 38). 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 as noted, 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, our constitution as expressed in the Basic Laws, human dignity in Jewish law, and the comparative and international law cases cited. Having concluded that the purpose of the law leads to a clear conclusion in regard to the need for a minimal standard for the living space of the incarcerated prisoner, what is stated in subsidiary legislation cannot change that conclusion. A prisoner is a person, regardless of in what prison he is imprisoned, and the minimal standard must be universal.

120.     We would note that the State wishes to shine the spotlight on sec. 3 of Amendment 42 to the Ordinance – a section that was not included in the original bill – which establishes: “The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance … and nothing in regulations enacted under the said section shall detract from their validity”. The State therefore argues that this practice “essentially imported the Prisons (Imprisonment Conditions) Regulations, 5770-2010, into Amendment 42, and in so doing, the Knesset forged what is stated in the regulations in the furnace of legislation”. This is nicely worded by the State Attorney’s Office, and the State wishes to learn from this that the Prisons Regulations should be accorded added importance, essentially that of a statute, for the purpose of interpreting sec. 11B, inasmuch as “the Israeli Knesset set its sights on the arrangements detailed in the regulations, and established that those arrangements are appropriate for the implementation and execution of sec. 11B”. I cannot accept that charming argument. Indeed, Amendment 42 did not intend the entire repeal of the existing regulations, but that is not to say that those regulations enjoy a different normative status than other subsidiary legislation. Naturally, the legislature sought to create legislative continuity and not immediately repeal the prior arrangements under the regulations. I do not believe that we can understand that to represent the legislature’s specific adoption of each of the arrangements in the regulations as they were prior to the amendment. The status of the regulations as being subject to judicial review that is not necessarily constitutional review remains, and all the more so when we are concerned with a basic human-rights issue. Moreover, an examination of the meetings of the Knesset Internal Affairs and Environment Committee, which deliberated the bill, shows that the proposal to incorporate what is established under the regulations under discussion, including the prisoner’s living space, into the amended law was raised and rejected. Thus, as we noted above, when, in the course of the deliberations, the representative of Petitioner 1 requested that the living standard established in the regulations be established in primary legislation, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions [the wording of sec. 11B of the Ordinance – E.R.]. If you think that the law cannot be passed in this way, then we won’t pass it. We simply won’t pass it”. Thus, inasmuch as it was the State itself that insisted that the amendment not establish the regulations by statute, I have some doubts as to whether it can have it both ways, and now argue that the regulations have the status of a statute (see Protocol 510 of the meeting of the Internal Affairs and Environment Committee, p. 28 (Feb. 21, 2012)). With all due respect, it would therefore appear that nothing in the routine wording of sec. 3 of the amendment can be seen to show that it grants statutory status to the regulations. Had the legislature wished to do so, it is presumed that it would have expressly done so by statute. In the present matter, it is clear that this was not the legislative intent, and all that the legislature sought to do was to avoid creating the normative confusion that may have resulted had the regulations been immediately repealed by the amendment to the law, prior to the adoption of new regulations. The regulations that are the subject of this matter should, therefore, be treated as regulations for all intents and purposes, as they were created and as promulgated, and viewed as but one element in the interpretation of the legislation. Having found that an examination of all the relevant sources indicates the need to establish a minimal standard for the living conditions of every prisoner and detainee, what is stated in the regulations in this regard cannot serve to alter that conclusion.

121.     To summarize this section, we will simply say – is it conceivable that a prisoner or detainee who lies down to sleep and awakes morning after morning, week after week, month after month and year after year in a cell whose size is 2.2 square meters (Ofer Camp), 2.3 square meters (Megiddo Prison), 2.4 square meters (Nitzan, Ramon and Ketziot facilties), etc., lives “in dignity and health” as required by the law? Can we, Israel’s judges, ignore reality and continue to subject those convicted of criminal offenses – a fortiori suspects or criminal defendants – as serious as their crimes may be – and I repeat, many are criminal and security offenses that arouse untold revulsion and disgust – to prison conditions that are unfit for human habitation, and as my colleague Justice (emeritus) Zylbertal stated in one of the hearings in this case – “to a place that no one among us could endure for two days” (court transcript of July 13, 2015, p. 5)? And I would note here that according to the data of the Prisons Service, Israel stands well under the average European threshold for floor space allotted to a prisoner (which is 8.8 square meters), and according to the Red Cross, even less that what is found in Mauritius (4.08 square meters), Kenya (3.7 square meters), and Senegal (3.55 square meters) (International Committee of the Red Cross, Water, Sanitation, Hygiene and Habitat in Prisons, p. 31 (April, 2012)). I believe that there can be only one answer to these questions, and it is no.

122.     We held several hearings in the present case, and despite our pleas and the long time that has elapsed since the relevant statutory provisions and regulations were enacted, the overcrowding in prison and detentions cells sadly remains almost as it was prior to the enactment of the regulations, i.e., some 40% of all prisoners are held in cells that are less than 3 square meters on average. As the learned D. Barak-Erez observed, “there are limits to judicial flexibility that find expression when ongoing foot-dragging amounts to an evasion of the obligation to act in accordance with the requirements of law” (Barak-Erez, 409). We will say again that we do not, Heaven forbid, attribute ill-will or malice to those involved, but the priorities they have established require “reorienting”. Under the circumstances, it is hard to assume, as the State asks, that improvement of the situation is at hand, and in any case, it is hard to imagine that the steps that were described – some theoretical – will soon bear fruit, and that a concrete solution will be found. Given the undeniably severe situation, judicial intervention is required.

123.     I would therefore recommend that we grant the petition and make the order nisi absolute in the following manner:

A.        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).

B.        To that end, the State will 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 this 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.

124.     Before concluding I would note that the ramifications of our decision are clear. As the State pointed out, immediately increasing the living space would impose a significant burden upon the state treasury. Indeed, one possibility – the “royal road” – is that the State will act to renovate and expand the prison and detention facilities in accordance with the above timetable. However, that is not the only option available to the executive and legislative branches for resolving part of the problem

125.     As we know, the Arrest Law, enacted under the influence of Basic Law: Human Dignity and Liberty, sought to change the conception that had prevailed prior to its enactment, and “delineate rules for enforcing the law while protecting human rights”, as well as to actually lessen the scope of arrests (see: Rinat Kitai-Sangero, Pre-Trial Detention of Liberty before Conviction 19-24 (2011) (Hebrew)). But intentions are one thing and reality another. Not only has the number of arrests not lessened, but has significantly increased (ibid., 28-29); Chaya Zandberg, Commentary on the Arrest Law 19-24 (2001) (Hebrew)), together with a rise in the number of remand prisoners, as part of the police department’s “turning-point plan” – so we were told – as a police objective (The Public Defender’s Report for the Year 2015, pp. 35-36 (August 2016) (Hebrew)). Without addressing police plans with which I am unfamiliar, I would note that the Arrest Law provides – e.g., in sec. 21(b)(1) – that an order for pre-trial remand will not be issued, inter alia, unless “the objective of the arrest cannot be attained by release on bail and by release conditions of lesser impact on the defendant's freedom”. It would seem that assimilating the legislature’s message that arrest is the last resort in the list of possibilities available to the enforcement authorities could aid in reducing the number of arrestees and increasing the living space remaining for those whose arrest is unavoidable.

126.     Clearly, the matter is more complicated in regard to imprisonment, as once a person is convicted of a crime, he no longer enjoys a presumption of innocence, and in many cases, there is no alternative to imprisonment, which may be long and even life imprisonment. But here, too, we must bear in mind that imprisonment is a means and not an end – it is a means for retribution, deterrence and for the rehabilitation of the offender. Thus, for example, according to the proposals of The Public Commission for examining the Policy for Punishment and Treatment of Offenders (hereinafter: The Dorner Commission) and the Government resolution to adopt its main points (Resolution 1840 of Aug. 11, 2016), the Parole Board can be authorized to transfer certain prisoners to halfway houses rather than keep them in prison; it can be decided that community service be extended so that it can be imposed as an alternative to 9 months imprisonment rather than 6, as it is at present, and thereby to reduce the number of prisoners (The Report of the Public Commission for examining the Policy for Punishment and Treatment of Offenders, 52-55 and 65-66 (Aug. 2015) (hereinafter: The Dorner Commission Report). As I recall, I raised this last proposal when I was serving as Attorney General, but various elements opposed it. Probation periods can also be extended in regard to certain offenses, fines for financial crimes can increased, and in appropriate cases, increased use of early release can be considered, together with the creation of appropriate supervision systems outside the prison walls. In this regard we would note that various studies in the United States – the holder of the “world record for imprisonment”, which holds 25% of the world’s prisoners, even though its general population is only 5% of the world population, which is seven times the prevailing rate in Western Europe – show that longer imprisonment does not necessarily lead to lower crime rates, and that the rate of imprisonment can be reduced together with reducing the crime rate, inter alia, because reducing the imprisonment rate reduces the rate of recidivism. Thus, for example, between 2011 and 2014, the number of prisoners in California went down 9%, pursuant to the judgment referred to above, which required that California release prisoners in order to provide every prisoner with appropriate living space, and which accordingly led to a change of the law and a change in the arrangements for probation and early release in the state. Concurrently, there was a 7% reduction in the crime rate. Similar trends were found in Mississippi, New Jersey, New York, South Carolina, and Texas (Iniami Chettiar & Laura-Brooke Eisen, The Reverse Mass Incarceration Act, p. 10 (Brennan Center for Justice, New York University, 2015)). Also see the comprehensive research by the National Academy of Sciences in the United States in regard to the increase in the rate of incarceration in the United States, which found, inter alia:

The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation (Jeremy Travis, Bruce Western & Steve Redburn, The Growth of Incarceration in the United States: Exploring Causes and Consequences, at pp. 334-337 (National Research Council of the National Academies, July 2014)).

            Of course, the above should not be taken as a comprehensive discussion of the effect of incarceration upon crime rates. Rather, the purpose is to draw attention to additional ways of thinking about the issue other than building more prisons and detention centers, and as noted, the government has already chosen to take that course by adopting the Dorner Commission Report.  The main conclusion of the Commission was that “we should act to reduce the use of incarceration in cases in which incarceration is not necessary to restrict offenders who present a high degree of danger to society, and the expansion of the use of cheaper, more efficient punishments that meet the principle of suitability, and thus to bring about efficient and more appropriate use of the resources earmarked for the subject” (ibid., p. iv). I can only agree with that as also reflecting the dictate of common sense.

127.     Of course, in accordance with their discretion, the legislature and the government will decide how to give effect to what is stated in this judgment in terms of both substance and timetable, and in keeping with the order absolute. As noted, they have various possibilities, and they must act in accordance with their discretion and in a manner compatible with the law, case law, and the basic right of every person to dignity.

128.     The proposed result is as stated in para. 120, above, in all its parts. In other words, the minimal living space of each prisoner and detainee shall be 4 square meters, exclusive of lavatory and shower, as requested in the petition (or 4.5 square meter including the lavatory and shower). In carrying that out, the State will do what is required so that within 9 months of this judgment, the living space of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower. Within 18 months of this judgment, the living space of every prisoner and detainee will be 4.5 square meters, including the lavatory and shower, or 4 square meters without them, at the very least.

129.     Under the circumstances, we have decided not to issue an order for costs.

 

Justice U. Shoham:

1.         It is my privilege to be a partner to the judgment of my colleague Deputy President E. Rubinstein on the day of his retirement. I will immediately state that I concur with my colleague’s thorough, comprehensive opinion. This opinion reflects my colleague’s social and human sensitivity, and well expresses the worldview that has always characterized him. Having known him over the course of many years, as Attorney General and later as Justice Rubinstein, I have great respect for his empathy for the weaker elements of society, who often cannot or do not know how to stand up for their rights, and in those cases that have come before my colleague, a true, honest effort was made to remedy their problems. Together with a sensitive, social worldview in regard to the sufferings of others, whether a citizen, a resident or an alien, we should also recall the instructive material interwoven into my colleague’s opinion out of a love for Jewish law. Thus, in this important decision, as well, Justice Rubinstein dedicated a lengthy section (paras. 69-86) to the subject of “The treatment of prisoners in the Jewish heritage”, and also wrote of the status and place of Jewish law in our legal system. Every time that I had the privilege of serving on panels over which Justice Rubinstein presided, I learned to appreciate and respect his expertise in the subject matter, his pragmatic approach, and his indefatigable attempts to bring the parties to a compromise in which neither party would leave in woe. When compromise could not be achieved, Justice Rubinstein would issue a clear, lucid, thoroughly reasoned opinion, and no less important, he would do so relatively quickly, to prevent any further injustice to the parties.

2.         As for the present matter, it was saddening to read the harsh descriptions in paras. 41-44 of my colleague’s opinion, in regard to the conditions in some Israeli prisons. During my tenure as a District Court judge, I came to know the harsh conditions in certain prisons, and especially in the detention facilities. I have not forgotten that situation while sitting in this Court. Sadly, not enough has been done to improve the sad situation in this regard, and thus judicial intervention is required to remedy this wrong, even if somewhat gradually, as stated in para. 128 of my colleague’s opinion.

            In HCJ 221/80 Darwish v. Prisons Service [38], Deputy President H. Cohn addressed the conditions of security prisoners, and although he was in the minority, his moral stand would seem indisputable:

It is the right of a person in Israel who has been sentenced to prison (or lawfully arrested) to be incarcerated under conditions that permit civilized human life. It means nothing that this right is not expressly established in any statute – it is a fundamental human right, and in a democratic state under the rule of law, it is so obvious that it is as if it were written in a statue. We have already had the opportunity to stress that while arrest – as an unavoidable evil – deprives a person of physical liberty, it is not intended to deprive him of his human character and status (ibid., 538-539).

            The words of Justice A, Barak in HCJ 355/79 Katlan v. Prison Service [39], 298, are also apt:

Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity… Even detainees and inmates are entitled to these rights. Prison walls do not sever a detainee’s right to human dignity. While the nature of life in prison does infringe many of the rights of a free individual … prison life does not require the deprivation of a detainee’s right to physical wellbeing and protection from infringement of his human dignity. His freedom is taken away, not his rights as a human being.

3.         Establishing a minimum living space for every prisoner and detainee of 4 square meters, exclusive of the lavatory and shower, or 4.5 square meters, including the lavatory and shower, would appear to be a minimum requirement, and more would be better. Perusing the situation in this area in other Western countries, and even some less advanced countries, shows that the living space required for a prisoner is much greater than the area stated in the order absolute (see, e.g., a survey by the Information Services Unit of the Ministry of Public Security on the subject of “Living Space for a Prisoner”). It is inappropriate that the State of Israel, which is true to individual rights and the values of equality and human dignity of every person as such, should be bringing up the rear, and not providing a suitable response to this important issue that is the focus of the petition.

4.         In view of the above, I concur in the opinion of my colleague and with his conclusion.

 

Justice H. Melcer:

1.         I concur in the comprehensive, impressive opinion of my colleague Deputy President E. Rubinstein, which reflects the humane judicial approach and unique style that have identified and characterized him over the years (and see para. 16, below).

2.         In view of the importance of the subject of the petition and the legal issues it raises, as well as my colleague’s interesting conclusions in regard to the place and status of Jewish law, I would like to add a few observations of my own.

The “living space” of a prisoner and a detainee

3.         The prisoner criminally convicted and sentenced to incarceration behind bars is deprived of freedom in order to punish him and distance him from society. Incarceration has additional premises and purposes – deterrence (of the convict and of potential offenders), and providing an opportunity for rehabilitation.

            The arrest and detention of a detainee, who enjoys the presumption of innocence, is contingent upon the grounds set out in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law), and in there being no way to achieve the purposes of detention by alternative means, or by electronically supervised arrest, which infringe the suspect’s liberty to a lesser degree.

            These deprivations of liberty do not mean that over and above them and the realization of their purposes, there is room or license to inflict harm upon the life, body, or dignity of a prisoner of detainee. These are basic interests of a person as such, and they are ensured and protected as fundamental rights by virtue of secs. 2, 4, and 11 of Basic Law: Human Dignity and Liberty. Infringing these rights is permitted only if the conditions of the “Limitations Clause” under sec. 8 of the Basic Law are met (in appropriate circumstances, the deprivation of liberty – by imprisonment or detention – per se, does meet the conditions of the Limitations Clause, see: HCJ 2442/11 Shtanger v. Speaker of the Knesset [40]).

            Our point of departure for continuing the discussion is, therefore, that an inmate does not shed his basic rights at the prison gate, other than his right to freedom of movement and the restrictions that derive from and are directly related to his imprisonment (see: PPA 4463/94 Golan v. Prisons Service [2], 157; HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [4]).

4.         The right of a prisoner or detainee to his own “living space” in the prison or detention cell (respectively) is among the above ensured and protected rights. This right is established at a sub-constitutional level in the provisions of secs. 11B(b) and 11C of the Prisons Ordinance (New Version), 5732-1971 (hereinafter the Prisons Ordinance), as enacted in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42) and supplementary arrangements promulgated in the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations). There are similar provisions in regard to detainees, see: sec. 9 of the Arrest Law and Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations; the Prisons Regulations and the Arrest Regulations will collectively be referred to as the Regulations). This will be set out in detail in the following section.

5.         The standard relevant to the present matter was adopted in the framework of sec. 11B of Amendment 42, and states as follows:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity. (An identical standard was established for detainees in sec. 9(a) of the Arrest Law).

            The rule pursuant to the standard was established in reg. 2(h) of the Prisons Regulations, which states as follows:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell. (An identical rule was established for detainees in reg. 3(e)(3) of the Arrest Regulations).

            On the distinction between standards and rules, see: Menachem Mautner, Rules and Standards: Comments on the Jurisprudence of Israel’s New Civil Code, 17 Mishpatim 321 (1988) (Hebrew); Asaf Rentsler, Use Variance (in the chapter on general norms and the problem of the special case) 65-78 (2009) (Hebrew). I will quote from the latter:

“Legal norms are not cut from the same cloth.” One of the accepted distinctions is that between norms in the form of a rule and norms in the form of a standard. A rule is a norm that establishes a particular legal result upon the meeting of certain factual conditions, where the question of whether or not they are met is relatively easy to decide (for example: “One may not drive at a speed exceeding 50 kph”).  A standard is a norm that establishes a particular legal result in accordance with the application of a criterion that represents a particular value (for example: “One may not drive at an unreasonable speed bearing in mind the road conditions”) (ibid., p. 66, footnotes omitted).

            The distinction between a standard and a rule has several aspects and consequences, and I will address those relevant to the present matter below.

6.         Sadly, the rule concerning the average cell area for a prisoner or detainee is not observed in most of Israel’s prisons and detention centers, and the petition was filed in order to change the situation. The Respondents’ response to the order nisi that was granted did not succeed in raising the burden transferred to them to justify the continuation of this situation, which deviates from the rules cited in para. 5 above, and therefore, the remedies proposed by my colleague Deputy President E. Rubinstein are, indeed, required under the circumstances, for the reasons and supporting data he presented, and other reasons that I will immediately set out below.

Additional background considerations that justify making the order absolute

7.         Nelson Mandela, who knew what a jail is, once stated:

It is said that no one truly knows a nation until one has been inside its jails. (Quoted in The Economist, May 27, 2017, which devoted a report and an article to overcrowding in the world’s prisons, and various proposals for reform).

            In view of Mandela’s great sensitivity to the subjects of imprisonment and its conditions, the United Nations Standard Minimum Rules for the Treatment of Prisoners, cited in the opinion of my colleague Deputy President Rubinstein, were, upon their amendment in 2016, named the Nelson Mandela Rules (hereinafter also the Standard Minimum Rules, or SMR, or the Mandela Rules). See: UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): Resolution adopted by the General Assembly, A/res/70/175 (8 Jan. 2016). On this subject in general, see: Leslie Sebba & Rachela Erel, “Freestyle Imprisonment”: On the implementation of the Norms of International Human Rights in the Israeli Prison System, 10 Hukim 123 (hereinafter: Sebba & Erel) (Hebrew).

8.         At this point we should clearly state that only after the order absolute is realized will we come close (in terms of the subjects of this petition) to the Mandela Rules and international treaties to which Israel is a party, and which she undertook to implement, as explained in my colleague’s opinion (for a similar approach, see: Sebba & Erel). Other states also followed this path after decisions by their respective highest courts obligated them to do so (by orders and reasoning similar to those of this judgment), as I will show below:

            A)        Italy: Pursuant to a 2013 decision by the European Court of Human Rights, which held that, within one year, Italy must find solutions for the situation in which prisoners were being held in areas of less than 3 square meters, a plan was implemented that both reduced the number of prisoners, and brought the prisons into compliance with the judgment (see: Council of Europe, Execution of Judgment of the ECHR (Torreggiani v. Italy – 43517/09, 46882/09, 55400/09 et al.) (2014)).

            B)        Hungary: Following a 2015 decision of the European Court of Human Rights that gave Hungary six months to present a timetable for taking steps to prevent the violation of art. 3 of the European Convention (it was held that confining prisoners in an area less than 3 square meters constituted a violation of the prohibition upon inhuman or degrading treatment or punishment), the following steps were undertaken: within one year (by November 2015), the number of prison spaces were increased by some 900 spaces through construction and renovation, and a number of legislative amendments brought about a reduction in the prison population by expanding the possibilities for the early release of low-risk prisoners, and allowing them to serve the final six months of their sentence at home, using electronic monitoring devices (some 500 prisoners within a year), and increased use of “house arrest”. A plan was also developed for constructing 800 additional prison spaces by the end of 2017, and some 2000 additional spaces by 2019 (see: Committee of Ministers, Communication from Hungary concerning the Istvan Gabor Kovacs group of cases and the case of Varga and others against Hungary (Applications no, 15707/10, 14097/12) (14.11.2016)).

            C)        Croatia is currently undergoing a similar process pursuant to a judgment of the European Court of Human Rights of Oct. 20, 2016 in the matter of the Croatian prison system (European Court of Human Rights, Mursic v. Croatia (Application no, 7334/13) (20.10.2016)). In this case, the European Court of Human Rights, sitting as a Grand Chamber, reversed a decision from 2015 that held that if a prisoner could move freely outside of his cell during the day, then being held in a cell smaller than 3 square meters did not necessarily violate art. 3 of the European Convention in regard to being held in inhuman conditions (parallel to the prohibition established in the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment). In reversing that judgment, the court returned to the rule that holding a prisoner in less than 3 square meters of floor space constitutes a violation of the prohibition against holding a person in inhuman conditions, regardless of the time spent outside the cell or other conditions. We should emphasize that in that case the calculation of floor space for a prisoner was calculated after setting off the lavatory space, as opposed to the method of calculation in Israel, which includes the lavatory area as part of the “living space” allotted a prisoner in a cell.

            D)        California, United States:  Pursuant to a decision of the Supreme Court of the United States in Brown v. Plata 563 U.S. 493 (2011), California took various steps that reduced the number of prisoners, and significantly lessened overcrowding in cells. See: Jonathan Simon, The New Overcrowding, 48 Conn. L. Rev. 1191, 1197, 1203-1204 (2016).

9.         Thus, the order absolute that we are issuing here is consistent with similar decisions in comparative law. Moreover, it grounds and is consistent with the values of the State of Israel as a Jewish and democratic state. I will now clarify this last statement.

As a Jewish State – How?

            The Explanatory Notes to the bill that led to Amendment 42 (Government Bills 5772 No. 650, p. 298 of Jan. 30, 2012) state as follows:

The principle of preserving the dignity and welfare of a prisoner was expressed, inter alia, in Jewish law, and was also implemented in Israeli law by Justice M. Elon. Thus, for example, in HCJ 337/84 Hokma v. Minister of Interior [1], 826, it was stated: “We hold as an important principle 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. This rule has its roots in Jewish heritage since time immemorial: In accordance with what is stated in Deuteronomy 25:3: “lest your brother shall be dishonored before your eyes”, the Sages established an important principle in Jewish penal theory: “once he has been flogged he is considered your brother” (Mishna Makkot 3:15). It is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain.

            Now, my colleague the Deputy President, Justice E. Rubinstein, has ably expanded upon these words, and I have nothing to add to this.

As a Jewish State – How?

            This subject was also clarified in the opinion of my colleague the Deputy President, Justice E. Rubinstein, and my colleague Justice U. Shoham      concurred and saw fit to add to this point. I agree with both of them, but I would like to contribute an additional perspective in the following paragraphs.

10.       The standard is established here pursuant to Amendment 42, as an ameliorative amendment[6] to the British Mandate Prisons Ordinance, as well as for the Arrests Law, both of which are Knesset legislation.

            The rule is established at the level of regulations – as explained in para. 5 above – but it would appear that an exception to the rule was established along with it in the said Regulations, according to which the rule will only apply to cells whose planned construction will commence only after the entry into force of the Regulations, and to the extent possible, also to the planning and renovation of existing prisons or detention facilities (see: reg. 8(b) of the Prisons Regulations and reg. 3(e) of the Arrest Regulations). In other words, the rule applies prospectively, and is intended to be implemented only in the future (sine die), while for the present, as an exception, the current severe situation will continue.

            Thus, the Knesset established a standard; the subsidiary legislator established a rule on that basis, and immediately tried to exclude it such that it would be exempt from the standard’s application to the existing situation. What is the Court’s role in such a case? It must interpret the norms (inter alia, against the background of Basic Law: Human Dignity and Liberty), and prioritize them such that the command of the constituent authority rise above the provisions of the legislature, and the legislative enactments of the Knesset prevail over the subsidiary legislation.

            It would appear that the representatives of the executive branch sensed this necessary result that is required by the commands of the constituent authority and the legislative intent, and therefore tried to find a remedy by including a “validity of laws” provision in Amendment 14 [sic] (which is not mentioned in the bill), which was passed and which states as follows:

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            This wording is vague, concealing more than it reveals, and appears, prima facie, to ignore Israel’s international obligations (see: Sebba & Erel). The answer to whether the attempt succeeded against the background of Basic Law: Human Dignity and Liberty and the dictate of the legislature will be presented in the following chapter.

The validity of the validity-of-laws provision and the interpretation of the application provisions

11.       The said validity of laws provision – found in both Amendment 42 and the Arrest Law – are ameliorative laws that were enacted after Basic Law: Human Dignity and Liberty, and therefore do not fall within the scope of sec. 10 of the said Basic Law, which treats of the validity of laws in force prior to the commencement of the Basic Law. This is also true in regard to the regulations promulgated pursuant to the Prisons Ordinance and the Arrest Law. (Compare to the majority opinion of the expanded panel in HCJ 6055/95 Tzemach v. Minister of Defense [41]; and see: Sebba & Erel, p. 47).

            Therefore, an exception that deviates from the standard established in the above laws should not be recognized here, and moreover, the standard gives expression to the provisions of Basic Law: Human Dignity and Liberty. The same is correspondingly true for the basic rule in regard to the living space of a prisoner or detainee established in the Regulations promulgated pursuant to the above laws.

12.       The Respondents are aware of these problems, and therefore argue that, by the validity of laws provision in Amendment 42, the legislature decided upon the priorities and the other living conditions appropriate for a prisoner – at present and in the future – and therefore, different criteria and manners of execution cannot be imposed (a similar argument is advanced in regard to detainees on the basis of the Arrest Law and the Arrest Regulations). In this regard, they purport to rely upon what was decided in HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society [42], paras. 9-10 of the opinion of my colleague Justice U. Vogelman, but the matter before us is not comparable to the said case, inasmuch as here we are concerned with the interpretation of legislative acts and establishing their hierarchy, whereas there the matter concerned the considerations of a planning institution.

            Moreover, the interpretation that the Respondents sought to give to the validity of laws provision in Amendment 42 does not withstand scrutiny, as we shall immediately explain.

13.       Section 3 of Amendment 42 establishes only this (I repeat the wording here so that the argument will be clear):

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            In this regard, I would note:

            A)        New regulations have yet to be promulgated, and therefore, prima facie, the end of sec. 3 does not enter the discussion.

B)        The validity of laws provision does not say that the Prisons Regulations enacted prior to the adoption of the said Amendment are consistent with the provisions of Amendment 42 (that is, with the standard it embodies), or that they have the same force as the said Amendment (and carefully compare to the wording of secs. 36(f) and (h) of Basic Law: The Government in regard to Emergency Regulations).

Thus, the Bialer rule (see: HCJ 243/52 Bialer v. Minister of Finance [43] (hereinabove and hereinafter: the Bialer rule) does not apply to the present matter, not to mention that the rule was the subject of severe scholarly criticism (see: Hans Klinghoffer, On Emergency Regulations in Israel, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 86 (Hebrew); Benjamin Akzin, The Bialer Decision and the Israeli Legal System, 10 Hapraklit 113 (1954) (Hebrew)). On the entire issue, also see: Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 2, Government Authorities and Citizenship, 947 (2005) (Hebrew); and HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister [44], paras. 123 and 128 of the opinion of my colleague Deputy President E. Rubinstein, and see my dissenting opinion in HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister [45]).

C)        The term “as if” in sec. 3 of Amendment 42 is only intended to create a “legal truth”, which is different from “the objective truth” (see: HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense [46]), and cannot serve to “upgrade” the status of the Prisons Regulations, or change the basic rule that they establish. Therefore, just as it was possible to challenge the Prisons Regulations for the accepted causes for challenging subsidiary legislation, one can continue to challenge them as if they were promulgated under sec. 11B of the new Prisons Ordinance, by virtue of sec. 11B(f) therein, which states:

The Minister may establish provisions for the implementation of this law in regulations, as well as provisions in regard to additional conditions to which an inmate will be entitled in the prisons.

We can thus state that the construction that the Respondents seek to pin on the above sec. 3 is flawed because it does not accord with most of the conditions of the validity of laws clause in sec. 8 of Basic Law: Human Dignity and Liberty (other than the condition that the violation be “by law or as prescribed by law”, see: Oren Gazal-Ayal, Restrictions of Basic Rights “By Law” or “As Prescribed by Law”, 4 Mishpat uMimshal 381 (1998) (Hebrew)), and it also deviates from the basic rule regarding the “living space” of a prisoner established in the Prisons Regulations and is, therefore, ultra vires the provisions of the authorizing law.

Alternatively, if anyone might imagine otherwise, the correct interpretation of the provisions of the Regulations does not permit them to be read in a such a manner that the exception to the basic rule established in the Regulations might apply without setting a time limit. We will address this in the following section.

The exception to the basic rule established in the regulations has “run its course”

14.       In my opinion, there are two reasons supporting the conclusion that the exception to the basic rule established in the Regulations has “run its course”:

            A)        A deviation from a standard should not be preserved for an extended period, inasmuch as the standard derives from Basic Law: Human Dignity and Liberty, the provision of sec. 1 of Amendment 42, and what was established under the Arrests Law, not to mention that the matter is contrary to Israel’s international obligations (see: Sebba & Erel).

            This result derives from the legislative hierarchy and the rule concerning the need to update regulations that have “run their course” (whether by an act of the authority or by a decision of the Court). (See and compare: HCJ 2902/11 Association for Children at Risk v. Ministry of Health [47]).

            B)        The Respondents did not show that they had tried “to the extent possible” (as the expression is employed in the Regulations), to apply the basic rule established in the Regulations to the present situation, even after all the extensions granted them after the order nisi was issued. Moreover, the budgetary reasons that were raised in this regard did not justify the priorities chosen, in view of the alternatives that would have violated the relevant basic human rights to a lesser extent (in this regard, the aforementioned article in the Economist is instructive in showing that improving prison conditions and reducing overcrowding, ultimately lead to budgetary savings and achieve better results in terms of rehabilitation and reducing recidivism). (And see: HCJ 4541/94 Alice Miller v. Minister of Defence [48], and see para. 47 of the opinion of my colleague the Deputy President, Justice Rubinstein and the references there).

            This contemporary modern approach, expressed in the recent studies quoted in the Economist and in my colleague’s opinion, return us to Jewish law, inasmuch as the Sages and later scholars were opposed, a priori, to oppressive imprisonment for any but the most grave offences (in modern terms, we would say that they espoused a proper proportionality).

The status of Jewish law

15.       My colleague the Deputy President, Justice E. Rubinstein, wrote an enlightening dissertation on the place of Jewish law in our prevailing law. I agree with the main points of his approach, and with his conclusion that:

…in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

            I will, nevertheless, permit myself some remarks.

1. I believe that we should make greater use of the referring provision in Foundations of Law, 5780-1980, in appropriate cases. In my view, the principles of freedom, justice, equity and peace of Israel's heritage refer to the basic principles of Jewish law, but not necessarily to all the specific legal arrangements it establishes (which should be updated and adapted to our present reality).  I recently expressed this view in detail in my dissent in LFA 7141/15 A. v. B. [28].
2. In my opinion, we should turn to Jewish law at least to the extent that we make recourse to comparative law, and one who does so will discover that the legal thinking of the Sages, and of the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.]  and the Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] was exceptionally creative and profound, such that one can (directly or by analogy) find appropriate solutions for current issues in this prodigious source.

Having arrived at Jewish law, I should explain that the reason I saw fit to express my opinion here, rather than suffice in adopting the views of my colleague the Deputy President, Justice E. Rubinstein, merely by saying “I concur”, is because I also acknowledge the statement of the Sages, who instructed us:

 

One should only take leave of another with a matter of halakhah, so that he will be remembered by him thereby (TB Berakhot 21a).

            Having done so, I will now proceed to some words of farewell.

Some words of farewell upon the retirement of the Deputy President, Justice E. Rubinstein

16.       Before signing the judgment that my colleague the Deputy President, Justice E. Rubinstein, chose to deliver on the day of his retirement (and it is my privilege to join him in this creation), I would like to note that I first met Justice Rubinstein 44 years ago, when I was a senior attorney in the office of the Legal Adviser to the Ministry of Defense. Since then, our paths have crossed from time to time in his various official capacities: in the Ministry of Defense, during his service as Cabinet Secretary, as Attorney General and as a judge, and the closer I came him, the greater I came to respect and admire him. He is “a plastered cistern that loses not a drop” [Mishna Avot 2:8], and his talents and works are beyond description. He possesses that rare combination of a wise mind and a wise heart, and the manner in which he brought together the values of the State of Israel as a Jewish and democratic state with humane sensitivity has already earned him an honored place in Israeli case law for generations to come. We can only wish Justice Rubinstein what his name (Elyakim) suggests – that God will grant all that he asks, and that like his family name (Rubinstein – ruby), this bright gem (once set in the Priestly “breastplate of judgment”) will continue to shine upon his family and upon all of Israel.

 

Decided in accordance with the opinion of Deputy President E. Rubinstein.

Given this 19^th day of Nisan 5777 (June 13, 2017).

CrimA 9334/08

 

Appellant:               Emad Ali

 

v.

 

Respondent:                State of Israel

 

 

 

 

The Supreme Court

[ Nov. 23, 2011]

 

Before Justices M. Naor, E. Arbel, and Y. Danziger

 

Appeal of the judgment of July 1, 2008 and the sentence pronounced on Sept. 24, 2008 by the Beer Sheva District Court in CrimC 8237/06 per Judge Y. Zelkovnik.

 

Israeli Supreme Court cases cited:

[1]                    LCrimA 1178/97 Kahana v. State of Israel, IsrSC 51(3) 266.

[2]                    CrimA 7230/96 A. v. State of Israel, IsrSC 51(3) 513.

[3]                   CrimFH 2980/04 Oiku v. State of Israel, IsrSC 60(4) 34.

[4]                   CrimA 4596/05 Rosenstein v. State of Israel, IsrSC 60(3) 353.

[5]                   CFH 1558/03 State of Israel v. Assad, IsrSC 58(5) 547.

[6]                   CrimA 8831/08 State of Israel v. Alshahra (June 30, 2010).

[7]                   CrimA 9428/08 El Najar v. State of Israel (Dec. 12, 2008).

[8]       CrimA 3827/06 A. v. State of Israel (March 27, 2007).

[9]                   CrimA 6328/09 El Najar v. State of Israel (June 22, 2010).

[10]     CrimApp 1600/06 A. v. State of Israel  (March 5, 2006).

[11]     CrimA 6491/08 Bradville v. State of Israel (March 16, 2009).

[12]     CrimA 4043/05 State of Israel v. Bniat (Aug. 10, 2006).

[13]     CrimA 2985/10 Hamed v. State of Israel (Jan. 1, 2011).

[14]     CrimA 172/88 Vanunu v. State of Israel, IsrSC 44(3) 265 (1990).

[15]     LCrimA 9818/01 Biton v. Sultan, IsrSC 59(6) 554 (2005).

[16]     CrimA 163/82 David v. State of Israel, IsrSC 37(1) 622 (1983).

[17]     CrimA 9995/05 State of Israel v. Rabinowitz (Feb. 15, 2007).

[18]     CrimA 6613/99 Semirak v. State of Israel, IsrSC 56(3) 529 (2002).

[19]     CrimA 2285/05 State of Israel v. Hemed (Dec. 5, 2005).

[20]     CrimA 3687/07 Tochly v. State of Israel (Feb. 20, 2008).

[21]     CrimA 2180/02 Kassem v. State of Israel, IsrSC 57(1) 642 (2002).

[22]     CrimA 3944/08 Sha’aban v. State of Israel (June 18, 2009).

[23]     CrimA 1358/09 Dahar v. State of Israel (April 30, 2009).

[24]     CrimA 4352/08 A. v. State of Israel (March 23, 2009).

[25]     CrimA 6566/10 Veridat v. State of Israel (May 29, 2011).

[26]     CrimA 5225/03 Habas v. State of Israel, IsrSC 58(2) 25 (2003).

[27]     CrimA 5121/98 Yissacharov v. Chief Military Prosecutor, IsrSC 61(1) 461 (2006).

[28]     CrimA 8974/07 Honchian v State of Israel (Nov. 3, 2010).

[29]     CrimA 1746/00 Barilev v. State of Israel, IsrSC 55(5) 145 (2001).

[30]     CrimA 3477/09 State of Israel v. Hadad (Feb. 4, 2010).

 

Lower court cases cited:

[31]     CrimC (Beer Sheba) 8179/07 State of Israel v El Najar (July 9, 2007).

[32]   MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah (April 14, 2008).

 

Foreign cases cited:

[33]   S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept.7).

[34]   United States v. Yousef, 327 F.3d 56, §45 (2nd Cir. 2003).

[35]   United States v. Bowman, 260 U.S. 94 (1922).

[36]   United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2nd Cir. 1983)

[37]   United States v. Chua Han Mow, 730 F.2d 1308 (9th Cir. 1984).

[38]   United States v. Schmucker-Bula, 609 F.2d 399 (7th Cir 1980).

[39]   United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991).

 

 

Abstract

 

CrimA 9334/08 Emad Ali v. State of Israel

 

       The appellant was convicted in the District Court of weapons offenses (trading in weapons) and conspiracy to commit a felony. The offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The central question in the appeal was whether these “foreign offenses” (under sec. 7(b) of the Penal Law) constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

In denying the appeal, the Supreme Court (per Justice M. Naor, Justice E. Arbel and Justice Y. Danziger concurring) held:

1.         As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element

2.         Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy.

3.        There is nothing in the first part of s. 13(a) of the Penal Law that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. According to the purpose of s. 13(a), the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

4.         Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize. An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law.

5.         The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. Despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

6.         The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests.

7.         The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security.

8.         The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

9.         The penal provisions under which the Appellant was charged apply by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality.

10.       Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. Such a defect can significantly reduce the weight of the confession, and can even affect its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth.

Justice Y. Danziger (concurring):

1.         As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it. This approach renders s. 8(1) meaningless. It is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law.

2.         It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. I am of the opinion that the Interrogation of Suspects Law sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet the case law has not given full expression to the change that the legislature sought to bring about in relation to the manner of recording the confession of a suspect.

3.         A breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right.

 

 

JUDGMENT

 

Justice M. Naor

       The appellant was convicted in the District Court (Judge Y. Zelkovnik) of weapons offenses (trading in weapons) and conspiracy to commit a felony, perpetrated in the Gaza Strip. The central question in the appeal before us is whether the offenses attributed to the Appellant, which were committed outside the sovereign territory of the State of Israel, constitute crimes against the security of the State of Israel for the purpose of extraterritorial jurisdiction.

 

Background

The Charges against the Appellant

1.         The Appellant, a resident of the Gaza Strip, was charged with the offense of trading in weapons under sec. 144(b2) of the Penal Law, 1977 (hereinafter: Penal Law), and the offense of conspiracy to commit a felony under sec. 499(a)(1) of the Penal Law.

