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).

 

 

 

 

 

HCJ 5304/15

                                                                                                                        HCJ 5441/15

HCJ 5994/15

 

           

 

Petitioner in HCJ 5304/15:        Israel Medical Association

 

 

 

Petitioners in HCJ 5441/15:    1. Al Mezan Center for Human Rights

2. Yusuf Al-Siddiq Organization for Prisoner Support

 

 

 

Petitioners in HCJ 5994/15:    1. Physicians for Human Rights Israel

                                                2. The Public Committee Against Torture in Israel

3. HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger

                                                4. Yesh Din Volunteers for Human Rights

 

 

                                                            v.

 

Respondents in HCJ 5304/15

and HCJ 5441/15:                               1. Israel Knesset

                                                            2. Minister of Public Security

                                                            3. Commissioner of the Israel Prison Service

                                                            4. Attorney General

                                                            5. General Security Service

 

 

Respondent 3 in HCJ 5441/15:           General Security Service

 

Respondent in HCJ 5994/15:              State of Israel

                       

                                   

 

 

Attorneys for the Petitioners in HCJ 5304/15: Orna Lin, Adv., Tamar Winter-Kamar, Adv.,Yael Stamati, Adv.,  Moria Glick, Adv., Tamar Halevi, Adv.

Attorneys for the Petitioners in HCJ 5441/15: Durgam Saif, Adv., Omar Khamaisi, Adv.,

Attorney for the Petitioners in HCJ 5994/15: Tamir Blank, Adv.

Attorney for Respondent 1 in HCJ 5304/15 and HCJ 5441/15: Gur Bligh, Adv.

Attorney for Petitioners 2-4 Petitioners in HCJ 5304/15, Respondent 3 in HCJ 5541/15, and the Respondent in HCJ 5994/15: Areen Sfadi-Attila, Adv.

 

 

Dates of sessions:        4th Tishrey 5776 (Sep. 17, 2015), 12th Adar 5776 (Feb. 21, 2016)

 

The Supreme Court sitting as a High Court of Justice

 

Petitions for an order nisi

 

Before:            Deputy President E. Rubinstein, Justice N. Sohlberg, Justice M. Mazuz

 

Abstract

 

 

Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is presented to the court”. The Petitioners were the Israel Medical Association and human rights organizations.

 

The High Court of Justice (per Deputy President E. Rubinstein, and Justices M. Mazuz and N. Sohlberg) denied the Petitions for the following reasons:

 

The Law meets the constitutional tests. Ultimately the Law comprises an element of saving a life and prioritizing the principle of the sanctity of life. It is where it begins and where it ends. This is reinforced by the fact that the person concerned is in the custody of the State, which is duty-bound to provide him with proper medical treatment.

 

The Deputy President addressed the different components of the constitutionality tests and the Limitations Clause in detail, and reached the conclusion that the Law, including section 19N(e), passes the constitutionality tests by delicately balancing the sanctity of life, the State’s responsibility toward prisoners in its custody, and national security,  against the right of the individual to dignity, including autonomy and freedom of expression. This is the case given the graduated procedure established by the Law, which includes several medical, judicial and legal mechanisms of supervision.

 

Inter alia, it was held that the dominant purpose of the Law is protecting the life of a hunger striking prisoner, subject to the exceptions designed to ensure protecting the dignity of the prisoner, with close supervision and monitoring by medical and judicial bodies. This is an indisputably proper purpose. The secondary purpose is security based. Its concern is preventing risk to the lives of others aside from the hunger striking prisoner, or preventing serious harm to national security. This purpose is expressed in section 19N(e) of the Law, under which the court may consider non-medical considerations in making its decision whether to permit involuntary medical treatment. Had the security purpose been an exclusive or primary purpose, there may have been doubt as to whether it would be proper for the purpose of permitting forcible feeding. However, this secondary purpose, too, is largely grounded upon the principle of the sanctity of the life of the innocent who may be harmed as a result of the consequences of a hunger strike by prisoners or detainees. Given that the former is the dominant purpose and that the latter is secondary to it, Justice Rubinstein held that both purposes are proper.

 

It was also noted, inter alia, that the arrangement in section 15 of the Patient Rights Law, addressing a situation of a patient who refuses to accept treatment, does not sufficiently and fully respond to situations of hunger strikes in general, and to such strikes by prisoners or detainees in particular, in terms of the State’s responsibility for them, the complexities of autonomous will in cases of hunger strikes by prisoners who are willing to die, or in regard to such cases where the group circumstances of those on strike prevents them from ending the strike, as well as in terms of the consequences of the hunger strike for national security. Therefore, this is a specific, supplementary arrangement for the purpose of addressing situations where the arrangement established in the Patient Rights Law is to no avail.

 

In terms of the proportionality stricto sensu test, it was found that the amendment provides a graduated, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life through mechanisms of close supervision and monitoring – both medical and legal – of the proceedings and its employment as a last resort. This arrangement represents a proper relationship between the benefit which may derive from the Law and the potential harm to constitutional rights due to its implementation.

 

In this context, it was noted that the procedure commences with the medical opinion of the treating physician. The request is to be submitted by the Prisons Commissioner with the approval of the Attorney General or an appointee on his behalf – as a last resort meant to prevent risk to the life of the of a prisoner on hunger strike, or the risk of severe, irreversible disability – and only after the procedural process has been exhausted. As a general rule, the ethics committee will provide its opinion on the matter, the President of the District Court or his Deputy will determine the request, and the decision is subject to appeal to the Supreme Court. The treatment provided shall be the minimal treatment required. The caregiver is not required to provide the treatment permitted by the court. The Law presents a structured, organized arrangement that involves – alongside doctors – very high levels of the legal and judicial system, and is constructed in strict stages, and as a last resort. It was also emphasized that before the court may be approached, the treating physician must make “significant efforts” to persuade the prisoner to give his consent to treatment. Thus, the doctor must explain the legal process and its possible implications to the prisoner. The court must hear the prisoner, and it is authorized to hold the hearing on the request at the hospital. Even when permission for involuntary treatment is granted, the caregiver must again attempt to persuade the prisoner to consent to treatment, and as noted, the treatment to be provided must be the minimal required, and must be provided in a manner that would ensure the greatest protection of the prisoner’s dignity, while preventing, to the extent possible, causing pain or suffering.

 

Section 19N(e), which focuses on the security purpose, also meets constitutional requirements. Moreover, it must be employed extremely sparingly and in extreme cases, given the proper evidentiary foundation. The security consideration itself cannot justify commencing proceedings under the Law, and certainly cannot itself enable authorization for treating a prisoner against his will. The security considerations according to the Law can be considered only when the treating physician has determined that the prisoner’s medical condition is extremely severe and that there is real risk to his life, or that he will suffer severe, irreversible disability, and for the purpose of saving his life, which is the main purpose of the Law. In any event, the treatment that is provided in practice, if and to the extent it is provided, in accordance with the physician’s discretion, will be a result of medical considerations alone. Implementing section 19N(e) must be extremely sparing and  exceptional, where the State provides evidence pointing to a near certainty of serious harm to security, and all this following the medical journey, which is primary.

 

Justice M. Mazuz concurred in the result as to the constitutionality of the Law. He reiterated, inter alia, that the employment of the procedure was designed for extreme cases where other means were not successful, and it is restricted to the necessary minimum required in order to save the life of a prisoner at mortal risk due to a hunger strike, or to prevent severe, irreversible harm. Nevertheless, Justice Mazuz expressed concern that too great a weight might be given to considerations of security and public order at the expense of the medical considerations and the right to autonomy. Therefore, he proposed establishing guidelines and restrictions for the implementation of the provisions in section 19N(e), which would address the security consideration, in the form of a “procedural separation” between the examination of the medical and  security considerations.

 

Pursuant to the opinion of Justice Mazuz, the Deputy President clarified that the best approach is one of first things first – first the medical issue, and  a discussion of the security issue only thereafter. In order not to tie the hands of the trial court completely, the Deputy President suggested a formula whereby the court would begin by examining the medical issue as the basis of determining the matter, while the security issue – to the extent it may be necessary – would be left to be addressed last.

 

Justice Sohlberg concurred in the opinion of the Deputy President and added, inter alia, a few comments on the question of the proper place and role of the security considerations under section 19N(e) of the amendment.

 

 

Judgment

 

Deputy President A. Rubinstein:

 

1.         Before us are Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: “the Law”), which concerns “preventing harm to the health of a hunger striking prisoner”, and which, under certain circumstances, permits involuntary medical care for hunger striking prisoners despite their refusal. The Petitions address, inter alia, the constitutionality of sec. 19N(e) of the Law, which provides that in addressing a request to permit medical care, the court will take account of “considerations regarding concern for human life, or a real concern for serious harm to national security, to the extent that evidence to this effect is presented to the court.”

 

Background

 

2.         The right to informed consent for medical care was recognized over the years as one of a person’s fundamental rights under the right to liberty. Therefore, as a general rule, one may refuse medical treatment, including feeding (CA 506/88 Sheffer v.  State of Israel, IsrSC 48(1) 87 (1993) [English: http://versa.cardozo.yu.edu/opinions/yael-shefer-minor-her-mother-and-na...).

 

3.         The Patient Rights Law, 5756-1996 (hereinafter: the Patient Rights Law) was designed to “establish the rights of every person who requests medical care or who is in receipt of medical care, and to protect his dignity and privacy” (sec. 1 of the Law). According to sec. 13(a) of the Patient Rights Law: “No medical care shall be given unless and until the patient has given his informed consent to it, in accordance with the provisions of this chapter”, and this subject to the exceptions listed in sec. 15 of the Patient Rights Law, which permit – under certain circumstances – forcible feeding. Ethics committees that were established under the Patient Rights Law operate within the hospitals (see sec. 24 of the Patient Rights Law, as well as the Patient Rights (Manner of Appointments, Terms of Office, and Operating Procedures of Ethics Committees) Regulations, 5757-1996). Their role is to permit a caregiver to provide treatment to a patient against the patient’s will, under certain circumstances. The ethics committee is chaired by a jurist eligible to be appointed as a district court judge, and comprises two specialist physicians from different areas of medical specialization, a social worker or a psychologist, and a public representative or a clergyman. Under the Patient Rights (Amendment No. 6) Law, 5774-2014, the composition of the ethics committee was expanded to include a certified nurse. It was determined that where the opinions of the committee are evenly split for purposes of a request under sec. 15(2) of the Patient Rights Law, the committee’s decision should be viewed as a decision not to permit the caregiver to provide the patient with care against his will.

 

4.         A hunger strike is a means of protest by which the hunger striker seeks to achieve a defined goal. Hunger strikes by prisoners occur from time to time in Israel. In recent years, this phenomenon has been recurrent among security prisoners and detainees who are members of terrorist organizations – be it as a group or as individuals. It occurs, albeit on a smaller scale, among non-security prisoners and detainees, as well. Although a hunger strike is not itself a medical problem or an illness, its continuation inevitably leads to severe, at times irreversible, medical problems for the hunger striker, and may even lead to death if medical care not be given. There is some scientific uncertainty in the medical community as to the medical aspects of a hunger strike, as well as to its treatment. There are no scientific tools or scientific experience that may serve as a foundation for medical opinions as to the life expectancy of a hunger striker. As the explanatory notes to the Bill reveal, a prisoner is at real risk of death after 55-75 days of absolute hunger strike. The Bill also notes that there is no evidence from around the world of a full, ongoing hunger strike of 75 days after which the hunger striker remained alive (see the Explanatory Notes to the Bill, Government Bills (5774-2014) 763, 870). By their nature, hunger strikes require medical monitoring and treatment.

 

5.         Prior to the Law’s enactment, the law did not include provisions regulating the possibility of the involuntary artificial feeding of hunger striking prisoners, and consequently, Israeli law did not define the terms “hunger strike” of “hunger striker”. Until the Law was enacted, and in practice, even after its enactment, as we will see in the examples below, treatment for hunger striking prisoners or detainees was provided in accordance with the Patient Rights Law, similarly to medical treatment for patients who, being informed, refuse necessary treatment, including hunger strikers who are not prisoners. However, in situations of extended hunger strikes, particularly when they are partial, there is medical difficulty in determining the point in time where the hunger striker enters a state of “severe danger,” which is a prerequisite to convening the ethics committee under sec. 15(2) of the Patient Rights Law. In an attempt to confront the above challenge, in April 2012, in the midst of a wave of hunger strikes by prisoners and administrative detainees, Guidelines for the Medical Treatment of a Hunger Striker (Including Detainees and Prisoners) were published by the Ministry of Health. The Guidelines set a rule of thumb according to which after 26 to 30 days of hunger strike, full or partial, there may be risk to the life of the hunger striker, or a risk of severe, irreversible impairment.

 

6.         The Patient Rights Law includes a possibility of coercive medical treatment of a person only after approval by the ethics committee. In recent years, ethics committees convened according to the Patient Rights Law have considered requests to treat hunger striking prisoners. In all these cases, the striking prisoners consented to medical care without coercion. Ultimately, not a single prisoner died due to a hunger strike. This was the result of a dialogue between the members of the ethics committee and the hunger strikers, which was based on the close trust relationship between the caregiver and the patient. On February 24, 2013, Dr. Michael Dor, then the head of the General Medicine Department in the Ministry of Health, published a directive to the administrators of general hospitals, according to which security prisoners who have been on a hunger strike for over 28 days were to be admitted even if they objected to receiving medical treatment, and that a prisoner on a hunger strike for less than 28 days was to be admitted if his medical condition posed a life-threatening risk. As will be explained, several cases were recently brought before this Court (HCJ 5580/15 Alan v. General Security Service (Aug. 15, 2015) (hereinafter: the Alan case); HCJ 452/16 Al-Qiq v. IDF Commander in Judea and Samaria (Feb. 2, 16) (hereinafter: the Al-Qiq case)). They all concluded, one way or another, with an agreed arrangement that ended the hunger strike (also see HCJ 3267/12 Halahla v.  Military Commander of Judea and Samaria, para. 25 (2012)).

 

7.         Before we address the details of the Law, and in order to clarify the issue, we will explain what forcible feeding is. It is a medical treatment wherein nutrition and fluids are artificially introduced into the patient’s body against his will. Such feeding includes a range of possible medical procedures, beginning with intravenously providing fluids and supplements, performing blood tests for evaluation, and providing medications. In extreme cases, which we will address below, nutrition or fluids are introduced into the body of a hunger striker through a nasogastric tube inserted through the nose and throat into the stomach, or through a tube inserted through an opening in the abdomen and into the stomach.

 

The Course of the Law’s Enactment

 

8.         Following a mass hunger strike among security prisoners and administrative detainees in 2012, which lasted – in part – for an extended period of time, and to the point that it posed real risk to the health and life of strikers, an inter-ministerial taskforce – headed by the Deputy Attorney General (Criminal), and with the participation of representatives of the Minister of Justice, the Ministry of Public Security, the Ministry of Health, the Prisons Service and the Security Service – was convened in order to establish appropriate guidelines to address the phenomenon. The team also included the Deputy Attorney General (Special Projects), the Deputy Attorney General (Legislation) and the Director of the High Court of Justice Department of the State’s Attorney’s Office. The team held a series of meetings at the Deputy Attorney General’s office, conducted in-depth research into the provisions of international law on the matter, and examined the challenges unique to addressing hunger strikes in Israeli prisons. On August 7, 2013, a draft memorandum of the Law was distributed to the Israel Medical Association (hereinafter: IMA), the National Council for Bioethics, and the Public Defender’s Office (see below in regard to the differences between the Memorandum and the Bill). IMA strongly objected to the proposal in the Memorandum. On May 18, 2014, the Knesset Ministerial Committee for Legislation approved the Bill in resolution HK/869, and it was referred for a first reading by the 19th Knesset. The Bill was submitted to the Knesset for first reading on June 9, 2014. At the end of the debate, it was decided to refer the Bill to the House Committee, which decided to pass the Bill on to the Knesset Internal Affairs and Environment Committee. This Committee convened nine times in order to discuss the Bill. During its discussions, a fruitful deliberation was held with diverse opinions and positions presented by different professional entities from government ministries, the Courts Administration, the Public Defender, IMA and other organizations. Following these discussions, the language of the Bill was revised on certain issues. The Bill was intended to come to a vote in second and third readings by the Knesset on June 30, 2014, but the Knesset hearings for that day were canceled and the Bill was not presented again by the time the Knesset dispersed on December 8, 2014. On July 6, 2015, the Government gave notice as to its desire to apply the continuity rule to the Bill. The Internal Affairs and Environment Committee of the 20th Knesset convened four times to discuss the Bill. Several entities from government ministries and representatives of organizations participated in the discussions. The Committee considered 90 objections that were submitted, and those brought about significant changes in the Bill. The Bill was submitted to the Knesset for second and third readings on July 29, 2015. After a lengthy debate, the Law was passed by a majority of 46 Knesset Members with 40 opposed (see below as to the differences between the Bill and the Law as enacted).