2.         According to the account in the information, on Jan. 30, 1986, the Government of Israel declared the Popular Front for the Liberation of Palestine (hereinafter: the Popular Front) to be a terrorist organization. The Appellant, at the time relevant to the information, was a resident of Beit Hanoun in the Gaza Strip, served as a police officer in the Palestinian Authority, and was involved in commerce. In 2001, the Appellant conspired with Fana Nasser Kafarna (hereinafter: Kafarna), Abdulrahman Juma (hereinafter: Juma) and others to supply weapons to the Popular Front, which constituted a threat to the security of the State of Israel. The role of the Appellant was to purchase the required weaponry and sell it to the Popular Front, as instructed by Kafarna and Juma, taking advantage of his connections in the Palestinian Authority.  In the years 2001-2002, in order to execute the object of the said conspiracy, the Appellant purchased 65 Kalashnikov rifles, 5,000 rounds of ammunition for the Kalashnikovs, and 80 kilograms of TNT explosives from an arms dealer, as requested by the Popular Front, and sold it for profit to the Popular Front, which caused harm to Israel’s security. Pursuant to these transactions, the Appellant drove Juma and another person to a deserted house in the Gaza Strip in order to test a device containing explosives supplied by the Appellant. In addition, the Appellant supplied the Popular Front with copper sheets for the purpose of producing pellets to be added to the explosive devices, hand grenades, and boxes of “diet sugar” intended for the production of explosives. The Appellant also supplied 100 uniforms. The Appellant stopped supplying arms and services to the Popular Front following a dispute about the prices demanded by the Appellant.

 

The Arrest and Interrogation

3.         In the early hours of July 18, 2006, the Appellant was brought to Israel in the course of operations by the army and Israel Security Agency (hereinafter: ISA)[1]. The ISA began its interrogation of the Appellant on the same day. Additional interrogations took place throughout that month and the month of August. Interrogation of the Appellant was completed on August 13, 2006.

4.         The Appellant was interrogated for the first time, on July 18, 2006, the day he was arrested.  The main points of the interrogation were documented in a memorandum marked P/9. The said memorandum noted that during his interrogation the Appellant provided details about joining the Popular Front in 1988, that he headed a cell, and that he was twice arrested by the Israeli security services for the activities of that cell. Subsequently, after having been involved in taking action against Palestinian collaborators and in military activity of the Popular Front in the Gaza Strip, the Appellant acted like a “fugitive” and remained in hiding until he managed to escape to Egypt, from which he was expelled to Libya. Between the years 1989-1994, the Appellant studied in Cuba, funded by the Popular Front. In 1995, the Appellant returned to the Gaza Strip and began working in the Palestinian Police. According to the said memorandum (P/9), the Appellant also recounted that after his return to the Strip, in the course of 2002, at the request of Nassar Kafarna and a person by the name of Juma, who were members of the Popular Front, the Appellant purchased  Kalashnikov rifles, ammunition for rifles, and T.N.T. explosives from an arms dealer named Nabil Ziddam; he also bought copper sheets and uniforms, and sold them to Kafarna and Juma. In addition, it was noted that the Appellant drove Juma and others to the place in which they ran a trial of an explosive device, and on another occasion he travelled with them to a place where they tried to launch a rocket containing explosive material that he had supplied them earlier. It was also noted in the memorandum that in the course of the interrogation, which began at 8:55 in the morning and terminated at 6:30 in the evening, the Appellant was given many cigarettes and several cups of coffee.

5.         On the day of his arrest – July 18, 2006 – some three hours after the completion of the said ISA interrogation, the police took a statement from the Appellant (P/4) in which he confessed to the acts attributed to him (hereinafter: the statement or P/4). According to what was written in the statement, the Appellant confessed that he had traded with activists in the Popular Front in weapons purchased from a person by the name of Nabil Ziddam, and in uniforms and boxes of “diet sugar”, exploiting his connections with the Palestinian Police. All this was done at the request of Kafarna and Juma. The Appellant also stated that on one occasion he had driven Juma and others to a place where they tried to activate an explosive device. Contrary to what he said in his interrogation by the ISA, in his statement the Appellant said that he was invited to join in the trial launch of the rocket, but refused. Furthermore, the Appellant was documented as saying that he knew that the weapons were intended for the Popular Front, but he did not know to what use they would be put by the organization, and that he traded in them for the purpose of financial gain. He also reported that Juma told him that the uniforms were intended for activists in the Popular Front. The statement P/4 was taken from the Appellant in Arabic and was written down in Hebrew. At the end of the statement, the Appellant was documented as stating: “After [the above statement] was translated for me into the Arabic language, I confirm it with my signature.”

6.         In the ISA interrogations of the Appellant that took place later in the month of July 2006, the Appellant retracted his confession and claimed that he had lied about his involvement in the trading of weapons with activists from the Popular Front. In an ISA interrogation conducted in the course of the month of August 2006, on August 7, 2006 (and documented in memorandum P/14), the Appellant once again admitted that he had traded in weapons with members of the Popular Front – Kafarna and Juma. On the same day, August 7, 2006, another statement was taken from the Appellant by the police (hereinafter: P/5). In this statement, the Appellant stated that he supplied Kafarna, an active member of the Popular Front, with 20 empty hand grenades and three Mirs devices[2]. The Appellant also noted in this statement that he had supplied Kafarna with a Kalashnikov rifle for the purpose of self-defense. In addition, he said that in 1990 he trained in Syria, in the framework of the compulsory training of the Popular Front. In subsequent interrogations of the Appellant, he once again denied that he had traded in weapons with the Popular Front.

7.         On Dec. 7, 2006, the Minister of Defense issued a certificate of privilege concerning, inter alia, the methods of interrogation employed by the ISA. After the certificate was issued, the Appellant was shown “paraphrases” of his interrogation, which related to things he had said in front of “others who were not in positions of authority.” On April 19, 2007, this Court (per Justice A. Grunis) denied a petition submitted by the Appellant to disclose evidence (CrimApp 10537/06).

 

The Offenses attributed to the Appellant are Foreign Offenses

8.         It should be noted at the outset that the offenses attributed to the Appellant were committed in their entirety in the Gaza Strip, and none, nor any part of any of them, were committed within the territory of the State of Israel, nor were their outcomes intended to occur in the State of Israel. The issue, therefore, is one of “foreign offenses” (sec. 7(b) of the Penal Law). Since we are dealing with foreign offenses, the written consent of the Attorney General to the prosecution was attached to the information, as required under s. 9(b) of the Penal Law. In principle, domestic criminal law applies to offenses that were committed in the sovereign territory of the state. In our legal system, such offenses are called “domestic offenses” (ss. 7 and 12 of the Penal Law; and see LCrimA 1178/97 Kahana v. State of Israel [1], at p. 269). There are exceptions to this rule, and a legal system may extend the application of its laws to criminal offenses committed beyond its territorial borders. In Israeli criminal law, such offenses are called “foreign offenses”.

       A foreign offense, according to its definition, is any offense that is not a domestic offense (sec. 7 of the Penal Law). A domestic offense is, as stated, an offense that is committed entirely or partially within the State, or the outcome of which is intended to eventuate in the State (sec. 7(1) of the Penal Law). In other words, a foreign offense is any criminal offense which was committed entirely beyond the territory of Israel, such as in our case. As a rule, the area of application of Israeli criminal law is within the territory of the State. When we seek to apply this law to foreign offenses, we must be able to point to a “connecting link”, a “normative bridge”, between the law of the state and these offenses that were committed beyond the borders of the state, which will replace the territorial element (see CrimA 7230/96 A. v. State of Israel  [2], at pp.  522-523; CrimFH 2980/04 Oiku v. State of Israel [3], at pp. 38-39; CrimA 4596/05 Rosenstein v. State of Israel [4], at pp. 383-385). Several jurisdiction-extending nexuses are accepted in most legal systems, including the Israeli legal system: an active personal nexus – between the perpetrator of the offense and the legal system; a passive personal nexus – between the victim of the offense and the legal system; a universal nexus – which relates to particularly serious offenses whose prevention is a matter of universal interest; a vicarious nexus  – which relates to offenses that Israel will address by virtue of a treaty between itself and another state; and the protective nexus – which concerns acts that have harmed or were intended to harm essential state interests, such as security, the regime or the economy. These interests are specified in s. 13 of the Penal Law (for an elaboration of the various nexuses, see: S.Z. Feller, Foundations of Criminal Law, vol. 1, 240-30 (1974) (Hebrew) (hereinafter: Feller)).

9.         In the trial court, the Respondent argued that Israeli law applies extraterritorially to the offenses attributed to the Appellant by virtue of the protective nexus. These offenses, it was argued, were committed against the security of the state (see s. 13(a)(1) of the Penal Law which states: “Israel’s penal laws will apply to foreign offenses against national security, its foreign relations or its secrets”). The Appellant, on his part, argued that he perpetrated the acts attributed to him for purely economic motives, with no intention of harming national security. Therefore, he argued, for the purpose of extraterritorial application, no offenses against the security of the state are involved. In addition, the Appellant claimed that the Court did not acquire jurisdiction to try the offense of conspiracy attributed to him. The offense of conspiracy to commit a felony appears in s. 499(a)(1) of the Penal Law, which provides:

          499. (a) If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1) if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The Appellant claimed that because he was accused of conspiring to commit an act abroad, the matter falls within the scope of the latter part of s. 499(a)(1) of the Penal Law. Therefore, in order for the offense of conspiracy to arise, the substantive offense attributed to the Appellant, i.e. dealing in weapons, must also constitute an offense under the laws of “that place” – i.e. under the laws of the Gaza Strip. This, he argues, was not proved. On the substance of the charge, the Appellant argued that his confession from the first day of his arrest (P/4) is inadmissible due to the use of improper interrogation methods, and at the very least, the circumstances under which the confession was made reduce its weight considerably.

 

The Judgment of the District Court

10.       Regarding the question of the application of the law, the District Court ruled that the circumstances of the Appellant’s acts – the large-scale sale of weapons to a terrorist organization – were sufficient to justify the application of the penal laws of Israel to the acts, and it was not necessary to decide on the question of whether intention to harm security was also required. In any case, it was determined that the existing factual foundation showed that the Appellant was aware that the weapons that he sold would be used to harm the security of the State of Israel – such knowledge being equivalent to intention to harm the state. As for the offense of conspiracy, the District Court ruled that the Appellant was being tried in the framework of the first part of the section, which treats of the offense of conspiracy as a foreign offense against national security. In such a case, extraterritorial application of the law is permissible, just as domestic law may be applied to the offense of dealing in weapons.

On the merits, the District Court dismissed the Appellant’s arguments concerning the admissibility and the weight of his confession to the acts attributed to him in the information. The District Court examined the Appellant’s arguments that improper interrogation methods were employed against him, and that his confession was not given freely and voluntarily, and found them to be without substance. The District Court pointed to a contradiction in the Appellant’s arguments that detracted from his claim that the confession was coerced: on the one hand, the Appellant said that he confessed after improper interrogation methods were employed; on the other hand, he argued that despite the pressures of the interrogation, he did not make any confession, and that he signed the statement P/4 due to the pressure applied to him, without knowing that according to its contents, it was a confession.

       In regard to the circumstances in which the confession was obtained, the District Court ruled that only the means of interrogation employed up to the time the Appellant made statement P/4 – which, as noted, was made already on the first day of his arrest – were relevant. It also found that the immediate commencement of the interrogation, as well as its duration, negate, or at least detract from, the Appellants’ arguments with respect to the methods of interrogation used until he made statement P/4, such as his argument that he was put in solitary confinement in the freezing cold. In addition, the Court found that the testimony of the interrogators that the Appellant was not starved, threatened or put in solitary confinement was reliable. It was also determined that the ISA records correctly described what happened in the interrogation room. The court added that the interrogation of the Appellant was indeed very lengthy and even exhausting, but this was necessary for the purposes of the interrogation, and was not intended as a means of “squeezing” a confession out of the Appellant. Therefore, it was held that in the course of the ISA interrogation prior to delivery of statement P/4, the Appellant was not subjected to improper means of interrogation. A similar determination was made with respect to obtaining the confession at the police station. The court accepted as reliable the testimony of Onsey Harladin, a police investigator who took down statement P/4, that the Appellant made the statement voluntarily. It was also found that the transcription of the statement does not constitute a copy of memorandum P/9, and even though statement P/4 is generally consistent with what was recorded in P/9, there are differences between the two documents that attest to the fact that it is not a “clone”.

11.                   As for the weight of the confession P/4, the District Court determined that even though the transcription of a suspect’s statement in the language in which it was uttered is of utmost importance, in the circumstances of this case the transcription of P/4 in the Hebrew language did not detract from its weight. Officer Harladin speaks Arabic fluently, and he testified that he translated everything that the Appellant said. Moreover, the Appellant did not relate to the contents of the statement and did not indicate actual places in which, according to him, the meaning of his words had been distorted due to the method of transcription. The court further determined that statement P/5 simply added details about trade in additional weapons, without negating or contradicting what was said in P/4. Thus, there is nothing in P/5 to detract from the weight of statement P/4. Additional support for the confession was found in the Appellant’s testimony in court, in the framework of which he confirmed that he had transferred grenades and communications devices to Kafarna, an activist in the Popular Front. This testimony confirms the existence of a connection between the Appellant and the activists in the Popular Front with respect to the transfer of weaponry. Yet further support was to be found in the statement made to the police by another active member of the Popular Front – Shafik el-Barim (P/7). In his statement, Shafik confirmed that Juma is a senior activist in the Popular Front, who is involved in the military activity of the organization, including the launching of rockets. He also gave information about the connections of Kafarna, who is Juma’s superior. In his testimony, Shafik denied that he had said these things to the police, but the court accepted the position of the prosecution that Shafik’s statement prior to his testifying in court should be accepted, under s. 10A of the Evidence Ordinance [New Version], 5731-1971. The court found additional probative support in the statement of Emad Hassin (P/1), who supplied details about the arms dealer Nabil Ziddam that were identical to those provided by the Appellant.

12.                   The District Court therefore ruled that the Appellant’s statement P/4 should be assigned substantial weight, and that the Appellant did indeed engage in the trade of weapons with activists from the Popular Front. Furthermore, the court held that the Appellant’s argument that he acted from economic motives was not to be dismissed. However, in view of the circumstances as described, it found that the Appellant was aware of the fact that the weapons he supplied to the Popular Front were intended to harm Israel’s security – and it seems that the profit motive bolstered the Appellant’s support for the Popular Front that arose from his family and personal connections with the organization. The Court therefore convicted the Appellant of the offenses attributed to him in the information.

13.                   The court sentenced the Appellant to 12 years imprisonment, from which the period of his detention would be deducted. It also imposed an additional two-year conditional sentence, for a period of three years after completion of the prison term. The court remarked in its sentencing decision that the Appellant’s deeds were particularly grave in view of the sheer volume of weapons that were sold, and in view of the terrorist nature and character of the organization to which they were sold. This gravity was exacerbated by the Appellant’s knowledge that the arms were intended to harm the State of Israel or its citizens. The fact that it was not proved that these weapons were actually used for the purpose of terrorist attacks within the territory of the State of Israel or for other hostile purposes is of no consequence. The court pointed to similar cases of arms smuggling and dealing in which heavy sentences were imposed upon the accused. In mitigation, the court took into consideration the fact that the Appellant had been dealing in arms for a relatively short period (only during the years 2001-2002 ). However, the fact that the Appellant had not expressed remorse for his actions added to the severity. The court therefore sentenced the Appellant to the said punishments.

       Hence the appeal before us, which challenges both the conviction and the severity of the sentence.

 

The Arguments of the Appellant

14.       The Appellant once again argued that Israeli law does not apply to his case, and that the information does not disclose an offense. In addition, the Appellant repeated his claim that his confession P/4 was not given freely and voluntarily, since it was obtained following the application of unlawful pressure by the ISA interrogators. The Appellant based this argument, inter alia, on a paraphrase of his statement to “another” that he was shocked by his arrest and therefore confessed. The Appellant also argued that he was not aware of the contents of  statement P/4 that he signed, and that he signed only following pressure from the interrogators. He also said that he signed the statement on the understanding that this would bring about his release. The Appellant further claimed that the District Court was mistaken in regarding as credible the testimony of the interrogators, according to whom improper means of interrogation had not been used on him, and he claimed that the findings of the District Court attest to the fact that improper means were indeed employed.

       In addition, the Appellant claimed that the transcription of his confession in the Hebrew language detracts from its weight, and its reliability is compromised in view of his contradictory statement documented in P/5, the contents of which he says he did not deny. Therefore, the transcription of P/4 in a language other than the original, and the contradiction between P/4 and the lawfully-obtained P/5, constitute cause for preferring the latter. It was also contended that weight should not be attributed to statement P/4 since the required time had not lapsed between the police interrogation – at the end of which the Appellant signed P/4 – and the ISA interrogation that preceded it. The police interrogation was conducted only three hours after the completion of the ISA interrogation, and this was not sufficient to create the necessary separation to allow the Appellant understand that these were two different interrogations. Similarly, according to the Appellant, he was not properly cautioned against self-incrimination, and it was not explained to him that there is a difference between the police interrogation and its ramifications on the one hand, and the ISA interrogation on the other.

       Finally, the Appellant argued that it had not been proven that he had mens rea. He claimed that the offense of conspiracy requires proof of intention that the offense to which the conspiracy relates will be perpetrated, and intention that national security will be harmed as a result. In view of the fact that he acted from purely economic motives, the prosecution did not raise this burden of proof.  The Appellant therefore argued that his conviction could not stand.

15.                   Regarding the sentence, the Appellant argued that the Court did not assign sufficient weight to mitigating considerations, and imposed a prison sentence that was too severe. The Appellant reiterated that the offenses attributed to him were committed over a short period of time, motivated by economic hardship and the need to support his family, with no ideological motivation whatsoever. He also claimed that his health had deteriorated from the beginning of his detention, which was characterized by harsh conditions and loneliness. The Appellant further argued that his sentence was more severe than sentences that had been imposed in similar cases, constituting a deviation from the principle of uniformity in sentencing. He therefore appealed to this Court to reduce his sentence.

 

Arguments of the Respondent

16.       With respect to the application of Israeli law to the offenses ascribed to the Appellant, the Respondent relied on the judgment of the District Court. Regarding the admissibility of the confession, the Respondent claimed that the Appellant’s arguments were directed against factual findings and credibility, with which the appeal instance does not rush to interfere. Thus, it would be unwarranted to intervene in the findings of the District Court that the Appellant’s confession  was given on the first day of his detention, after he had rested in his cell; that the testimonies of the ISA interrogators regarding the conditions of the interrogation were credible, and that the paraphrases of the confidential material did not lend any real support to the Appellant’s claims about the use of improper interrogation methods. Moreover, this Court (per Justice A. Grunis) denied the Appellant’s petition for disclosure of evidence, and ruled that the confidential material does not contain material that is essential to the Appellant’s defense. The  Respondent further argued that the Appellant’s line of defense is not consistent. While on the one hand he argues that his confession was obtained as a result of improper means of interrogation, on the other hand he claims that statement P/4, in which he confessed to the charges in the information, did not record what he said.

17.       As for the weight of the confession, the Respondent argued that this Court should not intervene in the factual findings of the District Court in regard to the separation of the police interrogation from that of the ISA. Regarding the transcription of the Appellant’s confession in a language other than the original, the Respondent agreed that, as a rule, the confession of an accused should be written down in the language in which it was uttered. However, this does not affect the weight of the statement. According to the Respondent, the District Court correctly considered the totality of the circumstances surrounding the documenting of the statement, including the fact that the statement was translated for the Appellant, and the court correctly ruled that it was reliable. Regarding the mental element of the crime, it was argued that it had been proved that the Appellant was aware that the weapons were being transferred to the Popular Front, and that they were intended to serve the purposes of the organization against Israel. True, the Appellant acted for financial gain, but his level of knowledge about the fact that the organization is hostile to Israel and acts to harm Israel is equivalent to intention to achieve the outcome.

Regarding the punishment, the Respondent argued that the Appellant’s sentence is consistent with the gravity of his actions, and with the appropriate level of punishment for these sorts of crimes. The Respondent added that the Appellant’s acts did not constitute a one-time error, and they were not committed against the background of any particular hardship. It was also argued that the Appellant did not express remorse for his actions, nor did he take responsibility for them. The Respondent therefore requested that we allow the punishment to stand.

 

Discussion and Decision

18.       The deeds attributed to the Appellant in the information were perpetrated, as stated, beyond the sovereign territory of the State of Israel. The Respondent agrees that these are foreign offenses. Its position is that these offenses have extraterritorial application by virtue of the protective nexus, since they are crimes against national security. We will first address the question of the extraterritorial application of the offenses of which the Appellant was convicted. Thereafter, the Appellant’s other arguments regarding the admissibility of his confession and its weight, and his arguments as to the sentence, will be considered.

 

Extraterritorial Application and the Protected Interest – The Law Prior to and Subsequent to Amendment 39

19.       The relevant statutory provisions concerning extraterritorial application were changed by the Penal Law (Amendment 39) (Introductory Part and General Part), 5754-1994, (hereinafter: Amendment 39; see also A. v. State of Israel [2], at pp. 519-520). The present case is governed by the statutory provisions as currently formulated, subsequent to Amendment 39.

20.       As noted, the starting point is that the penal laws of a state apply within its sovereign territory. There are, as we have said, exceptions. When a foreign offense is directed against an essential interest of the state, domestic law may be applied to it by virtue of the protective nexus.  The protective nexus is accepted in most legal systems, and it constitutes a “normative bridge” between the law of the state and the deed perpetrated beyond the borders of the state, replacing the territorial basis. The justification for this nexus can be found in the right of a sovereign state to protect, on its own, those interests that are vital to its existence, such as the interest of security.

Prior to Amendment 39 of the Penal Law, the provision relevant to our case was to be found in s. 5 of the Penal Law 5737-1977, which stated as follows:

            5.                     The courts in Israel are authorized to try according to the laws of Israel a person who committed abroad an act which would constitute an offense if committed in Israel, and the act was harmful or was intended to harm the State of Israel, its security, its property, its economy or its foreign relations, its transportation links or its communication links with other states (emphasis added -  M.N.).

Moreover, s. 5(b) of the Penal Law prior to Amendment 39 contained a list of specific offenses that had extraterritorial applicability due to the protective nexus. The interpretation of s. 5(a) of the Penal Law was discussed in the case of A. v. State of Israel [2]. That case concerned an accused who attempted to smuggle drugs from Venezuela to Canada by means of a bag on which he stuck a forged label so that it appeared to be an Israeli diplomatic pouch. The judgment of this Court dealt, inter alia, with the question of whether the penal laws of Israel could be applied to such acts, which fell within the category of foreign offenses. The Court decided, relying on the language of s. 5(a) of the Penal Law (prior to Amendment 39), that for the purpose of extraterritorial application by virtue of the protective nexus, it was sufficient that there was an act committed under circumstances that demonstrated intention to harm the state or which caused it actual harm. It also decided that the protective nexus was not confined to specific statutory provisions whose subject and purpose are the protection of vital national interests (A. v. State of Israel [2], at pp. 525-526).

Today, subsequent to Amendment 39, the provisions relevant to the protective nexus are to be found in s. 13(a) of the Penal Law, which provides:

13 (a) Israel penal laws shall apply to foreign offenses against –

(1) national security, the State’s foreign relations or its secrets;

(2) the form of government in the State;

(3) the orderly functioning of State authorities;

(4) State property, its economy and its transportation and communication links with other countries;

(5) the property, rights or orderly functioning of an organization or body enumerated in subsection (c).

…

(c) “Organization or body”, for the purposes of subsec. (a)(5) – …

 

Amendment 39 extended the scope of the protective nexus to the protection of Jews and Israelis from harm directed at them because of their identity. This is anchored in s. 13(b) of the Penal Law:

13 (b) Israel penal laws shall also apply to foreign offenses against –

(1) the life, body, health, freedom or property of an Israel citizen, an Israel resident or a public servant, in his capacity as such;

(2) the life, body, health, freedom or property of a Jew, as a Jew, or the property of a Jewish institution, because it is such.

21.                   Thus, the wording of the Law subsequent to Amendment 39 is not identical to its wording prior to the Amendment. The pre-Amendment wording indicated that extraterritorial application of the law is possible both in the case of an “act” that harmed the state (or was intended to harm it) and to specific offenses from a closed list. The present text no longer relates to specific offenses, and the Law no longer refers to an “act” that harmed or was intended to harm the state or various interests; rather, it refers to foreign offenses “against” certain specified interests, including national security.  Does the word “against” refer only to offenses that by their nature are directed against the essential interests of the state, and which are specified in s. 13 of the Penal Law, or does it also include acts, constituting offenses, that according to their circumstances, were directed against those same interests, for example, if they were committed with the intention of harming those interests.

This question is important in our context. As will be recalled, the Appellant was accused of the offense of trading in weapons, under s. 144(b2) of the Penal Law, which states:

(b2) If a person produces, imports, exports, trades or performs any other transaction with weapons, which includes giving a weapon into the possession of another – whether or not for consideration – without having lawful permission to perform the said act, he shall be liable to fifteen years imprisonment.

            The offense of trading in weapons is not necessarily related to protection of national security. In some circumstances, the act of trading in weapons may have the effect of harming national security or of indicating an intention to harm it. However, the purpose of the offense – or if you prefer, the interest it protects – is not the protection of national security. In presenting their oral arguments, we allowed the parties to elaborate on their written pleadings on the question of the protective application to the present case.

22.                   In its supplementary pleadings, the Respondent focused on the interest of national security. It argued that any act – performed with an intention to harm national security – sufficed to justify extraterritorial application. The Respondent insisted that the purpose of the protective nexus supported this interpretation. The Respondent also supported its arguments with the fact that charges are often filed in Israeli courts against persons accused of foreign offenses, which according to the circumstances of their commission, were directed against national security. The Appellant, on the other hand, argued that in order for the penal laws of Israel to apply to a foreign offense, the offense must be directed, by its very nature, against national security. Counsel for the Appellant agrees that this does not refer only to those offenses included in the relevant chapter of the Penal Law, titled Offenses Against “National Security, Foreign Relations and Official Secrets” (Chap. 7 of the Penal Law). According to him, it also refers to any offense that, in accordance with its defining elements, is directed against national security, such as an offense under the Prevention of Terrorism Ordinance. However, the offenses of which the Appellant was accused are not such offenses, and his counsel therefore argues that the Israeli courts did not have jurisdiction over the Appellant.

 

The Scope of the Protective Nexus subsequent to Amendment 39

23.                   This Court has noted in the past that “the protective conception – which is what concerns us – may be given limited or wide statutory expression … but it will always be the law that decides” (A. v. State of Israel [2], at p. 525). The legislature’s ability to choose between wide or narrow protective application is consistent with the domestic law approach whereby the legislature is entitled to set the bounds of the law at its discretion, without taking into account constraints of foreign or international law (s. 9(a) of the Penal Law; and see the Rosenstein case [4], at p. 381; Gabriel Hallevy, Theory of Criminal Law, vol. 1 (2009), 446 (Hebrew). The relevant statutory provision in our context is sec. 13(a), and particularly sec 13(a)(1) of the Penal Law, which we will now examine.

Was it the intention of the legislature, in Amendment 39, to create a change in the situation that pertained prior to the Amendment? After having given this serious consideration, I propose to my colleagues that this question be answered in the negative. The starting point for the discussion is the language of s. 13(a)(1) of the Penal Law in its post-Amendment formulation: “Israel’s penal laws shall apply to foreign offenses against – (1) national security, the State’s foreign relations or its secrets.”  “Foreign offense” is defined negatively: it refers to any offense that is not a domestic offense. In principle, any criminal offense may fit the definition of “foreign offense”. There is nothing in the first part of s. 13(a) that defines the scope of the protective nexus. The question is whether the word “against” must be interpreted as referring only to offenses which by their nature are directed against national security, such as offenses specified in the relevant chapters of the Penal Law and the Prevention of Terrorism Ordinance. In my opinion, the interpretation according to which the protective nexus remains applicable to all acts which by virtue of their circumstances are directed against national security is to be preferred.

The basis for this determination, as will be explained, is the interpretation of s. 13(a) in accordance with its purpose. Section 34U of the Penal Law states:

34U. If an enactment can be reasonably interpreted in several ways in respect of its purpose, then the matter shall be decided according to the interpretation that is most favorable for whoever is to bear criminal liability under that enactment.

Interpretation of the law in the criminal sphere is also purposive interpretation, in the framework of which one must examine the language of the law, as well as the goals and interests that the law is intended to realize (CFH 1558/03 State of Israel v. Assad [5], 557). An interpretation of the language of the law that is favorable to the accused may nevertheless be rejected if it fails to optimally realize the purpose of the law. This Court considered this point recently in CrimA 8831/08 State of Israel v. Alshahra [6]:

Among several possibilities that realize the statutory purpose, the one to be chosen is that which realizes it in the fullest way, in both its subjective and objective purpose (Aharon Barak Purposive Interpretation in Law (2003) (Hebrew) 133-135 (hereinafter: Barak, Purposive Interpretation). Only where there remain several possible interpretations of the norm according to its statutory purpose, is the interpretation most favorable to the accused is to be preferred (CrimA 8831/08 State of Israel v. Alshahra [6], per Justice Y. Amit at para. 20).

Thus, the interpretation that most fully realizes the statutory purpose underlying s. 13 of the Penal Law is to be selected. Only in the event that the two possible interpretations comply with this requirement does s. 34U direct us to select that which is most favorable to the Appellant (see also: Aharon Barak, On the Interpretation of a Penal Provision, (2002) 17 Mehkerei Mishpat, 347 (Hebrew)).

24.       The statutory provisions regarding extraterritorial application by virtue of the protective nexus, as formulated prior to Amendment 39, applied the domestic law to every act that harmed or was intended to harm “the State” or important interests such as the economy of Israel and its security. The present formulation restricts the application of the law by virtue of the protective nexus to offenses that are directed against certain interests, and it no longer allows for the application of the law to “any” harm to the “state”. At the same time, I propose to my colleagues we should hold that despite the textual change, Amendment 39 did not reduce the scope of the protective nexus. Israel’s criminal laws continue to apply to a person who perpetrates an act which, according to its circumstances, harmed or was intended to harm the security of the state, as was the situation that pertained prior to the Amendment.

From the Explanatory Notes to Amendment 39 it emerges that the scope of protection of those vital interests was not reduced. The Explanatory Notes are “silent” on the change of wording in relation to the protective nexus – a change which we discussed above. In my view, this “silence” is significant. It indicates a lack of intention to create a “revolution”, other than a change in wording. Furthermore: the general attitude of the Explanatory Notes to the scope of the protective nexus manifests a desire to expand this scope from a substantive point of view in certain areas, and there is no mention of any intention to restrict it. Thus, regarding the proposed statutory change in the extraterritorial applicability, the Explanatory Notes to Amendment 39 noted that:

The main changes in the bill are a clear-cut separation between the different types of application, and particularly, eradication of any aspects of protective application from universal application and personal-passive application; expansion from a substantive perspective of the protective application and of the personal-active application” (S.Z. Feller and M. Kremnitzer, Criminal Code Bill – Preliminary and General Parts (Text and Brief Commentary), 14 Mishpatim (1984) 128, 201-202 (Hebrew) (hereinafter: Feller and Kremnitzer) (emphasis added – M.N.).

The Explanatory Notes also mentioned that the rationale behind nullifying the particular offenses specified in s. 5(b) was the desire to avoid a closed list of offenses that have extraterritorial applicability due to the protective nexus, as it may suffer from omissions:

In order to avoid casuistic specification which is liable to be incomplete, such as that found in s. 5(b) of the Penal Law [prior to Amendment 39], what is proposed is the general formulation of an offense of likely harm to the proper operation of the state authorities (s. 13(a)(3)) (ibid., at p. 202) (emphasis added – M.N.).

Another major change in the new Law was, as stated, the expansion of the protective nexus to foreign offenses against Israelis or Jews, wherever they may be (this expansion has been  criticized: Yoram Shachar, In Condemnation of the National Application of Criminal Law,  5(1) Plilim (1996) (Hebrew); for a different view, see: S.Z. Feller and Mordechai Kremnitzer, Reply to the Article ‘In Condemnation of the National Application of Criminal Law ’ by Y. Shachar, 5 Plilim (1996), pp. 65, 73 (Hebrew) (hereinafter: Feller and Kremnitzer – Reply)).

The intention was, therefore, to expand and not to constrict the protective nexus from a substantive point of view, vis-à-vis the situation prior to the Amendment. Thus, as we have said, the list of specific offenses to which Israeli criminal law applied by virtue of the protective nexus was revoked, and the protective nexus was expanded to apply also to foreign offenses against Jews and Israelis. The position whereby the new legislative provisions expand the protective nexus finds expression in the literature as well (see Y. Kedmi, On Criminal Law, vol. 1 (2004), at p. 30 (Hebrew): “The new provision [s. 13 of the Penal Law] adopts a general formulation and avoids going into details that are liable to be found incomplete. The former provisions of the Penal Law – particularly the provisions of what was then s. 5 – should not be viewed as defining the borders”).

25.                   Moreover, s.13(a)(3) of the Penal Law deals, as stated, with foreign offenses against the “proper operation of state authorities”. As will be recalled, the Explanatory Notes to Amendment 39 mentioned that this general section was added to the protective nexus in order to break out of the bounds of the list of specific offenses that were once anchored in s. 5(b) of the Penal Law. Furthermore, the general nature of this interest, to which no specific chapter had been devoted in the Penal Law (such as chap. 7 dealing with security offenses) attests to the fact that the intention of the legislature was not to restrict it only to concrete offenses. In addition, s.13(a)(5) of the Penal Law treats of foreign offenses against rights, property or the orderly functioning of certain national institutions. Here, too, it is difficult to pinpoint offenses that are intrinsically directed against the proper functioning of those specific institutions. In other words, other interests that are anchored in s.13(a) are not confined to offenses that are intrinsically directed against them. In the same way, it cannot be said that foreign offenses against security are only those statutory provisions whose purpose is the protection of this interest.

26.                   The purpose of the protective nexus, particularly in the context of national security, lends support to the conclusion that the protective nexus is not confined to offenses that are intrinsically harmful to national security. The purpose of this nexus is, as stated, a response to the need of the state to protect itself from deeds that are perpetrated outside its borders and that are directed against vital interests that go to the very root of the existence of the state (see: A. v. State of Israel [2], at 521, and see Ian Brownlie, Principles of Public International Law,(7^th ed., 2008) 304-305). Regarding the purpose of the protective nexus, the Explanatory Notes to Amendment 39 note:

Section 13 treats of protective application that is based on a special nexus of the type of offense to the State, when the offense is likely to endanger the political, security and economic foundations      of the state, its standing and the orderly functioning of its institutions (Feller and Kremnitzer, at p. 202).

27.       The question of the scope of the protective nexus subsequent to the legislative change introduced by Amendment 39 was considered by this Court in the Alshahra case [6]. There, at issue was the interpretation of s. 13(a)(4) of the Penal Code, which states:             “Israel’s penal laws shall apply to foreign offenses against State property, its economy and its transportation and communication links with other countries.” In the above case, two residents of the Territories were accused of dismantling stolen cars, forgery and dealing in stolen vehicles. The offenses attributed to them were all committed in Area A, under the control of the Palestinian Authority, and they were therefore considered foreign offenses. This Court considered the question of whether these offenses fall within the bounds of s.13(a)(4) of the said Penal Law, and held that Israeli law does not apply to the foreign offenses attributed to the accused. It was held there that it is not sufficient that the offense causes harm to the property of individuals in order for the protective nexus to arise. Even the fact that car theft constitutes a “national plague” is not enough to expand the application of the law. It was further held that the offense must be one that is directed against a protected value related to the economic infrastructure of the state. As an example, the Court cited the offenses of forgery of currency, or harm to goods that constitute part of an important export branch.

The Appellant in our case argued that the said rulings indicate that Israeli law applies only to those foreign offenses that are intrinsically directed against the state, and that an analogy should be drawn from that interpretation to our case. However, the Alshahra case [6] also noted that the accumulation of offenses of car theft and dealing in stolen parts perpetrated by an individual entity can result in an argument that offenses against the national economy are at stake (para. 29). From this it transpires that the Court did not interpret the section as applying only to offenses intrinsically harmful to the national economy. The Court was prepared to apply the protective nexus to offenses of theft and trade in stolen parts, which are not intrinsically directed against the interest of the national economy, if, under the circumstances, the accumulation of car thefts and trade in stolen car parts by the individual indicate harm to the national economy.

28.                   We would note that the trial courts have held that the provisions of s.13(a) of the Penal Law are not confined to certain statutory provisions, and that protective application extends to a range of matters that may harm protected national values (see the decision of the Beer Sheba District Court – CrimC (Beer Sheba) 8179/07 State of Israel v El Najar [31]: in the main proceedings, the accused confessed to the alleged offenses, and filed an appeal to this Court, but the appeal turned only on the severity of the sentence – CrimA 9428/08 El Najar v. State of Israel [7]; and see: MApp 3403/08 (Beer Sheba Magistrates Court) State of Israel v. Harzallah [32]).

29.              The function of the protective principle is to protect important interests from various threats. Clearly, there are some deeds which, by virtue of their circumstances, present a real threat to the security of the State of Israel, even if they do not constitute “pure” security offenses like s. 111 of the Penal Law that prohibits the delivery of information to the enemy. Thus, for example, a person’s acts that constitute a link in the terrorism chain, whether they be the funding of the activities of a terrorist organization or the smuggling of weapons to that organization, constitute a concrete threat to security. In the past, people were tried in Israel for foreign offenses where the circumstances of their commission indicated a threat to security, such as weapons offenses (for digging tunnels in the Gaza Strip that were intended for the smuggling of weapons from Egypt to the Strip), offenses of prohibited military exercises or the funding of the activity of terrorist organizations (see e.g.: CrimA 3827/06 A. v. State of Israel [8]; CrimA 6328/09 El Najar v. State of Israel [9] (hereinafter: the El Najar case); CrimApp 1600/06 A. v. State of Israel [10]; CrimA 6491/08 Bradville v. State of Israel [11]). Admittedly, the protective principle is limited to the offenses that endanger one of the interests specified in s.13(a) of the Penal Law (see Feller, at p. 275). However, this does not mean that the scope of the principle is limited only to specific statutes. Within the bounds of the protective nexus it is possible to include acts that, of course, constitute offenses that by their circumstances constitute a threat to a particular vital interest that the law seeks to protect, no matter where the act was committed.

30.                   The protective principle is especially important in modern times, in which the commission of crimes unbounded by territorial constraints is easier and more possible than ever, and there is a real need for prevention. Moreover, today, the interest in bringing the offenders to justice, and the interest in preventing them from using states as havens, are interests common to all states, and therefore, there is a discernable trend to extend the scope of application of domestic law to acts perpetrated beyond the state borders (Feller and Kremnitzer – Reply, at p. 73). This is certainly so in the case of terrorist activity. The State of Israel is often threatened by terrorist elements, and stands at the forefront of the struggle against terror. This struggle demands confronting every link in the chain of terrorist acts, whether within the borders of the State of Israel or beyond them. This Court has addressed this in the context of the smuggling of weapons that are liable to end up in the hands of terrorist elements, noting that –

No great expertise is required to understand that the uninterrupted supply of weapons and ammunition contributes to the persistence of the wave of violence and terror. The channels for smuggling ammunition and weapons constitute an artery that feeds the terrorist activity and they are, therefore, an integral part of it. It is patently obvious that the gravity, the risk and the abhorrence associated with acts of terror themselves also impact on the punishment of those who are involved in the early – but vital – stages of the chain of terror (CrimA 4043/05 State of Israel v. Bniat [12], per Justice A. Grunis, at para. 8; see also CrimA 2985/10 Hamed v. State of Israel [13], my opinion, at para. 10).

The protective principle, when it is not restricted to a closed, specific list of offenses, allows for effective, focused action against those links in the chain of terror whose operational base is often to be found outside the territory of the State of Israel. The purpose of the Law, therefore, is best realized when the scope of the protective application is not confined to a list of specific offences that are intrinsically directed against national security.

31.              What emerges from the above is that the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts – constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them (for a position in the academic literature supporting the application of Israeli law to acts that were perpetrated with the intention of harming national security see: Yoram Dinstein, The Amendment to the Foreign Offenses Law, 2 Iyunei Mishpat (1973), 829, 836 (Hebrew)) . This, in my opinion, is the interpretation that best realizes the purpose of the legislation subsequent to Amendment 39, as well. A different interpretation, such as that proposed by the Appellant, does not permit effective confrontation of the chain of terrorist links, the operation of which presents a great danger to national security. As such, it does not constitute a reasonable interpretation, and does not fulfill the purpose of the legislation.

32.                   Concern about the “imperialist” application of Israeli penal law, as claimed by the Appellant, is unwarranted. The fact that the state is authorized to apply its laws to foreign offenses does not mean that the authorities of that state are permitted to operate in the territory of a foreign sovereign in order to enforce those laws (see Feller and Kremnitzer – Response, at p. 67; and see: Monika B. Krizek, The Protective Principle of Extraterritorial Jurisdiction: A Brief History and an Application of the Principle to Espionage as an Illustration of Current United States Practice, 6 B.U. Int’l L.J. (1988), 337, 357). Moreover, prosecution for foreign offenses is subject to special oversight. A person may not be tried for a foreign offense other than by the Attorney General or with his written approval (s. 9(b) of the Penal Law). This supervision allays the concern about the application of domestic law to cases that do not justify such action.

 

Comparative Law

33.                   Extraterritorial application by virtue of the protective nexus is accepted, as stated above, in most legal systems. As a matter of principle, international law does not restrict the scope of the protective nexus, and each state may define its limits (S.S. Lotus (France v. Turkey) [33]; S.Z. Feller, Criminal Jurisdiction: Borders and Restrictions, 2 Iyunei Mishpat (1973), 582 (Hebrew)). At the same time, one must be careful not to abuse this nexus when it oversteps its purpose, i.e. the protection of basic, fundamental interests (Malcolm N Shaw, International Law (6^th ed., 2008) 666-667). The interest of security is, in any case, recognized as an interest worthy of protection.

The modes of implementation of the protective nexus in different legal systems are varied. Thus, there are legal systems in which the protective nexus is confined to a list of specific statutes (§5 stGB (Germany)); some legal systems apply domestic law to some offenses that are specific but formulated broadly (the French penal law applies the protective principle, for example, to the offense of destruction of a document, equipment, a structure, etc., where this poses a threat to the essential interests of the state, including national security (Code Penal [C.Pen.] art L. 411-9 (Fr.)). There are also systems of law that choose to apply domestic law to acts at a certain level of severity committed beyond their borders, when these acts harm important interests (Estonian Criminal Code §9).

In the United States, the protective principle, as justifying extraterritorial application, is recognized in the framework of Restatement (Third) of the Foreign Relations Law of the United States §402(1)(1987), which states that domestic law may have extraterritorial application to particular conduct by foreigners, outside the territory, that is directed against national security or against certain other national interests. This is subject to the application of the law being reasonable (§403), and provided that it is possible to identify an express or implied intention of the legislature to the effect that the particular statute should apply extraterritorially, on condition that this is consistent with the right to due process (United States v. Yousef [34]; United States v. Bowman [35]). Extension of the application of the law should ideally comport with international law, but this is not essential (United Sates v. Pinto-Mejia, 720 F.2d 248, 259 (2^nd Cir. 1983) [36]; the Rosenstein case [4], at p. 382). In various decisions in the United States, extraterritorial application of the law was justified by virtue of the protective nexus, primarily in regard to drug-related offenses or offenses against representatives of the authorities dealing with narcotics, and various offenses directed against governmental authorities (United States v. Chua Han Mow [37]; United States v. Schmucker-Bula [38]; United States v. Felix-Gutierrez [39]).

Recently, application of the law has been extended to offenses that constitute support for terror or terrorist organizations, even if they were committed by foreigners beyond the borders of the state. This extension was justified, inter alia, on the basis of the protective principle and on the basis of the right of the state to protect itself against acts that endanger its security (see United States v. Yousef [33]; Alexander J. Urbelis, Rethinking Extraterritorial Prosecution in the War on Terror: Examining the Unintentional yet Foreseeable Consequences of Extraterritorially Criminalizing the Provision of Material Support to Terrorists and Foreign Terrorist Organizations, 22 Conn J, Int’l L. 313, 321 (2007)).

The scope of protective application, therefore, differs from one legal system to another, and over the years, it has also been altered by legislation, in view of the changing needs of the times, such as the extension introduced in the United States. The scope of the protective principle, insofar as national security is concerned, is flexible, in accordance with concrete national requirements. A state is entitled to define the scope of protective application for itself. I do not believe that the change in the wording of the Law in the framework of Amendment 39 was intended to cause a revolution and a constriction.

 

From the General to the Specific

34.                   The Appellant traded in weapons and conspired with operatives of a terrorist organization whose aim was to harm Israel’s security. These acts posed a great danger to the security of the State of Israel. The Appellant traded in weapons with Popular Front operatives on a large scale, the weapons that were delivered were suitable for hostile terrorist activity, and the trade was conducted in the early days of the second Intifada. One of the ISA investigators even testified that the weapons supplied by the Appellant to the Popular Front were destined for purposes of hostile terrorist activity against Israel (pp. 85-86 of the transcript). Even if these were not offenses that intrinsically endanger national security, nevertheless, by virtue of their circumstances, the offenses materially endangered the security of the State of Israel and its inhabitants. The District Court ruled that the Appellant knew with near certainty that the weapons that he delivered were intended for use against the State of Israel. I see no reason to intervene in this conclusion. The Appellant was very familiar with the activities of the Popular Front. In the past, he was a member of the organization, and even headed one of its cells. In addition, in the past, he participated in military exercises of the Popular Front, and studied abroad with funding from the Front (Memo P/9). From these findings it emerges that the Appellant was aware with near certainty that the weapons were intended to harm the security of the state. This knowledge – with its practical repercussions for national security – overshadows the economic motive for the acts, and is equivalent to an intention to harm security (see and compare: CrimA 172/88 Vanunu v. State of Israel [14] at p.  295-297; LCrimA 9818/01 Biton v. Sultan [15]). Hence, there is no bar to the application of Israeli law to the Appellant by virtue of the protective nexus.

35.                   The Appellant’s knowledge that his acts posed a great danger to Israel’s security has ramifications for the question of the right to due process. In Rosenstein v. State of Israel [4], the Court considered the question of whether the extension of the application of Israeli law to a person who normally would not be subject to it involves a breach of the person’s right to due process. The Court considered the matter in terms of both principle and practice (at pp. 390-392). Referring to US law, it was noted that, in principle, a person whose acts are known to have repercussions within the borders of a foreign country exposes himself to prosecution under that country’s laws, and his contention that his right to due process was violated will not be heard. This is the case in the present matter. The Appellant knew, as we have said, with a high level of certainty that his acts would entail harm to Israel’s security and he can only blame himself for the fact that Israel now seeks to prosecute him according to its laws. The practical aspect involves the question of whether expansion of the application makes it difficult for the Appellant to plead his case, to bring witnesses etc. Such arguments cannot be raised in the abstract – concrete obstacles must be identified. The Appellant did not do so.

36.                   Thus, the Appellant carried out acts that presented a real danger to the security of the State of Israel. He knew, with near certainty, that the weaponry in which he was dealing would be used to harm Israel. This knowledge is equivalent to intention. The offenses of weapons dealing and conspiracy that are ascribed to the Appellant, which constitute foreign offenses, are admittedly not intrinsically directed against national security. However, the finding that the circumstances of the acts substantiating these offenses create a threat to security, is sufficient to determine that the relevant penal provisions apply extraterritorially to the Appellant.

 

Double Criminality and Specific Nexus between the Offense and the State

37.                   The Appellant argued that s. 144(b2) of the Penal Law, under which he was charged, applies only to the territory in which the act was perpetrated, since the actus reus of this section includes a requirement that trading in weapons be carried out “without lawful permission”. His contention is that application of this penal provision extraterritorially is unreasonable, for it would mean the criminalization of all arms trade carried on outside of the state if done without the permission of the authorities in Israel, even if it was in no way prohibited under the laws of the place in which it was executed. He also argued, as will be recalled, that for the purpose of a conviction of the offense of conspiracy to commit an offense outside of Israel, the criminality of the substantive offense under the laws of the place in which it was carried out must be proven. I will discuss these arguments in the order presented.

The penal provisions under which the Appellant was charged apply, as stated, by virtue of the protective nexus. Therefore, the question of whether his acts are punishable in the territory in which they were perpetrated is immaterial. The protective nexus prevails, and the foreign law does not restrict its scope. This means that for the purpose of extraterritorial application by virtue of the protective nexus, there is no requirement of double criminality (see: s. 9(a) of the Penal law; Feller, at p. 278; CrimA 163/82 David v. State of Israel [16], at p. 647 (hereinafter: the David case)).

The significance of the absence of double criminality is that the act or omission that occurred outside the borders of the state is liable to incur criminal liability in Israel even if it does not constitute an offense in the place in which it took place (the David case [16], para. 35, at p. 647). The Court reiterated this in the Alshahra case [6], where it considered the far-reaching implications, from the point of view of the accused, of extending the application of the penal laws beyond territorial borders, and their application to acts committed outside the territory of the state by virtue of the protective nexus. It was pointed out there, in reliance on the said section of the David case, that extension of territorial application requires great caution, inter alia because the act or omission might not in any way constitute an offense outside of Israel (the Alshahra case [6], para. 25). In the present case, the harm, anticipated with a high degree of probability, to the security of the state constitutes a connecting link, a type of “normative bridge” connecting the event that occurred outside the borders of the state to the penal law of the State of Israel (see the Oiku case [3], at pp. 38-39; following the abovementioned case of A. v. State of Israel [2]; the Rosenstein case [4]). We therefore determined that the element of harm to national security was present. We must now “transport” that entire event over that normative bridge into the territory of Israel, and examine whether the act would have constituted an offense if committed in Israel. In the Oiku case [3], the petitioner was tried in Israel for exporting drugs from Holland to various countries. The petitioner argued that he could not be tried for an export offense since the export of drugs that was prohibited under the Drugs Ordinance was the export of drugs from Israel, whereas in his case the drugs were exported from Holland. This Court dismissed that argument and ruled, on the basis of the universal interest in stopping the drug trade, that the extraterritorial principle should be applied to the petitioner’s case by way of “reconversion” or “hypothetical criminality”. As elucidated in the Oiku case [3], adopting such a technique is not justified in every case, but only in those cases in which the purpose of the legislation that extended the application of Israeli law beyond the borders of the state provides justification for doing so, and in cases in which the offense for which conviction is sought involves protected social interests that are not local in nature (the Oiku case [3], end of para. 14, pp. 46-47, 49). The weapons offenses of which the Appellant was accused are not of a local nature. They were designed to preserve public order. Admittedly, in our case, we do not know whether trading in weapons or the transfer of weapons from one person to another for no consideration did or did not require a permit in the Gaza Strip at the relevant time. This, however, is immaterial. Once we found that it was highly probable that harm would be caused to the interest of national security as a result of the trade in which the Appellant engaged, the fact that the particular act was permitted in the Gaza Strip, or permitted when accompanied by a permit, is irrelevant, because Israel’s societal interest in protecting national security is in any case harmed – whether the Appellant had a permit for the trade from the authorized body in the Gaza Strip or whether no such permit was necessary. In my opinion, we must therefore say simply that trade in weapons in the Gaza Strip (or elsewhere), in the knowledge that there is a high degree of probability that this will be injurious to the security of the State of Israel constitutes, in Israel, an offense under s. 144(b2) of the Penal Law. As opposed to this, offenses involving trade in weapons in foreign states, when they will have no impact on the State of Israel, will not be considered foreign offenses in Israel, and the concern of counsel for the Appellant that all weapons offenses worldwide will be caught in the net of foreign offenses is unwarranted.

The Appellant’s argument concerning the offense of conspiracy must be dismissed as well. As will be recalled, the offense of conspiracy to commit a felony is prescribed in s. 499(a)(1) of the Penal Law, as follows:

                                  499. (a)              If a person conspires with another to commit a felony or misdemeanor, or to commit an act in a place abroad which would be a felony or misdemeanor if it had been committed in Israel – and which also is an offense under the laws of that place, then he is liable –

(1)     if the offense is a felony, to seven years imprisonment or to the punishment prescribed for that offense, whichever is the lighter punishment; [emphasis added – M.N.]

The offense that is the object of the conspiracy attributed to the Appellant was committed, as will be recalled, outside of Israel. The Appellant argued that according to the last part of s. 499(a)(1), incrimination for a conspiracy whose purpose was the commission of a crime outside of Israel is possible only if the offense that is the object of the conspiracy constitutes a criminal act under the laws of the place where it was committed. In other words, there must be double criminality. The Appellant argues that in our case, because the offense that was the object of the conspiracy was committed outside of Israel, a conviction for conspiracy to commit that offense is only possible if the elements necessary for criminal liability are present in the place of commission. We cannot accept this interpretation. The last part of s. 499(a)(1) extends the territorial application and prescribes that a conspiracy that was formed within the borders of the state is punishable even if the offense that is the object of the conspiracy was to be committed outside of Israel (and see Feller, at p. 259). In the case before us, the locus of both the conspiracy and the offense that is the object of the conspiracy is outside the state. The offense of conspiracy and the offense that was the object of the conspiracy are foreign offenses to which the regular laws concerning applicability apply. In other words, double criminality is not required as a condition for conviction of the offense of conspiracy.

We should, however, clarify that domestic law does not apply extraterritorially to the offense of conspiracy simply because we found that it applies to the offense that is the object of the conspiracy. It is necessary to determine whether domestic law applies independently to the offense of conspiracy, under the regular laws governing extraterritorial application. Indeed, prior to Amendment 39, the Penal Law stated that if domestic law applied to the offense that was the object of the conspiracy, then it also applied automatically to conspiracy to commit that offense. However, this provision was repealed in the framework of Amendment 39 (see Feller and Kremnitzer, at p. 201). In any case, in the present matter the offense of conspiracy to deal in weapons, like the offense of trade in weapons itself, was committed in circumstances which, as the Appellant knew, posed a danger to national security with a high degree of probability. Therefore, domestic law applies independently to the offense of conspiracy by virtue of s. 13(a)(1) of the Penal Law.

Moreover, even if I were to conclude that the conviction for the offense of conspiracy should be set aside, this would not affect the Appellant’s sentence, for the court does not impose additional punishment – where the substantive offense has been proven – for the conspiracy that preceded the offense (see e.g. CrimA 9995/05 State of Israel v. Rabinowitz [17], per Justice E.E. Levy, at para. 9, and the references there).

This concludes the discussion of the question of jurisdiction. I shall now move on to the question of the admissibility of the Appellant’s confession and its weight.

 

Admissibility of the Appellant’s Confession and its Weight

38.                   The Appellant presented detailed arguments relating to the admissibility of the confession P/4 and to its weight. In effect, however, most of his arguments amount to an application to intervene in the trial court’s factual findings and its determinations concerning credibility. As a matter of principle, an appellate court will be reluctant to intervene in findings of fact and the credibility of witnesses, and in the present case I see no justification for deviating from this principle. Concerning the confession and its admissibility, the Appellant argued, as stated, that his confession was made following the application of improper techniques in the course of the interrogation. However, in his testimony, the Appellant argued that he did not say any of that which was attributed to him in P/4. He also claims that what appears in the memoranda of his various interrogations, including memorandum P/9 that describes the Appellant’s involvement in weapons trade with the Popular Front (as described above), is not true. The Appellant testified that “I in no way thought, even when I was forced to sign, that I was signing on any kind of confession” (p. 41 of the trial transcript). According to the Appellant, despite the pressure applied in the interrogation, he refused to give any incriminating information, and in his words in his testimony, “I am not prepared, even if I should be murdered, to say things that are not correct, and what was correct I wrote” (p. 133 of the transcript). Indeed, as noted in the opinion of the District Court, here we have contradictory arguments on the factual plane, which weaken the Appellant’s contention that his confession was made under coercion (see and compare: CrimA 6613/99 Semirak v. State of Israel [18], at p. 544 (hereinafter: the Semirak case)).

39.       In his appeal, the Appellant insists that it was the improper means of interrogation that led to the confession in P/4. It was argued that the findings of the District Court – that the interrogations of the Appellant were drawn out and harsh, he was permitted only few hours of rest and sleep, and sometimes he did not know when the interrogations were going to end – attest to the use of improper methods of interrogation. He also adds that he was handcuffed until he bled, and that food was withheld. These improper means of interrogation justify, so he contends, the voiding of the confession and at least, a significant lessening of its weight. These arguments, too, must be dismissed.

The District Court found – and I find no reason to interfere in these findings – that prior to making the statement in P/4, no improper methods were employed in the Appellant’s interrogation. The interrogation methods described in the judgment of the District Court, such as the Appellant not knowing when the interrogation would end, refer to the whole duration of the Appellant’s interrogations, which, as will be recalled, continued until the middle of August, 2006. The Appellant, however, challenges the admissibility of his statement P/4, which was recorded on the first day of his arrest. In examining the admissibility of this statement and its weight, therefore, the District Court was correct in considering the interrogation methods that were employed up until the time that this statement was made. In this context, the District Court found, relying on the testimony of the interrogators, on the one hand, and on its impression of the Appellant’s testimony on the other, that in the course of the ISA interrogation that preceded the transcription of statement P/4 and during its transcription, no improper methods of interrogation were used on the Appellant. There is no justification for interfering in these findings. As stated by the ISA interrogators, whose testimonies were consistent and detailed, the atmosphere in the interrogation to which memorandum P/9 relates was good, and during that session the Appellant drank coffee and smoked cigarettes. The interrogation did indeed continue for 9 hours, but this was necessary for the purposes of the interrogation, and it cannot be said that this affected the Appellant’s ability to insist on his innocence. Memorandum P/9 reflects what went on in the interrogation. The memorandum is detailed, and contains a record of the time of the interrogation and its duration. Furthermore, in the appendix to memorandum P/9, which the Appellant signed, there is a statement that the Appellant was informed of his right to remain silent in the interrogation. In these circumstances, what is recorded in the memorandum may be relied upon as support for the testimonies of the interrogators (see the Semirak case[18], at p. 548.

The District Court was also convinced of the reliability of the testimony of the police interrogator Harladin, who took down statement P/4 (and was the only one present when it was taken down), to the effect that the Appellant was alert at the time of the interrogation, and that he was not forced to sign the statement. The Appellant’s testimony, on the other hand, contained contradictions and inaccuracies. Thus, for example, the Appellant claimed in his testimony that he complained to the judge in the arrest hearing about the way he was being treated by his interrogators. However, as noted in the decision, no mention is made of this in the transcript of the hearing on the application to extend the arrest. The Appellant further argued that his statement P/5 is a faithful representation of what happened. In his testimony, however, he added details that did not appear in the original. Neither did I find any cause for intervening in the determination that the police investigation in which the statement was taken down was separate from the ISA interrogation, and that P/4 is not a “reproduction” of P/9. The police interrogation took place three hours after the completion of the ISA interrogation, in the course of which there was no further interrogation; the Appellant was cautioned in Arabic; the police investigator introduced himself as a policeman; between P/4 and P/9 there are differences, the most material of which is that in P/4 the Appellant denied his participation in an attempt to launch a rocket, whereas P/9 records that he confirmed that he had participated in the attempt. These circumstances attest to the existence of the required separation between the ISA interrogation and the police interrogation (see and compare: the Semirak case [18], at pp. 550-551).

40.       The Appellant also argued that the fact that the statement was transcribed in the Hebrew language, rather than in the language in which it was spoken – Arabic – negates its admissibility, or at least reduces its weight.

Section 8 of the Criminal Procedure (Interrogation of Suspects) Law, 5762- 2002 states that if the suspect’s interrogation at the police station was recorded in writing, this record shall be in the language in which the interrogation was conducted, and if it is not possible to record the interrogation in the language in which it was conducted, a visual or audio record should be made. In our case, this requirement was not fulfilled. In an ordinary case, such a defect might have significantly reduced the weight of the confession, and it is even possible that it would have affected its very admissibility. However, in certain circumstances, the weight of the statement may be judged on its substance in order to decide whether the record departs from the truth (see: CrimA 2285/05 State of Israel v. Hemed [19], per Justice E.E. Levy at  para. 4; CrimA 3687/07 Tochly v. State of Israel [20], per Justice S. Joubran, at  para. 12; and cf. CrimA 2180/02 Kassem v. State of Israel [21]).  In this case, it cannot be said that the recording of the statement in Hebrew affects its weight in a material way. The police interrogator who took the testimony speaks Arabic fluently, and he testified that he made a simultaneous translation of everything that the Appellant said. Furthermore, after the statement was transcribed, he translated it for the Appellant, who then signed it. The statement in question is detailed, and its contents are similar – although not identical – to what the Appellant said in the ISA interrogation, which was documented in memorandum P/9. The Appellant, on his part, insisted in his testimony that he did not tell his interrogators anything, and that he did not know what was written in the statement. Consequently, he did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded. In the above-mentioned Semirak case [18], too, the circumstances of which were similar, it was ruled that the weight of the statement was not affected (at p. 552). Also, the statement found support in the statements of Shafik al-Brim and Emad Hassin. In his appeal, the Appellant did not argue against the admissibility of those statements or against their contents. In these circumstances, despite the defect in the recording of the statement, there is no basis for doubting the reliability of the translation. Thus, the defect does not materially reduce the weight of the statement. As for P/5 – I accept the ruling of the District Court that what is described in P/5 adds to what is stated in P/4 and does not contradict it. In light of this, the Appellant’s arguments must be dismissed insofar as they relate to the admissibility of his confession and its weight.

 

The Punishment

41.       The Appellant delivered weapons, on a large scale, directly into the hands of a terrorist organization whose aim is to harm the State of Israel. The Appellant even participated in a test of the explosive material conducted by the members of the organization. In view of the type of arms that were delivered and the scale of the operation on the one hand, and the danger this posed to the State of Israel and its population on the other, the acts of the Appellant are very grave. This Court has already said that the heinous nature of the acts of terror themselves projects onto the grievousness of the acts of those who participate in the chain of terror at any of its stages. This Court has set a policy of harsh, deterrent sentencing for those who participate in the chain of terror, as stated in CrimA 3944/08 Sha’aban v. State of Israel [22] per Justice Y. Danziger, at  para. 7):

This Court has often emphasized the need to impose deterrent, appropriate sentences in respect of each and every link in the chain of terror … (CrimA 1358/09 Dahar v. State of Israel [23]).

Furthermore:

The State of Israel’s battle against murderous terror is not only a battle against the perpetrators and those who dispatch them, but against all those who, in some form or another, “grease the wheels” of the machinery of terror, and against every person who constitutes a part of this “chain of death”. Every single level of activity of the terrorist organizations requires an appropriate legal response in the framework of the war on terror … (CrimA 4352/08 A. v. State of Israel [24]).

It is immaterial if the acts were perpetrated with the intention of harming national security or if the motive was financial profit (see the Hamed case [13], at para. 10).  In any case, in the present matter the Appellant knew with near certainty that the weapons that he was delivering to the Popular Front would be used in the organization’s activity against Israel – this knowledge being equivalent to intention – and the profit motive in his actions enhanced his support for the organization and its aims. In addition, in the past the Appellant had been an active member of the Popular Front. These circumstances exacerbate the severity of the deeds. The absence of proof that the weapons were actually used in activity against the State of Israel is also immaterial (see and compare: the El Najar case [9]).  The sentence imposed by the District Court is detailed and reasoned, and it is evident that appropriate weight was given to the various considerations, including the Appellant’s personal situation, and the fact that his criminal activity continued for a relatively short period of time. The sentence that was imposed comports with the severity of the deeds, and there is no justification for intervening here.

The Appellant submitted medical documents concerning the medical situation of his wife, who is suffering from a serious illness and is being treated in the Sheba Hospital. The Respondent, on its part, argued that the documents show that the Appellant’s wife was released from hospital on Nov. 16, 2009, and that by then she had received the appropriate treatment and her life was not in danger. In view of this, said the Respondent, the medical situation of the Appellant’s wife cannot change the picture in relation to the overall considerations for punishment or justify intervention in the sentence. The Appellant argued, in response, that his wife’s health remained precarious, and that she is receiving treatment in a hospital in the Gaza Strip. He attached a medical document dated April 24, 2011 in support of this argument. Even if the wife’s situation remains difficult, the document attached by the Appellant is illegible, and its contents were not specified in the Appellant’s notice. The Appellant’s response does not show that his wife is hospitalized or that she requires assistance on a daily basis. There is not enough here to justify intervention in the severity of the sentence, which in general will occur only in those cases in which the trial court departed radically from the appropriate sentencing policy (see e.g. CrimA 6566/10 Veridat v. State of Israel [25]).

42.                   In conclusion, I recommend that my colleagues dismiss both parts of the appeal.

43.                   The trial in the District Court was held in camera, and the judgment was not reported. The judgment raised questions of principle, and the Respondent is therefore requested to address, within 15 days, the question of whether there is any obstacle to reporting this judgment in whole or with redactions. We will then ask for the response of counsel for the Appellant.

 

Justice E. Arbel

I concur in the comprehensive opinion of my colleague Justice M. Naor.

 

Justice Y. Danziger

1.                     Having examined the comprehensive, learned opinion of my colleague Justice M. Naor, I have decided to concur in her opinion, both with respect to the reasoning and with respect to the outcome. I accept Justice Naor’s conclusion, for the reasons elucidated in her opinion, that Amendment 39 to the Penal Law did not change the normative situation regarding the scope of application of protective jurisdiction vis-à-vis the normative situation that pertained prior to the Amendment. I also agree with Justice Naor’s determination that:

…the protective nexus is confined to the protection of certain fundamental national interests, but not exclusively to offenses that are intrinsically prejudicial to those interests. Extraterritorial jurisdiction may also apply to acts –constituting offenses – whose circumstances indicate that they present a serious risk to these interests, or that there is an intention to harm them [emphasis original – Y.D.] (para. 31 of Justice Naor’s opinion).

2.                     At a time when civilian settlements within the sovereign territory of the State of Israel are subjected to terror attacks from the terrorist organizations, and when missiles and mortar shells rain down on these areas and cause injury to persons and property, the legal system cannot sit idly in the face of an objective need to bring any person who participates, directly or indirectly, in terrorist activity directed against concentrations of Israeli citizens to justice, and this includes those who supply weapons and ammunition to terrorist organizations.

In practice, international law leaves the job of prosecuting terrorists in the hands of the various states, according to their domestic law (see: Emmanuel Gross, The Struggle of Democracy with the Terror of Suicide Bombers – Is the Free World Equipped with the Moral and Jurisprudential Tools for this Struggle? Dalia Dorner Volume 219, 293 (2009)). Those who are involved in “the terrorist enterprise” in all its forms should be aware that the fact that they are operating outside the sovereign borders of the State of Israel does not grant them immunity from prosecution in the courts of the State of Israel. 

3.                     As for the language in which the Appellant’s statement was recorded, I agree with Justice Naor’s conclusion that despite the defect in the recording of the statement – i.e. that the statement was not recorded in the language in which the interrogation of the Appellant was conducted (Arabic), notwithstanding the provision of s. 8(1) of the Criminal Procedure (Interrogation of Suspects) Law, 2002 (hereinafter: the Interrogation of Suspects Law), nor was there a video or audio recording as required under s. 8(2) of the above Law where “it is not possible to record in writing the interrogation of the witness in the language in which it was conducted ” – in the concrete circumstances of the particular case, we are dealing with an admissible statement to which full weight must be attributed, inasmuch as “the Appellant did not raise specific arguments relating to distortions that resulted from the manner in which the statement was recorded” (para. 40 of Justice Naor’s opinion).

4.                     However, I do believe that a few points warrant mention. As a rule, the case-law directs that notwithstanding the provision of s. 8(1) of the Interrogation of Suspects Law, where the court is convinced that even though the confession was not transcribed in the language in which the suspect was interrogated, it accurately reflects what the suspect said in his interrogation, the confession will be admissible and full weight may be attributed to it (see, for example, the opinion of Justice E.E. Levy in the Hamed case [13] to which Justice Naor referred in para. 40 of her opinion). Frankly, this approach – in my opinion – renders s. 8(1) meaningless, and I believe that it is problematic. In practice, it is the direct continuation of the accepted approach in the case law of this Court prior to the enactment of s. 8 of the Interrogation of Suspects Law (see e.g.: CrimA 5225/03 Habas v. State of Israel [26], at p. 31).

5.                     It therefore appears that there has been no change in the approach of the case law to the matter of the language in which the suspect’s confession was recorded, despite the clear, explicit directive in the Interrogation of Suspects Law. The question arises: Does not the enactment of this Law attest to a change of direction in relation to the appropriate position on the language in which the suspect’s confession was recorded? I am of the opinion that the Interrogation of Suspects Law – which constitutes an additional expression of the trend to enhance the rights of suspects and accused persons as part of the “constitutional revolution” – sought to introduce a substantive change in the normative situation that pertained prior to its enactment. The legislature is deemed not to waste its words, yet, nevertheless, I think that the case law has not given full expression to the change that the legislature sought to bring about in  relation to the manner of recording the confession of a suspect.

6.                     Due to the importance of the confession that the accused made at the time of his questioning by the police, which in many cases can ground the conviction of the accused (see and compare: Dalia Dorner, The Queen of Evidence v. Tarek Nujidat, 49(1) Hapraklit (2006), 7, 8 (Hebrew)), the police must be absolutely meticulous in its recording of the confession so that it reflects as accurately as possible the contents of the statements of the suspect and the manner in which they were made. The only possible way of ensuring this is by complying with the statutory provisions concerning the language in which the confession is recorded, for there is no more efficient and certain means than recording the suspect’s confession in its original language in order to describe what he said to his interrogators. The process of translation of the suspect’s confession into Hebrew is liable, unfortunately, to distort the confession and even to detract from the meaning of what the suspect said, since in every language there are subtleties and expressions that cannot always be accurately translated, but which are sometimes essential for an understanding of the spirit of the suspect’s confession and the process of its delivery. In certain cases, the translation is even liable to cause things to be taken out of context. Owing, inter alia, to these concerns about possible distortions in the suspect’s confession as a result of the translation, the legislature stipulated, in the framework of s. 8(2) of the Interrogation of Suspects Law, that where the written record of the course of the interrogation is not in the language in which the interrogation was conducted, visual and audio recordings will be made of the interrogation, as is the practice today in most Western states, and this is also what emerges from the Explanatory Notes to the Criminal Procedure (Interrogation of Suspects) Bill [H.H. 2928, 5761 54].  

7.                     Moreover, when the contents of the confession are merely translated for the suspect and he signs the document that was written in a language in which he is not fluent, and when the interrogation is not filmed or taped, one cannot know if the translation, which was done by a translator acting for the police, is reliable. The legislature, too, was aware of the possibility that mistakes in the translation of the confession in the course of the police interrogation may not be entirely innocent:

The proposed amendment constitutes an improvement in the protection of the rights of the accused, and prevents or reduces the possibility of errors, misunderstandings or deliberate mistakes, thereby enhancing the ability of the court to clarify the truth of a question that is so central in criminal law [emphasis added – Y.D.].( Explanatory Notes to the Bill). 

In a situation in which the suspect does not understand what is written in the confession but signs it, who will guarantee that the written document contains the exact, complete statement of the suspect? As long as the interrogation is not recorded audio-visually, the translated confession contains the “seeds of disarray”, and this is what motivated the legislature to lay down the rules anchored in ss. 8(1)-8(2) of the Interrogation of Suspects Law. Indeed, the police enjoys a presumption of regularity, and its actions should not be suspect a priori, but after all, the translation was made in the interrogation rooms, and in the absence of an audio-visual record of the course of the interrogation, there is a real difficulty in conducting effective judicial review of the manner in which the interrogation was conducted and with respect to the reliability of its record.

8.                     Where there is no audio-visual record and the confession was not recorded in the suspect’s language, it is not sufficient, in my opinion, that the contents of the confession be translated for the suspect. Rather, the suspect needs to read his confession for himself, in his own language. This reading of the confession by the suspect, when it is written in his language, immediately after it has been made, is of great importance, for it allows for the correction in real time of mistakes that were made in the transcribing of the confession.

9.                     Furthermore, if the accused later contests the translation of his confession to the police, it will be difficult for the court to decide on such a matter. The accused is unable to produce evidence to support his argument, since the evidence concerning the circumstances of the translation of the confession are usually in the exclusive control of the police, and within the knowledge of the interrogators who were in the room during the interrogation. Therefore, in order to prevent an unnecessary factual disagreement, the rule must be scrupulously observed from the outset, thus obviating a complex retroactive factual investigation, in the framework of which the police benefits from an presumption of regularity that upsets the balance of power vis-à-vis the accused, and is ultimately liable to violate his constitutional rights.

10.       For all the above reasons, I am of the opinion that only limited weight should be attributed to the suspect’s signature on the confession that was translated for him. However, I believe that a breach of the provisions of ss. 8(1)-8(2) of the Interrogation of Suspects Law should have real repercussions not only with respect to the weight of a confession, but primarily at the level of admissibility, in view of the ongoing strengthening of the right to a due process at all stages, as expressed in the case-law exclusionary doctrine, and in view of the recognition of due process as a constitutional right (CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [27]).

11.              In CrimA 8974/07 Honchian v State of Israel [28], I emphasized that a breach of the obligation regarding the transcription of a suspect’s confession in the language in which he was interrogated is liable to entail the exclusion of the confession by virtue of the right to a due process:

In this context, it should additionally be noted that this Court has more than once insisted on the importance of the fact that the suspect should understand the substance of the accusations against him and the nature of the interrogation process that is being conducted., On this basis, the case law established that “the obligation to record the confession in the language of the person being interrogated is of great importance, and we take a dim view of the continuing disregard by the police of this Court’s repeated directive that statements must be taken down in the original language (see e.g. the opinion of (then) Justice D. Beinisch in CrimA 1746/00 Barilev v. State of Israel [29], at p. 147 (hereinafted: the Barilev case); and see and compare in this regard, the judgment of this Court in CrimA 3477/09 State of Israel v. Hadad [30], para. 29 of my opinion). The fundamental purpose of this jurisprudential policy is to ensure the maintenance of proper procedure, and it must be scrupulously observed as a guarantee for the discovery of the truth and to ensure human rights and the rights of the suspect being interrogated and the accused. Therefore, in the Barilev case [29], it was determined that in certain circumstances, violation of this provision is likely to lead to the exclusion of the confession of the suspect due to the breach of the right to a due process:

It is clear that in the appropriate case, when the statement that was taken thus gives rise to a suspicion as to its reliability due to it not being recorded in the original language, we will not hesitate to exclude it, and in any case, we may not assign any weight to it. Moreover, if the police continue to disregard its standing orders and directives in this matter, there may be no option, in the appropriate case, other than to give expression to the gravity of this misconduct by excluding the statements. We would add that we are prepared to assume that the police interrogators face a difficult task in conducting investigations involving complainants, witnesses and accused persons who speak different languages and are not fluent in Hebrew.  This is part of our reality. This reality cannot provide an exemption from the need to find solutions that will ensure protection for the accused and due process (the Barilev case [29] , para. 7 of my opinion).

12.              Therefore, the consequences of a breach of the duties imposed on the police regarding the documentation of a suspect’s confession must be examined from the perspective of due process and in light of the rules that were formulated on this matter in the Yissacharov case  [27].  Obviously, every case will be examined on its merits, in light of its circumstances, and in accordance with the discretion of the court. However, the court must consider the fact that the defect in the language of the documentation of the interrogation is not confined to the technical plane, and the consequences for the weight of the confession alone. Rather,  the defect may be material, such that it will affect the very admissibility of the confession.

 

Decided in accordance with the opinion of Justice M. Naor.

 

Given this day, 26 Heshvan, 5772 (Nov. 23, 2011).

 

 

HCJ 9018/17

 

 

Petitioner:                    1.         Firas Tbeish

                                    2.         Public Committee against Torture in Israel

                                                            v.

Respondents:              1.         Attorney General

                                    2.         Director for Complaints Against the Israel Security Agency

                                    3.         Israel Security Agency

                                    4.         Interrogators of the Israel Security Agency

 

 

The Supreme Court sitting as High Court of Justice

[Nov. 26, 2018]

Before Justices I. Amit, D. Mintz, Y. Elron

 

Judgment

 

Justice Y. Elron 

At the heart of this petition is the Petitioner’s claim that he was tortured by interrogators of the Israel Security Service [formerly the General Security Service or GSS – ed.] in the course of his interrogation. He therefore seeks two remedies in this petition.

The Petitioner first seeks personal relief in the form of an order nisi ordering the Attorney General to rescind his decision not to open a criminal investigation of the Petitioner’s interrogators.

Secondly, the Petitioner seeks general relief in the form of rescinding the Attorney General’s Directive entitled: “ISA Interrogations and the Necessity Defense – Framework for the Attorney General’s Discretion” (hereinafter: the AG’s Directives) that provide the basis for  internal guidelines in the ISA (hereinafter: the Internal Guidelines). It is argued that these Guidelines unlawfully permit interrogators to confer with their superiors in regard to employing “special means” in the course of interrogations, and should, therefore, be annulled.

 

The Primary Relevant Facts

The interrogation of the Petitioner

1.         The Petitioner, who was born in 1978, was placed under administrative detention on Nov. 2, 2011, on suspicion of membership and activity in the Hamas, which is an unlawful association, and commerce in military ordnance. His detention was periodically extended until Nov. 1, 2012.

2.         In the course of his administrative detention, the Petitioner was interrogated by the Israel Security Service (hereinafter: the ISA) on Sept. 5, 2012, on the suspicion of terrorist activity, but he denied the suspicion. From that date until Oct. 2, 2012, the Petitioner was denied the right to meet with his attorney.

3.         The Petitioner was again interrogated by the ISA on Sept. 12, 2012, based on fresh intelligence raising a suspicion of involvement in military activity in the Hamas. The intelligence included a concrete suspicion that the Petitioner knew the location of a substantial arms cache held in a storage facility belonging to the terrorist network in which he was active, which comprised more than ten weapons, including rifles. According to the intelligence, the said weaponry had been used in the perpetration of several terrorist attacks, some of which resulted in the loss of life.

            Additionally, there was a suspicion that the terrorist network of which the Petitioner was a member, intended to carry out another terrorist attack with those weapons.

4.         In light of the Petitioner’s denial of the suspicions and of any knowledge of a planned terrorist attack, and in view of the ISA interrogators’ opinion that he had information about a plan to harm public safety that would endanger human lives, the ISA employed what the Respondents term “special means of interrogation” against the Petitioner on Sept. 18, 2012.

            As a result, the Petitioner provided information that led to the discovery of a large number of weapons that were in the use of an active military infrastructure of the Hamas. Inter alia, the Petitioner admitted that he had received many weapons upon the instructions of a senior member of Hamas, and had transferred them to a hiding place and to known Hamas activists.

5.         At that point, pursuant to a highly probable suspicion that the Petitioner was withholding information in regard to an attack planned by members of the network of which his was a member, as aforesaid – which information was grounded, inter alia, upon a polygraph administered to the Petitioner – “special means of interrogation” were again employed in the interrogation of the Petitioner on Sept. 21, 2012.

            In the course of his interrogation, the Petitioner provided information about additional weapons that he had received and had transferred to other Hamas activists, who were also under arrest at that time. Later in the interrogation, he provided information that aided in advancing the interrogation of other members of the terrorist network, one of whom admitted to planning a kidnapping attack and to “setting in motion” – in the words of the Respondents – additional terrorist activity.

6.         In the course of the period during which “special means” were employed in his interrogation – i.e., from Sept. 18, 2012 to Sept. 21, 2012 – the Petitioner was examined four times by a Prison Service physician.

            On Sept. 19, 2012, the medical examination found “pain and swelling in the upper right molar area”, and noted “Buccal swelling. Pain upon palpation. Periodontal abscess”.

            An examination of the Petitioner conducted on Sept. 21, 2012 at 5:37 AM found “his general condition is reasonable”, his skin is “pale”, and he suffers from diarrhea. Thereafter, at 6:03 AM, he was examined following complaints of pain in his knees, and it was noted that “in the examination – he appeared agitated. Red eyes. Did not sleep tonight – interrogation”. The examination did not find reason for new treatment. Later that day, at 6:42 PM, the Petitioner was examined again, this time for complaints of pain in his left knee. The examination found “his general condition is reasonable”, and he was given medication for swelling, pain and restricted movement of his knee.

The Criminal Proceedings in regard to the Petitioner

7.         As noted, the Military Court in Judea periodically extended the Petitioner’s arrest over the course of his interrogation. The decision in regard to the first extension request, on Sept. 13, 2012, noted: “In response to the court’s question concerning the suspect’s medical condition, the suspect answered that everything was fine and he had no medical problems”.