 

The Legal Framework

 

9.         The Law was passed by the Knesset in second and third readings on July 30, 3014, and entered into force upon its publication in the Official Gazette on August 5, 2015. The Law amends the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance) by adding article B2: “Preventing Health Damage to a Hunger Striking Prisoner.”

 

10.       According to the Law, which is detailed and precise, the process for requesting permission to provide medical treatment to a hunger striking prisoner commences with the opinion of the prisoner’s treating physician (or a physician who has recently treated the prisoner), whereby “there is a real possibility that within a short period of time there will be a risk to the prisoner’s life or risk of a severe, irreversible disability, without receiving medical treatment or treatments detailed in the medical opinion” (sec. 19M(a) of the Law). Along with submitting the medical opinion, the Prison Service Commissioner may, with the consent of the Attorney General or a person appointed for such purposes by the Attorney General, approach the President of the District Court or his deputy with a request to provide medical treatment to a prisoner. Such a request will be submitted only after he is persuaded that “a significant effort was made to secure the prisoner’s consent to such treatment, inter alia, by a doctor’s discussion with the prisoner, and after the prisoner received an explanation as to the request to the court and its potential consequences” (sec. 19M(d) of the Law.) A copy of the request for medical treatment shall be submitted by the Prisons Service to the ethics committee, which shall give its opinion on the relevant medical matters after hearing the prisoner (sec. 19M(c) of the Law). The ethics committee’s opinion must be presented to the court, except for cases where “for urgent and exceptional medical reasons resulting from the prisoner’s medical condition” it is not possible to wait for the opinion or to hear the prisoner or his attorney (section 19N(c)(2) of the Law).

 

11.       Before rendering its decision, the court must be persuaded that “a significant effort was made in order to secure the prisoner’s consent for treatment, and in the course of such effort he was informed about his medical condition and the consequences of continuing the hunger strike for his condition in detail, in a manner that is understandable to him under the circumstances, and that he was also given medical information as stated in section 13(b) of the Patient Rights Law, and that the prisoner continued to refuse medical treatment” (sec. 19N(b) of the Law). The Law mandates that the prisoner be represented by an attorney in the court proceedings, and if he is not represented, a public defender will be appointed (sec. 19O(d) of the Law). The court will hear the prisoner or his attorney, and may order that the hearing on the request for medical treatment be conducted in the hospital in which the prisoner is hospitalized (sec. 19O(a) of the Law. The court may conduct the hearing in camera, if  it  is of the opinion that a public hearing may deter the prisoner from freely expressing his position or expressing it at all, or for the purpose of protecting the prisoner’s privacy (sec. 19O(d) of the Law). The court may admit evidence in the absence of the prisoner or his attorney if it is of the opinion that disclosing the evidence may compromise national security, and that its concealment is preferable to its disclosure for the purposes of justice (sec. 19O(e)(1) of the Law).

 

12.       On the merits, before making a decision, the President of the District Court or his Deputy must consider the prisoner’s medical and psychological condition, the consequences of failing to provide treatment, the prospects and risks of the requested treatment and of alternative treatments, the level of the requested treatment’s invasiveness and its impact on the prisoner’s dignity, the prisoner’s position and his reasons, including the reasons for which the prisoner chose to initiate a hunger strike, as well as the outcomes of previous coerced medical treatment, had there been any (sec. 19N(d) of the Law). The court must also take into account considerations of concern for human life or a real concern for serious harm to national security, when evidence is presented to that effect (sec. 19N(e) of the Law).

 

13.       Should the court be persuaded that there is a “real possibility that there will be a risk to the prisoner’s life, or risk of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to benefit the prisoner” (sec. 19N(a)(1) of the Law), it may permit providing medical treatment to a hunger striking prisoner against his will. The medical treatment must be provided “in a way and a place that would ensure maximum protection for the prisoner’s dignity, while avoiding as much as possible causing pain or suffering to the prisoner” (sec. 19P(c) of the Law).

 

14.       In its opinion, the court must detail the type of treatment or treatments that it permits (sec. 19N(6) of the Law). The treatment must be provided to the prisoner by a caregiver in accordance with his area of practice, and in the presence of a physician (sec. 19P(a) of the Law). If the prisoner refuses the necessary treatment, a warden may – at the caregiver’s request – “use reasonable force in order to allow the caregiver to provide the treatment, as long as the use of force is only to the degree necessary to provide the treatment” (sec. 19P(d) of the Law). The treatment is to be “the minimal medical treatment necessary, according to the professional discretion of the treating physician, in order to protect the prisoner’s life or to prevent a serious, irreversible disability” (sec. 19P(a) of the Law). Section 19Q of the Law exempts the caregiver and the medical institution from liability in tort as a result of providing coerced medical treatment.

 

15.       The decision of the court is subject to appeal to the Supreme Court (sec.19S(b) of the Law). The Supreme Court will hear the appeal within 48 hours of its submission (sec. 19S(b) of the Law). It is also possible to ask the court that made the decision to reconsider the request if new facts are discovered, or if the circumstances have changed in a way that could influence the decision (sec. 19R of the Law).

 

16.       To complete the picture, it should be noted that the main points of the Memorandum circulated as described above were similar to the Bill with one notable exception. The Bill added a provision that a copy of the request for permission to provide treatment to the prisoner be delivered to the ethics committee where the prisoner is hospitalized, and that the court’s decision on the request be given after it has received the opinion of the ethics committee (unless the court is of the opinion that, under the circumstances, the request should be denied in limine).

 

17.       The language of the Law, as enacted, was ultimately similar to the Bill, with certain changes. The Law added the requirement, not included in the Bill, for the Attorney General’s consent to submitting a request for permission to provide medical treatment (sec. 19M(a)), and submission of the request was made contingent upon making a significant effort to secure the prisoner’s consent to treatment, and only after the procedure for submitting a request to the court and its consequences were explained to the patient (sec. 19M(d)). Another central difference, which we shall discuss below, is that the Bill placed the security considerations in the primary section that outlines the judicial discretion, and they were included among the factors the court must take into account, such as  the Prisons Service’s responsibility to safeguard the health and life of the prisoner, and the impact of the decision on the ability to maintain security and order in prisons. However, ultimately, the role of the security considerations was reduced in the Law, such that the court may consider factors of “concern for human life or a real concern of serious harm to national security, to the extent it was presented with evidence to this effect”.

 

18.       The constitutionality of Article B2, including sec. 19N(e) of the Law in regard to the considerations for deciding upon the request, is now the subject that requires our decision.

 

The Petitioners’ Arguments

 

The Israel Medical Association’s Arguments

 

19.       IMA, the Petitioner in HCJ 5304/15, is the representative union of physicians in the State of Israel. IMA argues that the Law is not proportionate, is not ethical, is not equal, and undermines the internationally accepted rules of medical ethics, which it has adopted and ratified. IMA claims that force-feeding persons on a hunger strike despite their refusal poses a real risk to their health, and is inconsistent with the overarching principles of preventing harm and protecting the patient’s autonomy over his body, which are the basis for the medical code of ethics. Under international ethics codes, force-feeding is considered torture. Therefore, IMA is obligated to do all it can in order in order to repeal the Law.

 

20.       According to IMA, the Bill was greeted by the absolute, across-the-board objection of the entire medical-scientific community, including the World Medical Association, the National Association of Nurses, the IMA’s Hospital Managers’ Association, as well as the National Council for Bioethics, which was created in accordance with Government Decision no. 1219 of January 31, 2002, in order to provide recommendations to decision makers within the executive, legislative and judiciary branches on ethical issues deriving from developments in research, and in order to form positions for ministers and the Government of Israel in regard to matters that have yet to be regulated in legislation, or whose legislative arrangement required re-examination.

 

21.       IMA maintains that the Law makes an exception of the population of hunger striking prisoners in terms of the general arrangement established in the Patient Rights Law, while seriously infringing the principle of equality, although there is no relevant difference between a hunger striking prisoner and any other patient that would justify making them exceptions to the general arrangement. IMA argues that the difference between hunger striking prisoners and non-prisoners refusing medical treatment concerns non-medical purposes. In IMA’s view, these purposes cannot constitute a relevant difference even if there is greater concern that a prisoner’s hunger strike would lead to a violation of public order.

 

22.       IMA refers to specific arrangements that are exceptions to the general rule established by the Patient Rights Law, such as sec. 68(b) of the Legal Competency and Guardianship Law, 5722-1962 (hereinafter: the Legal Competency Law), according to which a court may assume the role of guardian in extreme cases where medical treatment is necessary for the physical or emotional wellbeing of a ward. According to IMA, the Law in our matter concerns those who are competent to give informed consent but chose knowingly to withhold it. Additionally, the Legal Competency Law requires that the court obtain a medical opinion and weigh medical considerations in regard to protecting the physical or mental health of the minor, the incompetent or the ward, and the court may not consider non-medical considerations. Similarly, in the Treatment of the Mentally Ill Law, 5751-1991 (hereinafter: Treatment of the Mentally Ill Law) was designed to protect the right of the mentally ill to autonomy and to set limits upon the possibility of imposing treatment upon them. This is in contrast of the Law at hand, which reduces the weight given to the patient’s autonomy under the Patient Rights Law. IMA also refers to the Terminally Ill Patient Law, 5766-2005 (hereinafter: the Terminally Ill Patient Law), which establishes a specific arrangement for treating patients whose impending death is certain and unpreventable. According to IMA, the arrangement in the Terminally Ill Patient Law explicitly prioritizes the rights of the patient and his autonomy. Under the Terminally Ill Patient Law, the exclusive considerations in determining medical treatment are the medical condition, the patient’s will, and the level of his suffering. IMA notes that according to the case law, patients with anorexia are not subject to the Treatment of the Mentally Ill Law, but rather to the general arrangement in the Patient Rights Law. Therefore, IMA claims that by extension, there is no justification for a specific arrangement for hunger striking prisoners who are competent, sane and have functional discretion and judgment.

 

23.       According to IMA, the Law creates clear statutory disharmony because its purposes and provisions are inconsistent with, and sometimes stand in obvious opposition to, the purposes and provisions of the general and related arrangements that concern the right to autonomy, the right to refuse medical treatment, and forced medical treatment.

 

24.       Additionally, the Law has two explicit purposes: the first – to protect the life of a hunger striking prisoner (hereinafter: the humanitarian purpose), and the second – to preserve public order and national security within and without the prison walls (hereinafter: the non-medical purpose). IMA argues that the humanitarian purpose was not the primary purpose for which the Law was enacted, but rather it was the non-medical purpose. It claims that the Law was designed to make it possible for the State of Israel to compel a hunger striking prisoner to receive medical treatment contrary to his will. IMA maintains that forcing treatment upon a hunger striking person through force-feeding is a violent and humiliating act that amounts to torture under international standards, and that may irreversibly harm health and even lead to death. As a result, the Law severely infringes the prisoners’ constitutional right to dignity, as well as their right to life and to physical integrity, from which the right to autonomy and the right to refuse medical treatment derive. In IMA’s opinion, the right to refuse force-feeding is part of the general right each person, as such, holds to refuse medical treatment. This right is not denied to those inside prison walls.

 

25.       IMA reminds us that hunger striking has been recognized as a means of expression and protest. It argues that the Law seriously infringes the prisoners’ freedom of expression by denying them, in effect, what is practically their sole legitimate means of protest.

 

26.       IMA maintains that the Law is not befitting the values of the State of Israel as a Jewish and democratic state, and that, inter alia, coercive use of medical means in order to achieve goals that are not medical is inconsistent with the principles of democracy.

 

27.       In IMA’s opinion, the Law’s purpose is  improper: the dominant purpose of the Law is not a humanitarian purpose. Protecting the lives of prisoners is secondary and is but an intermediate goal that was meant to serve the non-medical purpose of the Law. The non-medical purpose does not meet the test of a real public interest, neither under the necessity test – the existing statutory arrangement in the Patient Rights Law allows treating hunger striking persons, including prisoners, without coercive and harmful medical intervention – nor under the test of sensitivity for the right. Therefore, the serious harm to human dignity and a person’s autonomy over his body, while humiliating him and performing invasive medical procedures without consent, and the infringement of his right to equality and freedom of expression, cannot be justified by the need to achieve non-medical purposes, even due to a concern for compromising public order.

 

28.       In IMA’s opinion, the Law does not meet the proportionality tests either. The rational connection test – the arrangement established in the Law is not at all necessary, and may even undermine the chances for successful treatment of hunger strikers and irreversibly damage their health. Currently, the manner of treating hunger strikers is based on close monitoring by a doctor of the hunger striker’s statements of his wishes to receive or refuse treatment, and attempts to persuade the hunger striker to receive full or partial feeding with consent, and with a commitment that he will not be fed against his will. According to IMA, the procedure described is the best way to address hunger strikes – building a relationship of trust between treating physicians and the hunger striking prisoner leads to a negotiation that facilitates arriving at agreements. The ethics committee is viewed as a neutral body that aims to benefit the hunger striking person and to seek his best interest, rather than acting on anyone’s “behalf” or as a “threatening” institutional arm. In the IMA’s view, the small number of cases in which the matter of hunger striking prisoners were brought before the ethics committee is worth noting, and is a result of the trust relationship formed between the doctor and the hunger striking prisoner – a relationship that directly affects the scope of the cooperation between them, and the hunger striker’s consent  to undergo examinations  and to receive vitamins and nutrition intravenously.

 

29.       On the other hand, the arrangement established in the Law significantly alters the system of checks and balances established under sec. 15(2) of the Patient Rights Law. The Law shifts the decision to force medical treatment onto the President of the District Court or to his Deputy – who is not effectively involved in the medical procedure, is not familiar with the professional details and does not have the necessary tools to make an educated decision. In IMA’s opinion, this change may cause irreparable harm to the delicate trust relationship between hunger striking prisoners and the medical system, and may increase resistance to medical care. Additionally, although the Law requires presenting the court with the opinion of the ethics committee, there is no obligation to consider its opinion in cases of urgency. The patient does not even have the right to submit an opposing medical opinion, and the court has no authority to appoint another expert on its behalf. Furthermore, the Law requires only that the benefits and risks of providing forced treatment be considered, whereas the Patient Rights Law requires an expectation that the treatment will significantly improve the patient’s medical condition. And while the Law requires considering the position of the prisoner and his reasons among the considerations for coercing medical treatment, the Patient Rights Law requires a reasonable basis for assuming that the patient would retroactively consent. Moreover, the Law makes it possible to order coercive treatment in reliance upon privileged evidence, as opposed to the arrangement in the Patient Rights Law, which does not involve a judicial procedure. The Law even explicitly permits the use of force against a hunger striking prisoner in order to facilitate the  coerced treatment, whereas the Patient Rights Law does not explicitly permit this.

 

30.       IMA further maintains that it is doubtful whether forced-feeding can  save the life of a hunger striking prisoner. Rather, force-feeding that may bring about precisely the result about which the State is concerned –  disturbance of the peace, additional acts of protest and significant national and international reactions, as well as health risks and even the death of the hunger striking prisoner.

 

31.       IMA adds that there is a less harmful means for achieving the purpose of protecting the lives of prisoners, under sec. 15(2) of the Patient Rights Law and in accordance with the rules of medical ethics and the physician’s independent discretion. As for the proportionality stricto sensu test – IMA believes that the very assumption that some benefit may be derived as a result of implementing the Law is in doubt. On the contrary, the Law may cause extremely severe harm to prisoners, as well as to doctors and medicine in Israel.

 

32.       IMA maintains that the Law is inconsistent with the fundamental principles of medical ethics in Israel and around the world: autonomy, preventing harm to a patient, benefiting the patient, equality and distributive justice. According to IMA, the Law would compromise the doctor-patient relationship because a constant threat will hang over the heads of hunger striking prisoners that would lead to irreversible harm to the fragile trust prisoners place in prison doctors, as well as hospital doctors. IMA believes that it is not a hospital doctor’s role to  participate in implementing governmental decisions that serve non-medical purposes against the will of the patient, and to prefer non-medical considerations over medical considerations. IMA maintains that as a result of implementing the Law, a doctor may find himself in a conflict between his ethical duties and his duties as an employee required to provide a medical opinion to the Prisons Service Commissioner, or to administer forced treatment. In IMA’s opinion, issuing a judicial order by the President of a District Court or by his Deputy compelling medical treatment would lead to a situation in which no doctor would agree to execute the order, or that a doctor who would execute it would be committing an ethical violation that would expose him to disciplinary action by the IMA’s ethics board.

 

33.       IMA presented an enlightening survey of how different countries around the world contend with hunger strikes by detainees, prisoners, or those seeking asylum within their borders (Appendix P/38). The remaining Petitioners, as well as the Respondents, have also shed light on this issue. I will discuss their survey in depth, below.