            The decision on the second extension request, on Sept. 24, 2012, three days after the end of the use of the special means in the Petitioner’s interrogation, similarly noted: “In response to the court’s question as to whether he was in good health, the suspect answered that he had no problems.”

8.         In a hearing on a further request to extend his arrest, the Petitioner and his attorney first raised the claim that improper means had been employed in the Petitioner’s interrogation, and that this was sufficient to warrant his immediate release. It was claimed that “the ISA interrogators threatened him [the Petitioner – Y.E.] and hit him, and he has signs on his legs”. According to the transcript of the hearing, the Petitioner then “raised his pants to his knee. There is a somewhat dark spot above the left knee, and there are three scratches above the foot, which are not new”.

            In response to the court’s question regarding exceptional matters in the interrogation, the Petitioner responded:

On Sept. 20, 2012 or Sept. 21, 2012, they told me I was brought to a military interrogation. From that moment, they asked me to sit bent over, without a chair, for an hour or an hour and a half. After that, they asked me to sit on a chair with my legs on one side and my head on the other (demonstrates), and that took a lot of time. About 8 hours with interruptions. I lost consciousness 3 times in the course of the interrogation, and I vomited a lot. The interrogator hit me in the legs with his knee. An interrogator named Tzahi hit me in the eye while I was blindfolded. That’s what happened in the interrogation.

9.         In its decision that day, the court noted:

After hearing the suspect’s [the Petitioner – Y.E.] claims and examining the secret memorandum submitted by the representative of the investigation, it can be established that exceptional means were employed in interrogating the suspect.

            The court added:

All that can be said at this time is that considering the severity of the suspicions, as well as the results produced by the investigation, it cannot be established that employing the means applied against the suspect was unlawful and that there was no reasonable basis for their application, and that they should, therefore, lead to his immediate release [emphasis original – Y.E.].

10.       Upon conclusion of the investigation, an information was filed against the Petitioner in the Military Court in Judea.

            In the court hearing on May 13, 2013, the Petitioner’s attorney again raised arguments regarding the use of improper interrogation methods that he claimed were employed against the Petitioner, among them sleep deprivation, painful handcuffing, use of stress positions like the “frog” and “banana”, threats against family members, degradation, and  even physical violence. In light of the above, his attorney asked to conduct a voir dire.

11.       On June 9, 2014, the parties presented a plea agreement under which an amended information was filed. According to the amended information, in 2009 the Petitioner was a member of a military squad of the Hamas. In that capacity, he was responsible for the storage and hiding of military ordnance for the Hamas organization, in order that it be available for the organization when required. Additionally, at the beginning of 2010, the Petitioner, together with others, transferred seven weapons to members of the Hamas for the purpose of perpetrating future terrorist attacks.

12.       That day, in accordance with his guilty plea, the Petitioner was convicted of membership and activity in an unlawful association under sec. 85 of the Defence (Emergency) Regulations 1945, and of commerce in military ordnance under secs. 233(b) and 201(a)(2) of the Order concerning Security Provisions [Consolidated Version] (Judea and Samaria) (No. 1651), 5770-2009, as stated in the amended information.

            In view of the Petitioner’s conviction under the plea agreement, it was unnecessary to address the voir dire arguments presented at the beginning of the trial.

13.       In accordance with the request of the parties under the plea agreement, the court sentenced the Petitioner to 36 months imprisonment from the day of his initial administrative detention, a  36-month suspended sentence, on condition that he not commit any offense detailed in the judgment for a period of 5 years, and a monetary fine in the amount of NIS 20,000. The court further activated a pending suspended sentence, six months of which would be served concurrently and six months consecutively.

            The court explained its reasons for adopting the penalties under the plea arrangement, noting:

The information filed against the defendant [the Petitioner – Y.E.] is very serious. The defendant acted in the framework of a military squad that was entrusted with keeping extremely dangerous ordnance. The defendant’s activity posed a real threat to the security of the area, and there can be no doubt that under normal circumstances I would impose a far more severe sentence upon the defendant than that proposed by the parties. However, in view of the reasons presented by the parties, and particularly in view of the exceptional interrogation that the defendant experienced, I found the arrangement reasonable, and I adopt it.

 

The Petitioner’s Complaint and his Prior Petition to this Court

14.       On April 2, 2013, before the conclusion of the legal proceedings in his matter, the Petitioner filed a complaint through his attorneys from The Public Committee against Torture in Israel (Petitioner 2), asking that the Attorney General immediately open a criminal investigation against the Petitioner’s interrogators due to “a brutal course of psychological and physical torture”, as stated in the complaint. The complaint further requested the investigation of the members of the medical staff that allegedly were physically present in the interrogation room in order to provide medical treatment, but who did nothing to “stop the torture”.

            According to the complaint, in the first stage of the interrogation, the interrogators “wore down” the Petitioner by conducting an intensive interrogation while depriving him of continuous sleep, and also employed verbal aggression that included threats to kill him, harm his family and demolish his house.

            At the second stage, it is alleged that the Petitioner was subjected to physical “torture”, in the course of which he was punched in his right eye; held in a “banana position” with his back on the seat of a chair, his head to one side and his legs to the other; held by his head and feet by two interrogators and “shaken” until he lost consciousness and vomited; punched and slapped, leading to the loss of a tooth, and was kneed in his leg muscle by one of the interrogators; held in a “frog squat” position; made to stand with his back to the wall for an extended period; and made to sit on a chair for an extended period with his hands handcuffed behind his back.

            It was further claimed that on one occasion when the Petitioner was required to stand with his back to the wall, his pants fell, and his interrogators insulted him with expressions of a sexual nature, and one of the interrogators allegedly photographed him. Lastly, it is claimed that on one occasion, when the Petitioner received his meal in the interrogation room, one of the interrogators smeared jam on his face.

15.       The Petitioner’s complaint was sent to the Department for Complaints Against the Israel Security Agency (hereinafter: the Department). The Head of the Department (hereinafter: the Inspector) examined all of the investigative material held by the ISA, and every report on the manner of the Petitioner’s interrogation, including the intelligence information that formed the basis for the interrogators’ suspicions; memoranda written in the course of the interrogation; medical documents; transcripts and additional documents from the Petitioner’s legal proceedings.

            On Aug. 21, 2014 and January 21, 2015, the Inspector met with the Petitioner in jail in order to examine his complaint. In the course of these meetings, the Petitioner did not remember the details of his interrogation, did not remember the content of the insults and threats made against him, although he claims that they were made persistently. The Petitioner asked that the affidavits that he gave to his attorney on Nov. 1, 2011, Nov. 12, 2012, Nov. 20, 2012, and Nov. 29, 2012, be taken as his version of the complaint to the Inspector.

            When the Petitioner was asked if he would be willing to undergo a polygraph examination in regard to his factual version of the events, he replied through his attorney that he refuses to be examined because it might cause him a “repeat trauma” in view of the prior polygraph that had been administered in the course of his interrogation. He further argued that a polygraph was inappropriate to a preliminary examination prior to a decision as to whether to open a criminal investigation (as opposed to its use in the course of the investigation itself), and that because it is an “invasive” procedure that involves infringing basic rights, there are serious reasons for refraining from the examination in the case of a “victim of torture”, as in his case.

16.       In the course of January and February 2016, the Inspector questioned ten of the Petitioner’s interrogators and confronted them with his allegations. A significant part of those allegations were denied by the interrogators.

            According to the interrogators, “special interrogation means” were employed in the course of the interrogation, in the absence of any alternative and in order to save human lives, but their scope and nature differed significantly from what the Petitioner claimed.

17.       The Inspector also met with the prison guards whose names were mentioned in the Petitioner’s complaint, but only one of them was found to have been on duty at the time of the interrogation. That guard stated that he did not recall an event like that described in the Petitioner’s complaint – according to which the guards doused him with water, changed his clothes, and returned him to the interrogation room on an office chair with wheels – and that if such an event would have occurred, he would certainly remember it.

            The Inspector also met with the Prison Service EMT who met with the Petitioner while he was held under arrest. According to the EMT, he did not remember the Petitioner’s face or name, but in any case, it is not possible that a report (by a suspect or an interrogator) of the Petitioner’s loss of consciousness would not be recorded in the medical records, even if there were no medical findings. It should be noted that the physician who examined the Petitioner in the course of the interrogation has died, such that further details about his examination of the Petitioner are unobtainable. The EMT noted before the Inspector that the physician was “very meticulous”, and it was his practice to document every medical action taken in regard to the Petitioner, even if it was a routine matter.

18.       On Feb. 24, 2016, the Inspector submitted her recommendations to the Director for Complaints against the Israel Security Agency in the State Attorney’s Office.

19.       On Sept. 12, 2016, the Director for Complaints against the Israel Security Agency informed the Petitioners that she had decided, with the approval of the Attorney General and the State Attorney, to close the investigation of the Petitioner’s complaint because she was of the opinion that the investigation’s findings did not justify criminal, disciplinary, or other proceedings against the interrogators.

            Paragraphs 12-13 of the decision noted:

Following a meticulous review of the documents in the examination file, I have found that there was no flaw in the discretion of the interrogators, and that under the circumstances of the matter, the use of special means of interrogation are subject to the necessity defense. Moreover, in view of the severity of the threat posed by the terrorist network to which the complainant [the Petitioner – Y.E.] belonged – I have found that the special means of interrogation employed by the interrogators were proportionate, and were appropriate to the importance of uncovering the information that the complainant was withholding. It should also be emphasized that no support was found for most of the complainant’s descriptions of the special means employed in his interrogation, including in the medical records, although it would be expected that if there were substance to the claims, the medical records would show objective findings. Additionally, the ISA interrogators absolutely denied most of the claims.

            The decision explained that the findings of the examination found that contrary to the Petitioner’s claims, there was not support for the claim that he was “shuttled” to and fro, in his words, among a number of detention centers prior to his interrogation in order to wear him down physically and mentally; that the special means employed in his interrogation were not applied continuously from Sept. 18, 2012 until Sept. 21, 2012; that there was no support for the claim that the Petitioner had lost consciousness or that he suffered any physiological or psycholgical harm as a result of his arrest or interrogation; that there were no indications that the Petitioner was handcuffed in a manner inconsistent with ISA guidelines, and there is even documentation showing that only one hand was handcuffed; that no support was found for the claim that the Petitioner’s interrogators threatened or insulted him; that no basis was found for the claim that an interrogator smeared jam on the Petitioner’s face; that there was no indication that the Petitioner’s pants fell down, that the interrogators subsequently taunted him, or that he was photographed in such a state, as was claimed.

            The findings further showed that there was no defect in the manner of the interrogators’ response to the Petitioner’s medical condition, and that the interrogators did not withhold medical attention or treatment in the course of his interrogation. In addition, the investigation found that on three occasions, the Petitioner was examined by a physician in the interrogation room and not in the clinic, although there was no particular medical urgency for the examination. As a result, the decision noted that “it is our intention to consult with the appropriate persons in the ISA to enquire as to the relevant interrogation procedures in this regard”.

20.       In the interim, on Nov. 12, 2014, before the Inspector issued her decision, the Petitioners filed a petition with this Court, asking that the Court order the Department for the Investigation of Police Personnel to open an investigation against the Petitioner’s interrogators, and to annul the ISA’s internal guidelines in regard to “special means for interrogation”.

            On Jan. 30, 2017, this Court dismissed the petition, holding that the first requested remedy had become superfluous after the Attorney General determined that no criminal investigation of the interrogators should be opened in regard to the Petitioner’s complaint, and that the second remedy – in regard to annulling the ISA’s internal guidelines – is a general remedy that should be addressed only in the framework of a concrete petition. It was further held that the Petitioners could submit a new petition against the Attorney General’s decision, and that all of their arguments were reserved in this regard (HCJ 7646/14 A. v. Attorney General (Jan. 30, 2017)).

21.       After reviewing that part of the Inspector’s examination material that was available for their review, the Petitioners filed the current petition on Nov. 19, 2017.

 

The Arguments of the Parties

22.       According to the Petitioners, the decision of the Director that was approved by the Attorney General is unreasonable in the extreme.  This is so because the ISA interrogators intentionally employed violence against the Petitioner, which caused him severe pain and suffering, in a manner that constitutes torture. In this regard, the Petitioners repeated what was presented in the complaint that was filed, while emphasizing the transfer of the Petitioner from one detention facility to another prior to the interrogation without apparent reason; depriving him of sleep in the course of the interrogation; and the alleged physical violence perpetrated against him in the course of the interrogation, as detailed above.

            It is argued that the absence of real-time medical documentation cannot refute the Petitioner’s claims in regard to his suffering and pain, and that the undated medical opinion of Dr. Firas Abu Aker, appended to as Appendix 17 of the petition, the content of which relies upon an examination of the Petitioner conducted in the jail on Feb. 17, 2013, suffices to show the reliability of his version (hereinafter: the opinion of Dr. Abu Aker).

            The Petitioners also seek to rely upon the medical documentation of the Petitioner’s  examination in the course of his interrogation – particularly the findings of swelling of the knee and injury to his tooth. The Petitioners further refer us to the Petitioner’s statement in the Military Court hearing, and to what was stated in the affidavits that he presented to his attorney in November 2012.

23.       The Petitioners are of the opinion that the Court should reject the position of the Respondents that Petitioner’s interrogation was conducted under circumstances of “necessity” that would exempt them from criminal responsibility. In the Petitioners’ view, the Respondents did not show what the Petitioners termed a “certain and specific danger to human life”, such that the information available to the Respondents “concretely referred to a particular danger”, as opposed to a routine act of gathering information.

            Moreover, the Petitioners argue that the existence of a time gap between the interrogation and the date when the danger was expected to materialize shows that the necessity defense does not apply to the circumstances. The Petitioners further support this argument by noting that the Petitioner was moved among detention facilities over the course of seven days prior to the beginning of his interrogation, and allege that the Petitioner’s interrogation was suspended during the Tishrei holidays [i.e., Rosh Hashana and Yom Kippur – ed.].

24.       It was further argued that the Respondents’ position that the use of “special means” in an interrogation falls under the necessity defense does not justify the decision to refrain from conducted a criminal investigation, inasmuch as the necessity defense provides an exemption from criminal responsibility, as opposed to a justification that would render the action lawful. Therefore, it is only relevant as a defense after charges have been laid. In this regard, the Petitioners referred us to an undated opinion of Prof. Mordechai Kremnitzer and Prof. Yuval Shani, which was appended to the petition (hereinafter: the Kremnitzer-Shani opinion), the submission of which was rejected by this Court in HCJ 5572/12 Abu Ghosh v. Attorney General, para. 15 (Dec. 12, 2017) (hereinafter: the Abu Ghosh case) on the grounds that the interpretation of Israeli law does not require the submission of an expert opinion.

25.       Lastly, it was argued that the holdings in HCJ 5100/94 Public Committee against Torture v. State of Israel, IsrSC 53(4) 817) (1999) (hereinafter: HCJ 5100/94) should be read such that ISA interrogators do not have authority to decide in advance upon employing torture on the basis of the necessity defense, as opposed to a situation in which an ISA interrogator is forced to act “on the basis of an individual, ad hoc decision, in response to an unforeseen scenario”. According to the Petitioners, the AG’s Directive permits internal consultations between ISA interrogators and their superiors for the purpose of deciding in advance upon resorting to torture in a specific case, and as such, it contradicts the directions of this Court in HCJ 5100/94, and must, therefore, be annulled. In this regard, as well, the Petitioners seek to rely upon the Kremnitzer-Shani opinion.

26.       As opposed to this, the Respondents are of the opinion that the petition should be denied.

            According to them, while “special means of interrogation” were employed in the interrogation of the Petitioner, they were “proportionate and reasonable in relation to the danger presented by the intelligence” in the possession of the Petitioner’s interrogators. It should be noted in this regard that the information provided by the Petitioner in the course of his interrogation led to the seizure of a large amount of ordnance that served the military infrastructure of the Hamas. It was further emphasized that the Petitioner had been interrogated for a week prior to the resort to “the special means” in his interrogation, and that during that period he denied the allegations against him and any knowledge of this matter. It was lastly emphasized that , contrary to the claims of the Petitioners, the interrogation of the Petitioner was not suspended over the holidays, and that the was even interrogated on Rosh Hashana and on the Sabbaths.

            It is the position of the Respondents that under these circumstances, the decision of the Director, which was approved by the Attorney General and the State Attorney – according to which that the necessity defense exempted the Petitioner’s interrogators from criminal responsibility – was reasonable, and the Court should not intervene therein.

            In this regard, the Respondents emphasized that it is decided law that this Court will only intervene in exceptional cases in discretion concerning the conducting of a police investigation and the filing of charges.

27.       The Respondents further argued that the Petitioner did not succeed in showing that he was tortured in the course of his interrogation. It was argued in that regard that the Petitioner’s later version – as expressed in the affidavits he submitted to his attorney in November 2012 and in his complaint of April 2013 – is of broader scope and magnitude than the first version that he presented to the Military Court in October 2012, and that there are significant differences between the Petitioner’s version and “the factual scenario that arises from the interrogation file”. It was further emphasized that the Petitioner’s refusal of a polygraph examination makes it difficult to evaluate the reliability of his later version.

28.       In regard to the Guidelines, it was argued that they do not establish circumstances in which an interrogator may act in the framework of the necessity defense, but rather define how real-time consultations with senior ranks of the ISA are to be carried in regard to the appropriate course of action in the circumstances of a particular interrogation. The Respondents state:

The Internal Guidelines make it possible for one involved in an interrogation to consult in real time with more senior ranks, who cannot authorize the interrogator to employ exceptional means of interrogation, but who can state their opinion that the use of special interrogation methods are immediately required in a given situation in order to save lives. Those senior ranks who participate in the real-time consultation in regard to a given situation can also order restrictions on the activities of the interrogator in that situation brought before them (para. 81 of the Respondents’ response; emphasis original – Y.E.).

            According to the Respondents, the Petitioners interpretation HCJ 5100/94 as holding that an interrogator must decide for himself whether he faces “a situation of necessity” that requires the use of special means of interrogation is mistaken and lacks any basis in law or precedent. According to the Respondents, that interpretation contradicts the AG’s Directives, under which ISA interrogators are “agents of the state” who are, therefore, entitled to “an appropriate measure of legal certainty”.

            It was further argued that the Guidelines were approved by the Attorney General, who is the “authorized interpreter” of the law for governmental agencies (if the Court has not ruled otherwise), and his interpretation binds the ISA. Lastly, it was noted that over the course of the last years, ISA interrogators made recourse to those Guidelines only in very exceptional cases.

29.       Just prior to hearing the petition, the Respondents requested to submit a medical opinion from June 2018, prepared by Dr. Rachel Rokach and Dr. Pau Perez-Sales, regarding the Petitioner’s psychological state, from which – according to the Petitioners – the pain and suffering caused to the Petitioner can be deduced. The opinion is based upon an examination and clinical interview conducted on Dec. 14, 2017 under the “Istanbul Protocol – Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (hereinafter: the Opinion of Dr. Perez-Sales and Dr. Rokach).

            The Respondents objected to the submission of the opinion, arguing that it could be granted only very little weight in view of the passage of five years from the end of the Petitioner’s interrogation to the time of the preparation of the opinion. The Respondents emphasized that the opinion was not available to the Inspector and the Director, and that it is improper to request its submission at this stage, bearing in mind that the writers of the opinion met with the Petitioner immediately following the submission of the petition, over a year-and-a-half ago.

 

Discussion and Decision

 30.      The Petitioners’ arguments are divided into two heads.

            The first head addresses the specific matter of the Petitioner. The focus is upon the decision of the Director, made with the approval of the Attorney General and the State Attorney, to close the examination into the Petitioner’s complaint. In this matter, we must decide whether, as the Petitioners argue, the Attorney General’s decision not to open a criminal investigation of the ISA interrogators involved in the Petitioner’s interrogation, who allegedly employed unlawful interrogation methods, was unreasonable to an extent that would justify this Courts intervention.

            In deciding this question, I will first present the normative framework in regard to judicial review of the Attorney General’s discretion in decisions on opening criminal investigations against ISA interrogators. I will then survey the precedent on the application of the necessity defense to ISA interrogations. Lastly, I will examine the application of the above to the present case.

            The second head argued by the Petitioners concerns the Directive of the Attorney General and the Internal Guidelines established thereunder. The Petitioners argue that the Guidelines should be declared void, particularly to the extent that they concern “the system of consultations and approvals in the ISA”. I will address this argument by examining whether the Directive and the Guidelines are consistent with the applicable law, and specifically, with the holdings of this Court in HCJ 5100/94.

A Decision on Opening a Criminal Investigation of an ISA Employee and Judicial Review of such a Decision

31.       The Attorney General is granted authority to order a criminal investigation of an ISA interrogator under the provisions of sec. 49I 1(a) of the Police Ordinance [New Version], 5731-1971 (hereinafter: the Police Ordinance). The Attorney General delegated that authority to the State Attorney and his deputies, in accordance with his authority under sec. 49I 1(b) of the Police Ordinance (Official Gazette 5770 No. 6013 of Oct. 29, 2009 p. 264).

32.       As explained in the Respondents’ response to the petition, a complaint against an ISA interrogator in regard to an offense allegedly perpetrated in the fulfillment of his duty or in relation thereto will undergo a preliminary examination by the  Inspector for Complaints Against the Israel Security Agency (on the authority to conduct a preliminary examination by the Inspector for Complaints Against the Israel Security Agency, see HCJ 1265/11 Public Committee against Torture in Israel v. Attorney General, para. 31 of the opinion of Justice E. Rubinstein (Aug. 6, 2012) (hereinafter: HCJ 1265/11)).

            In the past, an employee of the Department for Complaints Against the Israel Security Agency was an employee of the ISA, but is now an employee of the Ministry of Justice subject to the Director of Complaints Against the Israel Security Agency, who is a senior attorney in the State Attorney’s Office. That attorney is directly answerable to the State Attorney and the Attorney General (in this regard, see HCJ 1265/11, paras. 5, 6-16).

            As a rule, complaints against ISA interrogators are submitted by the interrogee or through others. Upon the filing of a complaint, a comprehensive examination of the complaint is conducted, which includes, inter alia, a meeting with the interrogee-complainant, an examination of the material pertaining to his ISA interrogation, an examination of his medical records, and questioning of the relevant persons in the ISA, as well as other relevant persons (such as physicians and prison guards). At the conclusion of the examination, the Inspector delivers the examination file and all material collected in the course of the examination, together with the findings of the examination and his recommendations, to the Director in the State Attorney’s Office.

            The Director examines the findings and the recommendations and decides whether or not to order a criminal investigation or disciplinary proceedings, or whether to order a systemic change in the work procedures of the ISA.

33.       In HCJ 1265/11, the Court recommended that a decision by the Director not to institute a criminal investigation be issued with the approval of the Attorney General or by a representative of the Attorney General authorized to order a criminal investigation under the Police Ordinance “in order to optimally express the legislative intent” (ibid., para. 28). That is, indeed, what was done in the matter of the Petitioner.

            The Director’s decision not to open a criminal investigation can be appealed to the State Attorney under sec. 64(a)(3) of the Criminal Procedure [Consolidated Version] Law, 5742-1982 (hereinafter: the Civil Procedure Law). The appeal decision, or a decision by the Attorney General not to investigate, or a decision by the Director that has been approved by the Attorney General, can be challenged in a petition to this Court, as was done in this case.

34.       Despite the existence of a special legal provision treating of the opening of an investigation of an ISA employee – sec. 49I 1(a) of the Police Ordinance – the only differences between a decision on the opening of a criminal investigation of an ISA employee and a decision on opening an investigation in any other case is the institutional identity of the investigating body (the Police Internal Investigations Unit rather than the police) and the person authorized to decide upon opening the investigation (the Attorney General as opposed to a prosecuting attorney or a police prosecutor).

            The criteria for the Attorney General’s decision on opening an investigation of an ISA employee are the same as the criteria for a regular decision upon opening a criminal investigation under sec. 59 of the Criminal Procedure Law (see: HCJ 1265/11, para. 26 of the opinion of Justice E. Rubinstein, and para. 2 of the opinion of Justice U. Vogelman; and see: HCJFH 7516/03 Nimrodi v. Attorney General (Feb. 12, 2004)). In this regard, the questions addressed are whether there is sufficient evidence to justify a criminal investigation, and whether there is a public interest in the investigation and trial, as the circumstances may be.

35.       It is established law that the prosecutorial authorities are authorized to conduct a preliminary examination into the existence of evidence that grounds a reasonable suspicion of the commission of a crime (see: HCJ 1265/11, paras. 29-31 of the opinion of Justice E. Rubinstein and the citations there). That also holds for the examination both for the Department and for any other case in which the police receive information about a suspicion of the commission of a crime. In accordance with this rule, the Attorney General’s Directive No. 4.2204 “Preliminary Examination” was published on Dec. 31, 2015. The Directive treats of the classification of matters that should be subject to a preliminary examination prior to deciding upon a criminal investigation, and the scope of such an examination.

36.       It is a well-known principle that the prosecuting authorities are granted broad discretion in deciding upon opening a criminal investigation, as well as upon filing charges. It has been repeatedly held that it is not the practice of this Court to intervene in the manner of the exercise of that discretion, in view of the experience and professionalism of the prosecution authorities, except in exceptional cases in which the Court is persuaded that there was a substantive defect in the manner of the exercise of discretion or in the subsequent decision, in circumstances in which the decision reflects extreme unreasonableness, a lack of good faith, or extraneous considerations (HCJ 9607/17 Fisher v. Attorney General (Feb. 1, 2018)). The burden of proving that the prosecution’s decision deviated to an extreme degree from the margin of reasonableness falls upon the petitioners who make the claim (Yitzhak Zamir, Administrative Authority, vol. 4, 2787-2788 (2017) (in Hebrew)).

            The evaluation of the sufficiency of the evidence is a matter that is distinctively a matter for the expertise of the prosecution, and intervention in the discretion of the prosecution not to open a criminal investigation due to a lack of evidentiary grounds will, therefore, be even more limited (the Abu Ghosh case, para. 22). One case in which this Court intervened in part in the discretion of the prosecution in evaluating the sufficiency of the evidence was in HCJ 869/12 A. v. Attorney General (Feb. 28, 2017). The petition in that case challenged a decision by the Attorney General to close the investigation of the complaint of a person who claimed that while being detained in a police station, one of the police intentionally urinated on him in order to degrade him. The Court was of the opinion that the evidence against the policemen should be examined by a court in criminal proceedings.

The Applicability of the “Necessity” Defense to adopting “Special Means of Interrogation” by ISA Interrogators

37.       In the present case, the Petitioners argue that the Attorney General’s decision not to order a criminal investigation of the ISA interrogators who participated in the interrogation of the Petitioner is unreasonable in the extreme, inasmuch as the interrogation methods employed by the interrogators can be viewed as torture, which is prohibited by law.

            An examination of the reasonableness of a decision must therefore be conducted in accordance with the guidelines established by this Court in regard to the authority of ISA interrogators to employ physical means against interrogees, and the circumstances in which they may be permitted to do so.

            For the purpose of this discussion, I will briefly address the relevant legislation, the guiding case law of this Court in the matter, and the guidelines established on that basis.

38.       Section 34K of the Penal Law, 5737-1977 (hereinafter: the Penal Law), titled “necessity, states as follows:

No person shall bear criminal responsibility for an act that was immediately necessary in order to save his own or another person's life, freedom, bodily welfare or property from a real danger of severe injury, due to the conditions prevalent when the act was committed, there being no alternative but to commit the act.

            Section 34P of the Penal Law limits the application of the necessity defense, establishing that this defense will not apply “if – under the circumstances – the act was not a reasonable one for the prevention of the injury”.

            The language of the sections informs us that the necessity defense is subject to five cumulative conditions, which are interrelated and closely bound together: the act must be immediately necessary; the danger prompting the action must be real; the injury that the act was intended to prevent must be a severe injury to one of the interests enumerated in sec. 34K of the Penal Law; that the actor had no alternative but to commit the act; and that the act was proportionate to the expected severe harm.

39.       Prior to the decision in HCJ 5100/94, the necessity defense served as the basis for ISA guidelines that included permission to employ interrogation methods that included physical measures, in the absence of any alternative, and where immediately necessary for saving human life. Relying on this defense and the recommendations of the 1987 Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, headed by Supreme Court President (emeritus) M. Landau, a special ministerial committee on ISA interrogations approved a procedure known as the “Permissions Procedure”. The Procedure comprised permission to employ physical means in interrogations when an interrogator was of the opinion, in a specific case, that the use of such methods was justified.

            In HCJ 5100/94, the Court found that Procedure unlawful and void. The Court held that it is forbidden to employ torture or to treat an interrogee cruelly and inhumanely, and that such actions as shaking an interrogee, seating him in an uncomfortable position, hooding, and sleep deprivation for extended periods infringe the interrogee’s human dignity, and are therefore prohibited.

40.       The decision also comprised two important holdings in regard to the two heads of the present petition.

            In was held that an ISA interrogator who employed physical interrogation methods and who subsequently stood trial, could make recourse to the necessity defense in circumstances of a “ticking bomb”, where an interrogee possesses information as to the location of a bomb that has been planted and is set to explode shortly, and where there would be no way to neutralize the bomb without that information, and the only way to obtain it was from the interrogee.

            It was further held in this regard that the immediacy requirement under sec. 34K of the Penal Law relates to the immediacy of the act and not the immediacy of the threat. That being so, the condition is met even if the threat may only materialize days or weeks after the interrogation, as long as the realization of the threat is certain, and there is no other way to avoid it.

            It was further held that general guidelines for the use of physical means in the course of interrogation must be based upon authorization expressly grounded in law, and not from defenses to criminal responsibility. The Court made it clear that the existence of a general authority to establish guidelines could not be derived from the necessity defense alone, as by its nature, it treats of a decision of:

an individual reacting to a given set of facts. It is an ad hoc reaction to an event… Thus, the very nature of the defense does not allow it to serve as the source of general administrative authorization. Such authority is based on establishing general, forward looking criteria (HCJ 5100/94, para. 36).

            Lastly, the Court noted, “The Attorney General can instruct himself regarding circumstances in which investigators shall not stand trial, if they claim to have acted from ‘necessity’” (para. 38).

41.       As detailed in the Respondents’ response to the petition, as well as in their response to the request of the petitioners in HCJ 5100/94 under the Contempt of Court Ordinance, which was submitted as Appendix 40 to the present petition, the ISA rescinded the “Permissions Procedure” immediately following the decision in HCJ 5100/94. In addition, all ISA interrogators were instructed that they are not authorized to employ physical pressure in their interrogations, and that if they do so, they may be subject to criminal charges. However, they were also informed:

If an ISA interrogator employs physical means of interrogation under circumstances that legally justify them, he may be able to make recourse to the “necessity” defense in appropriate circumstances, in which case, that interrogator will not bear criminal responsibility (sec. 3 of the response, signed by the then Deputy State Attorney (Special Tasks) Shai Nitzan; the response was submitted as Appendix 40 to the petition).

            As arises from the decision in the matter of the request under the Contempt of Court Ordinance (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel (July 6, 2009)), the Respondents emphasized in oral arguments that the Attorney General receives a post-facto report if physical interrogation methods were employed in a particular interrogation and the necessity defense is required.

42.       Along with rescinding the “Permissions Procedure”, on Oct. 28, 1999, the Attorney General at the time, E. Rubinstein, published the Directive of the Attorney General (see: Elyakim Rubinstein, Security and the Law: Trends, 44(3) Hapraklit 409, 419 (1999)). As stated therein, the document was intended as “self instruction” as directed by the Court in HCJ 5100/94.

            The basic assumption of the AG’s Directive was that the State of Israel finds itself in an unceasing struggle against terrorist organizations;  that the primary agency carrying out the mission of the war on terrorism is the ISA; that ISA interrogators are agents of the State of Israel, and to the extent that they act on its behalf in accordance with the law, they are entitled to an appropriate measure of legal certainty in performing their task.

43.       On point, the Attorney General’s Directive stated as follows:

In cases in which, in the course of an interrogation, an interrogator adopted interrogation means immediately necessary to obtain vital information for preventing a concrete danger of severe harm to state security, human life, liberty or physical integrity, and there is no reasonable alternative under the circumstances to obtain the information, and employing the interrogation means was reasonable under the circumstances in order to prevent the harm, the Attorney General will consider not instituting criminal proceedings under the circumstances. The Attorney General’s decision will be made in each case on its merits, after a detailed examination of all of the said elements, i.e., the proportionality of the need and its immediacy, the severity of the danger and the harm prevented and their actuality, alternatives to the act and the proportionality of the means, including the interrogator’s understanding of the situation at the time of the interrogation, the levels that approved the act, their involvement in the decision and their discretion at the time of performance, as well as the conditions under which the means were employed, its supervision and its documentation (p. 421).

 

            It was established that the requirement of immediacy refers to the action of the interrogator and not to the danger. In other words, the necessity defense can apply even if the real danger is not immediate, but rather expected to occur at some time in the future. However, the greater the time gap between the action and the date of the realization of the danger, the greater the burden of persuasion that the action was immediately necessary. Therefore, it was held that routine, ongoing gathering of intelligence as to terrorist groups and their activities in general cannot, itself, be deemed as motivating a “real threat”, but rather the danger to human life must be of a certain and specific character and nature.

            Lastly, it was established that “it would be appropriate that the ISA have internal guidelines, inter alia, in regard to the system for consultation and permissions within the organization required for the matter” (ibid. p. 422).

44.       As we learn from the Respondents’ response, internal guidelines were prepared by the ISA pursuant to the Attorney General’s Directive “establishing how consultations with senior levels in the ISA would be carried out in real time, when the circumstances of a specific interrogation appear to those involved in an interrogation as meeting the necessity defense” (para. 79 of the response).

            As stated in the Respondent’s response, these internal guidelines were presented to the Attorney General “in order to ensure that they are consistent with the law and precedent”.

            Lastly, it should be noted that, according to the Respondents, since the issuing of the Internal Guidelines, ISA interrogators have acted under the assumption of the applicability of the necessity defense only in exceptional cases that represented a “tiny percentage” of the cases in which suspects were interrogated for suspected terrorist activity over the last years.

 

From the General to the Particular

45.       Having laid the relevant normative groundwork for the matter, I will now turn to an examination of the Petitioners’ arguments that the Director’s decision not to initiate a criminal investigation of the ISA interrogators – which was approved by the Attorney General and the State Attorney – is unreasonable in the extreme, both because the ISA interrogators allegedly tortured the Petitioner, and because the necessity defense exempting them from criminal responsibility is inapplicable to the circumstances of the matter.

46.       An examination of all the material submitted to us in the matter of the Petitioner’s interrogation – both the material appended to the petition and the response, and the classified material presented to us with the consent of the Petitioners pursuant to our decision of Oct. 24, 2018 – leads to the conclusion that the Attorney General’s decision not to initiate a criminal investigation against the Petitioner’s interrogators does not deviate from the margin of discretion, and certainly does not deviate to an extent that would justify our intervention.

 

Did the ISA Interrogators employ Torture in Interrogating the Petitioner?

47.       The Petitioners’ first argument is that the decision not to initiate a criminal investigation was unreasonable in the extreme, inasmuch as the ISA interrogators tortured the Petitioner in the course of his interrogation, by employing improper interrogation methods.

            The term “torture” is defined in art. 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Kitvei Amana 31, 249 (signed Oct. 22, 1986)) (hereinafter: the Convention), to which Israel is a party, thus:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

            The Petitioners focused their arguments on the element of “pain or suffering, whether physical or mental” allegedly caused to the Petitioner in the course of the interrogation, as a result of the violence inflicted upon him by the interrogators.

            In this regard, it was argued that transferring the Petitioner from one detention center to another was intended to wear him down, as was the limited sleep allowed him during his interrogation; that the Petitioner was held in a “banana position”, in a crouch position, and stood against the wall – all positions known as improper “torture methods”; that he was beaten intensively; that he was threatened; and that the combination of these means caused the Petitioner singular pain and suffering.

48.       After carefully examining the Petitioner’s version – as presented in his affidavits, his complaint, and in the examination of the Inspector – I do not believe that the Petitioners succeeded in proving the existence of a suspicion of the commission of a criminal offense by the ISA interrogators in a manner that contradicts the recommendations of the Inspector and the decision of the Director.

49.       From the entirety of the examination material of the Inspector and the Director that was presented to us, I have the impression that the examination was meticulous, thorough, and comprehensive. The Inspector addressed all the documents relevant to the Petitioner’s interrogation, and questioned all the relevant persons whose version could be obtained, including the Petitioner’s interrogators, the Prison Service EMT and the Prison Service guards.

            As opposed to this, there are not insignificant problems with the Petitioner’s version as presented in the petition. His refraining from presenting his factual version in the course two meetings with the Inspector, and his request to rely exclusively upon what he submitted to his attorneys in affidavits, while claiming that he did not recall the details of his interrogation, both weaken his version. Although nearly two years passed between the time of the interrogation and  the Petitioner’s first meeting with the Inspector, one could expect that the Petitioner would remember the details of the interrogation, or at least would be able to describe the main facts of the severe violence he claims was perpetrated against him. The Petitioner’s refusal to undergo a polygraph examination, which might support his story – particularly in view of the absolute denial of his version by the ISA interrogators – also makes it difficult to evaluate the veracity of his version.

50.       The Petitioners are of the opinion that there is “objective evidence of the pain and suffering in real time” that supports the Petitioner’s version of the events. In this regard, the Petitioners pointed to what they termed the “shuttling” of the Petitioner between detention centers before the beginning of his interrogation. They also referred us to the finding of the Inspector that the Petitioner vomited in the course of one of the interrogations, and to the medical records from Sept. 19, 2012 and Sept. 21, 2012 in regard to tooth pain and swelling, and limited movement of his knee. The Petitioners further argued that the Petitioner’s statement that was recorded in the Military Court transcript supports his version. It was also argued that the veracity of his version is also demonstrated by the medical records according to which the Petitioner felt “a black spot in the eye” after the interrogations, as reflected in his medical chart from Nov. 5, 2012, and additionally, according to the opinion of Dr. Aker, he felt “pain in his left knee and paresthesia along his entire leg, which improved over time”.

            As opposed to the Petitioners’ claim, I am not of the opinion that the above serves to prove the Petitioner’s version.

51.       As for moving the Petitioner between different detention facilities prior to his interrogation, the findings of the examination did not support the claim that the transfers were intended to wear him down physically or mentally. I do not find reason to intervene in this regard. Over and above, I will note that while the discomfort and hardship that may be caused by moving a suspect between detention facilities is not something I take lightly, I am not of the opinion that such actions, themselves, constitute “torture”.

52.       The Inspector’s examination indeed found that “in the course of the complainant’s (the Petitioner – Y.E.) interrogation, there was a one-time situation in which he vomited in the interrogation room, without losing consciousness. Pursuant to that, the guards took the complainant to the shower, his clothing was changed, and he was then examined by a physician” (emphasis original – Y.E.).

            This finding is a far cry from the Petitioner’s version according to which he vomited several times in the interrogation room, and even lost consciousness three times. The mere fact that the Petitioner vomited once in the interrogation room does not show that he was tortured in the course of his interrogation.

            As opposed to the Petitioner’s claim, the existing medical records do not definitively prove his version, according to which he was tortured in the course of the interrogation. In this regard, I accept the position of the Director that if the Petitioner’s version were accurate, it could be expected that there would be real-time medical records of his having lost consciousness several times, as he claims.

53.       The Petitioner’s statement in the hearing in the Military Court on Oct. 4, 2012, some two weeks after the employment of special means in his interrogation, does not prove his version.

            First, that statement, as quoted above, constitutes a significantly “thinner” version than the one he presented in his complaint. Second, and this is the main point, in an earlier hearing for the extension of his arrest on Sept. 24, 2012, just three days after he was allegedly tortured by his interrogators, the Petitioner responded to the court’s question as to “whether he in a good state of health” that “he has no problem”. This fact, as well, makes it difficult to accept the reliability of the version he gave ten days later.

54.       The medical record of the Petitioner’s examination on Nov. 5, 2012 recorded that the Petitioner complained of “a black spot in his left eye for some two months”. However, after an examination, it was noted that there was no pathological finding in the eye. That being the case, there is no support for harm caused to him as a result of the interrogation itself.