 

The Petitioners Arguments in HCJ 5441/15: Al Mezan Center for Human Rights and

the Yusuf Al-Siddiq Institute for Prisoner Support

 

34.       The Petitioners in HCJ 5441/15 – organizations active in the field of human rights and social change, including protecting the rights of Palestinian prisoners – also contend that the Law is unconstitutional. It blatantly contradicts the fundamental right to dignity as it violates one’s right to autonomy over one’s body, as well freedom of expression and protest in a manner that negates a prisoner’s effective ability to express his position in an attempt to influence prison and state authorities. According to the Petitioners, a hunger strike is a legitimate course of protest, it is non-violent, and its importance grows when prisoners, whose forms of protest are limited due to their incarceration, are concerned. According to the Petitioners, force-feeding, which is designed to end the prisoner’s protest, gravely infringes his humanity. They argue that the Law was designed to provide the Prisons Service and the General Security Service with a tool to “break” a hunger strike, on the basis of considerations of public safety and breach of public order. The Petitioners believe that these considerations are irrelevant to the purpose of a decision regarding  the compelling of medical treatment that is intended to save lives. Therefore, the purpose of the Law is improper because the hunger striking prisoner becomes an instrument in the hands of the authorities for the purpose of implementing policy, and the claim as to protecting the life of the prisoner is merely a fig leaf. In this context, the Petitioners refer to sec. 19O(e) of the Law, which permits the use of privileged evidence in the proceedings, while limiting the prisoner’s ability to mount a defense. In the Petitioners’ view, the extent of the benefit deriving from the Law is also limited because the publicity and public outcry following the forced feeding of a hunger striking person would create animosity and inspire an uprising which may be “life threatening” or compromise prison order. The Petitioners argue that the arrangement in sec. 15 of the Patient Rights Law balances the need to care for the individual’s welfare, and his will and dignity.

 

35.       The Petitioners are of the view that, considering past experience, the security system has a wide range of capabilities for controlling a hunger strikes by prisoners. They maintain that the number of prisoners on hunger strikes decreases from year to year. In this regard, they rely on the response of the Prisons Service, dated July 12, 2015 (Appendix H to their Petition. In their Petition, they note the hunger strike by administrative detainee Muhammad Alan, which was discussed in the Alan case that we mentioned above, and to which we will return.

 

The Petitioners’ Arguments in HCJ 5994/15: Physicians for Human Rights, The Public Committee Against Torture in Israel, HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger, Yesh Din Volunteers for Human Rights

 

36.       The Petitioners in HCJ 5994/15 are organizations whose mission is to promote and protect human rights in relation to health, to act against torture, and to protect the rights of residents of the West Bank – including Palestinians under arrest or investigation. They join the arguments by the Petitioners as presented above, including the argument whereby force-feeding constitutes torture that is prohibited under Israeli law and under international law. They, too, are of the opinion that the purpose of the Law is “breaking a hunger strike by prisoners, and silencing their protest”.  In their opinion, as well, a hunger strike is a last resort that is taken up in protest over arbitrary and harmful policy and conduct towards Palestinian prisoners and detainees in recent years; in protest against a policy of administrative detention and a policy of solitary confinement; and in order to secure basic human rights such as family visitations, medical care and proper living conditions. The Petitioners review hunger striking in Israel, including the mass hunger strike by Palestinian prisoners in 2012, following which the process of enacting the Law was accelerated. In 2014, there was another mass hunger strike by administrative detainees. According to the Petitioners, a hunger strike is considered a disciplinary offense under the Prisons Ordinance. A Special Commissioner Order (Commissioner Order 04.16.00) grants the Prisons Service tools to address hunger striking prisoners, including revoking of benefits. They maintain that the tools that existed before the Law was passed succeeded in bringing an end to strikes by security prisoners without coercive treatment and without any instance of death as a result of a hunger strike. The Petitioners argue – without any documented substantiation – that it was precisely in cases in which coercive treatment was employed, before the enactment of the Patient Rights Law, that several cases of death occurred (para. 16 of their Petition).

 

37.       These Petitioners, as well, believe that coercive treatment infringes the hard core of human dignity, autonomy, free will, equality and freedom of expression. The Petitioners argue that there is a real possibility for harming human life in cases of force-feeding. In their opinion, the blanket immunity granted by the Law to entities that would provide coercive medical treatment directly violates the right to property of whomever was force-fed, constitutes another form of humiliation, and is not intended for a proper purpose. The Petitioners argue that the cumulative violation of human rights, including the possibility of relying upon privileged evidence in the proceedings, should be considered. They believe that ending a hunger strike by using force will guarantees further protests.

 

38.       In the Petitioners’ view, the Law contradicts the ethics rules of the World Medical Association, as well as the provisions of international law – which we shall address below – contrary to the presumption of compatibility [the Charming Betsy canon – ed.], which presumes that the purpose of a law is, inter alia, to realize the principles of international law and not to violate them. The Petitioners emphasize the prohibition on medical professionals to perform force-feeding of prisoners, and refer, inter alia, to the position of the Red Cross, the United Nations’ Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The Petitioners argue that the Law, which they claim effectively targets only the Palestinian population, is wrongfully discriminatory. In light of all this, the Petitioners believe that the Law must be struck down even before it is implemented, as it is a stain upon the law.,

 

The Response of the Knesset

 

39.       The Knesset believes the Petitions should be denied. In its opinion, the Law creates a supplemental arrangement to the existing arrangement in the Patient Rights Law, which responds to the special complexity that arises when the patient refusing medical treatment is a prisoner in the charge of the State, and whose medical condition is a product of a deliberate decision to undertake a hunger strike. According to the Knesset, the Law strikes a delicate balance between the State’s responsibility for the welfare of the prisoner and the sanctity of his life, and respecting the prisoner’s autonomy and wishes not to receive medical treatment. The Law was designed to allow a treating physician to care for the welfare of a hunger striking prisoner, subject to the exceptions that are meant to protect the prisoner’s dignity, under the strict supervision and monitoring of various judicial and medical entities.

 

40.       The Knesset emphasizes that the President of the District Court or his Deputy may permit providing medical treatment to a hunger striking prisoner despite the prisoner’s refusal, but they cannot order providing such treatment, and the matter remains in the discretion of the treatment provider (sec. 19P(a) of the Law). If the treatment provider chooses to treat the prisoner against his will, in accordance with the permission granted, he is required to provide “the minimum treatment necessary in the caregiver’s professional discretion to maintain the prisoner’s life or prevent severe, irreversible disability” (sec. 19P(a) of the Law). In light of this, the Knesset believes this is a balanced procedure that is meant to provide the most minimal treatment, in the most extreme cases, where treatment is required in order to save the life of the prisoner, or in order to prevent his severe, irreversible disability.

 

41.       The Knesset argues that although the Law permits the infringement of certain constitutional rights of prisoners – the right to autonomy and dignity – this infringement is intended for proper purposes and passes the proportionality tests established in the Limitations Clause of Basic Law: Human Dignity and Liberty. The Knesset finds evidence for this in the thorough legislative process that brought about significant changes in the Law’s language, whereby balances and mitigating elements were added. According to the Knesset, the alleged infringements of certain constitutional rights enable protection of other constitutional rights, first and foremost the prisoners’ right to life. The Knesset emphasizes that a prisoner has no constitutional right to hunger strike. A hunger strike in itself cannot be considered part of the freedom of political expression granted to a prisoner. In the Knesset’s opinion, preventing a hunger strike does not itself infringe the prisoner’s constitutional rights.

 

42.       The Knesset maintains that the Law meets the requirements of the Limitations Clause, as it is intended for a proper purpose and its infringement of the constitutional rights of prisoners passes the proportionality tests. The Knesset argues that the purposes grounding the Law are most proper, and befit the values of the State of Israel as a Jewish and democratic State. The Law is founded upon two intertwined purposes: the first, and primary one, which derives from the central value of the sanctity of life, concerns saving the life of a hunger striking prisoner and protecting his health and welfare. The second is protecting national security and the lives of others who may be at risk as a result of the hunger strike. As noted, a conditio sine qua non for initiating the procedure under the Law is the prisoner’s serious medical condition. The forced medical treatment that can be provided under the Law is “the minimal necessary medical treatment.” Thus, it is clear that the central purpose of the arrangement is to protect the life and health of the prisoner. According to the Knesset, it cannot be disputed that persevering a person’s life and health is a proper purpose.

 

43.       According to the Knesset, even the secondary purpose – the security purpose – is a proper purpose. Security considerations would only be taken into account when a treating physician finds that the prisoner’s medical condition is most serious and that there is real risk to his life, or that he would sustain severe, irreversible disability. In such circumstances, the court may consider “considerations of risk to human life or a real concern of serious harm to national security, to the extent that evidence to this effect is presented to the court” (sec. 19N(e) of the Law). In the Knesset’s opinion, it is clear that a purpose that concerns preventing risk to “human life” or “serious harm to national security” is a proper purpose. The Knesset argues that the combination of medical purposes and “non-medical” purposes is not unusual in Israeli legislation. It refers, for example, to the Treatment of the Mentally Ill Law. According to the Knesset, there is no contradiction between the security purpose and the humanitarian purpose: the death of a prisoner as a result of a hunger strike is a dire, undesirable outcome, both from the standpoint of the sanctity of life and in terms of the consequences for security that may follow his death. In effect, it is precisely the approach that argues for preventing medical treatment of a hunger striking prisoner who is in grave danger that gives priority to non-medical purposes over purely medical considerations. The Knesset also argues that even were there a distinction between the two said purposes, according to the case law of the Supreme Court, when the dominant purpose of a statutory arrangement is a proper and legitimate one, it may “cure” an additional purpose that cannot stand on its own.

 

44.       In the Knesset’s view, the two purposes befit the values of the State of Israel as a Jewish and democratic state, and the Law realizes the values of Israel both as a Jewish state and as a democratic state. It maintains that the Law also meets the proportionality tests: the Law inherently realizes the rational connection test because there is a sufficient likelihood that the procedure will reasonably contribute to achieving the purposes of the arrangement: the entities taking part in the procedure are required to examine the potential that the forced medical treatment would improve the prisoner’s condition; the treatment provided would only be the minimum required to protect the prisoner’s life or to prevent a serious disability. In the Knesset’s opinion, the claim that in the past there were cases where forced medical treatment of prisoners led to irreversible harm and even death is insufficient to disprove the existence of a rational connection between providing treatment without consent and saving the life of a prisoner. The Knesset argues that the claim according to which the Law would compromise the trust relationship between the doctor and patient is unfounded. This is because even under the Law, the doctor must invest significant effort into securing the consent of the prisoner to receive medical treatment. The Law meets the less harmful means test because sec. 15(2) of the Patient Rights Law does not realize the purpose of saving the life (or preventing serious disability) of a hunger striking prisoner to a similar extent. The Law also meets the proportionality stricto sensu test: the Law creates an arrangement that is proportionate and balanced, which seeks only to minimally infringe the prisoner’s autonomy, while protecting his life and ensuring close supervision and monitoring of the entire process. The process begins with a medical opinion by the treating physician. Treatment may be provided only by a professional caregiver, in the presence of a physician, and it is the minimal treatment necessary in order to prevent death or a severe, irreversible disability. Even in such circumstances, the caregiver still has discretion not to provide the treatment that the court permitted. The Law includes different supervision mechanisms that are meant to ensure that permission will be granted only in instances where there is a real need for it. Emphasis has been placed on the prisoner’s participation and on attempts to persuade him to receive the necessary treatment.

 

45.       In the Knesset’s opinion, the argument as to the legislative disharmony, as well as the ethics argument that IMA made, cannot be independent grounds for striking down primary legislation by the Knesset. Instead, constitutional grounds are necessary, that is, only if a statute is inconsistent with the Basic Laws, and as explained above, according to the Knesset this is not the case. As for the rules of medical ethics – without diminishing their importance – such rules cannot detract from primary legislation by the Knesset or override it. This is especially true when, even in other democratic states, arrangements exist which permit providing medical treatment without the consent of a hunger striking prisoner under certain circumstances. As to the argument of legislative disharmony, in the Knesset’s opinion this argument must be rejected as the differences between the Law and the existing arrangement in the Patient Rights Law are  not significant. The Law is a supplemental one that expands the arrangement established by the Patient Rights Law. The Law’s unique elements are grounded upon the relevant difference between the issue of a hunger striking prisoner who is in State custody, and a different patient who is not a prisoner, and therefore there is no disharmony.

 

46.       Finally, the Knesset reminds us that the Court must act with caution and restraint in exercising its power of judicial review over the Knesset’s legislation, because setting social policy is within the authority of the legislature. In its view, under the circumstances there are no grounds for the Court’s intervention in the value-based determination of the legislature.

 

The Response of the State Respondents: The Government of Israel, the Minister of Public Security, the Attorney General, the Prisons Service and the Prisons Service Commissioner

 

47.       The position of the State Respondents (hereinafter: the Respondents) is also that the Petitions must be denied in the absence of grounds for judicial intervention in primary legislation. According to them, the Law was enacted in a comprehensive, thorough, professional legislative process that was exceptional in its scope. This is a constitutional statute that serves important, proper purposes, and appropriately balances the State’s duty to protect the sanctity of life, in general, and the life of a prisoner who is in its charge, in particular, and the value of the prisoner’s autonomy to make decisions over his body and use it as a tool for expressing protest. According to the Respondents, sec. 15(2) of the Patient Rights Law does not provide a satisfactory response for the State to handle the recurring phenomenon of extended hunger strikes by prisoners in all its aspects. The Law is a supplementary arrangement to the Patient Rights Law that will be implemented only after all attempts at negotiation with the hunger striking prisoner have been exhausted.

 

48.       The Respondents claim that past experience shows that the ethics committee has difficulty in “predicting” the future will of a hunger striking person and determining the chance that he would give his consent to treatment retroactively, along with its understandable inclination to consider the autonomy and will of the patient as much as possible. This has led to the outcome that in recent years, medical treatment has rarely been provided to a hunger striking prisoner against his will, even when there was serious risk to his life. Medical intervention mostly occurred only when the hunger striker reached a state of medical emergency. In addition, the ethics committee is not authorized to consider other factors inherent to the very fact that the hunger striking person is a prisoner who is in the custody of the State.

 

49.       In the Respondents’ opinion, a hunger striking prisoner does not wish to die, and he does not see death as a desirable result of his struggle, but rather – at most – a price that he is willing to pay in the name of the struggle. In their opinion, the struggle of a hunger striking prisoner does not always reflect an autonomous decision by the prisoner. At times, his decision is influenced by external pressures, in accordance with an organizational decision by the terrorist organization to which he belongs, for the purpose of improving the image or status of the prisoner within the organization or a different population. In addition, when the basis for the hunger strike is an issue that has political aspects, the hunger strike becomes a tool in a struggle that is essentially political, which involves those who support the hunger striker and influence him, on one hand, while influencing those who oppose his political demands or who consider themselves harmed by them, on the other. This political struggle may escalate as the hunger striker’s condition progresses to a risk of death. Therefore, the hunger strike may cause a real risk to national security.

 

50.       The Respondents argue that there is no dispute that the Law infringes the autonomy of a hunger striking prisoner and his freedom of expression, but they believe that the Law serves a proper purpose, befits the values of the State of Israel as a Jewish and democratic State, and meets the proportionality tests established in the Limitations Clause. The Respondents explain that the treatment given to a hunger striker may include a wide range of treatments and tests, which may change according to the condition of each patient, and that are provided based on medical need. The Law permits a range of discretion in the selection of the treatment that would most improve the condition of the hunger striker. The Respondents deny that the Law violates equality. In their view, there is a relevant difference between patients who are hunger striking prisoners and other patients, which justifies special treatment for them.

 

51.       According to the Respondents, the purpose grounding the Law is that of expanding the means at the State’s disposal for the purpose of protecting the life, physical integrity, and health of a hunger striking prisoner who is under the direct charge of the State, while minimizing the harm that may be caused to his quality of life as a result of the medical harm that may suffer. Another purpose is to protect the security of the public and of the State from the consequences of the hunger strike itself, and from its possible consequences for the entire public – consequences that may very likely harm public safety and the rule of law.

 

52.       According to the Respondents, the purpose of preserving the life, health and physical integrity of the prisoner is consistent with the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 dated October 13, 2004), and is also consistent with the provisions of sec. 15(2) of the Patient Rights Law. In the Respondents’ opinion, the fact that the obligation to protect the life of the prisoner, his physical integrity and his health is not solely an independent purpose, but one that also serves the goals of protecting the security of the state and its residents does not detract from the legitimacy of this obligation. At the basis of the Law is the purpose of protecting the life of a hunger striking prisoner. We are concerned with a proper purpose – protecting the right to life and its sanctity, which justifies infringing the autonomy of the prisoner. According to the Respondents, the right to autonomy is not absolute even in the fields of medicine and ethics. Thus, for example, the Terminally Ill Patient Law establishes the sanctity of life as a fundamental principle, and the Patient Rights Law permits violating the autonomy of a patient in medical emergencies. Another purpose of the Law is to protect the safety and wellbeing of the public from the consequences of a hunger strike, which is used as a tool to bring about the release of hunger striking prisoners despite the danger they pose to the public and to national security.

 

53.       In the Respondents’ opinion, the Law does not infringe the constitutional right to an extent beyond what is necessary. There is a rational connection between the purpose and the arrangements established in the Law. Addressing the issue solely through the Patient Rights Law posed significant difficulties, and even resulted in medical treatment being provided to hunger striking prisoners only after loss of consciousness and in a state of medical emergency, in accordance with sec. 15(3) of the Patient Rights Law. The balanced arrangement established in the Law responds to the unique aspects of the issue, and makes it possible to extend the life of a hunger striking prisoner and protect his health, as much as possible. According to the Respondents, in any case, if no caregiver would agree to act upon the permission granted under the Law, the Law would not be implemented and, in any event, no harm would be caused. The Law also meets the condition of the less harmful means, as it establishes a number of restrictions that limit the infringement of rights by establishing strict tests for implementing the Law’s arrangement, as well as by the demand for exhausting the possible ways to secure the prisoner’s consent, and by the decision procedure – the considerations that the President of the District Court is instructed to take into account, and the authority to grant a proportionate permit that is tailored to the type of treatment necessary.

 

54.       According to the Respondents, the State of Israel respects and complies with its obligations under international law, including the prohibition on torture and cruel, inhumane and humiliating treatment under the U.N. Convention against Torture and other conventions. However, according to them, international law does not comprise any specific rule prohibiting the providing of treatment in general, or artificially feeding a hunger striking prisoner against this will, as a matter of principle. According to the jurisprudence of the various international tribunals, forcible feeding does not necessarily amount to torture or cruel treatment prohibited under international law, which we will address further, below.

 

55.       The Respondents note that the IMA’s position has opponents even in the medical community. They refer to a position paper they have attached, dated August 23, 2015, whose signatories include leading Israeli doctors, jurists, ethics and bioethics experts and philosophers (Appendix R/3), according to which, in extreme circumstances, the value of protecting human life and the ethical professional obligation of the doctor to save his life outweighs the infringement of a hunger striker’s autonomous will.

 

56.       In light of all this, the Respondents argue that given the clear public interest in protecting the prisoner’s life, on one hand, and protecting public safety, on the other hand, as well as considering that the infringement is limited and proportionate, the Law is constitutional and does not raise legal grounds for intervention.

 

The Hearings before the Court

 

57.       We held two hearings on the Petitions. During the hearing on September 17, 2015, we raised the question of whether the fact that a hunger striking prisoner is concerned may influence the balance between the considerations. Advocate Orna Lin, representing IMA, reiterated the position of the professional bodies that the preferable practice in treating a hunger striker is the procedural process, which has proven itself,  inasmuch as no hunger striking prisoner has ever died in Israel. She claimed that the number of hunger strikers decreases continually. Advocate Durgam Saif, representing the Petitioners in HCJ 5441/15, reiterated his argument that the true purpose of the Law is to protect national security and the concern for disruptions, which constitutes an irrelevant consideration, and the Law therefore lacks a proper purpose. According to him, the European Court and other countries that have permitted force-feeding have considered only medical factors and not security considerations. Advocate Saif noted that according to the Law it is also possible to permit forced treatment following presenting the judge  privileged evidence. This, too, he argues, renders the procedure unconstitutional. Advocate Tamir Blank argued on behalf of the Petitioners in HCJ 5994/15 that this is a statute that permits carrying out torture in the State of Israel. He also challenged the impossibility for a prisoner harmed as a result of forced treatment to recover damages.

 

58.       We also permitted Dr. Leonid Eidelman, the Chairman of IMA, whose affidavit was attached to IMA’s Petition, to express his objection to the Law. According to Dr. Eidelman, the Law would compromise the ability of doctors to treat patients.

 

59.       As opposed to this, Advocate Dr. Gur Bligh, representing the Knesset’s Legal Adviser, argued that the Petitioners’ approach respects the prisoner’s autonomy to the point of death – an approach that the legislature did not choose. According to him, there are two purposes to the Law: the dominant purpose is that of the sanctity of life, while the secondary purpose is that of security. In the opinion of the Knesset, the Patient Rights Law does not sufficiently respond to the problem because the presumption is that an unconscious hunger striking prisoner would not wish to be fed. Advocate Areen Sfadi-Attila, on behalf of the Respondents, also argued that the Patient Rights Law does not provide tools for addressing a hunger striking prisoner. She explained that the relevant law serves as a last resort, designed to prevent irreversible harm to the hunger striking prisoner, and to permit intervention at the point where risk to life or serious disability may be prevented. This is, inter alia, due of the state’s duty to save the prisoner’s life, as well as to protect the lives of others who may be harmed as a result of the hunger strike. According to her, the purposes of protecting the prisoner’s safety and state security  coexist harmoniously with the purpose of protecting human life, and she is of the opinion that the Law adopted the jurisprudence of the European Court on this issue.

 

60.       On December 10, 2015, the following decision was handed down:

 

A follow-up hearing is to be scheduled before the Panel on one issue alone: the question of the constitutionality of section 19N(e) of the Prisons Ordinance (Amendment No. 48) Law, 2015, which states: “The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. The hearing shall be held in three months. The Respondents shall submit a supplementary position on this issue up to two weeks prior to the hearing, and the Petitioners may respond up to five days prior to the hearing.

 

Accordingly, the parties submitted their supplementary positions as follows:

 

The Knesset’s Supplementary Position

 

61.       The Knesset argues that sec. 19N(e) is constitutional and there are no grounds for judicial intervention. According to the Knesset, in the course of the legislative process a significant change was made in the Law to the effect that security considerations were removed from the primary section that guides the discretion of the court (sec. 19N(d) of the Law). They were included in a separate section and significantly reduced, so that only if the court is presented with evidence in this regard, the court shall consider security factors. According to the Knesset, including sec. 19N(e) of the Law was designed to achieve the second, and secondary purpose of the Law. In the Knesset’s view, this is a proper purpose. The Knesset emphasizes that security considerations may not, in and of themselves, lead to providing coercive treatment to a prisoner on a hunger strike. Such factors would be considered only where a treating physician found that the prisoner’s medical condition was extremely serious, and that there was a real risk to his life, or that he would suffer a severe, irreversible disability. Only then would the court take into account “considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. According to the Knesset, the integration of these purposes is not unusual in Israeli legislation. In its view, there is no contradiction between the security purpose and the humanitarian purpose, which is founded upon the sanctity of life, to the extent that it is possible to say that in the typical situation, the security purpose is “subsumed” by the humanitarian purpose. The Knesset is of the opinion that, in practice, it is precisely the approach that advocates preventing medical treatment to a hunger striking prisoner in grave danger that prioritizes the non-medical purposes over the pure medical considerations. The Knesset reiterates its argument that even were there a distinction between the two purposes, and even were it argued that the security purpose cannot stand independently, this Court has ruled in the past that when the dominant purpose of a legislative arrangement is proper and legitimate, this may “cure” an additional purpose that cannot stand on its own.

 

62.       In the Knesset’s opinion, sec. 19N(e) of the Law is proportionate. The section meets the rational connection test – allowing the court the possibility to factor in security considerations once evidence in this regard has been presented, would best contribute to realizing the security purpose of the arrangement, and certainly establishes the potential for realizing it. The section meets the less restrictive means test – it is hard to see how it would be possible to realize the security purpose without permitting, when appropriate, that the court take security considerations into account once evidence to this effect has been brought before it. The alternative means proposed by the Petitioners – the arrangement established by sec. 15(2) of the Patient Rights Law, cannot be deemed capable of achieving the purposes of the Law to the same extent, while limiting infringement of the prisoner’s rights. The section also meets the test of proportionality in the “narrow” sense: it is proportional and balanced, and ensures that the infringement of the prisoner’s autonomy is minimal. The security factors listed in the section could never, in and of themselves, lead to initiating a procedure according to the Law. Once the case has been brought before the court on pure medical grounds, and to the extent that such evidence to this effect has been presented, the court may also take into account the security considerations alongside the entirety of other considerations and the opinion of the ethics committee. Additionally, according to the language of the Law as enacted, there must be concrete evidence that substantiates a “concern for human life” or a “real concern for serious harm to national security.” This is a relatively high threshold, which requires substantial evidence. Furthermore, even where the court permits coercive treatment of a prisoner, that does not require the caregiver to provide such treatment (sec. 19P(e) of the Law.) In any case, the treatment actually provided would be the product of only medical considerations (end of sec. 19P(a) of the Law).

 

63.       In effect, the Knesset argues that the court’s authority to factor in security considerations was not meant to outweigh the medical considerations, but to balance other non-medical considerations that may lead the prisoner to put his health, and as a result the entire public, at risk.

 

The State Respondents’ Supplementary Position

 

64.       According to the Respondents, as well, sec. 19N(e) of the Law is constitutional. It was argued that it is impossible to commence a proceeding on a request to permit medical treatment, and such permission cannot be granted, based solely upon security considerations, but only in order to realize the objective of protecting the life of a prisoner, which is the original purpose for recourse to the Law. The position of the Respondents is that in instances where there is real possibility that the prisoner would be at risk of death or of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to improve his condition, the sanctity of life outweighs the prisoner’s autonomy, and the District Court will have no need to address security considerations. However, if, and to the extent that it is found that there is a range of judicial discretion for determining the issue of the relation between the sanctity of life and the prisoner’s autonomy, the legislature instructs that in the scope of that discretion, weight should also be given to the real concern for serious harm to state security, to the extent that evidence to such effect has been presented to it. The Law does not establish the relative weight of the various considerations, and the determination in this regard is given to the discretion of the court.

 

65.       The Respondents argue that once the conditions for submitting a request under the Law have been met, maximum weight should properly be attributed to the value of the sanctity of life, and in such a case there should be no need for recourse to sec. 19N(e) of the Law. Even if their position is rejected, there is no constitutional flaw in taking the security considerations into account when balancing other considerations under the Law. According to the Respondents, a hunger strike may become a tool in what is essentially a political struggle, which involves the group of those supporting the hunger striking person, on one hand, and the group of those who oppose his political demands, or who see themselves as harmed by them, on the other hand, and influences them. Such a political struggle may escalate the condition of the hunger striker. Therefore, the need arose for a supplementary legal arrangement to be implemented only once the Patient Rights Law is no longer effective. According to the Respondents, the change that was made to the language of the Law led to limiting the security consideration, for the purpose of reducing the infringement of the prisoner’s right to autonomy. The Respondents say that there is no dispute that granting permission to treat a hunger striking prisoner against his will involves infringing the prisoner’s right to autonomy, including the prisoner’s right to free expression. However, preventing harm to the prisoner’s life is a purpose worthy of protection, just as protecting other human life is a protected fundamental right and one of the duties of the state. Additionally, protecting national security constitutes a real, and even essential, public need in an ongoing security situation that has the potential of harming innocent citizens and residents. Thus, the security purpose of the Law may justify, in appropriate cases, infringing the right to autonomy. The Respondents emphasize that the severe medical condition of a hunger striking prisoner is always the basic premise for adjudicating the request. In their opinion, in terms of the outcome, as well, the security consideration will not stand on its own (sec. 19N(a)(1) of the Law.)

 

66.       The Respondents also believe that the Law is proportionate. Following the procedure in accordance with the requirements of the Law can ensure the realization of the purpose of protecting the lives of others and protecting national security, alongside protecting the life of a prisoner on a hunger strike. The decision of the court is a suitable means for preventing the security risk caused by failing to provide medical treatment to a hunger striking prisoner and the deterioration of his condition as a result of the hunger strike. In their opinion, the balanced arrangement established by the Law meets the second proportionality test, and there is also a reasonable relationship between the right to autonomy and the public benefit deriving from it for the purpose of realizing the legislative purpose. In their opinion, the components of the Law create a proportional and balanced arrangement that minimally infringes the prisoner’s right to autonomy, while protecting his life and ensuring measured, supervised use of the entire process, and the implementation of sec. 19N(e) of the Law in particular. Recourse to the Law would serve as a last resort, after exhausting all efforts under the Patient Rights Law. We are concerned with a strict supervision procedure, and permission for treatment cannot be granted on the basis of the security consideration alone. Therefore, as argued, the Law passes the tests for constitutionality, and does not provide legal grounds for intervention.

 

IMA’s Response to the Supplemental Responses

 

67.       IMA maintains that a constitutional discussion in terms of sec. 19N(e) of the Law as disconnected from the Law as a whole would be incomplete. IMA disputes that the humanitarian purpose is the primary purpose of the Law, whereas the security purpose is secondary to it. According to IMA,  refraining from discussing the ethical issue brought before it is tantamount to the Court’s approval of future judicial orders to violate ethical duties, with all this may imply. IMA referred us to the case of the administrative detainee Muhammad al-Qiq, mentioned above and to which we shall return to below. According to IMA, in that case the hospital doctors refrained from treating Al-Qiq despite the decision of the ethics committee. According to IMA, had the Law implemented in the Al-Qiq case, clearly its goal would have been to put pressure on the doctors to treat Al-Qiq solely for security considerations, in violation of professional ethics. IMA argues that moving the security considerations from the scope of the general section to a separate section in the Law is a technical revision rather than a substantive one. This is because the Law mandates that the security considerations will be considered whenever the state may present the court with such evidence. According to IMA, under the circumstances, a serious concern arises that the state would use the security considerations to lead the court to a wrong determination on a medical matter that is not within its expertise. It argues that the security considerations are not secondary but a primary, central and inseparable part of the considerations that the court must take into account in deciding upon the request under the Law (it refers to the words of Advocate Yoel Hadar, the Legal Adviser of the Ministry of Public Safety, minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 23 (June 17, 2014)). According to IMA, the state’s custody over the prisoner and the existence of a security purpose cannot justify violating the fundamental rights of a prisoner. Therefore, the argument that the state is absolutely responsible for the welfare of a hunger striking prisoner such that it may severely infringe his autonomy and personal will must be rejected. According to IMA, violating human rights in order to protect against an abstract danger or “collateral consequences” for public safety that are not connected to the specific prisoner, does not meet the requirements of reasonableness and proportionality and is unconstitutional. The IMA argues that the security purpose is not “subsumed” by the proper medical purpose – the proper dominant purpose cannot cure an improper secondary purpose. In its opinion, the humanitarian purpose is designed to serve the primary purpose – the possibility of imposing medical treatment upon the prisoner. Even were the primary purpose humanitarian, this purpose exists in the Patient Rights Law, and it is doubtful that it is present at all in the Law at hand. Its realization in our case is in doubt. The considerations that led a prisoner to undertake a hunger strike, and the state’s attempt to prevent protest of this type in the future, cannot and should not be part of the judicial decision in regard to his medical condition, and certainly not in regard to forcing medical treatment of questionable medical benefit for the hunger striking prisoner. Non-medical considerations that led the prisoner to go on a hunger strike do not justify considering non-medical factors in order to end it. According to IMA, even if the Law may be viewed as a supplementary arrangement, the concern arises whether its entire purpose is putting additional pressure on physicians through the granting or judicial orders.

 

The Response of the Petitioners in HCJ 5441/15 to the Supplementary Responses

 

68.       According to these Petitioners, as well, the Law as a whole violates individual rights, and sec. 19N(e) cannot be disconnected from the entirety of the Law. In any event, considerations of public safety are irrelevant to the purpose of saving the life of a prisoner on a hunger strike, because they were designed to prevent the possible outcomes resulting from the death of the prisoner rather than the death itself. This removes the section from the scope of the Law’s purported goal: protecting human life. According to the Petitioners, most hunger strikes are by administrative detainees. They argue that distinguishing between detainees or prisoners on hunger strikes according to the impact their death may have upon the public violates equality. Moreover, according to the position of the Respondents, a severe infringement of individual rights is justified in order to prevent the administrative detainee from achieving a “public-opinion victory” over the State of Israel. The Petitioners find support for this in the words of the Deputy Attorney General, Advocate Raz Nizri, in the  debate of the Internal Affairs and Environment Committee: “The Law is intended to provide an additional tool in exceptional situations in order to prevent resolving it by releasing that person about whom there is information that he is involved in terrorism” (minutes of meeting no. 26 of the Internal Affairs and Environment Committee, the 20th Knesset, p. 12 (July 14, 2015)). In the opinion of the Respondents, there is no necessary rational connection between saving the prisoner’s life and the security consideration that is intended to advance other goals. Furthermore, not even one alternative to forced feeding was considered. The Petitioners again challenge the possibility of using privileged evidence during the proceedings under sec. 19O(e) of the Law. They maintain that there is no choice but to discuss this section as well. They argue that they have met their burden to prove infringement of constitutional rights, and thus the burden shifts to the State to show the justification for the infringement, but that the State has not met this burden.