55.       Even the medical opinion of Dr. Abu Aker does not serve the Petitioner. Reviewing that opinion shows that in regard to the medical condition of the Petitioner’s eye and leg, to which the Petitioners referred, the opinion is based more upon the Petitioner’s complaints than upon any medical findings. Although at the end of the opinion it is noted that “the findings of the examination match his (the Petitioner – Y.E.) story in regard to abuse and torture”, as opposed to what might be expected, the opinion does not give the details of the examinations of the Petitioner, if any, what was the medical diagnosis of his condition, or what were the medical findings of the medical examination itself. In view of the above, very little weight can be attributed to this opinion, which relies primarily upon the Petitioner’s complaints, unsupported by an independent medical examination.

56.       Without making any definitive statement as to the admissibility of the medical opinion of Dr. Perez-Sales and Dr. Rokach that was presented to us in the course of the hearing, and without addressing its content, it, too, is of very little probative weight.

First, the opinion was not made available for review by the Inspector and the Director, and was brought to their attention only immediately prior to the hearing before this Court.

            Second, the opinion was prepared on Dec. 14, 2017, more than five years after the Petitioner’s interrogation, and it is almost entirely based upon the Petitioner’s version of the events. Clearly, these two facts seriously detract from its probative value, and one cannot actually grant it real weight and use it as the basis for a finding that there is a connection between its findings as to the Petitioner’s physical, cognitive, and emotional state and the manner of his interrogation as described in his complaint.

57.       Considering what has been said thus far, since the examination of the Inspector found that the Petitioner was not tortured in his interrogation, and since the Petitioners did not succeed in proving that finding to be mistaken, I do not find reason to accept the version of the Petitioner as presented in the petition.

 

Can the ISA Interrogators rely upon the Necessity Defense that would exempt them from Criminal Responsibility?

58.       The Petitioners further argued that the use of “special means of interrogation” in interrogating the Petitioner – which the ISA interrogators admitted – is not covered by the necessity defense, and in any case, this defense is not applicable to the circumstances. According to the Petitioners, “the admission to employing ‘special means of interrogation’ means the use of violence and the abuse of a vulnerable person”.

            The said “special means of interrogation” were presented to us in detail in an ex parte hearing, with the clarification that these means did not include the exercise of violence in the manner described by the Petitioner in his complaint and in the petition before us. We therefore accept the finding of the Director that “the scope and type of these means is significantly far from” what was claimed by the Petitioner.

59.       Under the circumstances, and after reviewing the classified material presented to us, I am convinced that the use of “special means” in the interrogation of the Petitioner falls within the scope of the necessity defense.

            The circumstances of the Petitioner’s interrogation, as detailed in the Inspector’s recommendation and in the Director’s decision clearly show that the interrogation was intended to prevent a real, concrete threat to human life at a high degree of certainty.

            The “necessity” grounding the Petitioner’s interrogation does not exist in a vacuum. It must be understood and interpreted against the background of the complex reality of the State of Israel’s security situation. The Petitioner was an active member of a terrorist organization that perpetrated, and continues to perpetrate, severe terrorist attacks, including cold-blooded, cruel, and merciless murder of innocent men, women and children, for no reason other than their being Israelis.

            In this framework, the Petitioner was party to a plot to collect and conceal a large quantity of dangerous weapons, with the intention of using them for the perpetration of terrorist activity. Had this terrorist attack been realized, it might have cost human lives. The key to preventing this real danger to human life was extracting the information held by the Petitioner, which he refused to divulge to his interrogators. This fear of a real danger of serious harm to human life by means of the weapons concealed by the Petitioner and his partners in the terrorist organization, led his interrogators to the believe that the use of “special means of interrogation” were necessary for the immediate thwarting of the danger.

            And indeed, as noted, in the course of his interrogation, the Petitioner provided a large amount of information about hidden weapons and about other weapons that he had received and transferred to other Hamas operatives who had also been arrested at that time. The information provided by the Petitioner in the course of his interrogation also helped, inter alia, in causing  another Hamas operative to confess planning a kidnapping and other terrorist activity.

            Under these circumstances, in which the danger that led to the use of the special means in the interrogation was certainly real; the attack that the interrogation sought to prevent was serious harm to human life; the ISA interrogators had no other means for obtaining the information about the weapons stockpile hidden in a storage unit, and of the plans to perpetrate terrorist attacks; and the special means employed in the interrogation were, as argued before us and as examined above, proportionate relative to the serious threat that their use was intended to frustrate – I am of the opinion that the finding of the Director that “employing the special means of interrogation under the circumstances, falls within the purview of the necessity defense” is well founded.

60.       We must also reject the Petitioners’ argument that the necessity defense does not apply under the circumstances inasmuch as the expected date for the realization of the danger was unknown and that, in any case, there was a time gap between that date and the interrogation.

            As may be recalled, HCJ 5100/94, upon which the Petitioners rely, expressly held that the immediacy requirement under sec. 34K of the Penal Law refers to the immediacy of the act and not the immediacy of the danger. That being the case, the requirement is met even when the danger may be realized days or even weeks after the interrogation. In the present matter, there is no doubt that that the plan to use the weapons in the hidden storage unit for the purpose of terrorist activity, as well as the transfer of additional weapons by the Petitioner to his accomplices in the terrorist organization, create a real danger to human life in and of themselves. Even if the exact date for actually realizing the terrorist plan was unknown at the time of the interrogation, the intention of the Petitioner and his accomplices to perpetrate terrorist acts by means of that collection of hidden arms suffices to meet the immediacy requirement and to justify the use of “special means” in the framework of the interrogation. This is also true in regard to the kidnapping plan and an additional terrorist attack by the other terrorist operatives, which were frustrated thanks to the information given by the Petitioner in his interrogation.

61.       The Petitioners further argued that the necessity defense might, indeed, exempt from criminal responsibility, but it should not be viewed as a justifying the legality of the act. Therefore,  according to their approach, whenever a complaint of torture in an interrogation is filed and the ISA interrogators claim the necessity defense, a criminal investigation of the interrogators should be initiated, and recourse to the necessity defense can be made only after a decision is made to bring them to trial.

            This argument cannot be accepted.

            The Petitioners opinion that the necessity defense can be raised only after criminal proceedings have begun in court lacks systemic logic and is also contrary to the efficient, proper manner of conducting criminal proceedings in other circumstances, since when the prosecution is convinced that a suspect is entitled to the necessity defense, there is no justification for initiating criminal proceedings against him when the result is already known. In my opinion, these are the considerations that underlie the preliminary examination by the Inspector as to whether there is a reasonable suspicion of the perpetration of a criminal offense by the ISA interrogators on the merits of each case, in accordance with the authority granted the prosecution to conduct such an examination.

            Moreover, as opposed to the Petitioners’ claim, I am not of the opinion that the judgment in HCJ 5100/94 requires that a decision as to the applicability of the necessity defense be made only after conducting a criminal investigation. As quoted above, the judgment states that the Attorney General can establish guidelines for himself as to the circumstances in which interrogators who acted due to a sense of “necessity” will  not stand trial. That does not imply that such guidelines would apply only after a criminal investigation and the filing of an information, but quite the opposite. This guidance can be given even at an early stage, after a preliminary examination of the circumstances, and before initiating criminal proceedings (see and compare: the Abu Ghosh case, para. 44). This demonstrates the great importance of the Inspector’s examination, which is supposed to be an in-depth, pertinent, independent  examination whose results can aid the Attorney General in reaching a decision as to whether the necessity defense applies under the circumstances, such that the scales tilt towards not initiating a criminal investigation.

            While not strictly necessary, we would note that at least some criminal law theories deem the necessity defense as a justification and not merely an excuse. In other words, the legal norm establishing the necessity defense does not merely “exculpate” the act after the fact, but rather removes it, under its special circumstances, from the scope of the criminal prohibition. That is the case whether because the act is required under certain circumstances, or whether because the legal norm, at the very least, authorizes the actor to do it. The result of the application of the necessity defense is, therefore, not merely the exoneration of the actor, but also the justification of the act, such that it is not defined as a harmful phenomenon that the criminal law seeks to prohibit. In any case, the necessity defense should be deemed a defense to the criminality of the act, and not merely as excusing from criminal responsibility (see: S.Z. Feller, Elements of Criminal Law, vol. II, 390, 492, 503-511(1984); George P. Fletcher, Basic Concepts of Criminal Law (Hebrew edition, S. Watad, trans., Ephraim Heiliczer & Mordechai Kremnitzer, eds., 237 (2018)); Aharon Enker & Ruth Kannai, Self Defense and Necessity after Amendment 37 of the Penal Law, 3 Pelilim 5, 24-26 (Hebrew).

            In view of all the above, inasmuch as the Inspector’s examination found that, under the circumstances, the Petitioner’s interrogators can claim the necessity defense, and there is no reasonable suspicion of their having perpetrated a criminal offense, there is no defect in the exercise of discretion by the Attorney General, who was of the opinion that a criminal investigation should not be initiated.

 

The Lawfulness of the Attorney General’s Directive and the ISA Guidelines

 62.      Lastly, the Petitioners made the general argument that the Directives of the Attorney General and the ISA Internal Guidelines pursuant thereto are defective and should be declared void. According to the Petitioners, the above are premised upon the assumption that the ISA is granted that authority to decide in advance upon the use of torture by virtue of the necessity defense, through internal consultations between the ISA interrogators and their superiors, in a manner that is inconsistent with the directives of this Court in HCJ 5100/94.

            I reviewed the Directives of the Attorney General and the ISA Internal Guidelines very carefully, and I did not find them to be contrary to what was stated in HCJ 5100/94. The interpretation urged by the Petitioners is inconsistent with the purpose of the said Directives and Guidelines, and is not founded in its language.

63.       As may be recalled, the Directive of the Attorney General was intended, as defined, to serve as “self-insruction” for the Attorney General, pursuant to the principles established in HCJ 5100/94. In that framework, it was emphasized that the Attorney General cannot put himself in place of the legislature, and therefore, his directive “can only be within the boundaries of the law and the interpretation of the Court in the judgment” (Directive of the Attorney General, p. 421).

            Section B(2) of the of the Directive establishes that inasmuch as the necessity defense will apply only “in very exceptional situations”, precise rules of behavior cannot be drafted in advance for specific situations in which it will apply. It emphasizes that:

The Attorney General cannot instruct himself and the interrogators in advance to deviate from their authority and adopt physical means in the course of interrogation … however, the Attorney General can instruct himself in advance as to the type and character of acts that he may deem as falling within the scope of “necessity” after the fact (ibid., p. 420).

            This careful, measured language expressly distinguishes between a “directive” permitted on the basis of the holdings of this Court in HCJ 5100/94 and a prohibited “directive”, while making the required balancing of the individual, circumstance-contingent character of the decision to adopt special means, and consideration of “the proper level of legal certainty” to which the ISA interrogators are entitled. In the language of sec. D of the Directives:

The Agency’s interrogators are agents of the State of Israel, and to the extent that they lawfully act on its behalf, they are entitled to an appropriate measure of legal certainty. They do not act in another place; they are an agency like any other agency of the state, for the good and the preferable, in obligations and rights. In their special work in gathering intelligence for the frustration of terrorist attacks, they must often address maintaining the law and the rights of those interrogated under it; but in their acting within the framework of the law, we cannot ignore the necessity of appropriate protection in doing their work (ibid.).

            Indeed, the guidelines established under the Directives established at the direction of the Attorney General, particularly in its operative part in sec. G, quoted above, emphasize the consideration of the existence of the conditions of the necessity defense in the specific circumstances under discussion – the need for immediate action in order to prevent a real danger of a serious attack, along with the necessity of the act and its reasonableness – and in doing so, they properly balance the various, relevant interests.

64.       I do not accept the Petitioners’ argument that the consideration of the circumstances of “the levels that permitted the act, their involvement in the decision and their discretion at the time of implementation”, as well as “its [the act – Y.E.] supervision” in sec. G of the Directives, as quoted above,  demonstrate that the guidelines offer a predetermined, systematic canon in regard to cases in which the use of special means will be approved in ISA interrogations.

            That argument disregards the fact that the detailing of circumstances that will be considered in reaching a decision whether the interrogators’ action falls within the scope of the necessity defense begins with the express statement that “the Attorney General’s decision will be made in each case on its merits, after a detailed examination of all of the said elements”. The existence of an ad hoc approval given in real time for performing the interrogators’ acts is but one element among the complex of elements detailed in the Directive, among them, the degree of the necessity and its immediacy, the severity and concreteness of the threat and of the harm prevented, the alternatives to the act, the proportionality of the means, etc.

            65.       I also do not accept the Petitioners’ interpretation according to which an ISA interrogator who believes he is confronted with a situation that gives rise to circumstances of “necessity” in the interrogation of a suspect – in the sense that there is a real danger that requires immediate action to prevent it – must make the decision as to adopting special mean on his own, without be allowed to consult his superiors. As opposed to the Petitioners’ argument, that interpretation cannot be inferred from the provisions of the judgement in HCJ 5100/94, nor is it desirable in my opinion.

            In this regard, a distinction should be drawn between general, advance instruction or direction, and instruction or direction given to the interrogator in real time in regard to the specific circumstances of the interrogation, as they develop at that moment. I am of the opinion that in the latter case, the interrogator’s consulting with his superiors, who have broad discretion and greater experience, can actually serve to protect the interrogee from an unlawful infringement of his rights. Such immediate consultation does not detract from the specific, individual nature of the decision to adopt special means in the interrogation of the suspect, specifically when it is also clear that the interrogator’s superiors are also exposed to the possibility of facing criminal proceedings if, under the circumstances, their decision was unreasonable in that it was not properly justified.

66.       This is also true for the Internal Guidelines, which were presented for our review in accordance with our decision of Oct. 24, 2018. Without divulging details of the classified contents, it can be said that the Guidelines detail the system of consultation in a specific case for all those involved therein; the limitations upon discretion in deciding upon adopting special means in specific circumstances; and the required manner for memorializing such interrogations.

            As opposed the Petitioners’ claims, I find no defect in establishing clear rules as to the manner of consulting within the ISA prior to reaching a decision upon adopting “special means” in a particular interrogation, nor in establishing clear rules in regard to documenting that consultation and the interrogation itself. On the contrary, those rules invite meticulous, necessary supervision of the interrogators conducting the interrogation, and ensure that the use of “special means” in an interrogation will be carried out only in the most exceptional cases that justify it, and in the presence of the required conditions, in accordance with the discretion of senior, experienced elements in the ISA.

 

Conclusion

67.       In conclusion, I have not found reason to intervene in the decision of the Attorney General to approve the decision of the Director not to initiate a criminal investigation of the Petitioner’s interrogators and to close the examination file on his complaint. As opposed to the Petitioners’ claim, I am of the opinion that the said decision – according to which the Petitioner was not tortured in the course of his interrogation, and according to which the Petitioner’s interrogators  are entitled to the “necessity defense” that exempts them from criminal responsibility for employing “special means of interrogation” in his interrogation – does not deviate from the margin of reasonableness.

            Accordingly, we should deny the relief requested by the Petitioners to void the Directives of the Attorney General and the Internal Guidelines of the ISA, as they are not contrary to law.

            I therefore recommend to my colleagues that we deny the petition in regard to both requested remedies. Under the circumstances, there will be no order for costs.

 

Justice I. Amit

            There are two heads to this petition.

1.         The first head specifically concerns the Petitioner: It is a rule in civil litigation that the plaintiff cannot raise a claim that his privacy outweighs his obligation to reveal evidence to the defendant (LCA 8551/00 Aprofim Housing and Promotion (1991) Ltd. v. State of Israel, IsrSC 55(2) 102 (2000)). Therefore, his right to privacy retreats before the right of the defendant, and he has the choice either to withdraw his suit or be prepared to waive his privacy (LCA 8019/06 Yediot Aharonot Ltd. v. Levin (Oct. 13, 2009). I would note that, in my opinion, the statements in this judgment are overly broad, but this strays from the matter at hand).

By analogy, or perhaps a fortiori, this is also true for the administrative proceedings before us. The Petitioner brought a list of complaints against his interrogators, but refused to undergo a polygraph examination on the truth of his claims. To my mind, that serves to weaken the petition in all that relates to the specific matter of the Petitioner before us and his factual claims.

2.         The case before us is not one of a classic “ticking bomb” that may explode any minute, but as Justice Elron noted, HCJ 5100/94 Public Committee against Torture v. State of Israel, IsrSC 53(4) 817) (1999) (hereinafter: the Public Committee case) held that the immediacy requirement in sec. 34K of the Penal Law, 5737-1977, concerns the immediacy of the act and not the immediacy of the danger. In the present case, the combination of the seriousness the nearly-certain danger, if not the certainty of the realization of the danger, and the inability to act in an alternative manner in the concrete situation that faced the security authorities (the necessity condition) in order to obtain information that would very probably thwart a real danger of life-threatening terrorist activity – all lead to the conclusion that the proportionate act adopted by the ISA interrogators falls under the aegis of the necessity defense (on the certainty of the danger as a primary indicator of the necessity of the act, see Mordechai Kremnitzer and Re’em Segev, The Use of Force in Interrogations by the Israel Security Agency – The Lesser Evil? 4 Mishpat Umimshal 667, 717 (5757-5778) (in Hebrew). The article was written before the judgment in the Public Committee case).

3.         The second head of the petition concerns the Internal Guidelines in the form of the Directive of the Attorney General: The Petitioners sought to void the Internal Guidelines that enable the interrogators to consult with their superiors in real time on the question of whether the use of special means of interrogation is immediately required in a given situation in order to save human life.

            I can only express wonder at this head of the petition, and I concur with my colleague Justice Elron that the interpretation advanced by the Petitioners is undesirable. That interpretation is not reflective of what was stated in the Public Committee case, which said:

[A]ccording to the existing state of the law, neither the government nor the heads of the security services have the authority to establish directives, rules and permissions regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, which would infringe their liberty, beyond the general rules inherent to the very concept of an interrogation itself… The Attorney General can instruct himself regarding circumstances in which investigators shall not stand trial, if they claim to have acted from “necessity” (ibid., pp. 844-845, para. 38).

            Note: we are not concerned here with general directives and permissions regarding the use of physical means in the interrogation of a person suspected of hostile terrorist activity, but rather with a guideline as to when and how to carry out an ad hoc consultation on the question of whether a given situation requires the use of special means of interrogation. As my colleague noted, it is precisely this consultation with more senior elements, who possess greater discretion and experience, that may prevent the use of special means of interrogation, or moderate their use by imposing restrictions upon the interrogator’s conduct. The interrogator does not necessarily have the complete picture, as by nature, he is not party to all the sources of information of the entire intelligence community. It would be manifestly undesirable for interrogators to decide, on the basis of a partial intelligence picture, whether a given situation is one that requires the use of special means of interrogation. In general, the assumption is that precisely that consultation with senior – sometimes the most senior – levels is a factor that significantly moderates the very use of special means of interrogation and the manner of their use. The proof is, as argued, that the cases in which ISA interrogators acted under the assumption that the necessity defense applied are exceptions, and the petition before us only proves their rarity.

4.         A comment before concluding.

            Any person with a sense of humanity would be shocked to hear descriptions and reports of torture and abuse in the course of interrogation. Torture is deemed morally wrong, and the degradation, debasement and humiliation involved in torture go directly to the heart of human dignity. Thus, the absolute moral and legal prohibition of torture (Daniel Statman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat Umimshal 161 (5757-5758) (in Hebrew)). Due to the negative moral and legal view of torture, this Court held in the Public Committee case that the use of physical pressure against interrogees is permitted only in the most exceptional cases. Indeed, since the delivery of that decision, there has been both a quantitative change – i.e., a change regarding the circumstances in which special means of interrogation are employed under the necessity defense – and in the special means employed in interrogations under that defense. It is the responsibility of the security services to continue to ensure that the human dignity of the interrogees be preserved in those exceptional cases of use of special means of interrogation. The Internal Guidelines, as well as other mechanisms like the Department for Complaints against the Israel Security Agency, are specifically directed to that end.

 

Justice D. Mintz

1.         After carefully reading the opinion of my colleague Justice Elron, I concur with his conclusion. I agree that the decision not to conduct a criminal investigation against the Petitioner’s interrogators does not give rise to grounds for our intervention, in view of the well-known principle that this Court will intervene in the decisions of the Attorney General in regard to filing charges, and even in regard to the initiating of a criminal investigation, only in exceptional cases, and only when the Court is convinced that there was a substantive defect in the exercise of discretion (HCJ 6274/11 Dor Alon Energy v. Minister of Finance (Nov. 26, 2012); HCJ 3922/14 Public Committee against Torture v. Attorney General (Dec. 29, 2015)). Claims like those raised by the Petitioner do, indeed, justify examination. However, as my colleague Justice Elron explained, those claims were thoroughly and carefully investigated, after all the relevant documents were examined and the parties involved were questioned. In this regard, there is also nothing in the opinions submitted over five years after the Petitioner’s interrogation that would tilt the scales in this matter in his favor.

2.         I also concur with the observations of my colleague Justice Amit on the issue of the Directive of the Attorney General, and particularly in regard to the possibility that it provides for internal consultation between ISA interrogators and their superiors in order to arrive at a decision on adopting “special means” in a particular set of circumstances. The Petitioners’ argument that specifically by enabling consultation prior to making the decision, the Directive grounds an aspect of “systemization” as opposed to the immediate examination of “necessity” in the moment, has its attraction, but cannot be accepted.

3.         The assumption is that consulting with senior elements for the purpose of reaching a decision, in appropriate cases due to their sensitivity or importance, is vital (see, e.g.: Directive No. 4.1004 of the Directives of the Attorney General, “Pre-Approval for Filing an Information”). The possibility of consulting with senior levels prior to arriving at a decision does not, itself, expand the scope of cases in which the use of special means is required, and it would even seem that the opposite is true. In practice, the possibility to consult may moderate the very use of special means of interrogation, and lead to a more precise and considered choice of cases in which it is required. Therefore, not only does this possibility not detract from the rule that torture is prohibited, apart from extremely exceptional cases, but it facilitates its better implementation.

4.         As for the characterization of the use of special means as a “method” or as a “necessity”, the existence of “necessity” is not examined according to the speed of the spontaneous response to the danger requiring special means. As my colleague Justice Elron pointed out (para. 38 of his opinion), the application of the necessity defense is contingent upon five cumulative conditions, of which the spontaneity of the act is not one, as opposed to the “immediacy of the act”. There is room to permit an ISA interrogator to consult with his superiors in the gap between an immediate act and a spontaneous one.

 

            Decided as stated in the opinion of Justice Y. Elron.

            Given this 18^th day of Kislev 5779 (Nov. 26, 2018).

 

 

 

The Supreme Court

 

CFH 2121/12

 

 

Petitioner:                                  Anonymous

 

                                                            v.

 

Respondents:                          1.  Dr. Ilana Dayan Orbach

                                                2.  Telad Studios Jerusalem Ltd.

 

 

Further Hearing on the judgment of the Supreme Court of Feb. 8, 2012, in CA 751/10, CA 1236/10, and CA 1237/10 (Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit).

 

Before:  President A. Grunis, Deputy President M. Naor, Justice (Emerita) E. Arbel, Justice E. Rubinstein, Justice S. Soubran, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice Y. Amit

 

Judgment

 

President A. Grunis:

 

1.         The underlying tension of defamation law is expressed in full force in this Further Hearing before the Court. On one side stand the dignity and good name of the person harmed by a publication, and on the other side stand freedom of speech and freedom of the press, with all their significance for the individual journalist and the public at large. The legal questions raised in this proceeding go beyond the borders of the particular case that engendered them. Inter alia, we must address questions concerning the nature of “truth” in the legal sphere, the role and duties of the press in a democratic society, and striking a proper balance among the rights and interests concerned in the specific context before us. We will address all of these in this Further Hearing.

 

Factual Background and History of the Proceedings

2.         On Nov. 22, 2004, the television program “Uvda” [“Fact”] with Ilana Dayan” (hereinafter: Uvda) aired an investigative report (hereinafter: the report) prepared and delivered by Dr. Ilana Dayan-Orbach, Respondent 1 (hereinafter: Dayan). The report was preceded by “promos” by Respondent 2, Telad Studios Jerusalem Ltd., which was the Channel 2 concessionaire at the time (hereinafter: Telad). The report and the promos concerned an incident that occurred in an IDF installation in the Gaza Strip in 2004. The details of the incident were addressed at length in the prior proceedings, and in additional legal proceedings, and certain aspects continue to be disputed. Therefore, I will suffice with a very brief description of the matter, based upon the findings of the courts that addressed these proceedings. On Oct. 5, 2004, a suspicious entity was spotted near the installation, which was at a high state of alert. After the fact, it turned out that it was a girl named Iman Al-Hams, a resident of Rafah, who was thirteen years and ten months old (hereinafter: the deceased). There was weapons fire from the installation, the alarm was sounded, and the public address system was turned on. The deceased threw down her bag, fled, and took cover behind a sand berm. The commander of the company manning the installation at the time – the Petitioner – was alerted, and he ran toward the entity. It should be noted that at the time of the incident, shots were fired from the vicinity of Rafah in the direction of the Petitioner and his soldiers. The Petitioner fired two shots in the direction of the deceased, and retreated. He then retraced his steps, and fired a burst toward the area to the east of where she lie. As a result of the shots fired in the course of the event, the deceased was killed.

3.         The report, which was some 18 minutes long, addressed the said event, which was termed “the kill confirmation affair”. The report was described in detail in the prior proceedings, and I will, therefore, only summarize its main points. The report described the unfolding of the event from the moment the suspicious entity was identified by the installation; the gunfire in her direction from the installation; her flight; the assault in her direction by the force led by the Petitioner to “confirm the kill”; the Petitioner’s fire at her; and, ultimately, the removal of the deceased’s corpse from the area. Among other things, the report noted that the incident concerned a little girl who was on her way to school. In addition, the report described the identification of the deceased by the installation’s spotters, the soldiers’ conjectures as to her age, as well as in regard to her being hit, and her condition. The report also stated that the installation was in a evident state of security readiness and tension, and that the soldiers, including the Petitioner, thought that they were concerned with a terrorist event. In addition, Dayan pointed out that the recording from the communication network ended “with these words, that for some reason it was urgent for the company commander [the Petitioner – A.G.] to communicate now with the HQ”.  Then the Petitioner was heard stating over the communications network: “This is leader. Anyone that moves in the area, even if it is there years old, has to be killed. Over.” The report made use of recordings from the installation’s communications network, video clips recorded by the installation’s security towers at the time of the incident, and testimony of soldiers serving in the company. Illustrative pictures and videos clips showing company life, recorded by the soldiers in various contexts, were also included. In this context, a video clip was presented that shows a kind of party held by the soldiers in their room, and it was stated that these pictures appeared immediately after the shooting incident on the videotape recorded by the soldiers.

4.         The report also addressed developments and investigations that followed the incident. It criticized the army’s investigation of the incident, which found that the Petitioner had acted appropriately. In this regard, it mentioned claims by soldiers that they lied in the investigation out of fear of the Petitioner. In addition, the report described the ugly state of affairs in the company. It was noted that “when they [the Petitioner’s soldiers – A.G.] see him shooting at the little girl’s corpse, they are sure that he carried out a kill confirmation”. In this regard, it was stated that “it is not certain that this story would have gotten out were it not for the state of affairs in the company”. It was further noted that the Petitioner was placed under arrest, and that he was interrogated by the Military Police, and video clips of that interrogation were shown in which he explained, among other things, that he acted to neutralize a threat. It was also reported that an information was filed against the Petitioner in the military court on the day of the report was broadcasted. Finally, the responses of the Military Spokesperson and the deceased’s family were shown. It was also stated that the Petitioner had not yet been given permission to be interviewed, although the representatives of Uvda asked to interview him.

5.         In the broadcast of Uvda that was aired a week later, Dayan added a number of clarifications and emphases in regard to the report. Inter alia, it was emphasized that the installation was operating under threat warnings, and the threats under which the soldiers were operating were mentioned. In addition, further clips from the communications network at the time of the incident were aired. Among them were estimates as to the deceased’s age, and it was noted that one of the questions to be answered is who heard that. Dayan emphasized that the report accurately portrayed the events, but clarified that there was one mistake in the report. According to her, the video clip in which a soldier is seen shooting from a position in the installation was not related to the incident. Nevertheless, it was stated that there is no dispute that there was heavy fire from the positions in the installation, which continued for an extended period.

6.         On July 5, 2005, in an end-of-season review of Uvda, a four-minute summary of the report that is the subject of these proceedings was broadcasted. It was accompanied by remarks by Dayan at the beginning and the end of the report, in which, inter alia, she presented an update of the developments since the original broadcast (hereinafter: the review report). The content of the review report will be described at length below. I would already state that the editors of Uvda approached the Petitioner prior to the broadcast of the review report. In response, the Petitioners attorneys claimed that the broadcast was defamatory, and demanded that the review report not be aired, or in the alternative, that their full response be presented.

7.         As noted, on Nov. 22, 2004, an information was filed against the Petitioner in the Military Court on five charges: unlawful use of a firearm, for the two shots fired in the direction of the deceased; unlawful use of a firearm, for the burst he allegedly fired at her; obstruction of justice; deviation from authority creating a life-threatening danger as a result of the rules of engagement that he allegedly issued to his soldiers; and conduct unbecoming. On Nov. 15, 2005, the Military Court acquitted the Petitioner on all counts. The Petitioner then filed suit against the Respondents in the District Court, under the Defamation Law, 5765-1965 (hereinafter: the Law, or the Defamation Law).

 

The Judgment of the District Court

8.         The Jerusalem District Court (Judge N. Sohlberg) found in favor of the Petitioner, in part (CA 8206/06 of Dec. 7, 2009). It held that the report constituted defamation of the Petitioner, who was presented as having acted in a cruel and evil manner, and the soldiers under his command were presented as having maintained heavy fire at the deceased without regard for the possibility that she might be killed. It was held that this was done in a manner that affected the Petitioner’s good name. In addition, the court ruled that the report gave the impression that the Petitioner forced his soldiers to lie in the military enquiry, that the suspicions against him were whitewashed in the enquiry, and that he feigned innocence in his interrogation and refrained from presenting a consistent version of the events. The District Court held that this, too, constituted defamation of the Petitioner. It was held that the Respondents could not claim the plea-of-truth defense under sec. 14 of the Law, nor the plea-of-good-faith defense under sec. 15 of the Law. Therefore, they were ordered to pay damages to the Petitioner in the amount of NIS 300,000, and it was ordered that the Uvda program would correct the impression that the report created. In that context, the Respondents were ordered to report the fact of the Petitioner’s acquittal, as well as the main points of the Military Court’s judgment, to explain that the report had conveyed a mistaken impression in regard to the Petitioner and in regard to the incident, and to report the outcome in the District Court. All of the parties appealed the decision.

 

The Judgment on the Appeals

9.         On Feb. 8, 2012, judgment was handed down on the appeals (CA 751/10, Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit; hereinafter – the Appeals Decision or the Decision). All of the justices of the panel agreed that the report that was broadcasted constituted defamation of the Petitioner. However, they were of the opinion that liability should not be imputed to Dayan, inasmuch as she enjoyed a defense under the Law. The justices were divided as to which defense applied. Deputy President Rivlin and Justice Amit were of the opinion that the report met the conditions of the plea-of-truth defense under sec. 14 of the Law. They held, pursuant to CFH 7325/95 Yediot Aharonot Ltd. v. Krauss, 52 (3) 1 (1998) (hereinafter: CFH Krauss), that the first condition of this defense – the truth of the publication – was met in the sense that the publication was “true at the time”. Deputy President Rivlin explained that “the picture of reality as portrayed by the report as a whole is not substantially different from the truth as it was known at that time, as best as could be ascertained with the investigative tools available to a reasonable journalist” (para. 97 of his opinion). That was the case, inter alia, considering that the facts grounding the report at the time of the broadcast also served as the grounds for the charges brought against the Petitioner. Justice Amit concurred with Deputy President Rivlin on this point. He emphasized that the media cannot be demanded to meet “an absolute standard of pure truth” (para. 14 of his opinion). He was of the opinion that in this case, the condition of truthful publication was met, inasmuch as the report reflected the truth as it was known to the investigating authorities and the prosecution at the time of the broadcast. Both justices held that the second condition of the truth defense – a public interest in the publication – was also met. Justice Vogelman, however, was of the opinion that Dayan could claim the good-faith defense under sec. 15(2) of the Law, in circumstances in which the relations between the publisher and the audience to which the publication was addressed “imposed on him a legal, moral or social duty to make the publication”. The Appeals Decision held that the time had come to recognize, in the framework of sec. 15(2) of the Law, a broader journalistic obligation than that previously recognized in CA 213/69 Israel Electric Corporation Ltd. v. Haaretz Newspaper Ltd., IsrSC 23 (2) 87 (1969) (hereinafter: the First Haaretz case). This, while establishing appropriate conditions for the application of the defense. Justice Vogelman was of the opinion that such an obligation would arise upon meeting two conditions. The first is the presence of a significant public interest in the publication, and the second, that the publication is the result of careful, responsible journalistic work. Additionally, Justice Vogelman made a non-exhaustive list of auxiliary tests as aids in ascertaining the meeting of these criteria.

10.       The result was that Dayan’s appeal was granted (CA 1236/10), and the judgment of the District Court in her matter was reversed. As opposed to that, the Court held that the defenses under the Law did not apply to the program’s promos. That being the case, the Court did not find grounds for intervening in regard to Telad’s liability. As a result, the Court decreased the damages awarded against it to NIS 100,000, and rescinded the obligation to publish a correction. Telad’s appeal (CA 1237/10) was granted in part. The Petitioner’s appeal in regard to the damages awarded to him (CA 751/10) was denied.

 

The Petition for a Further Hearing

11.       Following the Appeals Decision, the Petitioner submitted a petition for a Further Hearing. After considering the petition and the responses of the Respondents, on Oct. 3, 2012, I ordered a Further Hearing on the Appeals Decision, in accordance with my authority under sec. 30(b) of the Courts [Consolidated Version] Law, 5744-1984 (hereinafter: the Courts Law). In my decision of Nov. 25, 2012, the issues that would be addressed in the Further Hearing would be as follows:

(a) Can the phrase “the matter published was true”, in sec. 14 of the Defamation Law, also be construed to mean “true at the time”, and if so, under what conditions?

(b) Can the requirement, under the above sec. 14, that “the publication was in the public interest” not be met when legal proceedings are pending in the matter that is the subject of the publication?

(c) Can a journalist, as a journalist, enjoy the defense under sec. 15(2) of the Defamation Law, 5725-1965, and if so, under what conditions?

Pursuant to that, the parties submitted supplementary pleadings, and a hearing was held before us. Following are the main arguments of the parties.

 

…

 

Justice Rubinstein

…

On Defamation in the Jewish Law Ethos

3.         Before doing so, I would first recall where, in my opinion, the historical ethos of Jewish law stands in this area – as we are a Jewish and democratic state, and Jewish law holds an important place among the sources of Israeli law, see: Aharon Barak, Purposive Interpretation in Law, 452-453 (2003) (Hebrew) [English: Aharon Barak, Purposive Interpretation in Law, (Princeton: Princeton University Press, 2005)]; Aharon Barak, The Judge in a Democracy, 290 (2004) (Hebrew) [English: Aharon Barak, The Judge in a Democracy, (Princeton: Princeton University Press, 2006)]; and see my article, “Malkhut Yisrael Le’umat Dina deMalkhuta,” 22 (2)  Mekhkarei Mishpat 489, 496-498 (Hebrew). No proof is required of the fact that our exposure to various kinds of electronic and virtual communication, including television, radio, internet, in addition to the print media, is tremendous, unforeseen by our predecessors, and continuously growing. What seemed like high waves before the internet age, is now an unfathomable ocean and a rising spring. It is an appropriate time for a brief study of the approach of Jewish law and halakha to defamation, and further on, I will return to the Jewish law approach to the defenses. I would first note that Jewish law served as one of the sources of the Defamation Law, 5725-1965, see the Defamation Bill, 5722-1962, H.H. 504 (5722) 142, 145, 147; and see: LCA 531/88 Avneri v. Shapira, IsrSC 42 (4) 20, 25-26; and see: N. Rakover, Jewish Law in Knesset Legislation, 631-639 (1988) (Hebrew), and the references there. The late Professor Elon noted that “this is an example of a respected halakhic institution that served as inspiration for legislation in the criminal field, not in terms of its details, but rather in terms of its general approach” (M. Elon, Jewish Law: History, Sources, Principles, 1380 (1973) (Hebrew) [English: M. Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 2003)]).

            Indeed, much of what is openly declared in public is protected by Israeli law as part of freedom of expression, or under other defenses provided by the Defamation Law. Even if that does not mean that a person whose reputation is tarnished has no legal remedy – and there are no few possibilities under the Defamation Law – still, especially where the media is concerned, those remedies are becoming fewer and fewer as a result of judicial interpretation. Jewish law is meticulous in regard to a person’s dignity – human dignity, and respect for a person in the plain sense – including in regard to one’s reputation, and thus its view of disparagement is more extreme than that of the Defamation Law. Its rules concerning defamation form a significant chapter, and the District Court addressed this in the matter before us, in the context of “constructive defamation”, as I shall explain.

4.         The Hafetz Hayim, Rabbi Yisrael Meir Hakohen of Radun, a leading Jewish personage in Russo-Poland in the 19^th-20^th centuries, until his death in 1933, and author of the books Hafetz Hayim and Shemirat Halashon placed the subject of lashon hara [literally: “evil speech”, i.e., defamation –trans.] at the center of his toraitic works (he would also write the Mishne Berura, which may be described as the authoritative commentary to the Shulhan Arukh: Orah Hayim, and more) and endeavors. His book Hafetz Hayim (which was initially published anonymously in the early 1870s) presents the rules of lashon hara in comprehensive detail, while his book Shemirat Halashon, which compliments it, and which was published in the latter half of the same decade, provides aggadic [non-halakhic, rabbinic exegetical texts – trans.] sources and moral insights in regard to the prohibition of defamation and rumor mongering. At the beginning of his book Hafetz Hayim, [literally: “Desires Life” – trans.], which draws its name from the verses “Which of you desires life, and covets many days to enjoy good?  Keep your tongue from evil, and your lips from speaking deceit. Depart from evil, and do good; seek peace, and pursue it” (Psalms 34:13-14), the author lists seventeen negative commandments, fourteen positive commandments, and four instances of “cursed be” that a person may transgress in the framework of lashon hara and gossip.  Hafetz Hayim examines the laws of lashon hara and gossip in detail, and provides an accompanying commentary (“Be’er Mayim Hayim”), while Shemirat Halashon [lit. “Guarding the Tongue” – trans.], whose title is a reference to the verse “He who guards his mouth and tongue, guards himself from trouble” (Proverbs 21:23), completes it, thus constituting an indispensable pair of compositions for anyone who seeks to observe the halakha in this area (many summaries have been written over the years, e.g., Ikarei Dinim by Rabbi Shmuel Huminer). The Hafetz Hayim deemed guarding one’s tongue as possible, despite the widespread phenomenon of defamation, or at least of “quasi-defamation” [“avak lashon hara”, literally “dust – i.e., a “tinge” or “trace”— of lashon hara”—trans.] and gossip, on the presumption that the Torah does not impose obligations and prohibitions that cannot be observed.

5.         The primary, direct prohibition in the Torah is to be found in the verse “You shall not go up and down as a talebearer among your people: neither shall you stand against the blood of your neighbor” (Lev. 19:16). Rashi explains (ad loc.): “since all those who instigate disputes and speak lashon hara go into their friends’ houses in order to spy out what evil they can see, or what evil they can hear, to tell in the marketplace”. And as the Hafetz Hayim (Negative Commandments 1) explains, following Maimonides (Hilkhot De’ot 7:2): “Who is a gossiper? One who collects information and goes from person to person, saying: This is what so and so said about you, and this is what I heard that so and so did to you. Even if the statements are true, they bring about the destruction of the world. There is a much more serious sin than this, which is also included in this prohibition, which is lashon hara, that is also comprised by this prohibition, and which is relating deprecating facts about another, even if he speaks the truth. But one who tells a lie, defames his colleague’s good name” (emphasis added – E.R.). And further on (Lashon Hara, Principle 5:2), the Hafetz Hayim states: “And needless to say, if the matter is false or partly true and he exaggerates it more than it is, this is surely a very great sin, which is more severe than plain lashon hara, and it is in the category of defaming a person’s name, because he humiliates his friend by his lies. Even if it is the absolute truth, all the Rishonim [halakhic scholars active in the 11^th-15^th centuries, prior to the publication of Joseph Karo’s Shulhan Arukh – trans.] have established that … it is lashon hara even if it is true”. This is intended to remind us that we are not concerned with a solely moral issue, as one might mistakenly imagine, but rather with a clearly halakhic issue. And note that the Torah compares gossip, which is the lowest level in the laws of defamation, to standing “against the blood”, and no less, and that lashon hara is prohibited even if true, and thus Jewish law is, as noted, more strict than the prevailing Israeli law.