 

The Response of Petitioners in HCJ 5994/15 to the Supplementary Responses

 

69.       In the Petitioners’ opinion, the responses reveal that the purpose of the Law is ending the hunger strike of Palestinian prisoners and silencing their protest. In their opinion, physicians would find themselves in an impossible situation in which they may become torturers against their will. According to the Petitioners, the position of the Respondents means that in any case where the matter of a hunger striking prisoner would reach the court, the conditions listed in sec. 19N(3) of the Law would effectively be met, and security considerations are supposed to, or may be considered. In the Petitioners’ opinion, because of the language chosen -- “a real concern for serious harm to national security” – it is likely that security considerations would be attributed greater weight, and the chance that the court would reject the request to permit forced medical treatment is negligible. In their view, considering non-medical factors in the course of a request to permit forced medical treatment constitutes sanctioning torture through legislation, despite the absolute prohibition on torture. The Petitioners reiterate that the purpose of the legislation is political, and it is not preventing risk to the life of a prisoner on a hunger strike. They believe that even if according to the Respondents it were possible to strike a balance between life and autonomous will, it is not at all clear why it is necessary to insert a non-medical security consideration, and how such a consideration would serve the balance between the two values. The Petitioners argue that it cannot be claimed that, on one hand, sec. 19N(e) of the Law is unnecessary, while on the other hand holding on to it for dear life. In the Petitioners’ opinion, there is no link between protecting the prisoner’s life and his autonomy, and considerations of public safety – these are contradictory factors. The Respondents also fail to explain why forced feeding would not bring about the severe outcome of harming security and human life. According to Petitioners, the Respondent’s argument that implementing the Patient Rights Law alone may cause a prisoner on a hunger strike serious and irreversible harm – and may even lead to death – is an empty claim  inasmuch as over decades of implementing that law, not one person on a hunger strike had died. The Petitioners argue that the Respondents do not explain  how taking national security considerations into account would reduce the potential for medical harm to a hunger striking prisoner. According to the Petitioners, when “a concern for human life and a real concern for serious harm to national security” hang in the balance, the individual becomes a means to an end, and the road to torture, and to violent and humiliating procedures is short and inevitable.

 

The Follow-up Hearing

70.       On February 21, 2016, we held a follow-up hearing on the question of the constitutionality of sec. 19N(e) of the Law. Advocate Lin repeated the position of IMA, whereby even where the conditions of sec. 19N(d) of the Law are not met, the Law authorizes the court to permit providing medical treatment in a manner that may put the life of a hunger striking prisoner at risk. In IMA’s opinion, once security considerations are put in the mix, a “danger to life” is created. Advocate Saif addressed the issue of the privileged evidence in sec. 19O(e)(1). In his view, this further supports the Law’s unconstitutionality. According to him, the security consideration, which serves as a “back door” to facilitate the forced feeding of a prisoner on a hunger strike, must be struck down. Advocate Blank believed that once a partial medical opinion is submitted, the security considerations would “initiate themselves”. In his view, including security considerations in regard to a medical procedure may lead to painful, invasive and severe treatment that would amount to torture or humiliation. On the other hand, Advocate Dr. Bligh commented on behalf of the Knesset that inasmuch as the prisoner’s public and political considerations are at the basis of his hunger strike, the State, too, should be permitted to take security considerations into account in certain circumstances, however only when necessary to protect the welfare of others. Advocate Sfadi-Attila explained on behalf of the State Respondents that the purpose of the section comprising the security considerations is to equip the District Court with additional  balancing considerations. This section instructs the court to weigh the prisoner’s right to autonomy  against the consequences that a risk to his life, or  his death, may pose for other people, on the basis of evidence presented to it. Advocate Sfadi-Attila further explained that under the amendment, should the court conclude that it is concerned with a prisoner who is at mortal risk and that the treatment may save his life, that would be sufficient for permitting forced medical treatment. However, the court can consider the security issue only if the court is undecided. That is, the security factor always accompanies the consideration of the sanctity of life and does not stand on its own as an independent consideration.

 

 71.      Advocate Sfadi-Attila submitted to us a secret opinion prepared by the research unit of the General Security Service. We would note that the Petitioners in HCJ 5994/15 asked to review the opinion. On March 21, 2016, we ruled that “under the circumstances, the Petitioners will only be provided with the paraphrase at the end of the Respondents’ response” whereby “the opinion points to a potential risk of a deterioration of security in and outside the prison as a result of the death of a security prisoner on a hunger strike, and as a result, to a loss of human life.”

 

Decision

72.       We are confronted with an issue that is legally, ethically, publicly, and humanly complex. These Petitions were submitted before the Law had been tested in practice and implemented. We are, therefore, concerned with a principled debate of an issue that is not – or in any event, is not yet – actual. Although, as a rule, the Court does not address theoretical issues, it has been held that there are cases in which petitions must be considered because of the importance of a question that concerns the fundamental principles of the rule of law, inter alia, in light of its “short lifespan” in the circumstances of its implementation. The issue before us is among those due to the real possibility that within a short period of time there may be a threat to the life of a prisoner on a hunger strike, or a possibility of severe, irreversible disability. Naturally, in this state of affairs, the decision on the matter must be handed down within several hours or days, given the prisoner’s severe medical condition (compare: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53 (5) 241, 250 (1999) [English:  http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case,)) and therefore we must address the theoretical interpretive question at the outset.

 

73.       It is, therefore, appropriate that we examine the constitutionality of the Law now – and not under the strict time frame established in the Law itself, when the severe medical condition of a hunger striking prisoner would complicate the performing of a thorough judicial examination. I state at the outset that after considering the arguments of the parties, I have reached the conclusion that there are no grounds for granting the Petitions, and that the Law passes the tests of constitutionality. Ultimately, the Law comprises an element of saving lives, and privileging the principle of the sanctity of life is first and last. This is reinforced by the fact that the person concerned is in the custody of the state, which is obligated to provide him with proper medical treatment. I shall explain.

 

74.       It is decided law, anchored in the democratic structure, in respect for the separation of powers, and in common sense that the Court must act with restraint when reviewing statutes enacted by the Knesset, which express the will of the people (see for example: HCJ 8665/14 Desete v. Knesset, para. 22 of the opinion of President M. Naor (August 11, 2015) (hereinafter: the Desete case); HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (February 23, 2012) (hereinafter: the Nir case)). Special caution is warranted when examining the constitutionality of a law (HCJ 7385/13 Eitan – Israeli Immigration Policy v. Government of Israel, para. 23 (September 22, 2014) (hereinafter: the Eitan case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). The point of departure for examining the constitutionality of a law is, therefore, that it is a statute of the Knesset that expresses the will of the public’s representatives, and as such, the Court must respect it. Thus, the Court will not easily determine that a particular law is unconstitutional (HCJ 3434/96 Hoffnung v. Speaker of the Knesset, IsrSC 50 (3) 57, 67 (1996) (hereinafter: the Hoffnung case); HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 263-64 (2002) (hereinafter: the Menachem case)). It must be born in mind that a statute enacted by the Knesset enjoys a presumption of constitutionality which places upon those who challenge that constitutionality the burden to show, at least prima facie, that the statute is unconstitutional, before the burden may be shifted to the State and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the Court to assume that the law was not intended to undermine constitutional principles (the Hoffnung case, p. 68), and in any event, places upon it a special responsibility.

 

75.       Nevertheless, this does not mean that the law is immune to judicial review. The Court must fulfil its duty under our constitutional regime, certainly since the Basic Laws concerning rights were enacted, and even prior to this (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1993) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... A. Barak, Interpretation in Law – Constitutional Interpretation (2005) (pp. 105-118) (Hebrew); HCJ 98/69 Bergman v. Minister of Finance and State Comptroller, IsrSC 23(1) 693 (1969) [http://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance]). The Court must then examine the constitutionality of the legislation enacted by the legislature in order to ascertain whether it is flawed, for example, by violating different types of rights. This examination must be carried out with strict care for the delicate balance between the principles of majority rule and separation of powers, and the protection of human rights and the fundamental principles that ground the Israeli political system. At times, immediate political needs may overly tip the scale in one direction in legislation, and the Court must balance, with institutional respect for the Knesset. Therefore, the constitutional review will, indeed, be carried out, but with proper caution and while avoiding reformulating the policy chosen by the legislature (CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, 372-73 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]). As has been stated:

 

                        … this Court cannot ignore a violation of fundamental rights that does not meet the requirements of the Limitations Clause as explicitly established in the Basic Laws. The Court is charged with the duty to ensure that the legislative work of the Knesset does not infringe human rights established under the Basic Laws to a greater extent than is necessary, and it may not abdicate this duty. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, para. 14 of President Beinisch’s opinion (November 19, 2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: The Human Rights Division case); CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, para. 29 (2008) (hereinafter: the Anonymous case)); (HCJ 7146/12 Adam v. Knesset, para. 67 (September 16, 2013) (hereinafter: the Adam case)).

 

76.       We are, therefore faced with a sensitive, delicate pendulum, and certainly this is the case in the State of Israel in light of the mosaic of its reality and the complexity of its life. As is well known, judicial review is not performed in a vacuum – it is done against the background of the reality with which the law was designed to contend. As described above in detail, the provisions of the Law that are challenged by the Petitions include means that the State selected as part of an attempt to address the phenomenon of hunger strikes by prisoners and detainees, including administrative detainees. The scope of this phenomenon, according to the data we have, is on the decline (Appendix H to Petition 5441/15.) We pray that this Law will never be utilized, and turns out to be unnecessary, and as is known – “it is not for us to judge the wisdom of the legislature and the need for some particular legislation or another, whatever our position as citizens may be. Before us is a legislative product whose constitutional status we must evaluate according to its content – first and foremost – and according to its history, and we will not lock the door to legal developments following its implementation” (from my opinion in HCJ 2311/11 Sabah v. Knesset, para. 3 (2014)). But for the time being, the need to address the challenges arising from the hunger strike phenomenon still stand, and none of us can predict what tomorrow may bring. Against this background, I shall turn to examining the constitutionality of the Law. In my view, the sanctity of life is overarching, as a fundamental tenet of Judaism as well as of every proper human society.

 

The Constitutionality of the Law

77.       As we know, constitutional review is carried out in stages. First, we must examine whether the Law infringes a protected human right. If the answer to this is in the negative – this ends the constitutional review. If the answer is in the affirmative, we must examine if the infringement is lawful, according to the conditions of the Limitations Clause (see for example: HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 595 (2009) (hereinafter: the Prisons Privatization case)). These rules are based on the constitutional approach whereby constitutional rights are relative rights, and  they must be balanced against other rights and interests.

 

78.       The Limitations Clause in Basic Law: Human Dignity and Liberty (sec. 8) establishes four cumulative requirements that the offending Law must meet in order for the infringement to come within the scope of legality. First, constitutional rights cannot be infringed except by a law that befits that values of the State of Israel as a Jewish and democratic state. Additionally, the law must be for a proper purpose. The purpose is proper if it was designed to realize important public interests (see for example HJC 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2005); HJC 6784/06 Shlitner v. Director of Payment of Pensions, para. 78 of Justice A. Procaccia’s opinion (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of the statute is tested through three subtests.

 

79.       The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adalah case); HCJ 6133/14 Abu Baker v. Knesset of Israel, para 54 of my opinion (March 26, 2015); Aharon Barak Proportionality in Law – The Infringement of the Constitutional Right and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality).

 

80.       The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. And note: the legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 192; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of Justice E. Arbel’s opinion (September 17, 2014); the Tzemach case, p. 269-70.)

 

81.       The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit deriving from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based on a balance between rights and interests. It calculates the social importance of the infringed right, and the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of Justice A. Procaccia’s opinion (September 2, 2010)).

 

82.       If the Court concludes that the reviewed statute does not meet the conditions of the Limitations Clause, then the statute is unconstitutional. In such a case, the Court must determine the consequences of the unconstitutionality in terms of a remedy (see for example: HCJ 2334/02 Stanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792 (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

 

A Prisoner’s Human Rights

83.       As stated above, the Petitioners argue that the Law does not comply with Basic Law: Human Dignity and Liberty because forcible feeding violates the right to dignity, the right to physical integrity, and the right to personal autonomy. It was further argued that a prisoner’s freedom of expression and his ability to protest as he wishes are also violated.

 

84.       Needless to say, the right to dignity  achieved supra-legal status with the enactment of Basic Law: Human Dignity and Liberty, and that “human dignity relies on the recognition of a person’s physical and spiritual integrity, his humanity and his dignity as a person” (the Eitan case, para. 14, per Justice Vogelman). Much has been written on the scope of this right, but there is no dispute that the right to autonomy derives from the right to dignity and constitutes part of the “hard core” of this right. At the base of the right to autonomy stands the recognition of one’s right to self-fulfillment and of one’s right to act according to his will and his choices (the Eitan case, para. 17):

 

           

A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto himself or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life. …The individual’s right to autonomy is not expressed only in the narrow sense of the ability to choose. It also includes another – physical – dimension of the right to autonomy, relating to a person’s right to be left alone ... The import of the right is, inter alia, that every person has freedom from unsolicited non-consensual interference with his or her body … The recognition of a person’s right to autonomy is a basic component of our legal system, as a legal system in a democratic state. … It constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, a right anchored in Basic Law: Human Dignity and Liberty. 

(CA 2781/93 Ali Daaka v. Carmel Hospital, Haifa, IsrSC 53(4) 526, 570-71 (1999) [http://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital]  paras. 15-17 of the opinion of Justice Orr)).

 

85.       We hold it as fundamental that  every right granted to a person as such, is granted to a person even when incarcerated or detained, and that the fact of incarceration or detention alone cannot revoke any of his rights, unless it is required as a result of the denial of his freedom of movement, or where there is an explicit statutory provision to such effect (HCJ 337/84 Hukma v. Minister of Interior, IsrSC 38(2) 826, 832 (1984)). This Court has been called upon repeatedly to consider the rights of prisoners, and has held that a prisoner does not lose the human rights and liberties granted to any person, unless it is necessary for the purposes of the incarceration:

 

                        …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  (the Prisons Privatization case, p. 595 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 17 of the opinion of President D. Beinisch]).

 

And it should be emphasized:

                        The necessary violation of a prisoner’s human rights is rooted primarily in the restriction of his personal liberty, which stems from the incarceration. Restricting a prisoner’s movement in prison necessarily leads to a violation of those incidental human rights whose realization is contingent upon the existence of human liberty, such as the right to an occupation, the right to privacy, and to some extent, even the right to freedom expression. Additional violation of a prisoner’s human right may be required in order to achieve the purpose of maintaining order, safety and discipline in prison for purposes of protecting the security of its inmates. Limitations may also derive from other needs grounded in important public interests, such as general considerations of national security (the Dobrin case, para. 14). However, the purpose of violating the prisoner’s human rights is never to add to the penalty imposed upon him by the court. Its legitimacy relies on the fact that it is a necessary result of the denial of liberty due to incarceration, or that it is required in order to achieve an essential, legally recognized public interest (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 154-56; HCJ 221/80 Darwish v. Prisons Service, IsrSC 35(1) 536, 546; HCJ 540/04 Yousef v. Director of the Judea and Samaria Central Prison, IsrSC 40(1) 567, 572-73). (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security, IsrSC 62(1) 762, 773, per Justice Procaccia (2007) (hereinafter: the Physicians for Human Rights case)).

 

And indeed:

It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell (APA4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, per Justice Mazza (1996) [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service, para. 12]).

 

This is also the case in regard to the constitutional rights of a prisoner who is in the custody of the state:

                        A prison sentence imposed upon a person does not itself revoke the constitutional human rights he is granted by virtue of the principles of the Israeli constitutional system. Such rights are denied to the prisoner only when their restriction is necessarily required due to the fact that his liberty was revoked because of incarceration, and to an extent that the violation of a protected right is in accordance with the principles of the Limitations Clause in the Basic Law (the Physicians for Human Rights case, p. 773).

 

In practice, it was held that the right to freedom of expression is not denied to a person upon incarceration, however it is substantially reduced:

 

                        It is the decided law of this Court that when entering prison one loses one’s liberty but one does not lose one’s dignity (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 152-53; HCJ 355/79 Katalan v. Prisons Service, IsrSC 34(3) 294, 298). Although the prisoner’s right to freedom of movement is denied, he still holds fundamental rights “whose infringement violates a person’s minimal, fundamental needs” (HCJ 114/86 Weil v. State of Israel, IsrSC 41(3) 477, 492). Freedom of expression is among the fundamental rights granted to a prisoner even when he is incarcerated. It is not denied to a person upon his incarceration and is granted to the prisoner even within his cell (APA 4463/94 above, p. 157). Nevertheless, “incarceration severely limits the prisoner’s ability to realize his freedom of expression, and his freedom of expression is, in practice, much more limited than the freedom of expression of a free citizen” (loc..cit.). Thus, restrictions are imposed upon the right of freedom of expression within the prison walls,  the purpose of which is, inter alia,  to promote unique interests “… which are required for the orderly administration and function of prisons: realizing the goals of incarceration, maintaining security, order and discipline in prison, protecting the welfare of prisoners, protecting the welfare of staff and wardens, and so forth” (loc.cit.). (HCJ 7837/04 Borgal v. Prisons Service, IsrSC 59(3) 97, 101 per Justice Y. Adiel (September 14, 2004) (hereinafter: the Borgal case).

 

Restrictions are imposed upon the right of a prisoner to freedom of expression, inter alia, in order to serve the unique interests related to the orderly operation of prisons. In the Borgal case, it was held that a hunger strike is not included among the rights granted to a prisoner:

 

                        Against this background, even if we were to assume that a hunger strike may be considered a legitimate means to express opinions and to realize the right to freedom of expression, taking part in such a strike is not among the rights granted to a person while incarcerated in a prison. A hunger strike, in both its elements, the hunger and the strike, undermine the orderly operation of the prison. As for its first element, the refusal to eat itself is a prison offence under sec. 56(8) of the Prisons Ordinance. In our case this is not a “plain” refusal to eat, but a refusal which expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order and discipline in a prison. In this regard it has already been held: “Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison?” (PPA 4463/94 above, p. 180 [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service], para. 11 of the opinion of M. Cheshin, J.). Therefore, we cannot accept the Petitioners’ argument as to a violation of their right to freedom of expression (emphasis added – E.R) (the Borgal case, p. 101).

 

86.       I shall now turn from general principles to the constitutional analysis of the Law. I will first note that examining the section and its legislative history reveals that the State wished to formulate a unique model, a comprehensive arrangement by primary legislation, in order to address the phenomenon of hunger strikes by prisoners and detainees, which is recurrent in the Israeli reality (see the Explanatory Notes to the Bill – Government Bills, 5774-2014, 762, 870). Those proposing the bill were not unaware of the fact that providing involuntary treatment to a person on a hunger strike raises significant ethical questions for the treating physician (ibid., p. 764). They considered the current arrangement in section 15(2) of the Patient Rights Law, and in their view, as noted in the Explanatory Notes, the existing arrangement in the Patient Rights Law does not “express the unique aspects that characterize the medical condition of the person on a hunger strike, generally – and those of a prisoner on a hunger strike, in particular; the complexity of the question of autonomy of will in circumstances of a prisoner hunger strike, and the broader range of the considerations and circumstances relevant to such a situation that must be weighed in making a decision on providing necessary medical treatment” (ibid., p. 772). Indeed, there can be no dispute that when the person on a hunger strike is a prisoner or a detainee, there is a different set of considerations and balances, and the weight given to the autonomous will of a prisoner or detainee on a hunger strike is not the same as in regard to a person on a hunger strike who is not a prisoner or a detainee. This is because he is in the custody of the state, with all that this may imply.

 

87.       We should already explain that in addressing hunger strikes we must consider another factor, which is also an important part of examining the right to human dignity. A hunger strike, if prolonged, may lead to a loss of life. In the absence of life – where is the person and what is the source of human dignity? The State of Israel is a Jewish and democratic state, and thus we must consider the Jewish ethos of the sanctity of life – any human life – as well. In addition, the jewel in the crown of Basic Law: Human Dignity and Liberty is the statement (in sec. 1):“Fundamental human rights in Israel are founded upon the recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free …” This must not be taken lightly. These are not merely words. They are constitutional norms. This raises the question whether a prisoner, who is in the custody of the public, may decide as he wishes upon ending his life, or whether the sanctity of his life while in custody outweighs his will, also given that realizing his will carries serious potential consequences that go beyond him alone (and see, for example, on this issue the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 of October 13, 2004)), which states that “the Prisons Service sees guarding human life and physical integrity as a value of paramount importance, and is committed to protect the life of a prisoner to the best of its ability”). Perhaps we have here – in the words of our Sages – a case of “he is subjected to pressure until he says I am willing” (TB Yevamot 106a).  That is, at the end of the day, he will be reconciled (and compare section 15(2)(c) of the Patient Rights Law).

 

88.       Before we move on to a thorough examination of the concrete arrangement that is the subject at hand, we will examine the relevant provisions of international law and of the domestic law of other countries.

 

Comparative Law and International Law

 

89.       A review of the relevant legislative provisions and case law from abroad reveals that countries of the western world, as well as international tribunals, are divided on the question of the legitimacy of artificially feeding a prisoner on a hunger strike. Despite the position of the World Medical Association on the matter, it seems that a significant number of western countries permit the artificial feeding of a prisoner in extreme circumstances that present a real danger to his life.

 

90.       We shall start with those who prohibit it. It seems the strongest prohibition on coercive feeding exists in England. There, legislation and case law mandate that life extending treatment – including artificial feeding – should not be provided to a prisoner, regardless of the medical harm, when the person is competent to make decisions regarding his medical condition. See: the Mental Health Act 1983 (hereinafter: MHA) and the Mental Capacity Act 2005 (hereinafter: the MCA), which were amended in 2007 by the Mental Health Act 2007, and see the 2002 guidelines of the English Department of Health to those tasked with prison medical treatment: “Seeking Consent: Working with People in Prison”, as well as the rulings of British courts in the Robb case (R. v. Home Secretary, ex parte Robb [1995] 1 All ER 677); and the Collins case (R. v Collins, ex parte Brady [2000] Lloyd’s Rep Med 355 58) that are consistent with the aforesaid approach. Also see on this issue P. Jacobs, Force Feeding of Prisoners and Detainees on Hunger Strike, 303, 306 (2012) (hereinafter: Jacobs.)

 

91.       It would appear that Canadian law, too, prohibits the artificial feeding of prisoners, in principle. This is because sec. 89 of the Corrections and Conditional Release Act of 1992 stipulates that a medical team is prohibited from force-feeding an inmate by any method, as long as the prisoner has the capacity to understand the consequences of the fast he has undertaken. However, it should be noted that on April 27, 2015, the Canadian Prisons Commissioner published a concrete instruction as to handling prisoners on hunger strikes (“Hunger Strike: Managing an Inmate’s Health”). Under section 2 of this instruction, in light of the risk posed by an extended hunger strike which may cause medical harm or even death, the medical team must intervene for the purposes of saving a prisoner’s life at the stage where the prisoner is unconscious or lacks the ability to make an informed decision as to wanting medical treatment.

 

92.       On the other hand, in France, the United States, Australia, Germany, and Austria, the law permits artificial feeding of a prisoner against his will in extreme cases, which change from state to state.

 

93.       In France, as the Petitioners note, regulation D.364 of the Criminal Procedure Regulations establishes a specific arrangement for treating prisoners on a hunger strike, which permits treating a hunger striking prisoner against his will, but only when the prisoner is in immediate, serious danger. In 2012, the French ministries of justice and health issued instructions for treating prisoners. The instructions state that once it becomes known that a prisoner is on a hunger strike or refuses to drink, the medical unit must be updated as soon as possible, and that the health of the prisoner must be monitored according to the Public Health Law. It is also stipulated that, under section R4127-36, medical treatment will not be given to a prisoner without his consent except in cases of an extended hunger strike leading to immediate and serious risk to his life, and only upon medical request.

 

In the United States and Australia, the situation is somewhat more complex, inter alia, because of the differences between the federal and state laws on the matter. However, there, too, there are arrangements that permit coercive feeding of a hunger striking prisoner under certain circumstances (and see for example: Mara Silver, Note: Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation, 58 Stan L. Rev. 631 (2005);, Barry K. Tagawa, Prisoner Hunger Strikes: Constitutional Protection for a Fundamental Right, 20 Am. Crim. L. Rev. 569 (1982-83); M. Kenny, and L. Fiske, Regulation 5.35: Coerced Treatment of Detained Asylum Seekers on Hunger Strike. Legal, Ethical and Human Rights Implications, in The Ashgate Research Companion to Migration Law Theory and Policy, (S. Juss, ed.) (Ashgate, 2013).

 

94.       In Germany, section 101 of the Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (1976), which concerns “Coercive Measures in the Field of Medical Care”, states as follows:

 

                        (1) Medical examinations and treatment under coercion, as well as forced feeding, shall be permissible only in case of danger to life, in case of serious danger to the prisoner’s health, or in case of danger to other persons’ health; such measures must be reasonable for the persons concerned and may not entail a serious danger to the prisoner’s life or health. The prison authority shall not be obliged to execute such measures as long as it can be assumed that the prisoner acts upon his own free will.

(2) For the purposes of health protection and hygiene, a coercive physical examination shall be permissible in addition to that in subsection (1) if it does not involve an operation.

(3) The measures shall be carried out only upon orders from, and under the supervision of a medical officer, except where first aid is rendered in case a medical officer cannot be reached in time and any delay would mean danger to the prisoner’s life.

 

Thus, under German law, involuntary medical treatment of a prisoner, including forced feeding, is possible when there is a significant risk to the health or life of the prisoner or the life of another. Such treatment is permitted only at the instruction of a medical officer and under his supervision, unless urgent intervention is necessary, the medical officer is unavailable and any delay may cause harm to the prisoners’ life. Still, it should be noted that German law empowers the authorities to provide such treatment, but does not require doing so as long as it may be assumed that the prisoner is acting of his own free will.

 

95.       In Austria, section 69(1) of the Prisons Law of 1969 – Strafvollzugsgesetz (StVG) – mandates that in a case where a prisoner refuses to cooperate with a medical examination or with medical treatment, force may be employed in order to compel treatment, provided that the treatment is reasonable and does not pose a risk to life. It also states that the advance approval of the Minister of Justice must be secured, except in urgent cases. Section 69(2) of the statute states that a prisoner on a hunger strike shall be under medical supervision, and should it become necessary, it is permitted to force-feed the prisoner in accordance with the instructions and under the supervision of a doctor.

 

96.       As for international law, according to the Petitioners, artificial feeding against the patient’s will amounts to torture or cruel and inhumane treatment in a manner that violates the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, dated December 10, 1984, which was ratified by Israel on August 4, 1991 (hereinafter: the Convention against Torture), and is inconsistent with article 7 of the International Covenant on Civil and Political Rights of December 16, 1966, which was ratified by Israel on January 3, 1992, and which establishes a similar prohibition. However, the standards established by the Committee for the Prevention of Torture state as follows in regard to contending with hunger strikes by the various states:

 

                        Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.

 

A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs (eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause.

 

In the event of a hunger strike, public authorities or professional organizations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts” (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) CPT Standards p. 42 (2002-2015)).

           

Thus, it is clear that the Committee did not a priori rule out forced feeding, but rather leaves a degree of discretion to states in handling hunger strikes between prison walls, while noting that to the extent that a state may elect to employ this measure, it must be established by law, and be limited to extreme and exceptional circumstances (see also: P. Jacobs, Food for Thought: the CPT and Force-Feeding of Prisoners on Hunger Strike, in Fervet Opus: Liber Amicorum – Anton van Kalmthout, 103, 106-07 (M.S. Groenhuijsen, T. de Roos & T. Kooijmans, eds.) (2010) (hereinafter: Food for Thought).

 

97.       The jurisprudence of the European Court for Human Rights on the issue is also of interest. Article 3 of the European Convention on Human Rights prohibits torture and humiliating penalties and treatment, similar to the prohibition established under article 7 of the International Covenant on Civil and Political Rights, and the Convention against Torture. The question raised before the European Court was whether forced feeding is inconsistent with the above prohibition. In a number of decisions, the European Court acknowledged that the issue creates a conflict between two paramount rights: the first, the individual right to autonomy; the second, the individual right to life. In the matter of Nevmerzhitsky v. Ukraine, the Court established the following balancing formula:

 

                        The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 83). Furthermore, the Court must ascertain that the procedural guarantees for the decisions to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the Convention (Nevmerzhitsky v. Ukraine, application number 54825/00, §94 (2005)).

 

In that case, the Court adopted a test comprising three cumulative conditions under which forced feeding would not be considered a violation of the European Convention. First, there must be medical necessity for the forced feeding. Second, the decision must be made in a proper procedure and according to the procedural framework established in state law. Third, the method of forced feeding must not exceed the minimal extent of severity permitted by the Convention, that is – does not amount to humiliating or degrading treatment or penalty. That case involved a prisoner who was force-fed through a tube, while restrained to a chair, with a mouth widener attached to his mouth. The Court held that using such means, while the patient resists and through the use of force, may amount to a violation of the Article when it is not medically justified. Further on, the court found that the said treatment was provided without medical justification and without due process, and therefore constituted a violation of Article 3 of the Convention.

 

98.       On the basis of those tests, the Court similarly found in Ciorap v. Moldova that forced feeding in that case amounted to a violation of Article 3. First, it found that there was no medical justification for the treatment. Second, it found that the procedure by which forced feeding was decided upon was improper because the physician who performed the forced feeding did not explain why he did so. It was held that the one purpose of the forced feeding in that case was to limit the prisoner’s right to protest through a hunger strike. Because the treatment caused him great physical pain and humiliation, it was held that this was prohibited torture under the Convention (Ciorap v. Moldova, Application no. 12066/02, §89 (2007)).

 

99.       Similarly, in Rappaz v. Switzerland, the Court dismissed the complaint in limine, once it was found that the decision to force-feed the prisoner against his explicit will – that ultimately was not implemented as he ended the hunger strike – was made according to the above three-pronged test: the decision was made out of medical necessity; it was made through a proper process – in accordance with the limits established in law, by a judge, and only after it was found that the complainant’s condition was serious and it was determined that the treatment would be provided by a professional medical team; and there was no reason to assume that even were the decision implemented, the manner of its implementation would have amounted to humiliating treatment or penalty. Therefore the complaint was dismissed.

 

100.     The conclusion from the above jurisprudence is that the European Court does not prohibit forced feeding as long as it meets the three standards described above: necessity, due process, and that the concrete method of forced feeding does not exceed the minimal severity possible (see also Food for Thought, p. 106). And as noted, even the Committee for the Prevention of Torture is not categorically opposed to employing such means.

 

Now that we have reviewed the comparative law and the provisions of international law, we will return to our own legal system, and examine whether the arrangement established in the amendment to the Law that is the subject of this Petition passes the Israeli tests of constitutionality.

 

Violation of Constitutional Rights

101.     Providing forced medical treatment against the will of a hunger striking prisoner or detainee prima facie violates his constitutional rights, primarily his right to autonomy, and to a certain extent, his freedom of expression as well, even if the latter is generally limited, by its nature, behind prison walls (see the Borgal case, p. 101). I shall reserve the matter of whether the right to life itself can be compelled for another time, and I will assume that there is an infringement of the aforementioned constitutional rights. Thus, we must examine if this infringement is lawful. This examination will proceed in accordance with sec. 8 of Basic Law: Human Dignity and Liberty, whereby:

 

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, or by regulation enacted by virtue of express authorization in such law.

 

102.     Assuming that the first condition – that the violation is by virtue of law – is met, I shall proceed to consider whether the provisions of the Law are consistent with the values of the State of Israel, whether the provisions of the infringing Law are intended for a proper purpose, and whether the infringement is not greater than necessary.

 

Does the Law befit the Values of the State of Israel

 

103.     The second condition of the Limitation Clause demands that the Law befits the values of the State of Israel. This Clause refers to the values of the State of Israel as a Jewish and democratic state, and reflects the tension between the values presented by this case.

 

104.     There is no denying that “giving concrete expression to the idea of a ‘Jewish and democratic state’ is no simple task, as is testified by the extensive legal and other literature that has attempted to do so, as well as most of the important verbiage dedicated to this phrase. Each of the terms – ‘state’, ‘Jewish’ and ‘democratic’ – encompasses a long line of constitutive values that are of its foundations. ‘Each is a fathomless ocean’” (Haim Cohn The Values of a Jewish and Democratic State, Selected Writings 45, 47 (2001) (Hebrew)). “Occasionally they contradict and compete with each other.” (HCJ 466/07 Galon v. Minister of Interior (2012), para. 14, per Justice E. E. Levy). The term “Jewish” primarily refers to “the right of the Jewish people to self-determination, as well as to its ability to defend itself against external threats” (ibid.), and in the framework of democratic existence, the state is committed to the individual rights of those coming within its borders, including the values of liberty, equality, dignity and autonomy (see Asher Maoz, The Values of a Jewish and Democratic State, 19 Iyuney Mishpat  547 (1995) (Hebrew)).

 

105.     As described above, the Law came into being against the background of hunger strikes among security prisoners and administrative detainees, undertaken as a means of protest, and to the point of posing a real risk to their health and lives. As was explained, the Law seeks to realize two interrelated purposes. The primary purpose is saving the life and protecting the health of a hunger striking prisoner. The secondary purpose is protecting State security and the lives of others who may be at risk as a result of the hunger strike.