            The Gemara (TB Arakhin 15a-b and 16a-b) addresses lashon hara. The Mishna that is the basis for the discussion (15a) states: “Thus we also find that the judgment against our ancestors in the wilderness was sealed only because of their evil tongues, as it is written: you have tried me these ten times … (Numbers 14:22).” Those words referred to the affair of the ten spies who spoke ill of the Land of Israel, and R. Eliezer b. Perata says (ibid.), “Come and see how great the power of an evil tongue is. Whence do we know? From the spies [the spies that Moses sent, and who spoke ill of the Land of Isral – E.R.]: for if it happens thus to those who bring up an evil report against wood and stones, how much more will it happen to him who brings up an evil report against his neighbor”. We also find there: “Of him who slanders, the Holy One, blessed be He, says: He and I cannot live together in the world” (ibid., 15b). And on the verse “Death and life are in the power of [literally: “in the hand of” – trans.] the tongue” (Proverbs 18:21) the Talmud states (ibid.): “Has the tongue a hand? It tells you that just as the hand can kill, so can the tongue … One might say that just as the hand can kill only one near it, thus also the tongue can kill only one near it, therefore the text states: ‘Their tongue is a sharpened arrow’ (Jeremiah 9:7) [in other words, lashon hara reaches and causes harm even at a distance – E.R.]”.

            The Sages also said that all are guilty of “avak lashon hara” [“the tinge of defamation” – trans.] (TB Bava Batra 165a), in other words, no one (or at least, almost no one) is entirely innocent of lashon hara. Pursuant to the Gemara in Arakhin (ibid.), Maimonides states (Hilkhot De’ot 7:3): “Our Sages said: There are three sins for which retribution is exacted from a person in this world and he is denied a portion in the world to come: idolatry, forbidden sexual relations, and bloodshed, and lashon horah is equivalent to them all … Our Sages also said: Lashon hara kills three, the one who speaks it, the one who listens to it, and the one about whom it is spoken. The one who listens to it more than the one who speaks it.” Maimonides is of the opinion that transgressing this prohibition may lead to bloodshed – “A person who collects gossip about a colleague violates a prohibition, as it says: Do not go around gossiping among your people. And even though this transgression is not punished by lashes, it is a severe sin and can cause the death of many Jews. Therefore, it is placed next to: Do not stand against your neighbor's blood …” (Hilkhot De’ot 7:1; and see: Sefer Mitzvot Gadol (R. Moses b. Jacob of Coucy, France, 13^th cent.) Prohibitions 9). According to Sefer Hahinukh (R. Aaron Halevy of Barcelona, 13^th cent.), the justification for the prohibition is that “God wishes the good of His creations, and instructed us by this that there should be peace among us, because gossip leads to dispute and strife” (ibid., Commandment 236), in other words, preventing arguments and disagreements in society, and see: I. Warhaftig, The Right to Privacy in Jewish Law, 233-235 (2009) (Hebrew); S. Aharoni-Goldenberg, “On-Line Privacy from Jewish Law Perspective,” 52 (1) HaPraklit 151, 162-164 (2013) (Hebrew). On lashon hara, also see my article Bad Reports – On the Continuing Struggle for the Dignity and Good Reputation of Others, Parashat Hashavu’a Bereshit (A. Hacohen & M. Vogoda eds.), 211 (Hebrew), also published in my book Paths of Government and Law, 336 (2003) (Hebrew); N. Sohlberg, On Lashon Hara, “Lashon Tova”, and Damages – Money isn’t Everything, ibid., Vayikra 117 (Hebrew); M. Vigoda, Do Not Stand Upon Your Neighbor’s Blood – The Duty to Rescue and its Limits, ibid., Vayikra 150, 151 (Hebrew); N. Sohlberg. The Right to Reputation – Freedom of Expression and Defamation for a Constructive Purpose, ibid., Bemidbar 59 (Hebrew); M. Vigoda, How Beautiful are Your tents O Jacob – Privacy and Freedom of Expression, ibid., 208 (Hebrew); Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information, (Center for the Application of Jewish Law, Netanaya Academic College, Elul 5774).

6.         In his monograph The Defense of Privacy (2006) (Hebrew), Professor Rakover notes that “anything that can cause a person sorrow falls within the scope of lashon hara, even if it is not denigrating in any way” (p. 31). He adds that “a broad definition of the prohibition of gossip and lashon hara can even comprise a violation of a person’s privacy, inasmuch as every person is sensitive to intrusions into his personal life, and does not consent to his private matters being in the public domain” (ibid., p. 32).

            In his well-known letter, R. Elijah of Vilna wrote that “…as our Sages said (Tosefta Pe’ah 81), the sin of lashon hara in its entirety … ‘and lashon hara is equivalent to them all’, and what need is there for me to elaborate on this sin that is the worst of all transgressions”.

            In his writings, the Hafetz Hayim went above and beyond, and as R. Israel Salanter, one of the founders of the Musar Movement, wrote of him, “he took … one Torah verse, and created an entire Shulhan Arukh around it”. And note that that Hafetz Hayim’s approach did not oppose freedom of expression, but rather sought to combat its abuse, with deep understanding of the complexity of the human experience, but in his view “the prohibition upon lashon hara is so great that the Torah prohibited it even in regard to the truth and in every form …” (Hafetz Hayim, Principle 3:16). Moreover, according to him – and let us think of the media in this regard – “the greater the number of listeners, the greater the sin of the speaker (Hafetz Hayim, Hilkhot Issurei Lashon Hara, Principle B:1). Thus, as noted, Jewish law goes to the extreme.

7.         In a eulogy of the Hafetz Hayim, one of his students said that “his circumspection in speaking was beyond human understanding … and he never made any expression of anger or even avak lashon hara…” (quoted in Rabbi Israel Joseph Bronstein, Hanhagot HaHafetz Hayim, 279 (5767) (Hebrew)). Many stories are told of him, like, for example, that he went so far as to refuse to stay in a home in which he heard lashon hara (ibid., 280-281). His son-in-law, Rabbi Menachem Mendel Zaks, related that “he told me several times, ‘Thank God that I was always careful in regard to avak lashon hara’” (ibid., 280). In other words, the Hafetz Hayim lived as he preached. Rabbi Yehudah Segal of Manchester, one of the most ardent activists for distributing the book Hafetz Hayim, said that a person who is circumspect in his speech acquires the Hafetz Hayim as his advocate. No less.

            Indeed, Jewish history is full of incidents in which lashon hara “killed” people. For example, Rabbi Meir Leibush Wisser, the Malbim (1809-1879), was forced to leave his position as Chief Rabbi of Romania when a public smear campaign depicting him as a dark, boorish character, and the enemy of progress and Jewish integration in general society led to his dismissal. Rabbi Jonathan Sacks (former Chief Rabbi of the United Hebrew Congregations of the Commonwealth) wrote in The Plague of Evil Speech (Metzorah, 5768) [http://rabbisacks.org/covenant-conversation-5768-metsorah-the-plague-of-...

For a people of history, we can be bewilderingly obtuse to the lessons of history … Jews have continued to excoriate, denounce, even excommunicate those whose views they did not understand … Of what were the accusers guilty? Only evil speech. And what, after all, is evil speech? Mere words …Words wound. Insults injure.

            The number of people now studying the Hafetz Hayim’s books Hafetz Hayim and Shemirat Halashon has increased. It would seem to me that even if it is difficult to completely free ourselves of lashon hara in a world like ours in which the possibilities for expressing lashon hara are so great, and so many are harmed for no reason, and only the rare few can succeed,  we may still benefit from its study. In my opinion, contending with this is, in sum, the challenge before the Court in this case as in other defamation cases, and the question is whether or not we will contribute to creating a more decent, moderate society.

8.         In addition, the prohibition upon causing embarrassment is another aspect of protecting a person’s reputation. Of this it was said that a person who embarrasses his fellow in public has no place in the world to come (Mishna Avot 3:11), and “when a person who embarrasses his fellow in public, it is as if he has shed blood” (TB Bava Metzia 58b), and it is also said that “It is better for a man that he should cast himself into a fiery furnace rather than that he should put his fellow to shame in public” (TB Berakhot 43b). And see: The Talmudic Encyclopedia, vol. 9, s.v. Halbanat Panim; and see: A. Cohen, Have Everyone withdraw from Me, Parashat Hashavua (5767) 273 (Hebrew). However, despite the great weight and importance attributed to reputation, even the prohibition upon lashon hara in Jewish law is not absolute, and as the Hafetz hayim states in the preface to his book Hafetz Hayim, if the approach were absolutely strict “it would not be possible to live in this world in this regard, without entirely withdrawing from worldly matters”. Even in Jewish law, the laws of defamation do not exist in a vacuum, and there may be cases – exceptions – in which the prohibition upon publishing lashon hara will retreat before other vital interests.

 

On Freedom of Expression in the Jewish Law Ethos

9.         Jewish law indeed recognizes the great importance of freedom of expression against the government, and as Deputy President Elon pointed out: “The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when they evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes” (EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39 (2) 225, 294 [English: http://elyon1.court.gov.il/files_eng/84/020/000/Z01/84000020.z01.pdf]; and see CFH 7383/08 Ungerfeld v. State of Israel (2011)), paras. 2-3 of my opinion; A. Cohen, Jewish Law and Freedom of Expression, Parashat Hashavua (5765) 205 (Hebrew); H. Cohn, On Freedom of Opinion and Speech in Jewish Law, Parashat Hashavua (5762) 78 (Hebrew)). Here is but one example from among many. In the first chapter of his book, the prophet Isaiah, incisively criticizing the rulers of Jerusalem, states: “Hear the words of the Lord, you chieftains of Sodom … devote yourselves to justice, aid the wronged, uphold the rights of the orphan, defend the cause of the widow … Your rulers are rogues, and cronies of thieves, every one avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them” (Isaiah 1:10, 17,23). Harsh criticism, without fear. In LCrimA 10462/03 Harar v. State of Israel, IsrSC 60 (2) 70, 92 (2005), I stated that “the idea of freedom of expression is not, in my opinion, conceptually at odds with the approach expressed in Jewish sources in regard to euphemistic language”. However, despite the importance that Jewish law attributes to freedom of expression, there is no denying that the default position – when lashon hara is concerned – is refraining from publication, except in exceptional cases in which the lashon hara is intended to be constructive, to which I will return. Indeed, in our world, refraining from publication is an impractical utopia, but with the help of the courts, it is possible to restrict lashon hara, except when it is constructive, and not broaden it.

…

25.       As noted, the judgment that is the subject of the Further Hearing held that the rule established in the Ha’aretz case should be changed. It was held (para. 26 of the opinion of Justice Vogelman) that “the phrase ‘moral or social duty’ that appears in sec. 15(2) of the Law is an ‘open canvas’ to which the Court must give meaning in accordance with the proper balance among the conflicting rights, values and considerations”, and that the Ha’aretz rule “no longer reflects the proper balance between freedom of expression and freedom of the press, and the right to dignity, reputation and privacy”. It was further stated that the proper solution “is protection of good-faith publication by the media that is of a significant public interest, when it is a publication that meets the strict standards of responsible journalism” (emphasis original). This holding was based, as arises from what I stated above, primarily upon a change in the conception “in regard to the status of freedom of expression in Israeli law, which has been recognized as being of constitutional status” (para. 5 of the opinion of Justice Vogelman), and the change that has occurred in England and the Common Law countries in regard to the application of the “obligation to publish” in regard to factual publications in the media (para. 14). Deputy President Rivlin noted (para. 119) that in view of this conceptual change – in the context of which freedom of expression was recognized as being of constitutional supra-legal status, together with the recognition of the importance of the free press – the Ha’aretz rule has largely become obsolete. In the view of Justice Amit (para. 17 of his opinion), the change of the rule is required in view of the “changing times, and the vicissitudes that have taken place over the last decades, both on the normative-legal plane and in the communications media”. That is, essentially, also the view of the President and those who concur with him in the Further Hearing.

26.       With all due respect, I take a different view. I am of the opinion that even the changes and vicissitudes that have occurred in the world do not justify a change of the Ha’aretz rule, and it would not be superfluous to say that the force of the matter before us – defamation of an IDF officer in a case concerning nothing less than human life – is more serious than the situation in the Ha’aretz case, as described, without taking that affair lightly. I am, as stated, of the opinion that even in the balance between a person’s – any person – right to his good name and freedom of expression, the latter should not be preferred a priori. The grounds for my position are to be found in the exalted value of human dignity, which has been raised to the level of a Basic Law over two decades ago. Human dignity, and a person’s right to his reputation are also related to the approach of Jewish law to lashon hara, as described above. In my opinion, the rule established in the judgment that is the subject of this Further Hearing, and that arises from the opinions of my colleagues in the Further Hearing, may lead – even though this is clearly not the intent – to the trampling of the dignity and reputation of a person, to a “doormat”, as Justice E. Goldberg put it in CFH 7325/95 Yediot Aharonot Ltd. V. Krauss, IsrSC 52 (3) 1, 106 (1998) (hereinafter: CFH Krauss). I will now turn to address the balancing of interests and rights in the Defamation Law – the right to one’s good name on one side, and freedom of expression and freedom of the press on the other. But before proceeding, I would note that in my opinion – absolutely clearly – the Ha’aretz rule should not be viewed as being “archaic”. Is it archaic to hold that in the legal framework of defamation, the purpose of the press, as important as it may be, does not rise to the level of a duty that permits telling a falsehood? My colleagues who are of that opinion surely refer to the strengthening of the status of the media and to developments in the general and legal world. But do values that hold fast to the remnants of reputation and defend human dignity in its plain sense belong in the archives? I do not think so. The justices of the Supreme Court in the sixties and seventies were not conservative dinosaurs that could not see the light. The strengthening of the media does not imply a weakening of the need to insist upon the truth. There are values that are steadfast, for what have not changed at all in the last forty years are the nature and the errors of humanity, which remain as they were since Creation, while the means have become more developed, and what was once available only to the relatively few, now spreads like a brush fire in the electronic and virtual world.

…

30.       On the other side of the scales is freedom of expression, the importance of which is undeniable. Freedom of expression is one of the central, most important values of a democratic regime. It has been described as a “superior right” (HCJ 73/53 “Kol Ha’am” Company Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]), and as the “apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). Thus it was prior to the enactment of Basic Law: Human Dignity and Liberty, and so it is thereafter (see, among many, the Szenes case [HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, [http://versa.cardozo.yu.edu/opinions/szenes-v-matar]], at pp. 828-830, para. 9 of the opinion of Barak P.); the Ben Gvir case [LCA 10520/03 Ben Gvir v. Dankner – trans.], at para. 13 of the opinion of Procaccia J). For my part, I had the opportunity to point out that “freedom of expression is a supreme right of a citizen in a democratic society, in order to free the human spirit, and combat tyranny and silencing opinions, to facilitate public discussion in the marketplace of opinions, to help liberty conquer oppression and totalitarianism” (LCrimA 10462/03, above, at p. 90). Of course, first and foremost is its importance for criticizing government.

31.       Freedom of the press derives from freedom of expression (CA 723/74 Ha’aretz Newspaper v. Israel Electric Corporation, IsrSC 31 (2) 281, 298 (1977) [http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israe...). This Court has addressed the importance of freedom of the press in many decisions. Thus, for example, in CFH Krauss, at p. 53, Justice Zamir wrote that “a free press is not only a necessary result of democracy, but a necessary condition for democracy. It is a necessary condition for a representative regime, for good, proper governance, and for human rights. In practice, it can serve as a litmus test of democracy: if there is a free press – there is democracy; if there is no free press – there is no democracy. One of the main tasks of the press in a democracy is to continuously and efficiently monitor all of the state institutions, first and foremost the government”. In LCrimA 761/12 State of Israel v. Makor Rishon HaMeuhad (Hatzofe) (2102) [http://versa.cardozo.yu.edu/opinions/state-v-makor-rishon-hameuhad-hatzo... (hereinafter: the Makor Rishon case)), I wrote: “The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society … A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right” (para. 73). However, as I noted in my article Stains in the Press (Hebrew), “The problems in the field of freedom of expression that now face us are different from those we have become accustomed to confronting in the past. Today, the competition is not – primarily – between the right to freedom of expression and governmental interests for which the government wishes to limit that right. Today, we can say that in the relationships between the individual and the government, freedom of expression has attained an established status in our society and legal system. The historical fear of government that tyrannically shuts mouths is no longer – not in the electronic media (ever since the Broadcasting Authority Law), nor in the print media. The power of censorship has been reduced incredibly in the era of Basic Laws, and even enforcement in regard to the exposure of secrets is quite rare” (pp. 199-200). Who can seriously say that there is no freedom of the press in Israel? Indeed, criticism of the government is rooted in our national ethos. As noted, the Prophets of Israel raised their voices against the government, and even with the reservation, i.e. that the Prophets spoke as God’s mouthpiece and not of their own (see: A. Hacohen, On the Principles of Freedom of Expression and its Limits in Jewish Law, Parashat Hashavua Vayikra 137, 136), in any case, criticism of the government is not like criticism of an individual. And as Prof. A. Barak wrote (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, p. 723 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)], “…the scope of the individual’s right of expression against the state is more comprehensive than an individual’s right to freedom of expression against another individual”; and see ibid., 588-599: “an individual’s right too human dignity in regard to the state differs from that individual’s right to human dignity in regard to another individual. Against the state, the individual’s right to human dignity applies in to the full extent of the ideal it is meant to achieve. But against another individual, the individual’s right is subject to a process of balancing and limiting in view of its engagement with other constitutional rights or the public interest”; and see Justice Sohlberg’s opinion in CA 8954/11 Anonymous v. Anonymous (April 4, 2014), para. 122. Indeed, in these contexts, Jewish law, at the very least, sets boundaries for freedom of speech, as A. Hacohen describes in the aforementioned essay, and see the references there.

…

 

40.       Thus, Basic Law: Human Dignity and Liberty expressly established human dignity, including the right to reputation, as a constitutional right, and in my opinion, the time has come to reexamine the balance struck prior to the Basic Law in the Avneri case, so as to reinforce reputation. The clear, express words of Basic Law: Human Dignity and Liberty cannot remain merely declaratory, and remain without practical effect. The Court is required to defend human rights, rights that include the right to one’s good name. It must stand up to the erosion of human dignity not only in respectful, beautiful words. In other words, it must ensure that every woman and man know that a person’s good name is not a doormat. Once the legislature established – in express words, and by all that is holy, and no one can possibly argue that a person’s dignity does not, first and foremost include his reputation – that a person’s right to a good name is a constitutional right, we must give that real, practical content. In my opinion, real content in the context with which we are concerned – the laws of defamation – would mean changing the balance, and returning to the balance rule established in the Further Hearing in the Electric Corporation case, i.e., freedom of expression should not be deemed a superior right that stands above the right to a good name, but on the contrary, where there is doubt, it would be better to err in favor of a good name. I would stress that I have no desire to harm freedom of expression and freedom of the press, which are held undisputedly high in Israeli law and reality. On the contrary, I hold them in high regard. They have a very important role in protecting democratic society, and I am the last who would not contribute to that. However, in my opinion, “freedom of expression is not an unbounded, theoretical concept. The prohibition of defamation is one of the significant boundaries, and the question is how to interpret defenses and licenses in regard to defamation. I believe that Basic Law: Human Dignity and Liberty should play a part in that” (LCA 1104/07 Hir v. Gil (2009), para. 29 of my dissent). “Freedom of the press also applies to biting journalism, but that does not mean that the freedom is unlimited … the basic presumption of freedom of the press is also responsible journalism. A person’s good name is not at forfeit” (the Makor Rishon case, para. 73). The approach protecting a person’s good name is my consistent approach, even when I am in the minority (see my opinion in LCA 4447/07 Mor v. Barak E.T.C. (1995) (hereinafter: Mor v. Barak). A person’s good name is a constitutional right of the highest order, and as such, we are required to accord it its rightful place. This is particularly the case when we are speaking, as in this case, of a suit concerning a story/report that has been published, and not – as was the case in in the Avneri case – a restraining order to prevent publication (on the distinction between preventative relief and retroactive sanctions in these contexts, see CA 409/13 Keshet Broadcasting Ltd. v. Cooper (April 11, 2013) para. 16 of the opinion of Grunis P.). I would reiterate that, in my opinion, freedom of expression, which  is necessary for the oversight of governmental authorities (as see, inter alia, Re’em Segev, Freedom of Expression against Governmental Authorities (Israel Democracy Institute, 2001), is not, as noted, identical – and certainly not necessarily so – to freedom of expression against a person who is not a governmental personage, and see para. 31 above. Indeed, Israeli law protects untrue publications when there is a legal obligation, no less, to publish them (sec. 15(2) of the Defamation Law). Has freedom of journalistic expression attained the level of an obligation that permits untruth and defamation? In my view, it has not. Before explaining why, in my opinion, a journalistic obligation should not be read into sec. 15(2), I will present the Jewish law approach to constructive lashon hara (which, in some cases, may attain the level of an obligation).

 

Constructive Lashon Hara

41.       Indeed, there are possible situations in Jewish law in which refraining from lashon hara may cause harm, and the prohibition upon lashon hara is overridden in such situations due to the attendant benefit: “And know that in interpersonal matters, such as gezel [theft], oshek [exploitation], nezek [damage], tza’ar [suffering], and boshet [shame], and ona’at devarim [verbal deception], one may inform others, and even a pious individual will tell, in order to help the guilty party, and from a devotion to truth” (Sha’arei Teshuva by R. Jonah b. Abraham Gerondi (Spain, 13^th cent.) 3:221); “Along with His [God – E.R.] command against gossip, came the proviso that you shall not stand against your neighbor’s blood, so that if one see that a group wishes to commit murder, he must inform the interested party in order to save his life, and should not think that this is gossip, as if he does not tell his fellow and he is killed, the warning of you shall not stand is abrogated, etc. We can learn from the story of Gedaliah ben Ahikam (Jeremiah 40) who was told, but when he did not heed, what happened (that is, Gedaliah ben Ahikam was warned that he was in danger, but he did not believe the warning, and was ultimately murdered – E.R)]” (and see: Or HaHayim (R. Haim ibn Atar,  a.k.a. Or HaHayim HaKadosh, 17^th-18^th cent.) Vayikra, Kedoshim 19:16 (Hebrew)). It would seem that in such circumstances, the case of Gedaliah ben Ahikam raises the matter to the level of a duty.

42.       The Hafetz Hayim ruled that “if someone witnessed another person harming his fellow, by theft or exploitation, or injury – whether or not the victim of the theft or the harmed person is aware of the damage or theft or not – or by shaming, or causing him suffering, or exploiting him, and the witness knows that the offending party did not return the theft, pay damages, or request forgiveness, etc., even if he was the sole witness, he may discuss the incident with others in order to help the guilty party and also to publicly denounce such evil behavior. However, he must take care that the seven conditions that follow are met” (Hafetz Hayim, Hilkhot Lashon Hara 10:1), that is, conditions were established in order to limit the possibility of unnecessary harm. The Hafetz Hayim warns (ibid., 15): “Now see, my brother, how carefully one must weigh how to relate the matter. For when he speaks he is in grave danger of transgressing the laws of lashon hara, if he is not careful in regard to all the details”. In The Right to Privacy in Jewish Law (p. 244), the learned Dr. Itamar Warhaftig summarizes the Hafetz Hayim’s provisos for permitting lashon hara: the speaker must carefully weigh whether harm may be caused; must not exaggerate, i.e., not make the wrong appear greater than it was; that his intention be only to help; that he must make sure that there is a reasonable possibility that his actions will, indeed, be helpful; that there is no alternative for preventing the harm; that his words will not cause substantive harm to the person about whom he tells lashon hara; and that what he says is in regard to what he has clear knowledge, and not hearsay (in greater detail, see: Hafetz Hayim, Hilkhot Lashon Hara, Principle 10, and Hilkhot Rechilut, Principle 9 (Hebrew)); And see: Rabbi Z. Greenwald, Taharat Halashon – Madrikh Lehilkhot Lashon Hara uRekhilut, 109 (Hebrew) [English: Ze’ev Greenwald, Taharas Halahon – A Guide to the Laws of Lashon Hara and Rechilus (David Landesman, Trans.) (Feldheim, 1994)]. For further reading on the provisos, see N. Sohlberg, A Person’s Right to Good Name, Freedom of Expression and Constructive Lashon Hara, Parashat Hashavua 29 (5761) 29 (Hebrew)). Constructive lashon hara may serve educational purposes, or deterrence from the commission of offenses, under the above conditions (also see: Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information (para. 5, above). For my part, I would stress the proviso that permission is granted in a situation in which lashon hara may be constructive, “but if in his estimation it will certainly not be of benefit … even if all the details are verified, it is still forbidden to say anything” Hafetz Hayim, Hilkhot Lashon Hara, Principle 10:4).

43.       The learned Prof. N. Rakover (On Lashon Hara and its Punishment in Jewish Law (5722) (Hebrew)) gives several examples of exceptions to the prohibition of lashon hara for constructive purposes: telling lashon hara in order to save the victim, and lashon hara out of a commitment to truth; telling lashon hara to prevent damage; telling lashon hara by means of a complaint; telling lashon hara about a recidivist offender. According to him, “There are occasions when a person may relate the matters, and may even be obliged to make them public. Such situations also provide the framework for a legal, moral or social obligation to publish lashon hara”; see additional examples in Warhaftig, pp. 244-258, and see Rabbi M. Bareli, Publishing Lashon Hara about Elected Officials, 33 Tehumin 136 (5773) (Hebrew), according to whom there may even be an assumption of forgiveness for the publication of criticism of elected officials, since there would appear to be implied consent on their part, provided that there is benefit in the publication (and see the conflicting view of Dr. I. Warhaftig, ibid., p. 149); on the problematics, also see Rabbi A. Katz, Lashon Hara in Public Databases and Archives, 27 Tehumin 180 (5767) (Hebrew)).

44.       Thus, there may indeed be cases in which permission to convey lashon hara may become an obligation – an obligations of expression. In general, this is the case in which telling lashon hara is necessary to save another person from harm or injury. Maimonides ruled: “Whenever a person can save another person's life, but he fails to do so, he transgresses ‘Do not stand against the blood of your neighbor’. Similarly, when a person sees another drowning at sea or being attacked by robbers or a wild animal, and he can save him himself or can hire others to save him, but does not save him, or he hears gentiles or informers conspiring to harm him or planning to entrap him, and he does not notify him of the danger, or when a person knows of a gentile or a belligerent man who has a complaint against another, and he can appease the aggressor on his behalf but he fails to do so, and in all similar instances, a person who acts thus transgresses the commandment: ‘Do not stand against the blood of your neighbor’” (Maimonides, Mishneh Torah, Hilkhot Rotze’ah uShemirat Hanefesh 1:14). We are not concerned only with saving lives, but also with preventing damage. Thus, the Hafetz Hayim ruled: “If one knows that his friend wishes to do something with someone else, and he believes that his friend would definitely incur some harm by this bad thing, he must inform his friend in order to save him from that harm” (Hafetz Hayim, Hilkhot Rekhilut 9:1), all subject to the aforementioned conditions.

45.       Dr. M. Vigoda summarized the approach of Jewish law in his aforementioned essay “Privacy and Freedom of Expression,” Parashat Hashavua Bemidbar 208, 214-215 (Hebrew):

The scope of freedom of expression in matters concerning other persons is very limited, and exists only in regard to generic matters the exposure of which would not be likely to cause either emotional or monetary harm to the other. Inasmuch as such matters are very rare, it may be concluded that Jewish law severely restricts permission to reveal matters concerning another. As opposed to this, at times, it requires that a person reveal something whose non-disclosure is likely to cause harm to a third party. In such matters, we are not speaking of freedom of expression, but rather of an obligation of expression, inasmuch as in such situations, silence is wrongful.

…

On the Absence of Humility and Modesty

60.       Lashon hara has a sister – arrogance. All the justices of the panel in the judgment that is the subject of this Further Hearing, each in his own way, addressed the message conveyed by the television program, which was presented most forcefully and absent any modicum of modesty. Indisputably, the media, printed, virtual, and particularly electronic – television – has tremendous power. “The medium is the message,” said Marshall McLuhan. It is easy for the media to fall into the trap of “my own power and the might of my own hand” (Deut. 8:17), “I am, and there is none but me” (Isaiah 47:8), and the Bible also states (Psalms 36:12) “Let not the foot of the arrogant tread on me”, and our Sages said (Ethics of the Fathers 4:4) “Be exceedingly lowly of spirit”, and see (TB Sota 4b). Every human being is given to arrogance, particularly those whose words travel from one end of the earth to the other in a matter of seconds (“Sin crouches at the door” (Genesis 4:7). The opposite of this in Jewish morality and law is humility. Our Sages said: “What wisdom makes a crown upon its head, humility makes a heel beneath its sole (TJ Shabbat 1:3). In his book of morality Ma’alot Hamidot, R. Yechiel b. R. Yekutiel b. R. Binyamin Harofeh (Italy, 15^th-16^th cent.) devotes a chapter to humility, and quotes the Sages: “What is the quality of humility? One with whom all are at ease, and anyone who is not arrogant towards others…” In his renowned letter, Nahmanides (R. Moses B. Nachman, Spain, 13^th cent.) writes that humility is “the best of all qualities, as it is written: The effect of humility is fear of the Lord (Proverbs 22:4)”. R. Moshe Chaim Luzzatto (the “Ramhal”, 18^th cent.) devotes two chapters of his Mesilat Yesharim to humility, as the opposite of arrogance, writing (chap. 22): “For it is wisdom that has a greater tendency to bring a person to arrogance and pride … while a person of common sense, even if he is a great genius, will observe and contemplate and realize that there is no place for pride and arrogance … This is the examination and contemplation that is proper for every person of common sense …then he will be called truly humble, when he is humble in his heart and being”. Rabbi Yochanan said of God (TB Megilla 31a) “In every place that you find God’s grandeur, you find His humility”. On humility and arrogance in Judaism, see: Beral Wein & Warren Goldstein, The Legacy, 78-80 (2012). At his swearing in ceremony (Feb. 21, 2012), our colleague Justice Zylbertal said: “As part of our duty to conduct ourselves with humility, we must recognize error as inherent to the act of judging. President Barak addressed this in his speech in a ceremony swearing in new judges: ‘Only a judge who admits that he is not the epitome of perfection, but that like every human being, he too may err, can correct his judgement and thus approach perfection. Opposite the truth stands error – not lies – and recognizing error brings one closer to the truth’ (A. Barak, On Law, Judging and Truth, 27 Mishpatim 11 (5756)”.

61.       What is good for judges is also appropriate for the media. Of what relevance is this for the matter before us? I, too, am not of the opinion that the story reflected a lack of good faith. But it did reflect an exaggerated self-confidence that resulted in a lack of appropriate sensitivity for the Petitioner. “What is hateful unto you, do not do to your neighbor,” said Hillel the Elder (TB Shabbat 31a). Respondent 1 should ponder how she would like to be treated herself. And the absence of amends for lashon hara, even after-the-fact, makes the problem worse. The words of the Deputy President in para. 123 of the judgment that is the subject of this Further Hearing are appropriate here, as well: “Indeed, some of Dayan’s statements in the course of the broadcast were gratuitous, to say the least. It would have been better had she adopted a greater degree of self-restraint and modesty in view of the inherent problem in seeing the whole picture prior to the broadcast of the story”. Modesty and humility are appropriate for us all.

62.       In my article Stains in the Press (p. 204) I quoted Walter Cronkite, one of the greatest American television journalists of the last generation, who wrote in A Reporter’s Life (p. 289): “Press freedom is essential to our democracy, but the press must not abuse this license. We must be careful with our power. We must avoid, where possible, publicity circuses that make the right of fair trial a right difficult to uphold … Liberty and, no less, one’s reputation in the community are terribly precious things, and they must not be dealt with lightly or endangered by capricious claims of special privilege.” To which I added (ibid.): “Moderation is a good quality indeed, and it is also good for the press. I believe that there is nothing wrong if, a moment before publishing a story, the reporter and editor take a timeout to consider: Is the report sufficiently grounded to risk the harm that its publication may cause this person?” And further on I wrote (pp. 206-207): “… the duty to report on the basis of reliable, verified information, to report the truth, is a basic requirement that every journalist must observe. The public’s right to know is not the end all, nor unrestricted. Trial by the press can lead to tragedy. This raises the issue of the responsible use of the nearly limitless power of the media. At times, one may observe this in terms of ‘judge not others until you have stood in their place’ (Ethics of the Fathers 2:4), when a journalist or editor is the victim of press reports, and his reaction reflects frustration just like that of any other person, as has happened”.

…

64.       I, of course, do not deny that there are also many responsible journalists, and I would not cast aspersions on the media in their entirety, which would, itself constitute avak lashon hara if not more than that. However, I am sure that when some members of the media read the majority opinion in this case, they will smile with relief, and express wonder at judicial naiveté.

65.       My colleague Justice Hendel notes in regard to establishing a duty under sec. 15(2), that “if the journalist sets lying or deceiving as an objective, then clearly the good-faith defense will not serve him”(para. 6). Of course, and I too am of the opinion that the press must not be deterred from criticizing the government. But the question arises in those gray areas in which you – the reader – do not know the true story, while the journalist is aware of background that he does not publish, such that the product presented to the public is nothing but a half truth, which is worse than a lie. We should remember the “coddling” of a particular politician – a tactic that a well-known media personality openly recommended – that is, the “obligation” and the attendant truth are set aside in favor of a political interest, such that certain facts may intentionally be blurred so as not to harm a political objective. Are we acting responsibly when we make many presumptions to the benefit of the media, even to the point of an “obligation”, when they are accompanied by an inadequate ability to protect a person’s good name, and it is swept under the rug? Does the life’s breath of democracy justify that the individual, at times, be “knocked to the canvas”?

66.       My colleague Justice Hendel (paras. 2 and 8) calls for developing an independent “Israeli approach”. He does not explain what that might be. I would like to join him, but explain that, in my humble opinion, the ethos and culture of Jewish law argue for greater sensitivity to a good name than that resulting from this decision. Perhaps we should create a “good name à la Israel”, a Jewish and democratic state. At this point, I will briefly state that I was glad to learn from my colleague of additional Jewish law sources in regard to constructive lashon hara, from which he attempts to show that even when journalistic publications comprise lashon hara, they may be beneficial in certain cases. The sources are alluring, but I fear that they are peripheral to the subject, and my colleague is aware that he raises questions that await answers, and in my opinion it would be difficult to attribute what may derive from his arguments to the core of Jewish law. The sources he presents are fascinating, but are peripheral, and I am very fearful of a slippery slope in the overall context. I would add that pursuant to reading my colleague’s opinion, I read Rabbi Ari Shevet’s interesting article Newspapers and News – Obligation or Prohibition (Hebrew), and I very much appreciated the many sources included there, and the lovely breeze – mixed with a positive innocence and “happy are those whose way is blameless” (Psalms 119:1) – that wafts from it in regard to the positive potential of journalism (as in the words of Rabbi Isaac HaKohen Kook that he quotes), and clearly, wise contemporary Torah scholars cannot ignore the media and their importance in our daily lives, although the Hafetz Hayim (in his book Zechor LeMiriam) warned not to waste time reading newspapers (in their then limited form, so what might we say nowadays). But when the author moves from the light to the shadows, his solutions – imposing a duty of care upon journalists – ultimately lead to the statement (para. 5 of the conclusion): “In the current format, it may be that journalists are to be ‘deemed bearers of lashon hara’,  and it is therefore better to listen to the news over the radio”. And further: “Our suggestion is not, by any means, intended to detract from the severity of the prohibition upon gossip, lashon hara, and bearers of lashon hara. We must remember the words of the Pele Yoetz (R. Eliezer Papo, Greece-Bulgaria, 19^th cent. – E.R.) (Pele Yoetz, s.v. Lashon Hara) that it is better to “flee through one hundred gates of permission so as to avoid entering one gate of prohibition”. I am not naïve, and I am well aware of the power and ability of the media, but I do not believe that opening the gate of “obligation” that arises from the majority decision will benefit reputation and basic human dignity, inasmuch as it comprises too many assumptions, as already detailed. It is easy to foresee the dangers, but will we merit “responsible journalism”?

67.       Finally, my colleague Justice Danziger (para. 5) explains the need for distinguishing the expression of opinion and facts in the media. I agree with that distinction, even if our era is characterized by post-modern “narratives” that combine the two, such that it is sometimes difficult to distinguish.

 

 

Justice N. Hendel

…

            An article published several months ago by the Columbia University School of Law addressed the relationship between freedom of speech and the state of mind or intent of the publisher. The question was raised as to the relevance of these to defamation. The author’s answer was that the prohibition of defamatory speech is not meant to be absolute. Therefore, the system does not suffice in examining only the publication, but also examines various subjective aspects of the publisher. Moreover, and this is the important point for our discussion, emphasis was placed upon the chilling effect of over extending the prohibition of defamation. From this perspective, it is not enough to examine what was published, but also what would not be published if the law were more strict with the publisher – including the journalist (Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014); for an example that examines the matter empirically, see Eric Barendt, Laurence Lustgarten, Kenneth Norrie & Hugh Stephenson, Libel and the Media: The Chilling Effect (1997)).

            The position according to which the press would be endowed with the crown of a “social obligation” also imposes a duty upon the journalist. It is not a one-way street that benefits only the journalist at the expense of another publisher. A note must be paid on demand. And what is the demand? First, as my colleagues held, that the obligation relates to a publication that is of significant public interest, and not merely any public interest. In addition, legitimacy was given to the demand that a journalist act responsibly – “responsible journalism” in the words of my colleagues. I will address these matters below.

            In this context, I will briefly address the approach of Justice Rubinstein in regard to the relationship between the right to one’s good name and freedom of expression. According to his approach, despite the importance of the latter, it is a lower level on the constitutional scale than the right to one’s good name. For my part, I would add my voice to that of President Shamgar (FH 9/77 Israel Electric Corp. Ltd. v. Ha’aretz Daily Newspaper Ltd., IsrSC 32 (3) 337 (1978) [http://versa.cardozo.yu.edu/opinions/israel-electric-corp-v-haaretz]), and to that of Justice Rivlin in the appeal (para. 77), according to which, despite the importance of the two values, freedom of expression is principal. Both according to the approach of Justice Rubinstein and the opposing view, that does not mean that one of the rights “subsumes” the other in every collision. But the argument is of importance in borderline cases. My colleague is of the opinion that in a borderline case, the scales should tip in favor of protecting reputation. I disagree, and thus join the opinion of Justice Rivlin in the appeal, that “to the extent that there may be doubt in regard to whether disputed speech is protected, it is better to err on the side of freedom of expression and freedom of the press” (para. 79, citing Justice Harlan F. Stone).

            I will permit myself to add that this argument is somewhat abstract. But the matter is neither abstract nor theoretical. Following the enactment of Basic Law: Human Dignity and Liberty over twenty years ago, it is, in my opinion, appropriate both for the development of Israeli constitutional law and practically, that such issues as these be considered. Moreover, as I explained in detail in the judgment in the matter of the Nationality Law, in the United States constitutional rights are categorized into three levels for the purpose of establishing the strictness of the required judicial review (HCJ 466/07 Galon v. Attorney General, para 4 (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). Lastly, the case before us comprises liminal elements, as the President pointed out in his opinion. The general view in regard to the proper balance between freedom of the press and the right to one’s good name may, in my opinion, explain the different positions adopted in this Court and in the District Court. To illustrate the matter, even justice Rubinstein noted in his opinion that “I, too, am not of the opinion that the story reflected a lack of good faith”. Thus, the dispute concerns the legal test – the existence or non-existence of a social obligation – and not the professionalism of the publication.

            As for my position in all that regards the constitutional hierarchy between the right to reputation and freedom of the press, I will suffice with a few comments. Indeed, “a good name is better than fragrant oil” (Ecclesiastes 7:1). But I would not go so far as to say that a good name and human dignity are one and indivisible (paras. 35-36 of the opinion of Justice Rubinstein). We are not speaking of alternative terms, despite the strong bond between them. That is not the main thing. As my colleague pointed out, the two competitors – good name and freedom of expression – do not expressly appear in Basic law: Human Dignity and Liberty. But they may be said to derive from human dignity (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 616, 708 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]. I would go one step further and say that freedom of expression – especially journalistic – has been recognized as a supra-legal basic right from the earliest days of our legal system. It was held that this right constitutes the source of other rights (the Kol Ha’am case, ibid.).

…

            In Ireland, as opposed to Israel, freedom of expression appears in a somewhat circumscribed form. Thus, article 40.6.1 of the constitution establishes: “the State shall endeavour to ensure that organs of public opinion shall not be used to undermine public order or morality or the authority of the State”. In Australia, there is no constitutional or statutory provision protecting freedom of expression, and it was the case law that developed the subject was (see, for example, in regard to freedom of political speech: Australian Capital Television v. Commonwealth (1992) 177 CLR 106; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520). As opposed to this, in Canada freedom of expression expressly appears in sec. 2(b) of the Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms: […] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. This freedom is, of course, subject to the Reasonable Limits Clause (sec. 1). Canadian case law in this regard is most varied. Thus, I would note the Zundel case, which voided sec. 181 of the Canadian Criminal Code that prohibited knowingly publishing a false statement – e.g., denying the Holocaust – because the criminal prohibition improperly violated freedom of speech (R. v. Zundel [1992] 2 S.C.R. 731). Lastly, in South Africa, freedom of expression is expressly anchored in sec. 16 of the constitution. The right is broad. Interestingly, one exception is incitement to imminent violence, and another is advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

            I have presented the matter in a nutshell only to illustrate my view that we must act in accordance with an internal Israeli system, although I agree that examining the situation in foreign legal systems would enrich the discussion. I would add my personal view that much can be learned from the American legal system’s approach to freedom of speech – which is very developed – and the relationship between it and the strength of democracy there is worthy of thought and admiration.

9.         I would make two points in concluding my remarks on the term good faith. The President is of the opinion that in examining a journalist’s good-faith defense, weight should also be given to the motivation for publication – for example, was the motive a desire for increased ratings or to publish a ringing scoop. The President is correct in that it is good that every professional examine his motives so that the desire for success not clash with the sanctity of the work. However, in my opinion, there is a long way between that and finding that considerations of ratings and scoops constitute a legal accessory for ascertaining good faith.

            There is nothing new in saying that a person is a complex being. Often, a person’s motives are mixed: they comprise both the desire to realize some proper, external objective, and the desire for personal success and advancement. The Sages of Jewish law were also aware of this, and observed that “the jealousy of scribes increases wisdom” (TB Bava Batra 22a). “The jealousy of scribes” and the natural desire to succeed more than others were deemed as means or catalysts for increasing Torah scholarship. In that context, Rabbi Mosheh Lichtenstein, Head of the Har Etzion Yeshiva, noted that King Solomon learned how to properly direct his personal ambitions, and devoted his exceptional talent to the building of the Temple (Mosheh Lichtenstein, The Mishkan of God and the Mikdash of Shelomo (http://ftp.vbm-torah.org/en/teruma-mishkan-god-and-mikdash-shelomo).

            Against this background, I am of the opinion that the desire for personal advancement does not, in and of itself, testify to an absence of good faith. However, such an “egotistical interest” may compromise the principle of good faith if expressed in other forms of conduct, for example, not properly checking sources of information. Only then will those other omissions catch the judge’s eye in reaching a decision.

            The other point concerns the disagreement between the President and Justice Vogelman in regard to the “geometric location” of the responsible journalism requirement. I will briefly state that I concur with the approach of the President that it would be better to examine this requirement in the framework of the good faith element, rather than in the framework of the obligation. That is primarily so as not to blur the difference between fulfilling the obligation and the manner of its fulfillment (and see para. 79 of his opinion).

…

E. Jewish Law

11.       A unique characteristic of the Israeli Defamation Law is that it is rooted in Jewish law. Even the name of the tort [lashon hara] reflects this. But we should not suffice with that. Basic Law: Human Dignity and Liberty has achieved primacy in examining basic rights and conflicts between them. It defines Israel as a Jewish and democratic state. My colleague Justice Rubinstein, as is his practice, provided a fine, broad survey of the laws of lashon hara. I can only add my admiration for the range of sources and their clear presentation. For my part, I would like to emphasize a particular aspect of the Jewish law approach: the application of the laws of lashon hara to the press in a democratic society. In my opinion, this aspect requires a broader view for three reasons. First, the precedents of the Torah and the oral law. Second, the exceptions to the prohibition upon lashon hara arising from halakha, including the writings of the Hafetz Hayim. Third, the laws pertaining to the public in general (as opposed to halakhic decisions concerning individuals), and the State of Israel, in particular.

12.       On the basis of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16), Maimonides distinguishes three prohibitions. The first – “Who is a talebearer? One who collects information and goes from person to person, saying: This is what so and so said, and this is what I heard about so and so. Even if he tells the truth, it destroys the world” (Mishne Torah, Sefer Hamada, Hilkhot Deot 7:2). A talebearer is, therefore, one who trades in information, even though it is not disparaging (see the commentary of the Kesef Mishne, a scholar of the Land of Israel of the 15^th cent. [sic] [R. Joseph Karo, 1488-1575 — trans.] ad. loc.), and even of no benefit. The second – lashon hara: “and he speaks deprecatingly of his fellow, even though he speaks the truth” (ibid., 7:2). And third: “but one who tells a lie is called a defamer of his fellow’s good name” (ibid.).  It should be emphasized that gossip [tale bearing] and lashon hara concern “telling the truth”.

            Nahmanides disagrees as to the source of the prohibition. According to him, the prohibition is based upon the conduct of Miriam, and the Torah’s injunction: “Remember what the Lord your God did to Miriam on the journey” (Deut. 24:9). That refers to the story in Numbers: “Miriam and Aaron spoke against Moses because of the Cushite woman he had married” (Numbers 12:1). Miriam challenged her brother Moses as to why he did not maintain family relations with his wife as Aaron did with his wife, and Miriam with her husband.

            Nahmanides’ approach includes two interesting points. One:

In my opinion, this is actually a positive commandment, like “remember the Sabbath day to sanctify it”, “remember this day, on which you went free from Egypt” … which are all commandments. If so, this verse, too, is like those, it being an admonition against speaking lashon hara. He commanded by way of a positive commandment that we remember the great punishment that God imposed upon the righteous prophetess who spoke only about her brother for whom she showed mercy and loved as herself. She said nothing to his face that would shame him, nor in front of others, but only in private, between herself and her holy brother. Yet all her good deeds were of no avail to her. And you, too, if “you are busy maligning your brother, defaming the son of your mother” (Psalms 50:20) you will not be saved… And how is it possible that there is no explicit negative commandment against lashon hara in the Torah, nor even a negative commandment derived from a positive commandment, when it is equated to bloodshed? But this verse comprises a great warning to refrain from it both in public and in private, whether or not to cause harm and shame. And this is one of the 613 commandments (Nahmanides’ commentary on Deuteronomy. 24:9).

Like Maimonides, Nahmanides deems the prohibition upon lashon hara as particularly severe. But he wonders why the matter is related in a story rather than as an explicit command. It should be noted that even according to Maimonides, the explicit Torah prohibition is of gossip, whereas lashon hara is a type of subcategory. One might say that the prohibition is introduced by appending it to a story, contrary to the usual biblical practice, in order to emphasize the uniqueness of the prohibition upon lashon hara as one that arises in the context of social interaction. Moreover, the matter is dependent upon circumstances. From the Bible, it appears that Miriam’s intention was constructive – to help her sister-in-law. She raised the matter, together with Aaron, only before Moses. However, in view of Moses’ humility, as is related further on, she should have been less hasty in judging as she did in presenting the matter to Moses.

            Whatever the case may be, the second point is the one relevant to the matter before us, and is expressed in another of Nahmanides’ insights:

In the matter of Miriam, we were commanded to inform our children and tell it for the generations. And even though it would have been proper to conceal it so as not to deprecate the righteous, Scripture commanded that we make it known and reveal it so that the warning against lashon hara will be in their mouths, because it is a great sin and causes many evils, and people always stumble in its regard (Nahmanides’ commentary to Deuteronomy 25:17).

 

            In other words, if the prohibition is so severe, and those involved were only these three sibling prophets, is not the injunction to remember the incident not itself a form of lashon hara? Is this not something of a contradiction? Nahmanides’ answer is that it is important from an educational perspective to present the matter so that we may learn the about the nature of the prohibition, and that is the source for permitting its publication for posterity. The Bible provides many examples of this approach of not refraining from criticizing the nation’s great leaders – even Abraham, David and Solomon.

            An example of the application of this approach can be found in the Talmud. In the parashat Balak [sic][1] in Numbers, we are told of the gatherer of sticks on the Sabbath who was put to death [Numbers 15:32-36]. His name does not appear in the Bible. Rabbi Akiva teaches us that the man was non other than the father of the five women who requested an inheritance, and their request for non-discrimination against women was accepted. The Talmudic sages were not pleased with Rabbi Akiva’s novel idea. As the Talmud states:

Our Rabbis taught: The gatherer was Zelophehad, and it is said (Numbers 15:32): and while the children of Israel were in the wilderness, they found a man [gathering sticks, etc.], while later it is said (Numbers 27:3): our father died in the wilderness, etc. Just as there it is Zelophehad, so here it is Zelophehad. This is R. Akiva's view. R. Judah b. Batera said to him: Akiva, in either case you will have to give an account. If you are right, the Torah hid him, while you reveal him. And if not, you denigrate a righteous man (TB Shabbat 96b).

            Rabbi Judah b. Batera’s claim is that Rabbi Akiva’s statement is merely a conjecture, and the claim that Zelophehad died in the desert as a result of his sin is not necessarily true. In either case, if Rabbi Akiva told the truth, why did he reveal what the Torah had hidden, and if it was not the truth, why impugn Zelophehad? Nevertheless, and even though neither Rabbi Akiva nor any other rabbis reply to Rabbi Judah b. Batera, the view according to which Zelophehad had sinned has been preserved over the generations. This is not unique to that story. Many midrashic narratives and Torah commentaries are not complimentary to a particular person, and are not necessarily based upon some objective, verifiable truth.

13.       As noted, not only biblical precedent, but the laws of lashon hara, as well, open the door for qualifying the prohibition upon lashon hara.

            The first rule is that of “publicly known”. As stated in the Be’er Mayim Hayim: “No proof can be brought … from what is written in Arvei Pesahim … since this may be publicly known, and lashon hara is not applicable” (commentary of the Hafetz Hayim on his book, Hilkhot Lashon Hara 4:41). In other words: “In any case, everyone saw” (ibid. 5:8). This principle is expressed in a situation of “before three”, regarding which Maimonides ruled: “If such statements were made in the presence of three people, it has already become public knowledge. Thus, if one of the three relates the matter a second time, it is not considered lashon hara” (Mishne Torah, Hilkhot De’ot 7:5). According to this exemption, a private discussion differs from a one that has been made public, even if only partly (three people). This exemption is subject to conditions, but it may be relevant to information that, in any case, is in the public domain.

            To this we can add the exemption in regard to preventing harm, and even more so, to prevent harm to many, on the basis of the commandment “you shall not stand against your neighbor’s blood” that is the continuation of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16). As the author of Arukh HaShulhan who lived at the beginning of the 20^th cent. [Rabbi Yechiel Michel Epstein, 1829-1908.—trans.] wrote: “When a person sees another drowning at sea or being attacked by robbers or a wild animal, or other types of evil, and he can save him himself or can hire others to save him, but does not save him, or he hears haters conspiring to harm him, and he does not notify him, or when a person knows of a harmful man who wishes harm his fellow, and he can appease him but he fails to do so, and in all similar instances, transgresses the commandment: ‘Do not stand against the blood of your neighbor’ … and all the more so he is obliged to rescue his fellow from any harm or damage that other seek to cause him, and all the more so he is obliged to prevent harm to the many, and must prevent it if he is able to prevent it” (Hoshen Mishpat 426:1) (emphasis added).

            It should be noted that the prohibition upon telling lashon hara, despite its severity, may retreat before another commandment – “Do not stand against the blood of your neighbor”. Last in this context is lashon hara for a constructive purpose, which I will address below. I would note at this stage that none of the four parts of the Shulhan Arukh – one of the primary legal codices – treats of the laws of lashon hara. This can be explained. Although lashon hara constitutes a legal obligation, it is also viewed in terms of a virtue. That would, therefore, appear to be why Maimonides classified lashon hara under the category of hilkhot de’ot [laws concerning matters of personal development – trans.], and the great moral scholars addressed this in their works (see, e.g., chap. 11, “Details of the Virtue of Cleanliness”, in Mesilat Yesharim  by Rabbi Moshe Chaim Luzzatto (the Ramhal, Italy, 18^th cent.)). The merger between halakha and the duty to distance oneself from vices lead to the situation wherein when the two are in conflict, for example, a negative statement for constructive purpose, the prohibition upon lashon hara may be altered and become permissible and even a mitzvah in the framework of a desire to repair.

14.       Notwithstanding the possibility of developing the laws of defamation on the basis of the halakhic tools cited in the previous section, that it not the heart of the matter. In law, including Jewish law and halakha, a precise definition of the question is essential for an appropriate resolution. The Hazon Ish [Rabbi Abraham Yeshayahu Karelitz, 1878-1953 – trans.] stressed that often the main problem in legal decision making is not knowing the law, but rather recognizing the reality and factual aspect of the decision (Iggerot HaHazon Ish 31 (Bnei Brak, 5737) (Hebrew)); and see Rabbi Yehudah Amital, Not Everything is Halakha, 13 Alon Shevut Bogrim 97-98 (5759) (Hebrew)). The laws of lashon hara are well and good, and they can change the social fabric and the relations among the people living in it. Is suffices to recall the statement that because of baseless hatred and lashon hara “the Temple was destroyed [the Second Temple] and we were exiled from our land” (from the preface to Hafetz Hayim). Still, the question before us does not concern the obligations of individuals, although that is the primary halakhic concern and focus of Hafetz Hayim – Shemirat HaLashon.

            The issue before is different. We are concerned with the halakhic limits upon the free press in a democratic society. This is not a question concerning the individual, but the public. In fact, not only the public, but the state. And not just the state, but the State of Israel. The consideration of preventing damage is known to all, and the halakhic considerations are given to change. Halakha recognized the status of the public as a factor in various connections. This would appear to be particularly true when halakhic scholars address the challenges presented by the State of Israel for the law applicable to the public. The religious view is that halakha has the power to adapt itself to changing realities.

            We will suffice with a few examples. Rabbi Shaul Yisraeli – a member of the Supreme Rabbinical Court in Jerusalem, rabbi of Kfar Haroeh, and Head of the Mercaz HaRav Yeshiva, who died some 20 years ago – addressed the issue of police activities of the Sabbath. In the course of raising several authorizations, including several types of ongoing activities, Rabbi Yisraeli emphasized the principle that “it would not be at all unreasonable to say that all agree with the basic principle that the harm of many is equivalent to saving the life of an individual … saving the public from harm … is a consideration of saving life” (Amud HaYemini 17).

            Rabbi Yechiel Weinberg – author of Seridei Eish, who died in Switzerland some 50 years ago – was asked by the Chief Rabbi of Israel, Rabbi Yehuda Unterman, for his opinion on performing autopsies for medical purposes in Israel. Rabbi Weinberg stressed the general prohibition, but wrote that he did not think it proper that a rabbi who did not live in Israel should decide the matter for the Chief Rabbi of Israel. Nevertheless, he was willing to state his personal opinion, adding:

In out day, the question of autopsies is a state question, and a question for those living in that state. This question was addressed by the great Noda BiYehuda [Rabbi Yechezkel ben Yehuda Landau, 1713-1793 – trans.] as a private question, and he was thus correct in his instruction. Today, it is a question for the entire nation, and a question of the state and for its status in the greater world that listens attentively to everything that occurs in the Land [of Israel]. Needless to say that the way the civilized word relates to our new state is one of the important factors that preserve our country, and one of the most important conditions for the security of the state and the people who reside in it (published in 12 Tehumin 382, 384 (5752) (Hebrew)).

            Another aspect of the health system in halakha was addressed in a book published this year by Rabbi Re’em HaCohen, Head of the Otniel Yeshiva and community rabbi of Otniel. The book treats entirely of the issue of pikuah nefesh [saving life]. It explains that pikuah nefesh must be addressed in the context of the public – whether in regard to public systems, the removal of corpses on the Sabbath, and in regard to desecrating the Sabbath for the purpose of treating mental health issues in an emergency situation (Responsa Badei Ha’Aron: Responsa on Contemporary Issues – Pikuah Nefesh) (Hebrew)).

            On the basis of the halakha of the public and the state, Rabbi Ben-Zion Meir Hai Uziel, the first Sephardi Chief Rabbi of Israel, was willing to be lenient in regard to the admissibility of the testimony of a person who was not halakhically Jewish.  Chief Rabbi Isaac Halevi Herzog ruled similarly in regard to the halakha if the Pope were to contact the Ministry of Foreign Affairs requesting to join with leaders of other religions in the war declared against communism. The responsum was published in 1950, in answer to a question posed by the rabbi’s son Ya’akov, who then served in the Ministry of Foreign Affairs (Decisions and Writings, vol. 2, Responsa on the Laws of Orah Hayim, 112) (Hebrew)). These examples demonstrate that, in appropriate cases, the question of the law applicable to the public or the state may be addressed differently, with the decisor taking account of broader considerations. The difference is not in the halakha, but rather in a question that may lead to a different answer.

            Can a similar argument not be made in regard to the rules of lashon hara and the press? Would the definition of benefit necessarily be the same from the perspective of the state as opposed to an individual? Let us not forget that the rabbis throughout of each generation recognized the uniqueness of the press. Rabbi Jacob Reischer, who lived in Prague in the 17^th century, noted that the desire to know what is happening in the state and the world is a human need (Responsa Shevut Yaakov, III:23) (Hebrew)). Rabbi Jacob Emden, who lived in Germany in the 18^th century, permitted reading newspapers on the Sabbath both because prohibiting it would cause suffering, and because there is enjoyment in reading them (Reponsa Yaavetz, I:162) (Hebrew)). Rabbi Isaac HaKohen Kook, the first Chief Rabbi of Israel, encouraged the establishing of a daily newspaper, but turned down an offer to serve as editor in chief due to his many responsibilities (Iggerot HaRav Kook, I:185) (Hebrew). As for the appropriate content of newspapers, Rabbi Kook was of the opinion that it should treat of a variety of matters, “and clearly such an organ should not ignore any aspect of life in its entirety, even those that do not directly concern religion” Iggerot, I:277).  Moreover, like the popular Talmudic expression: “Go forth and see how the public are accustomed to act” – nowadays, even hareidi journalism is thriving, and it is not limited to matters of Torah, but deals with “matters of the world” and “matters of the country”. Is it even imaginable that an investigative report about a public figure would receive no coverage until after the conclusion of his trial? Is such a report, which may uncover wrongs and injustice in regard to some group, not of great benefit?

            This may be of consequence for the boundaries of constructive lashon hara. Some of the rules that have been established may be relevant, including the requirement not to increase the wrong beyond what it is, and that the publisher intend benefit (Hafetz Hayim, Hilkhot Lashon Hara, 10:2) (Hebrew). We should note in this regard a ruling by Rabbi Ovadia Yosef according to which a person who knows that an applicant for a driver’s license suffers from some hidden, undisclosed condition, he must inform the Licensing Bureau of what he knows (Yeheve Daat, IV:60). We would similarly recall the ruling of Rabbi Chaim Halevi, Chief Rabbi of Tel Aviv, who died some 15 years ago, that it is not prohibited to work as an informant for the tax authorities, even for pay (Aseh Lekha Rav, I:70). These questions also relate to public aspects of lashon hara.

            I admit that the matters are very complex. At most, I have indicated different directions for questioning, rather than answers. Much has been written of the subject from the halakhic perspective. See, for example, the article published about a year ago by Rabbi Meir Bareli in 33 Tehumin on the subject of publishing lashon hara about elected officials (p. 136). In the author’s opinion, an exemption can be found in certain situations on the basis of the principle that entering the public arena constitutes implied consent – consensual lashon hara in certain circumstances. And see additional halakhic articles (ibid., fn 2; and see the article by Ari Yitzhak Shevet, which I found very helpful both conceptually and for its extensive bibliography – Newspapers and News: Obligation or Prohibition (Hebrew); Steven Oppenheimer, Journalism, Controversy, and Responsibility: Halachic Analysis, 41 Journal of Halakha & Contemporary Society (2001); Rabbi Alfred Cohen, Privacy: A Jewish Perspective, 1 Journal of Halakha & Contemporary Society 53 (1981). However, it would appear that none of these provide a halakhic ruling. It is not my intention to innovate in this decision, but rather to ask whether it may be possible to consider the issue in broader terms from the perspective of Jewish law. As for the answer, I can only but make recourse to the approach of the Head of the Har Etzion Yeshiva, Rabbi Aharon Lichtenstein, which I have cited in the past in the context of internet theft (CA 9183/09 The Football Association Premier League v. Anonymous (May 13, 2012)). I will state it mutatis mutandis: In the changing technological and social reality in which the press achieves growing influence, and bearing in mind the potential advantages of this tool, its importance and contribution to democratic life, and its broad readership, on the one hand, and the unquestionable prohibition upon lashon hara, on the other, what is the proper halakhic balance? “The question is posed, the authority exists, and eyes are uplifted. If the great halakhic decisors will succeed in making a decision on the matter”, they will make a real social contribution, “and if they succeed, they will simultaneously contribute to admiration of Torah” (A. Lichtenstein, Lectures of Rabbi Aharon Lichtenstein: Dinei DeGarmei, 200 (5760) (Hebrew)).

            In conclusion, I do not believe that the approach of a good-faith defense for responsible journalism in matters of significant public interest contradicts the principles of Jewish law. In my humble opinion, there is a positive aspect to such an approach.

After these Things

15.       After writing my opinion, I had the opportunity to read the comments of my colleague Justice Rubinstein. I will address them in brief.

            My colleague is of the opinion that the Jewish law sources that I cited are peripheral. I would respond that I am not concerned with the margins but with the core. We are concerned with freedom of journalistic expression on subjects of significant public interest. The issue does not concern a question of private halakha. It is part of state halakha, or more precisely, the halakha of the State of Israel. This is a public issue. I pointed out several examples in areas of importance in Jewish law in which the rabbis of the time found that this is a consideration that defines the answer, and that may lead to different results than those concerning individuals. Can the importance of investigative journalism in a democratic society be denied? I also pointed out that in the framework of the question I present, religious society in all its variety, and with the consent of its rabbis, does not reject reading newspapers, and is even involved in journalism from its own perspectives. That journalism comprises not only Torah subjects, but also news and subjects that have not as yet been resolved and are still under investigation. The solutions for discourse among individuals on the private level are not necessarily identical to those applicable to public discourse. It would seem to me, for example, that the approach cited, inter alia, by my colleague, according to which journalists are deemed bearers of lashon hara, and that it is better to listen to the news on the radio, does not reflect the practice of the religious world, does not express the advantages presented by a free, investigating press, and most of all, does not adequately contend with full variety and complexity of the subject.

            Lastly, my colleague referred to my call for the development of an independent Israeli legal approach to the subject, and notes that I do not explain what it might be. I can only refer to what I wrote in my opinion, above. In my view, an independent Israeli legal approach would recognize the necessity of a responsible press, and that we are concerned with a public duty that grants protection to a journalist, subject to an examination of his good faith. Such a development, proposed by my colleague Justice Vogelman in the judgment under appeal, is appropriate to the present. As for the future, this field is dynamic. It is my hope that the Israeli system will succeed in adopting the positive aspects of the American approach, which has proved its ability to integrate a very robust democratic society and freedom of expression, combined with the approach of Jewish law, along with a serious, thoughtful consideration of the halakha applicable to the state, and its influence upon the laws of defamation. There is much to be done. But that is the present reality, and this is the hope for the future, as is appropriate for the State of Israel as a Jewish and democratic state, in accordance with the Basic Law.

 

 

 

LAA 7216/18

           

                                               

Petitioner:                  Lara Alqasem

                                                                                               

                                                v.

 

Respondents:             1. Ministry of Interior – Population and Immigration Authority

                                    2. The Hebrew University

Request to Join:        Im Tirtzu

                                               

 

Attorney for the Petitioner:     Adv. Yotam Ben Hillel; Adv. Leora Bechor

Attorney for Respondent 1:    Adv. Yonatan Berman

Attorneys for Respondent 2:   Adv. Pepi Yakirevich (Traub); Adv. Anat Tal

Attorney in the Request

to Join:                                    Adv. Yaakov Cohen

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Justice N. Hendel, Justice U. Vogelman, Justice A. Baron)

 

Israeli Supreme Court cases cited:

[1]       HCJ 7803/06 Abu Arafeh v. Minister of Interior, (Sept. 13, 2017)

[2]       HCJ 8093/03 Artmiev v. Ministry of Interior, 59(4) IsrSC 577 (2004)

[3]       HCJ 758/88 Kendel v. Minister of Interior, 46(4) IsrSC 505 (1992)

[4]       HCJ 1031/93 Pessaro (Goldstein) v. Minister of Interior, 49(4) IsrSC 661, 705 (1995)

[5]       HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) [https://versa.cardozo.yu.edu/opinions/avneri-v-knesset]

[6]       CA 6407/14 Carmiel Local Planning and Building Committee v. Masri, (May 24, 2018)

[7]       CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd., (May 14, 2012)

[8]       HCJ 1905/03 Akal v. Minister of Interior, (Dec. 5, 2010)

 

 

Judgment

(Oct. 18, 2018)

 

Justice N. Hendel:

1. The request before me is for leave to appeal the judgment of the Tel Aviv-Jaffa District Court, sitting as an Administrative Court, of Oct. 12, 2018 (AA11002-10-18, Judge Erez Yakuel) (hereinafter: the judgment). The District Court denied the Petitioner’s appeal of the decision by the Tel Aviv Appeals Tribunal of Oct. 4, 2018 (App (Tel Aviv) 5604-18, Judge D. Bergman), denying the Petitioner’s appeal, and upholding the decision by Respondent 1 (hereinafter: the Ministry of Interior) to revoke the visa that was issued her, and to deny her entrance into Israel because of her activity in promoting the imposition of a boycott on the State of Israel.

 

Background and the Parties’ Arguments

2. The Petitioner – a U.S. citizen, born in 1996 – recently completed her undergraduate studies at the University of Florida, and decided to continue to graduate studies at the Hebrew University in Jerusalem. On April 24, 2018, she was accepted to the Human Rights and Transitional Justice Program at the Hebrew University’s Faculty of Law, and she was later informed that she was awarded a scholarship for the period of her studies. The Petitioner then set about arranging her entry into the State of Israel, which she had already visited on a B/2 tourist visa. On Aug. 3, 2018, at the Israeli consulate in Miami, she received an entry visa and A/2 temporary residence permit (student) for a period of one year. Just before the academic year began, the Petitioner landed at Ben Gurion Airport, with the intention of entering the State of Israel. However, after questioning, and after representatives of the Ministry of Strategic Affairs and Public Diplomacy found that the Petitioner had been involved in activity to promote the imposition of a boycott of the State of Israel, the Minister of Interior decided to deny her entry. A document entitled “Decision on Refusing Entry under the Entry into Israel Law, 5712-1952,” cited the reason for the refusal as “considerations of preventing unlawful immigration” and also “considerations of public security or public safety or public order”.

As noted, the Petitioner appealed the Minister’s decision before the Appeals Tribunal, arguing that she has not been a member of the SJP (Students for Justice in Palestine) organization since April 2017, and that even during her tenure as president of the organization, she was not really involved in BDS (Boycott Divestment and Sanctions Movement) activity. Furthermore, the Petitioner declared that she currently does not support the boycott movement, and she committed not to call for a boycott of Israel during her stay in Israel, or to participate in BDS activity. In light of those statements, the Appeals Tribunal ordered the Ministry of Interior to reconsider its decision, and to consider a letter from the Rector of the Hebrew University, Prof. Barak Medina, which noted that the decision risked seriously undermining the efforts of Israeli academia to promote Israel’s academic image throughout the world. However, after the Ministry of Interior stood by its decision, the Appeals Tribunal denied the Petitioner’s appeal, holding that the decision had not been shown to deviate from the margin of reasonableness to an extent that would justify intervention. That holding was justified in light of the broad discretion granted to the Minister of Interior on the question of entry into Israel, and because no arguments were raised against the validity of sec. 2(d) of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry Law) itself, or against the criteria established under it.

The Petitioner appealed the decision of the Appeals Tribunal, but her appeal was denied. The District Court found that there is a fear that the Petitioner would exploit her stay in Israel in order to promote the imposition of a boycott on it, and therefore: “The Minister of Interior’s discretion, as exercised, is compatible with the purpose grounding sec. 2(d) of the Entry into Israel Law.”

3. Hence the current request for leave to appeal, in which the Petitioner raises a number of challenges to the lower court’s ruling and to the Minister of Interior’s decision. On the issue of authority, the Petitioner alleges that the authority that sec. 2(d) of the Entry Law grants the Minister of Interior is limited to preventing the entry of a person who acts in the present on behalf of an organization or entity that calls for imposing a boycott on the State of Israel. In any event, it was wrong to prevent her entry because she has not been a member of an organization of that kind since April 2017, at the latest. The Petitioner emphasizes that the Ministry of Interior did not present any evidence of her involvement in activities by boycott organizations during later periods of time, and that its allegations on the issue, which were first raised at the stage of the appeal, lacked detail and documentation. The Petitioner also argues that, given the infringement of fundamental rights, including the right to freedom of political expression, sec. 2(d) of the Entry Law should be interpreted narrowly, and it certainly should not be broadened beyond the criteria that the Minister of Interior and the Minister of Strategic Affairs approved. Because the student organization SJP is not one of the “prominent” boycott organizations, and the Petitioner herself never engaged in “substantial, consistent and uninterrupted” activity “to promote boycotts,” she does not come within the purview of the aforementioned criteria, and the Ministry of Interior’s decision in her case was ultra vires.

Regarding the issue of reasonableness – the Petitioner repeatedly stresses that there is no basis to the fear that she will exploit her stay in Israel to promote a boycott of the state. In addition to the commitment she made before the Appeals Tribunal not to act in that manner, her determination to participate in Israeli academia constitutes the antithesis of boycott activity, and casts serious doubt upon the fear that she will call for such a boycott in the future. The Petitioner argues that, in responding to questions from the authorities, she has never hidden information, and she believes that, considering her practical actions – meaning her aspiration to study in an Israeli academic institution – the attempt to present the deleting of her social media accounts as testimony to her support of a boycott of Israel is utterly unpersuasive. The Petitioner also presents letters from professors and lecturers at the University of Florida that testify to her interest in Israel and the significant and respectful dialogue she has had with Israeli actors. Under these circumstances, she argues that her reliance on the visa lawfully issued to her two months before her landing in Israel should tip the scales, inasmuch as the Petitioner currently has no apartment or workplace in the United States, and the current academic year has already begun.

4. In its response, the Hebrew University agreed with the Petitioner’s position, and focused on the principled aspects that the request for leave to appeal raises. In its view, opening the gates of Israeli academia to foreign students and scholars is “the best way to strengthen the global image of the university and of the State of Israel as a democratic, enlightened and egalitarian state”, while preventing their entry causes “irreversible damage to the international relations that the university is cultivating.” From an academic perspective, as well, there is great value to the diversity and multiplicity of opinions created by having students of different cultural, linguistic and national backgrounds in the classrooms. From a legal perspective, the university believes that, given sec. 2(d) of the Entry Law’s infringement of freedom of expression, it should be interpreted narrowly, to allow preventing entry into Israel only “in special and exceptional circumstances […] for example when there is a clear security fear.” The university concludes by saying that the Petitioner’s willingness to study in Israel is “the best response to those who support boycotting the State of Israel”, and it emphasizes that, in any event, the Petitioner’s permit could be revoked if it were to emerge that she engaged in boycott activity. For these reasons, the university believes that the Petitioner should be allowed to join her classmates in the lecture halls of Mount Scopus.
5. As opposed to this, the Ministry of Interior believes that there are no grounds for intervening in the ruling of the lower court and the tribunal – certainly not in the framework of a third round of litigation. That position is based on the broad discretion granted to the Minister of Interior to control the entry of foreigners into Israel; because we are dealing with “a clear question of government policy that was also even expressed in primary legislation”, and because the request for leave to appeal addresses factual issues, and it has no broad implications.

On the merits, the State believes that sec. 2(d) of the Entry Law should not be viewed as a comprehensive arrangement, and that the Minister of Interior may also act pursuant to his general authority under sec. 2(a) of the Entry Law in cases that do not come within the purview of the concrete arrangement. In its opinion, “the legislature only limited the possibility of giving a permit to someone connected to the boycott movement”, but did not seek to limit the Minister’s existing discretion to revoke a permit. The State said that the Minister of Interior himself made the decision in the Petitioner’s case, after he consulted with the Minister of Strategic Affairs and considered the entirety of relevant considerations, such that there should be no intervention in his exercise of discretion.

In any event, the State believes that the Petitioner’s case also comes within the purview of the specific arrangement in sec. 2(d) of the Entry Law. That is both because of the organizational affiliation of SJP – which the Ministry of Interior believes is “an integral part of the NSJP organization,” which is one of the prominent boycott organizations – and also because of actions in which the organization directly engaged during the time period when the Petitioner was “an activist, a vice-president and the president of the branch.” Under those circumstances, the short period of time during which the Petitioner claims to have refrained from boycott activity, or her commitment not to engage in similar activity during her stay in Israeli, is insufficient to assuage the fear that she will exploit her entry into the country. Furthermore, the Minister of Interior believes that there is substantial evidence that the Petitioner has continued her boycott activity: deleting her social media accounts – a practice common among boycott activists – as well as her choice to refrain from proactively disclosing her activities prior to being questioned about them.Therefore, even if the Minister’s authority were confined to the arrangement in sec. 2(d) of the Entry Law – an assumption that the State, as aforesaid, refutes – there would still be no grounds to intervene in his decision regarding the Petitioner.

Finally, the Ministry of Interior argues that the issue of the Petitioner’s reliance does not alter the overall picture. Section 11(a) of the Entry Law explicitly authorizes the Minister of Interior to revoke a visa “upon the arrival” to Israel of its bearer, and considering that the Petitioner is the one who chose to refrain from disclosing the entirety of relevant information at the time she applied for the visa, the Minister’s authority was lawfully exercised.

6. It should be noted that the “Im Tirtzu Movement” asked to join the proceeding as a party. In its request – and we decided to suffice with just the request – it argued that allowing the Petitioner to join the Hebrew University would create tensions among the institution’s students, and might  lead to their physical harm, which is a right that trumps academic freedom and freedom of expression. In contrast, the Movement argues that deporting the Petitioner would have great effect on both “the State of Israel’s deterrence, as well as restoring the State of Israel’s sovereignty over its borders.”

 

Discussion and Ruling

7. The request for leave to appeal raises principled questions regarding the content and scope of the Minister of Interior’s authority to prevent entry into Israel of a person who knowingly published a public call to impose a boycott on the State of Israel, or who acts on behalf of an organization or entity that did so. Thus, for example, it puts at issue the question of the relationship between the Minister of Interior’s general authority under sec. 2(a) of the Entry Law and the specific arrangement outlined in sec. 2(d) of the law. Similarly, it raises the question whether the Minister’s authority is limited to people acting in the present to impose a boycott on the State of Israel, or whether sins of the past can also lead to the shuttering of the country’s gates. As I will clarify below, these principled questions have consequences for the analysis of the existing evidence and its relevance to our case. Therefore – and in light of the groundbreaking character of the issue – we decided to hear the request for leave to appeal as if leave to appeal had been granted, and an appeal had been filed pursuant to the leave granted.

 

Normative Background

8. Section 2(a) of the Entry Law states:

The Minister of the Interior may grant –

1. a visa and transitory resident permit– up to five days;
2. a visa and visitor’s residence permit – up to three months;
3. a visa and temporary residence permit – up to three years;
4. a visa and permanent residence permit;
5. a temporary residence permit for a person present in Israel without a residence permit who has been issued a deportation order – until his exit from Israel or his deportation therefrom.

 

As noted in another case, in general, “the Entry Law and the regulations enacted pursuant to it […] do not set criteria for granting the permit, and they leave the Minister with broad discretion” (HCJ 7803/06 Abu Arafeh v. Minister of Interior [1], para. 7 (hereinafter: the Abu Arafeh case)). Indeed, “The Minister of Interior is the country’s ‘gatekeeper’. He has the authority to grant visas and Israeli residence permits” and to determine who will enter Israel’s borders (HCJ 8093/03 Artmiev v. Ministry of Interior [2],  584). However, the rule is that the Minister may only weigh considerations that are consistent with one of the purposes of the Entry Law (HCJ 758/88 Kendel v. Minister of the Interior [3], 527-528); hereinafter: the Kendel case) – meaning:

On one hand, the state’s sovereignty, which imparts it with a “natural right” to control the identity of those entering its gates and the conditions for their residence within it […] limiting entry into Israel – not to mention restrictions related to granting citizenship or residence status – serve a list of goals, including preserving “the special culture of the state’s residents, the identity […] their economic interests and public order and morality” (HCJ 1031/93 Pessaro (Goldstein) v. Minister of Interior [4],  705). In addition to the purpose of protecting sovereignty, there is also great importance to protecting the security of the state and the safety of its citizens – a purpose that may justify adjustments and changes in immigration law, commensurate with security needs [..] on the other hand, there is a valid additional –and sometimes contradictory – purpose, which is the need to protect the rights of those who hold residence permits (the Abu Arafeh case, para. 16 of my opinion).

 

Furthermore, the exercise of authority is subject to the grounds for judicial review customary in administrative law – including that of reasonableness (the Kendel case, ibid.).

9. In addition to the broad discretion given to the Minister of Interior regarding the granting of visas and permits pursuant to sec. 2(a) of the Entry Law, the legislature drafted a concrete arrangement for people involved in the movement to boycott the State of Israel. Sections 2(d) and (e) of the Entry Law, which are the focus of the current appeal, state:

(d) A visa or residence permit of any kind will not be granted to a person who does not hold Israeli citizenship or a permit for permanent residence in Israel if he, or the organization or body on behalf of which he acts, knowingly published a public call for imposing a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or has undertaken to participate in a boycott as aforesaid.

(e) Notwithstanding the aforesaid in subsection (d), the Minister of Interior may grant a visa and residence permit as stated in that subsection for special reasons stated in writing.

 

The parties agree that the arrangement is of a deterrent, not a punitive, character. In other words, it seeks to equip the State of Israel with an effective tool to combat the boycott movement, but it does not presume to settle accounts with the movement’s activists and punish them for their actions. According to the Explanatory Notes of the  Entry into Israel (Amendment No. 27) (Not Granting a Visa or Residence Permit to a Person calling for Boycotting Israel) Bill, 5777-2016:

In recent years, calls to boycott the State of Israel have amplified. As part of the State’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas, it is proposed to establish that, as a rule, a person who is not a citizen or permanent resident of Israel will not be given a visa or residence permit of any kind if he, the organization or the entity on whose behalf he acts, calls for a boycott of the State of Israel or committed to participate in such boycott (emphasis added).

 

Similar statements were made in advance of the bill’s passage in the second and third reading. Thus, it was clarified that the purpose of the law is to combat the new phenomenon in which different organizations act against the State of Israel by promoting boycotts – cultural, economic and academic. Similarly, it was emphasized that a non-citizen has no vested right to enter the State of Israel, and that the law is intended to prevent people seeking to engage in unlawful actions or to call for a boycott of the State of Israel from entering the country and turning it into a base for their activities (Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2 (January 11, 2017)).

The aforementioned rationale – which emphasizes the battle against the boycott movement and the desire to prevent its members from exploiting their stay in the State of Israel – also led to a change in the original version of the bill. Initially, it contemplated denying entry to a person “if he, the organization or the entity which he represents” calls for a boycott of Israel. However, during the legislative process, the version “if he, the organization or the entity on whose behalf he acts” was adopted. That was done in order to “more correctly” define “the connection between the visit of the person whose entrance to Israel we want to allow the Minister of Interior to prevent, and that activity against the State of Israel” (ibid.), and to ensure that the authority would be exercised only against someone “who acts on their behalf now, in this context” (ibid., p. 16).

10. In the context of this case, it has been said that there is no need to rule on whether the interpretation of the section, in all its aspects, should be narrow or broad, but rather, according to the rules of our system, purposive interpretation is required. The section, as arises also from its language, was intended to prevent public calls to impose a boycott on the State of Israel. It applies to a person who published such a call or who acts on behalf of an organization or entity that did so. The definition of boycott is its definition in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law), a fact that indicates the connection between the two pieces of legislation.