 

106.     In seeking to realize these purposes, the Law permits the infringement of the hunger striking prisoner’s right to dignity, as well as autonomy over his body, and to make decisions in regard to his life. As opposed to this stands the full force of the value of the sanctity of life – first and foremost of all values, because in the absence of life there can also be no human dignity or sanctity of life – and the need and duty of the State to protect itself and others who may be harmed. These values is not merely those of a Jewish state or of a democracy, but rather they are intertwined – like Siamese twins – in a Jewish and democratic state that seeks to find a proper, sensitive balance of these values. Sanctity of life is not a value exclusive to a Jewish state alone, it is at the heart of a democratic state. A state that values life must, first and foremost, protect the lives of its residents, and certainly the lives of those in its direct charge, such as prisoners and detainees, and this is not only its right but also its duty (HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza, IsrSC 58(5) 385, 406 (2004) [http://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-comma... HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 500 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i...). The State is required to protect itself and meet the security needs of its residents. On the other hand, not only are an individual’s right to autonomy, freedom of expression, and dignity not foreign to the values of Judaism, they are among its core values (see: Nahum Rakover, Human Dignity in Jewish Law, pp. 13-32 (1998) (Hebrew)). Does the Law before us befit the purpose of the State of Israel as Jewish and democratic state? It would seem that the answer to this is in the affirmative. The sanctity of life and the protection of the security of the State and of others are the values underlying the Law, which recognizes the infringement of the autonomy, and possibly the dignity of a person on a hunger strike, and attempts to ensure that this harm be proportionate, as described below. The Law seeks a proper balance between these values, and in this sense, it would therefore appear that our primary task in the next step of the constitutional review is to examine the proper purpose.

 

The Purpose of the Law

107.     Constitutional review of the proper purpose seeks to answer the question whether the purpose of the legislation provides sufficient justification for the infringement of the human right. This examination considers, inter alia, two subsidiary questions: the first relates to the characteristics of the purpose; the second relates to the need for its realization, and whether that sufficiently justifies the infringement of the human right (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, para. 50 of the opinion of President A. Barak (November 5, 2006)). According to Professor Barak’s general approach, “if the purpose of the infringing law is improper, the infringement is unconstitutional, regardless of whether it is proportionate” (Barak, Proportionality, p. 297). And also: “in examining the threshold question of whether the purpose of the infringing norm is proper, a proper content of the norm is insufficient. Some or other level of necessity or essentialness for realizing that purpose is also required” (ibid., p. 344-45). In other words, the appropriateness of the purpose must be examined separately and independently of the extent of the infringement of the constitutional right, as there is no reason to delay such discussion until the later balancing stage (loc. cit.). According to B. Medina, examining the proper purpose must be strict, and must establish that the purpose of the law is proper only when the expected benefit is relevant to the concrete means taken, considering the infringed right. In his opinion, this is crucial primarily concerning laws that seek to protect national security, which is itself a proper purpose at a high level of abstraction, but not necessarily in light of the concrete means adopted by a particular statute in order to realize it (B. Medina, On “Infringements” of Human Rights and the “Proper Purpose” Requirement (following Aharon Barak, Proportionality—Constitutional Rights and their Limitations), 15 IDC Law Review 281, 311 (2012) (Hebrew)). I will already state that in my opinion, subject to what follows below, the Law at hand meets the tests of both approaches because it stands under the canopy of the sanctity of life, and as noted above, in the absence of life, all the rest – both autonomy and freedom of expression -- is irrelevant..

 

The Dominant Purpose versus the Secondary Purpose

108.     In their responses, and in the hearings before us, the Respondents stated that the Law has two interrelated purposes. The primary purpose of the Law, which derives from the central value of the sanctity of life, concerns protecting the life, health and wellbeing of the prisoner on a hunger strike. This is expressed in sec. 11(1) of the Prisons Ordinance, which mandates that a “prisoner incarcerated in a prison shall be deemed subject to the lawful custody of the prison director” (see, for example, the statement of the Minister for Public Security Gilad Erdan, minutes of meeting no. 26 of the Internal Affairs and Environment Committee, 20th Knesset, pp. 3-4 (July 14, 2015) as well as that of Deputy Attorney General, Advocate Raz Nizri, ibid., pp. 4-5).

 

109.     The Law also has a security purpose, which is preserving the security of the State and protecting the lives of others who may be at risk as a result of the hunger strike. The Respondents maintain that this purpose is secondary to the primary purpose of protecting human life, whereas the Petitioners contend that this is the primary and real purpose for which the Law was intended. Thus, according to the Explanatory Notes to the Bill: “First and foremost, the court must consider the prisoner’s medical condition and the danger posed to his health should he not receive the desired treatment… this is in order to ensure that no decision as to providing forced medical treatment shall be made unless in very serious circumstances, and not as a tool for forcing an end to the hunger strike when only at its outset” (Government Bills, 5774- 2014, 771, 870, emphasis added – E.R.; see also the statement of Knesset Member David Amsalem, Chair of the Internal Affairs and Environment Committee, in presenting the Bill to the Knesset plenum  for second and third readings, pp. 641-43 (July 29, 2015)).

 

110.     It should be noted that ascertaining the dominant purpose is not exhausted by reviewing the legislative history of the Law, which was presented above. The question whether a particular purpose is the dominant purpose of the statute is also examined in light of the specific arrangements it establishes. I shall now turn to this.

 

111.     As noted at the outset, the procedure for requesting permission to provide forced medical treatment to a hunger striking prisoner comprises several steps, as well as the supervision of different bodies, and this should not be taken lightly in the constitutional review, as the legislature went to great lengths to create mechanisms of persuasion and supervision for informed consent. First, a medical opinion by the treating physician is submitted, the Attorney General is approached, and upon obtaining his consent, a request may be submitted to the President of the District Court or his Deputy, and this only after efforts have been made to secure the consent of the prisoner (or the detainee). A copy of the request is forwarded to the ethics committee, as well, which shall give its opinion after hearing the prisoner. The District Court is also required to ensure that efforts have been made to secure the consent of the prisoner. The court hears arguments by the prisoner and examines the range of possible treatments, the benefits and risks of the proposed treatment, the level of its invasiveness, and other considerations. This, in my opinion, supports a conclusion that the dominant purpose of the Law is indeed protecting the life of a prisoner on a hunger strike, subject to exceptions designed to ensure protecting his dignity, along with the close supervision and monitoring of different medical and judicial entities.

 

112.     The secondary purpose of the Law, the security one, is expressed in sec. 19N(e) of the Law, under which the court may consider non-medical factors in making its decision to permit forced medical treatment. We shall address the details of this below.

 

The Purposes of the Law – Proper Purposes?

113.     In my view, it is hard to dispute that saving lives – the said dominant purpose of the Law – is a proper purpose. The right to life is a constitutional right enshrined in Basic Law: Human Dignity and Liberty. Section 1 of Basic Law: Human Dignity and Liberty states, as we recall, that: “Fundamental human rights in Israel are founded upon  recognition of the value of the human being, the sanctity of human life…” and sec. 2 states that: “There shall be no violation of the life, body or dignity of any person as such” (emphases added – E.R.; see also, in another context, my opinion in CA 1326/07 Hammer v. Amit (2012) para. 12 [http://versa.cardozo.yu.edu/opinions/hammer-v-amit]). The sanctity of life constitutes a paramount value in Judaism: “For your own sake, therefore, be most careful” (Deuteronomy 4:15), and only in extreme case will the value of life yield to other values (Yisrael Katz, Force-feeding Hunger Strikers in Jewish Law, in 6 Medical Law and Bioethics 227 (2015) (Hebrew) (hereinafter: Katz), as whoever destroys a soul (of Israel), it is considered as if he destroyed an entire world. And whoever saves a life (of Israel), it is considered as if he saved an entire world. (Maimonides, Mishneh Torah, Hilchot Sanhedrin 12:3); and as Professor E.E.. Orbach showed in his article Whoever Sustains a Single Life…Textual Vicissitudes, the Impact of Censors, and the Matter of Printing, 40 Tarbitz 208ff. (5731) (Hebrew), the correct version does not include the words “of Israel” but refers to the loss of any life and the saving of any life. One is required to be careful and to protect one’s life. A person is prohibited from harming himself, and certainly is not permitted to end his own life (Maimonides, Mishneh Torah, Hilchot Avel 1:11).

 

114.     Jewish law recognized the importance of this value to the extent that it established that saving a life suspends all the prohibitions of the Torah, except for the three heinous offenses of idolatry, bloodshed, and incest (TB Sanhedrin, 74a). Jewish law also establishes that, aside from these three offenses, one must not sacrifice his life even if he so desires, and some have deemed a person who does so as having shed blood (Novellae Ritva [Rabbi Yom Tov Ibn Asevilli (ca. 1260-1320)], Pesachim. 25a (Hebrew)). Maimonides ruled: “… should a gentile attempt to force a Jew to violate one of the Torah's commandments at the pain of death, he should violate the commandment rather than be killed, because [the Torah] states concerning the mitzvot [Lev. 18:5]: ‘by the pursuit of which man shall live’, and not that he should die by them. And if he died rather than transgress, he is held accountable for his life” (Mishneh Torah, Hilchot Yesodei HaTorah 5:1. The three exceptions are enumerated in 5:3).

 

115.     According to Basic Law: Human Dignity and Liberty, the State is obligated to protect the right to life in an effective manner (sec. 4 of the Basic Law). Even under the strict scrutiny of the proper purpose that we addressed above, I believe that the benefit of saving a life is relevant to the means adopted, that is, artificial feeding, and certainly when the prisoner or the detainee is in the custody of the State, and under the circumstances, does not enjoy the same autonomy  as a person who is free, as we have shown above.

 

116.     In this context, we should more carefully examine the position of Jewish law. It would seem that Jewish law prohibits one from hunger striking as part of the general prohibition against self-harm (see Michael Wigoda, Forced Feeding of a Hunger Striker, The Jewish Law Department of the Ministry of Justice (2013) (Hebrew); the following is based in part upon his opinion). Some halakhic decisors derive this prohibition from the verse: “Only take heed, and keep your soul diligently” (Deut. 4:9), whereas others refer to the prohibition “bal tashhit” [“do not destroy/waste”] which prohibits the destruction of things that produce benefit, and derives from the verse “When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down.” (Deut. 20:19). The Babylonian Talmud notes that “he who harms himself, although not permitted – is exempt” from punishment by a court (Mishna, Bava Kama 8:6). Over the years, halakhic decisors have ruled that the sources mentioned prohibit a hunger strike (see Responsa Yad Ephraim (Rabbi Ephraim Fischel Weinberger, 19th century, Poland and Israel,) chap. 14; and Rabbi Yehuda Zoldan, Hunger Strike, 15 Tehumin  273 (5766) (Hebrew); but cf. Menachem Felix, And Nevertheless: A Hunger Strike, 15 Tehumin 291 (5766) (Hebrew)). We would also briefly note the words of Rabbi Abraham Isaac HaKohen Kook (19th-20th centuries, Latvia and Palestine), in his letter to Zeev Jabotinsky who went on a hunger strike while held under arrest by forces of the British Mandate: “I am obligated to declare to you, my beloved sons, that this is absolutely and strictly prohibited by our holy, pure religion, the philosophy of life and the light of the world” (Hazon HaGeula, p. 273 (Hebrew)). The prohibition upon an individual’s hunger strike constitutes a source for the State’s authority to act toward ending the strike. Additionally, Maimonides (Rabbi Moses ben Maimon, 12th century, Spain and Egypt) notes that “Our Sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: ‘I will risk my life, what does this matter to others,’ or ‘I am not careful about these things,’ he should be punished by stripes for rebelliousness.” (Hilkhot Rotzeach uShmirat HaNefesh 11:5).

 

117.     Indeed, the fact that there are those who are willing to end their lives for an idea is no simple matter, and it may be a part of the question of when “death shall be chosen rather than life” (Jeremiah 8:3); see M. Greenberg,  The Worth of Life in the Bible, in Sanctity of Life and Martyrdom: Studies in Memory of Amir Yekutiel,  I. Gafni and A. Ravitzki, eds. (1992) 35 (Hebrew); in the Bible, God calls for us to “choose life” (Deut. 30:19). In regard to suicide, Professor Greenberg writes (ibid., p. 51) “Choosing death over a life of degradation is heroism worthy of note and respect. This appreciation is not a legal ruling, but the Bible is not only a source of law but also a reflection of Israelite values that were not concretized in law.” He further writes (p. 53):

 

Life as depicted by the Bible is, therefore, multicolored and reflects a spectrum of value judgments. For the most part, these judgments are positive: choosing life and hope prevail over despondence and despair. The positive approach is based on a conception of life as the beneficent gift of a Creator who desires life, who shows humans  the path that brings life, and maintains the world that sustains them.

 

These words speak for themselves.

 

118.     Another source considers the general duty to rescue, which is established in the verse: “Do not stand upon the blood of your fellow” (Lev. 19:16). This duty to rescue is anchored in the Talmud: “Where do we learn that he who sees his fellow drowning in a river, or dragged by a beast… that he must save him – the verse states  ‘do not stand upon the blood of your fellow” (TB Sanhedrin 73a) Thus, Maimonides, in his Sefer HaMitzvot,  ruled that the general duty of rescue is a biblical commandment: “The 297^th [negative] commandment  is that we are warned in regard to not saving a Jew's life in a case where we see that his life is in danger and we have the ability to save him. For example, when someone is drowning in the sea and we can swim and able to save him” (Maimonides, Sefer HaMitzvot, Negative Commandments, 297). The rulings of Jewish law over the years have established that the duty to rescue applies even when the person at risk asks not to be saved. See, for example, Responsa Melamed LeHoil (Rabbi David Zvi Hoffmann, 19th-20th centuries, Germany) Yoreh Deah 104, where it was held that in a case where parents object to performing surgery upon a sick baby, “the doctor is under a duty to heal, and if he refrains, it is as if he shed blood, and we have not found in the entire Torah that a father and a mother are permitted to risk the lives of their children and prevent the doctor from healing them”. To complete the picture, see also the Do Not Stand on Your Neighbor's Blood Law, 5758-1998, whose explanatory notes state that “this Bill is intended to give  statutory expression in Israeli law to the moral and social value rooted in the Torah (Leviticus 19:16) whereby a person is obligated to assist in saving the life of another person” (Penal Law (Amendment no. 47)  (Do Not Stand on Your Neighbor's Blood) Bill,  5755-1995 (Bills 5755, 456) which was ultimately enacted as an independent law) (Nahum Rakover, “Do Not Stand on Your Neighbor's Blood Law” – Indeed? 17 Mekhkarei Mishpat (2002) (Hebrew)). See also the opinion of Justice Bejski in CrimA 480/85 Kurtam v. State of Israel, IsrSC 40(4) 673, 696-698 (1986), in regard to a drug offender who was operated on against his will in order to save his life after he swallowed bags of heroin, which Dr. Wigoda also cites:

As for me, I do not believe that we must necessarily adopt the principles developed in the United States and in England in regard to this difficult, complex issue -- neither the general principle that prohibits physical treatment by a physician in the absence of the patient’s consent, nor the few exceptions to this principle. I do not underestimate the value of the sources in this regard to which my colleague refers, but I am not persuaded that this approach is consistent with the approach of Jewish philosophy to the sanctity of life as a paramount value, or with  the Jewish tradition as to rescue wherever possible. In this regard, the learned trial judge cited Rabbi Jacob Emden’s Mor uKetziah as follows:

 

“In cases of visible sickness and injury of which a doctor has certain, clear knowledge and understanding, and applies a tested, certain cure, a refusing patient at risk is certainly compelled in any way and form that permits the doctor to heal him, such as cutting the flesh of the injury, or widening an opening, or draining an abscess, or binding a broken bone, and even amputation (in order to save him from death…). In all such cases, he must surely be treated and compelled against his will for the purpose of saving his life, and he must not be listened to if he does not wish for pain and prefers death over life, but instead even a whole limb must be amputated if this is necessary to save him from death, and all that that is required to save the life of the patient must be done even against his will. And each person must be warned of this due to  ‘you shall not stand upon the blood of your fellow’, and this is not dependent upon the consent of the patient, as he is not permitted to commit suicide.”

 

I believe that the principle of the sanctity of life and saving it, as a paramount value, justifies not following those rules that support, almost rigidly but for particular exceptions, the prohibition against intervening in a person’s body without his consent, without regard for the consequences.

 

I believe that the approach deriving from CA 322/63 and CA 461/62, above, represents and complies with the proper approach in Israel, as it is the closest to the Jewish tradition that supports the sanctity of life. Thus, when one is at immediate, certain risk of death, or foreseeable, certain, severe harm to his health, it is indeed permitted to perform surgery or any other intervention in his body even without his consent. This is all the more permitted and even required when such intervention itself does not pose special risks beyond the common risks of surgery or intervention of that kind, and where there is no risk of significant disability.