In other words, the concrete purpose of sec. 2(d) of the Entry Law is promoting the just battle that the State of Israel is waging against the boycott movement – based on the doctrine of defensive democracy and the state’s right to protect itself and its citizens against discrimination (See, for example, HCJ 5239/11 Avneri v. Knesset [5], paras. 29-34 of the opinion of Deputy President H. Melcer). As stated in the Avneri case regarding the Boycott Law, “a call for boycott falls within the category referred to in constitutional literature as ‘the democratic paradox’, in which it is permissible to limit the rights of those who seek to benefit from democracy in order to harm it” (ibid., para. 30). Just as a person has a right to self-defense, so the state has a right to defend itself and its public and citizens.

In addition to this concrete purpose – which is also reflected in the language of sec. 2(d) of the Entry Law – we should also recall the objective, subjective and general purposes of the Entry Law: protecting the sovereignty of the state and public safety and security.These purposes, as well as the section’s concrete purpose, do not include an element of punishment or vengeance for past illegitimate acts, and they therefore support preventing entry when doing so has value from the perspective of protecting sovereignty or public safety. In other words, where a boycott activist’s entry into the State of Israel risks serving as a platform for promoting boycott activity that has damaging implications.

The legislature believed that it would be appropriate to equip the state with an additional tool in its battle against boycott – in the form of authority to prevent the entry of activists seeking to exploit their stay in the State of Israel in order to act against it. However, in light of the purposes presented, it is understood that such authority is limited to people who threaten Israeli democracy and seek to bring it to its knees by imposing a violent, aggressive boycott. In contrast, it does not justify punishing, for the sake of punishing, actors who no longer engage in such activity or contribute to strengthening it.

11. The criteria that the Minister of Interior and the Minister of Strategic Affairs approved (Population and Immigration Authority, “Criteria for Preventing Entry into Israel of Boycott Activists” (July 24, 2017) reflect a similar perspective. They clarify that the authority established in sec. 2(d) of the Entry Law should be applied only to activists of organizations that “actively, uninterruptedly and continuously” support boycotts of Israel or against “independent” activists who act continuously and prominently to promote boycotts and meet one of the following criteria:

Holders of senior or significant positions in organizations – serving senior, official positions in prominent organizations (such as, chair or board members). The definition of positions is subject to change in accordance with the character of each organization.

 

Central activists – persons involved in real, consistent and continuing activity to promote boycotts in the framework of prominent delegitimization organizations or independently.

 

Institutional actors (such as mayors) who promote boycotts actively and continuingly.

 

Actors on behalf – activists who arrive in Israel on behalf of one of the prominent delegitimization organizations. For example, an activist who arrives as a participant in a delegation of a prominent delegitimization organization [emphasis original].

 

These criteria indicate that even the ministers responsible for implementing the arrangement established in secs. 2(d) and (e) of the Entry Law thought that it should be applied only against boycott movement activists who consistently, systematically and continuously promote the imposition of a boycott on the State of Israel. Consequently, the existence of a rift between the activist and his organization, or between the activist and his activity, may remove him from the purview of this arrangement. The tool of evaluating the actor and the act can help here. The act taints the actor and paints him as a target for applying sec. 2(d). Of course, that tool doesn’t set rigid rules. There are levels of seniority and activity, and different information about each actor. For example, we would exercise more caution in evaluating a person who has held a senior position in BDS for decades than we would for a person who, even if he comes within the bounds of sec. 2(d), acted only for a relatively short period of time, at a relatively junior level. The burden on the former to prove disengagement from the boycott activity is heavier than that borne by the latter. The evaluation should be individualized, pursuant to the purpose of the law.

12. It should be emphasized that activists coming within the purview of sec. 2(d) of the Entry Law are subject to a relatively rigid arrangement that sec. 2(e) of the law creates. The latter structures the Minister of Interior’s discretion and states that, as a default, he should prevent entry into Israel of prominent leaders who are presently active in the boycott movement, and that he may deviate from the rule only “for special reasons stated in writing.”

The concrete arrangement adopted by the legislature regarding boycott activists instructs the Minister of Interior to close the gates of the State of Israel to prominent activists seeking to use the state as a base for their activities in the present – barring the existence of special reasons to open these gates. However, this arrangement does not apply to people who took actions in the past in the framework of boycott organizations, but proved, clearly and convincingly – pursuant to the burden imposed on them, according to the test of the act and the actor, as noted – that they have abandoned such activity, and they no longer pose a risk of exploiting their stay in the State of Israel in order to undermine it.

13. Given this interpretation, we should evaluate whether the Minister of Interior’s general authority under sec. 2(a) of the law allows him to take measures against boycott activists who do not come within the purview of the concrete arrangement.

In this context, I am prepared to assume that the legislature made do with structuring the Minister’s authority regarding boycott activists who come within the purview of sec. 2(d) of the Entry Law, without revoking his general authority regarding such activists (see Transcript of Meeting No. 276 of the Interior and Environmental Protection Committee, 20th Knesset, 5-19, and Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2-4 (January 11, 2017)). However, as clarified above, this general authority is not unlimited. It is subject to the purposes of the Entry Law – including those reflected in secs. 2(d) and (e) – and to the customary grounds for judicial review in administrative law. Furthermore, especially given the general character of the Minister’s authority, which is characterized by an absence of statutory criteria, the standards established in the framework of the concrete arrangement in secs. 2(d) and (e) of the Entry Law also affect the Minister’s discretion to act pursuant to his general authority regarding boycott activists. Again, we stress that the objective, specific and general purposes of the law are concerned with protecting the state, its sovereignty and the rights of its citizens, but they do not authorize purely punitive measures. Thus, even when the Minister of Interior acts in the framework of his general authority, the factual question – whether there is a fear that the applicant will exploit his stay in the State of Israel in order to promote imposing a boycott on it – is of great significance. As noted above, the answer to that question is not limited to evaluating a person’s activity at the moment of his entry into Israel. A relatively short “cooling-off period” from intensive and continuous boycott does not always testify to successful “weaning,” and factors such as the quality, character and duration of the actor’s boycott activity over time should be evaluated.

With this normative picture as background, I will now analyze the case before us.

 

From the General to the Specific

14. As a preliminary matter, it should be noted that in the current proceeding, no arguments were raised against the constitutionality of the Minister of Interior’s authority to prevent boycott activists from receiving visas – an issue that is pending in HCJ 3965/17 [Prof. Alon Harel v. Knesset].[1] . The point of departure is, therefore, that both the Entry Law itself, as well as the criteria established pursuant to it, are valid and binding. Thus, the question we must address is whether the evidentiary basis set before the Minister of Interior was sufficient to validate his decision. The answer to that question is in the negative. We will avail ourselves of the test of the act and the actor.

In our case, the salient fact is the Petitioner’s aspiration to find a place in Israeli academia and begin advanced studies at the Hebrew University. This was not a hasty decision made lightly, but rather the culmination of a lengthy process that the Petitioner initiated, which took months. As will be explained, it began with seminars in which the Petitioner studied at the Center for Jewish Studies at the University of Florida, including on the subject of the Holocaust of the Jewish People, and with her getting to know professors who studied at the Hebrew University and recommended it to her. The Petitioner indeed applied to study at the Hebrew University, and on April 14, 2018, she was informed of her acceptance to the “M.A. in Human Rights and Transitional Justice” program of the Faculty of Law. At the beginning of July 2018, the Faculty informed the Petitioner that she had been awarded a scholarship, and on August 3, 2018, she went to the Israeli consulate in Miami in order to get her entry visa and residence permit. As the opening of the academic year approached, the Petitioner landed in Israel, and despite the obstacles she has faced since then, she insists on her right to study at the Hebrew University. Such conduct is inconsistent, to say the least, with the theory that the Petitioner is an undercover boycott activist likely to exploit her stay in the State of Israel to promote the BDS movement. The term “boycott” is defined in sec. 1 of the Boycott Law as “deliberate avoidance of economic, cultural or academic ties with a person or other party, solely by reason of his association with the state of Israel” – meaning, conduct that is the opposite of that of the Petitioner, who is working to address and strengthen her connection with Israeli academia.

The Ministry of Interior admits that it has no evidence of any boycott activity whatsoever by the Petitioner since April 2017 – except for mysterious “indications” whose quality has yet to be explained, and no evidence about them was presented. The Ministry thinks that the act of deleting the Petitioner’s social media accounts, as well as her decision not to initiate disclosure of her past involvement in boycott activity, have evidentiary value. However, even if we accord some weight to those things, they would appear insufficient to blur the fact that is our starting point: the Petitioner’s insistence on joining Israeli academia as an enrolled student, not boycotting it. To that we add a lack of evidence of activity for the past year and half. Those facts make it easy to accept the Petitioner’s reasonable explanation that her conduct stemmed from a fear that disclosing her past activities would place obstacles in her path – as was indeed the case – despite the change in her positions, or at the very least in her actions. And we should not expect the Petitioner to initiate sharing the entirety of her life story with the staff of the Israeli consulate in Miami without being asked to do so. Furthermore, it does not seem as if the State had difficulty finding electronic traces of the Petitioner’s past activity, despite the deletion of her accounts – such that the absence of such traces at a later period of time casts doubt on whatever suspicion the deletion raises.

15. It is true that, in principle, the absence of BDS activity in the present does not completely negate the Minister of Interior’s authority to prevent the entry of boycott activists. However, given the prolonged period of time that passed since the Petitioner participated in such illegitimate activity, and her relatively minor involvement, her decision to study in Israel suffices to tip the scales and to eliminate the fear that she would exploit her stay in Israel.

Indeed, the material presented regarding the period of time in which the Petitioner was active in the SJP organization – prior to April 2017 – indicates that even at that stage, the boycott activity was minor and limited. The “letter of recommendation” in which the Ministry of Strategic Affairs outlined the findings it obtained from open Internet sources lists three actions that the organization undertook – all in the months of March-April 2016. The documentary evidence attached to the letter indicates just one instance in which the organization itself called for boycott measures, while the other two instances were limited to “sharing” information about activities that others undertook. That was true for the case of the cultural center, Pen American Center, and also for the G4S company. It is true that, at a later stage of the proceeding before the Appeals Tribunal, the Ministry of Interior raised a claim, supported by a letter from a “pro-Israel” student at the University of Florida, that SJP was involved in an additional BDS event – putting pressure on other student organizations to try to prevent an Israeli from giving a lecture at the University in April 2017. In any event, even if we assume that the letter is reliable (despite the fact that its contents make clear that it was sent after its author became aware of the Petitioner’s wish to study in Israel, rather than in real time), it still does not change the broader picture. There is no doubt that the SJP organization does indeed support boycotting Israel – and such a position is worthy of condemnation. We can also assume that the Petitioner, who held positions in the organization and was, for three years, one of its few members, took part in that illegitimate activity. However, we cannot ignore the relatively sporadic and minor character of the organization’s activity. At the least, the organization is not one of the prominent boycott organizations, and it is doubtful that the Petitioner would have met the criteria even during the time she was an office-holder in it. I note that even if we assume there is an affiliation between the student organization at the University of Florida and the NSJP organization, which appears on the list of significant boycott organizations compiled by the Ministry of Strategic Affairs and Public Diplomacy, that does not mean that the concrete activity of the organization – which at its peak had 8 members – or the Petitioner’s tenure as its president, has any real meaning, given the relatively meager scope of its activity, as noted above. It is worth noting that the Ministry of Strategic Affair’s appendix mentions dozens of universities in which the NSJP worked to promote BDS decisions. The University of Florida, where the Petitioner studied, is not among them.

Furthermore, in addition to chance indications of the Petitioner’s involvement in BDS activity during her studies, we cannot ignore the testimony of her professors regarding her complex position, the curiosity she displayed regarding Israel and Judaism, and her willingness to engage in open, respectful dialogue, which are completely at odds with the idea of boycott. Thus, for example, Prof. Eric Kligerman of the Center for Jewish Studies at the University of Florida notes that the Petitioner participated in two seminars that addressed various aspects of Jewish history and their link to law – including in the context of the Holocaust of the Jewish People. According to him: “Far from being an advocate of BDS or a proponent of suppressing dialogue and the intellectual exchange between peoples, Lara is one of the most engaging and thoughtful students I have had in my seminars on Jewish culture and thought.” That testimony, from someone who knows the Petitioner well, would appear to add an additional – more complex – dimension to the Petitioner’s activity. In this context, it is also worth mentioning the letter by Dr. Yael Shenkar, who moderated an event held at the University of Florida to commemorate 100 years to the Balfour Declaration, in which she praises the respectful dialogue that developed between the Petitioner and participants in the event.

We will focus a bit on evaluating the actor. The Petitioner is currently 22 years old. Her activity in the SJP organization ended a year and a half ago, at the latest. Her activity in the organization at the university took place when she was younger. Understood in the context of her actions and the individualized information about her, the disconnect that has lasted a year and a half would appear significant. That is especially true because this period of time was not just characterized by the absence of activity against Israel, but also by steps that indicate a genuine desire to get to know Israeli society, culture and history.

16. Given these data, taken as a whole, we cannot accept the argument that preventing the Petitioner’s entry serves the purposes of the Entry Law. The negligible activity in which she was involved as a young student at the start of her career cannot negate the change that she says she has undergone,   and her desire to exchange the path of boycott for a path of dialogue and direct exposure to Israeli society and academia. The statute seeks to encourage changes of this kind, not to suppress them (See Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 18 (Jan. 11, 2017)).
17. We should add that we are dealing with a decision by the Minister to revoke a visa given to the Petitioner, as opposed to refusing to grant one at the outset. The Petitioner argues that there is a substantial difference between refusing to grant a visa at the outset and revoking it retroactively. Counsel for the State correctly responded that the difference is not that significant, given sec. 11(a)(1) of the Entry Law, which states that the Minister is authorized “to revoke a visa given according to this law, whether prior to the arrival of the visa-holder in Israel or at the moment of his arrival.” However, the Petitioner’s actual reliance on the visa given her is still a significant consideration. By itself, it would be an insufficient reason, were it not for the Petitioner’s conduct in the period since April 2017. Given that conduct, however, her reliance is a meaningful consideration, under the circumstances of this case. 

 

•  

18. In any event, it would seem that, regarding the case before us, we can say, paraphrasing the Angel to the King of Khazaria, “Your intention is worthy – but some of your deeds are not.” The battle against the BDS movement and its kind furthers a purpose that could not be worthier. The state is entitled, if not obligated, to protect itself from discrimination and from the violent silencing of political discourse. It is entitled to take measures against boycott organizations and their activists (without, at this point, addressing the question of the constitutionality of the concrete arrangements before us, which are to be reviewed, as noted, in separate litigation). Defending democracy is part of democracy. Just as a person is entitled to defend himself, a state is entitled to defend itself and its citizens. That, of course, is subject to the existing legal constraints.

In our case, preventing the Petitioner’s entry does not promote the purpose of the statute, and the Hebrew University has even argued, for example, that doing so would harm Israeli academia. The battle against the boycott is appropriate and essential, as are the activities that the State of Israel undertakes to do so. However, the concrete action at issue before us clearly deviates from the margin of reasonableness, and it should not be upheld.

Regarding the Petitioner, recall that the Minister of Interior is authorized to revoke a residence permit given pursuant to the Entry Law, as noted in sec. 11(a)(2) of the law. Invalidating his current decision does not, therefore, give the Petitioner a carte blanche – because if she reverts to her old ways and exploits her stay in Israel to promote boycott activity, the Minister will have the means to revoke her permit and deport her from the country immediately.

19. I therefore recommend to my colleagues that we grant the appeal to overturn the District Court’s judgment, and to order the Ministry of Interior’s decision in the Petitioner’s case void. The entry visa and temporary residence permit issued to the Petitioner at the Israeli consulate in Miami are therefore in force. Given the novel nature of the issues that arose in this proceeding, I recommend that each party bear its own costs.

 

Justice A. Baron:                                       

1. Since its inception, the State of Israel has had to fight for its very right to exist and for the legitimacy of its existence against those seeking to boycott it, its institutions and its residents, because they are Israeli. The boycott phenomenon is serious. It manufactures global public opinion based on a warped, demonic picture of the State of Israel, and risks harming the Israeli economy and Israeli society. Obviously, we should not accept this phenomenon.

In recent years, the Knesset has used legislation as part of the battle against the boycott phenomenon. The first statute it enacted in this context was the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (known as the Boycott Law, as it will be referred to hereinafter). That law imposes tort liability and administrative restrictions on those who call for imposing a boycott on the State of Israel. At the time it was enacted, the Boycott Law created a public furor, revolving around the argument that it disproportionally infringes various constitutional rights, primarily freedom of expression. The Boycott Law underwent judicial review by an expanded panel of the High Court of Justice, and most of its provisions were upheld – except for the section that imposed damages without proof of harm on those calling for a boycott. The justices unanimously invalidated that section. In addition, the Court narrowly construed the sections of the law that established a civil wrong (see HCJ 5239/11 Avneri v. Knesset [5] (hereinafter: the Avneri case).

2. Following this trend, in 2017, the Entry into Israel Law, 5712-1952 was amended, and, inter alia, sec. 2(d) was added:

(d) No visa or residence permit of any kind will be issued to a person who is not a citizen of Israel or a holder of permanent residence in the State of Israel if he, the organization or the entity on whose behalf he acts, knowingly published a public call to impose a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or committed to participate in such boycott (emphasis added – A.B.) (hereinafter: sec. 2(d)).

 

That provision is at the heart of the current proceeding, as the Minister of Interior used it to revoke the Petitioner’s student visa. Our role is to exercise judicial review over the way in which sec. 2(d) was applied in the Petitioner’s case, and not to evaluate the constitutionality of that provision. However, in order to do so, we cannot avoid devoting a few words to the purpose of sec. 2(d) and the way in which it balances the various conflicting interests.

3. The point of departure is that the State of Israel has a right to take proportional measures in order to protect itself from opponents who call for boycotting it. The law’s explanatory notes indicate that sec. 2(d) came about “as part of the state’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas”. The text of sec. 2(d) is clear and explicit. It requires barring someone who publicly calls for boycotting Israel or commits to participating in such a boycott from entering Israel. In contrast to other cases in which a person is refused entry into Israel, in this case the refusal also involves an infringement of freedom of expression. Like the Boycott Law, sec. 2(d) mandates imposing a sanction for the act of publicly calling for a boycott, or committing to participate in the boycott.

I do not intend here to address the question of whether or not calling for a boycott of the State of Israel comes within the purview of the “classic” purpose of freedom of expression (in the Avneri case, there were diverging opinions on the subject. See, for example, Justice H. Melcer in para. 30 of his opinion, and in contrast, Justice Y. Danziger in para. 7 of his opinion), or whether or not the extent of the infringement of freedom of expression inherent in sec. 2(d) falls within the “hard core” of the right. For us, first principles suffice. Freedom of expression is the life blood of democracy.When a person’s right to freedom of expression is infringed pursuant to sec. 2(d), even if that person is not a citizen or resident of Israel, the arrow also pierces the heart of Israeli society as a democratic society. Freedom of expression is critical to the existence of a lively, free marketplace of ideas and opinions, public debate over important issues, and clarifying positions and world views. In the context of the boycott phenomenon, infringing freedom of expression thwarts the possibility of addressing ideas that we, as a society, wish to refute – something that, of course, we do not want. On this issue, the words quoted by my colleague, Justice Vogelman, in the Avneri case are apt:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race: […] those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they [those who oppose the opinion – U.V.] lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error (John Stuart Mill, On Liberty, chap. 22 (para. 6 of Justice Vogelman’s opinion).

 

4. Yet it is clear that freedom of expression, like any constitutional right, is not absolute and may be restricted. In sec. 2(d), the legislature established a balancing point between the State of Israel’s right to defend itself against boycotts and the principle of freedom of expression. While, as a rule, the Minister of Interior’s authority on the issue of entry into Israel is broad, sec. 2(d) outlines standards for exercising the minister’s discretion in preventing someone’s entry because of a call to boycott Israel or commitment to participate in the boycott. These standards, in turn, serve us in judicial review of the Minister’s exercise of that authority.

We are thus within the purview of sec. 2(d), whose text is clear and in the present tense. The plain meaning of that section is that the prohibition upon entry into Israel applies to someone who (currently) acts to impose a boycott on Israel; belongs (currently) to an entity or organization that calls for imposing a boycott on Israel; or committed to participate in such boycott. This line of interpretation is also indicated from the list of criteria that the Respondent published in July 2017 for preventing boycott activists from entering Israel. That list stated that sec. 2(d) should be implemented against organizations that support boycotts and promote them “actively, uninterruptedly and continuously,” and against central activists who engage in “substantive, consistent and uninterrupted” activity to promote boycotts. Criteria were also established to permit the entry of activists in exceptional cases, even if they met the aforementioned criteria. There is, therefore, no basis for banning entry into Israel based merely on “fear” of engaging in boycott, or even because of the possibility that a person “may” act to promote a boycott during his stay in Israel – and it was inappropriate to expand the application of the section to cases of this kind, as expressed in the District Court’s judgment.

5. And now to the case at hand. The Petitioner is a young, 22-year old student, a U.S. citizen, who was granted a visa to enter Israel for academic studies. In the past, the Petitioner was a member of an organization that, according to the Respondent, promotes boycotting Israel, and she even held key offices in it. However, since April 2017, for the past year and a half, the Petitioner has not been a member of that organization, and there is no allegation that during this period of time she acted in any way to boycott Israel or belonged to an organization that opposed Israel in any way. Considering the Petitioner’s young age, this seems to me to be a significant period of time. In addition, the Petitioner committed not to engage in calling for a boycott of Israel during the entirety of her stay here, and her attorney repeated that commitment in the hearing. My opinion is that, under these circumstances, and according to the standards established in sec. 2(d), there was no basis for revoking the Petitioner’s entry visa, because it is clear that the Petitioner does not currently engage in boycotting Israel and has not done so for some time, not to mention her failure to meet the criteria of “active”, “uninterrupted” and “substantial” in this context. Given the aforesaid, the decision to revoke the Petitioner’s entry visa was sufficiently unreasonable to justify intervention.

Here I should note that, because the Petitioner’s actions do not give rise to sufficient cause to ban her entry into Israel, the unavoidable impression is that the visa she was given was revoked because of the political opinions she holds. If that is indeed the situation, this is an extreme and dangerous step, which risks causing the pillars of Israeli democracy to crumble. That is not the purpose of sec. 2(d), which is rather, as aforementioned, to take proportional measures to defend Israel from the boycott phenomenon.

Furthermore, the Petitioner’s very desire to take part in academic studies in Israel appears to stand in contrast to the idea of imposing a boycott on Israel, especially an academic boycott: “Such a call for the boycotting of the Israeli academic community, or of Israeli lecturers, undermines academic freedom itself and prevents research and instruction whose purpose, inter alia, is the search for truth. It is, in effect, a boycott of intellectualism itself, as boycott silences the discourse.” (emphasis added – A.B.) ( per Justice H. Melcer in the Avneri case, para. 30). However, under the circumstances of our case, it is not the Petitioner’s activity that is boycotting “intellectualism itself” – but rather, it seems, the decision to revoke the Petitioner’s visa, preventing her from participating in academic studies here in Israel. Such decision also risks causing harm to the reputation of Israel, thus achieving the opposite result of the legislative intent in enacting sec. 2(d).

6. Without detracting from the aforesaid, the onus is on the Petitioner to be aware of her responsibility to uphold her commitment and not to exploit her stay in Israel to promote a boycott of Israel. If she acts in violation of her declaration on this point – the Minister of Interior would be free to initiate appropriate proceedings against her, and even to order her deported from Israel, should that be justified. We do not know the secrets of another’s heart, including the secrets of the Petitioner’s heart, or how she will conduct herself in the future, after she returns to her country. However, these considerations are irrelevant to our case, because, pursuant to sec. 2(d) of the law, we must focus on the Petitioner’s actions in the present – and not on her opinions, her thoughts, or speculations about her future.

In conclusion, for the reasons outlined above, I concur in the result that my colleague Justice N. Hendel reached, namely that the appeal should be granted, we should overturn the District Court’s judgment and declare the Ministry of Interior’s decision in the Petitioner’s case void.

                                                                                               

Justice U. Vogelman:

I concur with the decision of my colleague Justice N. Hendel. I also think the decision that is the subject of this appeal does not fall within the statutory framework established in sec. 2(d) of the Entry into Israel Law, whose interpretation I will address below.

 

Purposive Interpretation of Section 2(d)

1. Again we are asked to tread the well-worn path of purposive interpretation. The first station of our journey is, of course, the text of the statute, within whose bounds we will locate the meanings that are within “the zone of textual possibilities” that the legislative text can bear. An interpretation that lacks textual grounding cannot be upheld. Should we discover more than one textual possibility, at the next phase we must locate the one that best realizes the purpose of the legislation, which we discern by integrating the subjective purpose – the objective that the legislature sought to achieve by means of the statute – and the objective purpose, which expresses “the intention of the legal system”, meaning the values, principles and objectives that a piece of legislation is intended to achieve in a democratic society. We can learn these purposes from any reliable source, including the text of the statute, the legislative history, the general background, and the legal system’s fundamental principles. Where a contradiction emerges among the various purposes, the interpreter should balance them by exercising judicial discretion, such that at the conclusion of the process, we determine the final purpose of the piece of legislation (See, inter alia, CA 6407/14 Carmiel Local Planning and Building Committee v. Masri [6], para. 48; CA 8622/07 Rothman v. P.W.D. - National Roads Company of Israel Ltd. [7], para. 34 and references there).

 

The Text of the Section

2. Section 2(d) authorizes the Respondent to refrain from granting a visa to someone who is not an Israeli citizen or a holder of a permanent residence permit “if he, or the organization or body on behalf of which he acts, knowingly published a public call for imposing a boycott on the State of Israel, as defined in the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011, or has undertaken to participate in a boycott as aforesaid”. The Respondent is thus authorized to act pursuant to the section if the visa applicant himself, or the organization or entity on whose behalf he acts, committed one of the following acts: knowingly published a public call for imposing a boycott on the State of Israel or committed to participate in a boycott as aforesaid.
3. In our case, there is no dispute that the relevant alternative is knowingly publishing a call for imposing a boycott on the State of Israel, and that such publication was done by the SJP organization, of which the Appellant was a member, and not by the Appellant herself. The dispute, which was also crystallized in the District Court’s judgment, therefore focuses solely on the interpretation of the word “acts”. The Appellant argues that the use of the present tense indicates that the authority pursuant to sec. 2(d) can be used only against those who, at the time of the visa application, act on behalf of an organization or entity that calls for imposing a boycott on the State of Israel. As opposed to this, the Respondent thinks that the text of the section also bears a broader meaning that includes someone who acted on behalf of such an organization in the past, even if he no longer does so at the time of the visa application. The Respondent supports the District Court’s interpretation, namely that a substantial fear that the visa applicant will exploit his stay in Israel in order to promote calls for imposing a boycott on Israel suffices.
4. In this dispute, I accept the Appellant’s position. First, I note that the Respondent did not present linguistic support for its interpretation that the section applies to past activity. Second, and this is the main point, the language of the section indicates that it establishes two alternatives for what might constitute the framework for publishing a public call for boycott. First, an independent call made by the applicant himself. Second, a call by an entity or organization on whose behalf the visa applicant is acting, even if the visa applicant himself did not publish such a call. If we view these two alternatives together, we see that the legislature thought that in each one of these scenarios, the applicant for a visa or permit would be sufficiently associated with a call for boycott to justify denying his application. While for the first alternative, the association arises from the applicant’s direct actions, for the second alternative, it arises from calls published by the entity or organization on whose behalf the applicant acts. That is due to the assumption that if a person acts on behalf of a particular organization or entity, he presumably identifies with its ideas and values.
5. Furthermore, the word “acts” has the function of testifying not only to the association between the individual and the organization, but also to the quality of the involvement of the applicant for a visa or permit in an organization that supports boycott. Section 2(d) does not, for example, use the word “member” of the organization, even though membership would also support a claim of intellectual, ideological affiliation between the individual and the organization. The section requires the applicant to “act on behalf of” the organization, meaning to engage in active deeds that serve the organization and its objectives.
6. The other side of the coin is clear. Once a person ceases to act on behalf of an entity or organization that publicly called for boycott, we can no longer continue to assume – certainly not as a non-rebuttable presumption – that there is an intellectual and ideological association between the individual and the organization. In addition, once the activity ceases, the applicant for entry no longer meets the criterion of activeness, which requires the applicant to take substantial actions intended to promote support for the idea of boycott within the framework of the organization.
7. Given the aforesaid, it seems we should read the word “acts” in the present tense, such that the section only applies if, at the time the application for the permit or visa is submitted, the applicant is acting on behalf of an organization that supports boycott. Past activity that has been discontinued by the time the application is submitted does not come within the purview of the section. Note that the “present criterion” should be applied logically and reasonably. If, under the entirety of circumstances, it becomes apparent that the visa applicant ceased his activity in the organization or entity that supports boycott just before submitting his application, or a short time prior to doing so (even if it was a few months prior), and it also becomes apparent that the cessation is artificial or for the sake of appearance, then he should continue to be viewed as coming within the purview of the section. That is especially true if the circumstances indicate that the cessation of activity was designed to “bypass” the provisions of sec. 2(d). However, in general, a person who did not himself publish a public call for boycott, and at the time he applies for a visa or permit is no longer active in an organization or entity that publishes such a call – even if he acted as such in the past – does not come within the purview of the section.

As we shall see, this conclusion is consistent with the purpose of the section.

 

The Subjective Purpose

8. We can easily discern the legislature’s intention in enacting Amendment 28 of the Entry into Israel Law from the brief explanatory notes that accompanied it, which my colleague Justice N. Hendel addressed (emphases added – U.V.):

 

In recent years, calls to boycott the State of Israel have amplified. As part of the state’s battle against this difficult phenomenon, and in order to prevent representatives of organizations and entities that call for boycotting Israel from acting within the territory of the State of Israel to promote their ideas, it is proposed to determine that, as a rule, a person who is not a citizen or permanent resident of Israel will not be given a visa or residence permit of any kind if he, the organization or the entity on whose behalf he acts, calls for a boycott of the State of Israel or committed to participate in such boycott.

 

That being said, it is proposed to allow the Minister of Interior to grant such a person a visa or residence permit for special reasons stated in writing (Entry into Israel (Amendment No. 27) (Not Granting a Visa or Residence Permit to a Person Calling for Boycotting Israel) Bill, 5777-2016).

 

Thus, as part of the battle against the boycott phenomenon, the legislature sought to prevent “representatives” of organizations and entities that call for boycotting Israel to operate within the State of Israel to disseminate the idea of supporting the boycott. It did so while still leaving discretion to allow the entry of such a person where there are special reasons to do so.

 

9. Furthermore, if we review the debates within the Knesset Interior and Environmental Protection Committee (hereinafter: the Committee) over the bill, we clearly discern the deterrent purpose. The debates indicate that the legislature intended to prevent someone who authentically represents the viewpoints of an organization that supports boycott from entering the State of Israel, and disseminating these ideas here during his stay in Israel. We see this in the exchange between the Committee’s legal advisor, Advocate Rosner, and Member of Knesset Bezalel Smotrich, one of the drafters of the bill:

 

Advocate Rosner: Your second comment is more substantial. It addresses the question of a representative of an organization […] It is not clear what a representative of an organization is. In other words, a person who is a member of a certain academic institution that made a decision to boycott, but he personally does not identify with that decision, but he is a member of the organization, right? He is a member of a certain university, but he actually opposes this agenda. We would have a problem with that issue. We need to define more precisely, in my opinion, the term representative of a company or organization.

•  

Member of Knesset Smotrich: What we mean is that if there’s an organization that is an organization that leads BDS, OK? An organization whose agenda is currently: to lead […] to boycott. The representative of such an organization doesn’t come, as part of this story. Now, he himself, there’s no evidence now, because he’s a new representative […] he started working for the organization yesterday. But his agenda: he came here in order to promote this boycott.

•  

I will not allow anyone who is part of an entity whose agenda is to act against the State of Israel, and that person is part of this entity – I will not allow him to enter the State of Israel in order to hurt me.

•  

I agree that if a lecturer comes here to give a lecture on medicine, and his university […]; By the way, such a person is generally not defined as its representative. But be more precise about that.

•  

You need to understand that BDS as a system, part of it is built on individuals, and part of it is built on organizations […] of course, we meant that if an authentic representative of an organization, one that has that agenda, comes here as part of promoting this process – we will not allow that to happen (Transcript of Meeting No. 276 of the Interior and Environmental Protection Committee, the 20th Knesset, 45-47 (November 7, 2016)).

 

And similarly, during the Committee’s debate on January 11, 2017, Member of Knesset Smotrich noted that:

 

There is no reason in the world for the State of Israel to allow someone who wants to come to the State of Israel and use being here as a base for his activity against the State of Israel, whether for provocations and unlawful activities or calling for a boycott of the State of Israel – there is no reason to let him enter (Transcript of Meeting No. 334 of the Interior and Environmental Protection Committee, 20th Knesset, 2 (January 11, 2017)).

 

It should be noted that the exchange noted in the first Committee debate is, inter alia, what led to the transition from the language of “representative” that appeared in the bill to the language of a person “who acts on behalf of” an organization that appears in the law (ibid.).

To summarize the point, the legislature’s intention was to establish a deterrent arrangement that would close the gates of the country to “authentic representatives” of boycott organizations, such as the BDS organization, who represent the ideas of these organizations. That is to deny them the opportunity to disseminate their doctrine within the State of Israel, while they are present here pursuant to a permit or visa that the State of Israel issued them.

10. We can understand the objective purpose of Amendment 28 by examining the general context of its enactment: the battle against the phenomenon of boycott and de-legitimization of Israel, which was recognized as a valid purpose in the Avneri case. As Justice Y. Amit noted in that case, the boycott has substantial influence at the international level:

The strength of a state is the product, inter alia, of its standing among the nations of the world, the legitimacy of its existence and its actions, and its economic strength. Over the last years, the State of Israel has faced the three D’s: Demonization, Dehumanization, and Delegitimization, and the BDS (Boycott, Divestment, Sanctions) movement is the vanguard of these three.

 

11. The boycott also has serious ramifications at the Israeli domestic level, and the battle against it is intended, inter alia, “to protect the citizens and residents of the state against economic, cultural, and academic harm. It would appear that the Law is primarily directed at combatting the BDS movement […] Indeed, the damage caused by the boycott phenomenon is not inconsiderable […] Mitigating the damage of this phenomenon is a proper and important purpose” (ibid., para. 34 of Justice Y. Danziger’s opinion). As the Respondent explained at length in its position, those who call for boycott seek to encourage practical actions intended to significantly disrupt daily life in Israel in a variety of areas. Thus, inter alia, those who call for economic boycott focus on cutting off commercial and service relations with Israel, refraining from buying Israeli products and boycotting Israeli banks. At the academic level, calls for boycott seek to end collaborations and to boycott academic institutions, as well as to divest university funds from Israeli entities. At the cultural level, boycott activists demand that academics, musicians and artists refrain from appearing in Israel or collaborating with Israeli institutions. Obviously, these activities, as well as the boycott movement’s activities in additional areas such as security and law, can have a destructive influence on the Israeli economy, on Israeli cultural and intellectual life, and on a variety of additional areas.
12.  Against this complex reality, the legislature sought to adopt statutory measures, primarily the enactment of the Boycott Law itself. That law establishes a series of restrictions and obstacles intended to prevent and limit Israeli citizens and residents from calling for a boycott. As a reminder, that law’s provisions were reviewed – and mostly upheld as constitutional – in the Avneri case.
13. The Boycott Law, as an Israeli law, operates domestically, and as such, primarily targets internal Israeli discourse:

It should be noted that the Boycott Law is an Israeli municipal law. Its sanctions are therefore intended primarily to influence calls for boycott ‘performed’ in Israel. This is primarily so in regard to the Law’s tort sanctions [...] Inasmuch as we may assume that the “tortious” effect of the Law will be more focused upon its influence on internal Israeli political discourse, and less upon its influence on international calls for boycotting Israel or the Area, this would somewhat reduce the Law’s potential contribution to the fight against international boycotts and the BDS movement (ibid, para. 35 of Justice Y. Danziger’s opinion).

 

14. Amendment 28 should therefore be viewed as a supplementary arrangement intended to be added to the basket of statutory tools made available by the legislature to battle the boycott. While its “older sibling”, the Boycott Law, generally focuses on domestic Israeli discourse, Amendment 28 aspires – to the extent possible, within the limitations of the Israeli legislature – to look outward, to the international discourse of boycott and the BDS movement. At the same time, consistent with the Boycott Law’s orientation to limit discourse in support of boycott within the State of Israel, the legislature sought to use Amendment 28 to prevent foreign “interlocutors” who support boycott from entering the State of Israel, in order to prevent them from disseminating their positions within Israel, thus influencing both the Israeli domestic as well as the external discourse from within Israel.

My view is, therefore, that the objective purpose of Amendment 28 is to protect Israel from harm inflicted by boycotts. For that reason, the legislature chose to guide the Minister of Interior’s broad discretion in a specific way, to order him to prohibit boycott-supporting activists from entering Israel, and to permit their entrance only if there are special reasons stated in writing.

 

The Interpretation of Section 2(d) and its Application in the Appellant’s Case

15. To summarize, the textual and purposive interpretation of sec. 2(d) indicates that it was intended to prevent entry into Israel of those who would be expected to disseminate the doctrine of boycott during their stay in Israel. For that reason, the section bans the entry of someone who himself knowingly published a call for boycott or who acts – at the time of his application for the permit or visa – on behalf of an entity or organization that published such a call. That is due to the assumption that a person’s action on behalf of such an organization testifies to the applicant’s affiliation and identification with the organization’s ideas, and the assumption that he will act to disseminate those ideas if allowed to enter Israel. If so, it is clear that the Petitioner’s case does not come within the purview of the section, because there is no dispute that she ceased her activity in the SJP organization in April 2017, while her application for a visa was made in advance of her receiving it in August 2018. My colleague’s opinion makes that clear.

 

The Minister of Interior’s General Authority

16. The Respondent believes that the provisions of sec. 2(d) do not detract from its general authority under the Entry into Israel Law, disconnected from the special statutory arrangement regarding applicants seeking to enter Israel who support boycott, and therefore, even if we were to conclude that it was inappropriate to revoke the visa and residence permit pursuant to that section, the Respondent was authorized to do so within the bounds of the broad discretion it enjoys in that special area. Even if, like my colleague Justice N. Hendel, I assume, for purposes of argument, and without ruling on the issue, that there is substance to the claim that sec. 2(d) did not limit the Respondent’s general authority to prevent the entrance of boycott activists, it would still be insufficient to alter the conclusion that the decision in question cannot be upheld. As has been held:

The Minister of Interior is thus granted broad discretion regarding the entry of foreigners into Israel and their living in the country. Such discretion derives from a principle customary in modern democratic countries, namely that the state has broad discretion regarding the entry of foreigners into its territory, and that no foreigner has a right to enter a country in which he has no status, either as a tourist or as a resident. Having said that, we should recall that such discretion is subject to the Court’s review, as is the discretion of every other administrative agency, in the framework of the “regular”’ grounds for review that apply to every exercise of administrative discretion […]. The Minister of Interior must, therefore, exercise his discretion in good faith, based on relevant considerations, equally, proportionately and reasonably […] As we know, exercising judicial review does not mean substituting the Court’s discretion for that of the administrative agency, nor does it mean evaluating whether the administrative agency could have made a wiser decision. Judicial review is limited to the question whether the discretion was exercised according to the rules of administrative law, which we enumerated (HCJ 1905/03 Akal v. Minister of Interior [8], para. 11).

 

17. On this issue, too, I agree with the conclusion of my colleague Justice N. Hendel. My view is also that the Respondent did not accord sufficient weight to the various considerations that he was required to balance. First and foremost, revoking the visa and residence permit does not serve the purpose of combatting the boycott, which is the basis for the exercise of authority in this case. In this context, we should again recall the Hebrew University’s position, namely that preventing the entrance of foreign students accepted for international programs, especially when done at the airport, “seriously harms relations between the university and other universities in the world and causes irreversible damage to the international relations that the university is cultivating”. It would therefore seem, under the circumstances of this concrete case, that the Appellant’s studies at the Hebrew University would serve as an additional layer in the Israeli academy’s battle against the boycott phenomenon.

Given that, the decision that is the subject of the petition is not within the margin of reasonableness, and it should be declared void.

 

 

            Decided in accordance with the opinion of Justice N. Hendel.

            Given this day, 9 Heshvan 5779 (Oct. 18, 2018)