 

119.     Finally, forced feeding may be justified – from the perspective of Jewish Law -- where a hunger strike poses a threat to others. We learn the primary rule in this regard from the verse: “You shall keep My laws and My rules, by the pursuit of which man shall live: I am the Lord” (Lev. 18:5). And the Talmud states: “Nothing shall stand in the way of saving a life other than idolatry, forbidden sexual relations and bloodshed” (TB Yoma, 82a); and see also Maimonides, Hilkhot Yesodei HaTorah 5:6. The priority that is given to the value of life permits infringing other values to some extent. Thus, the position of Jewish law is that a woman may be compelled to nurse a child – for pay – where that child is at risk (Shulhan Aruch, Even HaEzer, Hilkhot Ketubot 82:5; see also Michael Wigoda, GSS Interrogation in light of the Sources of Jewish Law, The Jewish Law Department of the Ministry of Justice (2000)).

 

120.     This is all consistent with the principles at the foundation of the Terminally Ill Patient Law, 5766-2005. This statute seeks to “regulate the medical treatment provided to a terminally ill patient while properly balancing the value of the sanctity of life and the value of one’s autonomous will and the importance of quality of life” (sec. 1(a)), and it is “based on the values of the State of Israel as a Jewish and democratic state and the fundamental principles of morality, ethics and religion” (sec. 1(b)). According to this statute, the terminally ill patient, as defined there, has the right to ask not to be provided medical treatment for the purposes of extending his life, however, no action designed to cause the death of the patient may be taken, assistance will not be provided for committing suicide, nor shall continuous medical treatment be terminated when its termination may cause the death of the patient, regardless of his will.

 

121.     As for the secondary security purpose, which is concerned with preventing harm to human life other than the hunger striking person, or preventing serious harm to national security, it seems the issue here is somewhat more complex. In the Bill, this purpose is explained as follows:

 

A hunger strike by prisoners is not generally a private act for the purpose of achieving personal gains. Rather, it is part of a public struggle of a political character. Therefore, when deciding how to handle a hunger strike, this aspect, too, must not be ignored. Therefore, for example, at times the increased severity of the hunger strike and the deterioration in the condition of the person on the hunger strike may lead to heated emotions in communities outside of the prison, and in some situations may even result in harm to public safety due to widespread disturbances or the eruption of violent conduct as a sign of solidarity with the hunger striking person and his struggle (ibid., p. 772).

 

122.     As said above, at a high level of abstraction, it cannot be disputed that national security amounts to a proper purpose, even at the cost of some – proportional, as will be discussed below – infringement of human rights. As President Barak simply put it at the time “just as without rights there is no security, so too without security there are no rights.” (the Adalah case, para. 82), and more need not be said. When security is of no concern, life is  of no concern, and where shall that lead us? However, in my view, assuming there is a prima facie infringement of the prisoner’s basic right to autonomy, and the manner in which this harm is caused – and as noted, according to the positions of both the learned Barak and the learned Medina,  when examining the proper purpose, one must consider the necessity of the harm in accordance with the importance of the infringed right and the extent of that infringement – we must ask whether the security purpose is relevant to this means of artificial feeding, subject to the limitations established by the Law. My view is that the answer is in the affirmative, here as well, in the broader context of the sanctity of life. However, the matter must be examined with caution, as we do not live in an ideal world or in a vacuum, and there may be countries that would abuse forced feeding for purposes of oppression. Nevertheless, I believe that we may assume that in the Israeli legal system this risk is not high, and in any event the adjudicating panel of judges will be vigilant in this regard. As for the status of the security consideration, I have noted in the past as follows:

 

                        The security challenges the State has faced – and sadly, still faces – present the Court with legal questions that our forebears had not imagined, but times are changing. Israeli society today is not like that of the founding generation, and this change can also be seen in the area reserved for security considerations… this change has also left its mark in regard to the scope of judicial review over security policy. Thus, Justice Strasberg-Cohen wrote that “national security is not a magic word; it does not have preference in every case and in all circumstances, nor is it equal for every level of security and for every harm thereto (HCJ 4541/94 Alice Miller v. Minister of Defense, IsrSC 49(4) 94, 124 (1995) [http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]; see also ADA 10/94 Anonymous v. Minister of Defense, IsrSC 53(1) 97, 106 (1997)). Thus, President Barak noted that “human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State” (HCJ 7015/02 Ajuri v.  IDF Commander in the West Bank, IsrSC 56(6) 356, 383 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]. Therefore, the current approach as to security considerations can be summed up as cautious respect. The caution results from historical situations and different affairs that have cast a shadow over security considerations in the past (the surprise of the Yom Kippur War, the Bus 300 affair, and others.) Respect is warranted since no sensible person does not see that Israel has complex security problems from different directions. (HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, paras. 39-40 of my opinion (March 27, 2016); see also my article Security and Law: Trends, 44 HaPraklit 409, 410 (5758-60) (Hebrew); my book Paths of Government and Law 265 (5763-2003) (Hebrew); Israel, Security and Law: A Personal Perspective, Mazza Volume (5775) 99).

 

123.     Indeed, in my opinion, were the security purpose the only or primary purpose, it would have been possible to doubt whether it could properly justify forced feeding. As noted, whatever the means of treatment may be – and I will address this below, when considering proportionality – the mere fact that the medical treatment is given against the will of the prisoner means an infringement of autonomy, and although that is necessarily limited behind prison walls, as noted, it still has the power to prevent its violation for a purpose that is external to its core.

 

124.     This infringement of rights that are at the core of human dignity must  be offset by the protection of very important rights (such as the right to life, as noted). As important as national security and public safety may be, and they are very important indeed, they would not alone or primarily be sufficient under the circumstances of this matter to justify an infringement of a prisoner’s right such as forced feeding. The element of caution noted above sets off a red light. Reviewing comparative law supports this conclusion, because as described above, it seems that explicitly employing the security consideration to justify coercive medical treatment of a prisoner is quite unique for the statutory framework chosen by the Israeli legislature, and foreign legal systems, as well as international law, mainly grant exclusivity to medical considerations and the health of the prisoner they wish to feed coercively. In our case, in the Jewish ethos as well, this consideration cannot be seen as exclusive.

 

125.     However, I believe that this is not sufficient to show that the inclusion of security consideration as secondary to the dominant consideration of saving a life amounts to an improper purpose, also bearing in mind that this consideration itself comprises a significant possibility of saving lives – the life of the prisoner, as will be explained – and also the lives of many others. As noted above, despite changes and transformations of different types in the security situation of the State of Israel over the years, the security consideration still exists, clearly and in great force. This requires no evidence. The State of Israel daily faces complex, continually changing security threats that require an appropriate response. Obviously, as noted, even the security consideration concerns protecting human life, and just as protecting a prisoner’s life is, as noted, a proper purpose in itself, the attendant public interest in protecting the safety and the life of others is proper as well (see and compare HCJ 6288/03 Saadeh v. General of the Homefront Command, para. 3 of the opinion of Justice Turkel (2003); HCJ 8567/15 Halabi v. IDF Commander in the West Bank, para. 13 (Dec. 28, 2015)). In light of this, I believe we cannot wholly rule out addressing security considerations to some extent within the Law under review, even if – as we shall address below – this response be limited and, as noted, absolutely secondary to the primary purpose of the Law, which is saving the life of the prisoner for whom treatment is sought, and the response is implemented by the legal and medical mechanisms with strict regard for preventing a “slippery slope”.

 

126.     The combination of purposes is not exceptional in our legislation. Thus, for example, the Eitan case considered the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. The State argued that the primary purpose of the law was identification and removal. That was found to be a proper purpose. As for the additional purpose – general deterrence – it was held that “general deterrence in-and-of-itself is not a proper purpose” (the Eitan case, para. 2 of (then) Deputy President M. Naor’s opinion). Still, it was held that there is nothing wrong with a purpose of deterrence when it accompanies another legitimate purpose (ibid., para. 52 of the opinion of Justice U. Vogleman; see and compare HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (2002)). Moreover, this Court has already held that where a statute combines several interrelated purposes, greatest weight will be attributed to the dominant purpose, which will be the focus of the constitutional review. However, it was held that the statute’s secondary purposes must not be overlooked, as their implications for human rights must also be examined (the Menachem case, p. 264 and references there.) In my view, it seems that in the present case, both the humanitarian and the security purposes – the latter also based to great extent upon the principle of the sanctity of the life of the innocent who may be harmed because of the consequences of hunger strikes by prisoners or detainees, and despite the change occurring in Israeli society as to the place reserved for security considerations in terms of transparency – are proper. This, given that the first purpose is, as noted, the dominant purpose and the other is secondary to it.

 

The Proportionality Tests

 

127.     In my humble opinion, under the interpretation I propose, the Law – including sec. 19N(e) – meets the requirements of the proportionality tests under the Limitations Clause of Basic Law: Human Dignity and Liberty. The Law meets the rational connection test – correspondence between the legislative means that infringe the constitutional right and the purpose that the statute was designed to achieve. According to President A. Barak in the Movement for Quality Government case (para. 58), it is sufficient that there be a suitable likelihood that the action that infringes the protected right or interest will reasonably contribute to achieving the purpose (see also the Nir case, para. 23). Thus, a proceeding under the Law may be commenced only if the physician treating the prisoner, or whoever had recently treated him, is of the view that without the specified medical treatment  “there is real possibility that within a short period of time the life of the prisoner will be at risk or he may suffer severe, irreversible disability” (sec. 19N(a)(1) of the Law). The list of considerations the court must take into account emphasizes medical aspects, including the condition of the prisoner, the benefits and risks posed by the requested medical treatment and by alternative medical treatments, the level of invasiveness of the requested treatment and its implications for the prisoner’s dignity, as well as the results of the requested treatment (sec. 19N(d)(1)-(3) of the Law). In addition, the coercive medical treatment that may be provided under the Law must be “the minimally necessary medical treatment, according to the professional discretion of the caregiver, in order to protect the life of the prisoner or to prevent serious, irreversible disability” (section 19P(a) of the Law). Moreover, the physician must make  a significant effort to secure the prisoner’s consent to medical treatment (section 19N and section 19P(b) of the Law). Additionally, providing coercive medical care is always subject  to the discretion of the caregiver (sec. 19O(e) of the Law). In other words, under the Law, the District Court must evaluate the potential of the coercive medical treatment to improve the medical condition of the hunger striking prisoner, and ensure that if such treatment be permitted, it will be the minimal required. The court must go to the heart of the matter, demand clarifying medical documentation, and  hear physicians and caregivers. See, in regard to hunger strikes, the Alan case and the Al-Qiq case. Therefore, we can conclude that the means selected by the Law, and the Law’s primary purpose – protecting the life of the hunger striking prisoner or detainee – correspond.

 

128.     The Law also passes the second proportionality test – the less harmful means test. This test, as we know, does not necessarily require choosing the means that is least harmful. It is sufficient to demonstrate that, in terms of the right and the extent of its violation, the means chosen from among the relevant options presents a lesser infringement (see, for example, the Nir case, para. 24). In the matter before us, while it might appear that there is a possible alternative for handling a prisoner on hunger strike – sec. 15(2) of the Patient Rights Law – given the purposes of the statute and the complexity of the situation, it seems this alternative does not achieve the purpose of the Law with comparable efficacy (compare the Eitan case, paras. 60-66). Section 15(2) of the Patient Rights Law instructs:

 

                        15(2)    Should the patient be deemed to be in grave danger but reject medical treatment, which in the circumstances must be given soon, the clinician may perform the treatment against the patient’s will, if an Ethics Committee has confirmed that all the following conditions obtain:

(a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’s medical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

129.     The arrangement established in sec. 15(2)(c) of the Patient Rights Law permits providing medical treatment without the consent of the prisoner only when “there are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.” However, in most cases, a prisoner on a hunger strike who clearly and consistently expresses his ideological objection to receiving medical treatment cannot be provided with medical treatment within the confines of section 15(2)(c) of the Patient Rights Law, even if there is a real risk to his life. This is because the Patient Rights Law requires reasonable grounds to assume that the patient would give his consent retroactively, whereas in our case, often the hunger striking prisoner has no interest in being fed should he lose consciousness, nor as long as he or she is conscious. On an ethical level, the doctor would not always assume that retroactive consent would ultimately be given. Under these circumstances, a hunger strike may end with the death of the prisoner – with all of its consequences. The arrangement established in section 15(2) of the Patient Rights Law is limited to the relationship between the caregiver and the patient, and places maximum weight upon the patient’s autonomy to the very end. This arrangement does not take into account the unique aspects of a hunger strike in general, and a hunger strike by a prisoner or detainee in particular, in terms of the State’s responsibility for him,  the complexity of autonomous will in cases of hunger strikes by prisoners who are willing to die, and where, in any event, the group context may, in some cases, prevent them from ending the hunger strike -- and after all, the purpose is saving their lives – and in terms of the consequences of the hunger strike for national security. Therefore, the arrangement in section 15(2) of the Patient Rights Law does not achieve the purposes of the Law to the same extent, both factually and ethically.

 

130.     And note, as clarified in the Bill’s explanatory notes, it cannot be inferred that one may “skip” attempting to gain the patient’s trust and consent and move straight to forced feeding. Similar to the procedure in the Patient Rights Law, the emphasis is on the attempt to achieve the cooperation of the person on a hunger strike, even for minimal treatment that would only slightly improve his condition. This attempt is based on building a trust relationship between the hunger striking person and the treating doctor. As noted in the Bill:

 

Achieving such cooperation is, of course, the most desirable practice in terms of respecting the prisoner’s autonomy and preserving his liberty, and it is also the most appropriate method of operation from the perspectives of medical ethics (ibid., p. 767).

 

131.     In other words, aside from the general examination of the Law’s provisions, the less harmful means will be examined in the implementation of each case, and to the extent that there is a less harmful means than artificial feeding, and such means may save the life of the hunger striker, the court will refrain from granting an order to provide coercive medical treatment to the prisoner. In addition, even among the options for artificial feeding, the court must explore alternatives according to the level of intrusiveness of the requested procedure and the extent of harm to the dignity of the prisoner (sec. 19N(d)(2) of the Law). Therefore, for example, it is clear that the court will not order intubation when there is a more proportional means for saving that person’s life. As a general rule, as noted in the State’s response, intubation is most exceptional, and the primary means of treating a hunger striker would be providing fluids and nutrients intravenously, as well as providing medication as needed (para. 82 of the response dated Sep. 9, 2015). I would add in this regard that the State notes that in the course of debating and drafting the Bill, the possibility of excluding force-feeding by intubation from the possible medical procedures was considered, but due to the position of the Ministry of Health, which found  the exclusion of a medical procedure in primary legislation to be problematic, it was decided not to do so.

 

132.     In this context, we should address the two cases mentioned above concerning two administrative detainees – Alan and Al-Qiq –which were recently decided by this Court. In those cases, recourse was not made to the Law, although it had already come into force, and the authorities acted in accordance with the Patient Rights Law, with the supervision of this Court, under the circumstances surrounding those cases, regarding which the Court held several hearings (also see and compare HCJ 5464/13 Al-Aziz v. IDF Commander (2013)).

 

Alan, an operative of the  Islamic Jihad terror organization, was placed in administrative detention based on reliable intelligence that linked him to other operatives whose goal was to promote terror in the framework of widespread activity against the security in the area. Alan commenced a hunger strike, due to which he was under medical supervision, first in the Soroka Medical Center in Be’er Sheva, and afterward in the Barzilai Medical Center in Ashkelon. In his petition, he argued that administrative detention is a preventative tool rather than a punitive one and that it was intended to prevent activity against national security. His medical condition due to the hunger strike, albeit self-inflicted, is such that it renders him unable to compromise security, and thus he must be released. We held two hearings on that petition, both in order to evaluate Alan’s medical condition and in order to facilitate negotiations with his attorneys. Prior to the second hearing, we were informed that Alan was experiencing cognitive deterioration. The State’s attorneys declared before us that if Alan’s condition was irreversible, the administrative detention order would be rescinded. The decision handed down on August 19, 2015 stated, inter alia: “It is clear that the petitioner brought his condition upon himself, but this does not preclude making every effort to save his life.” Inasmuch as it was clear that,  due to his medical condition,  Alan no longer presented a security risk, we suspended the administrative detention order that had been issued against him (it later turned out that Alan had not suffered permanent brain damage, thank God) and the hunger strike came to an end.

 

134.     Al-Qiq, a categorical Hamas operative involved in military terrorism, was also placed under an administrative detention order. Shortly thereafter, Al-Qiq went on a hunger strike and refused any treatment. He also petitioned this Court to reverse the administrative detention order issued against him, due to his condition. We held several hearings on this petition, while receiving daily medical briefings as to Al-Qiq’s condition, including the decision of the ethics committee at the HaEmek Medical Center where he was hospitalized, which stated that “due to deterioration in the condition of the petitioner, the medical team should be permitted to provide the patient with treatment without his consent, in order to improve his condition”. On February 4, 2016, we addressed the petition as if an order nisi had been granted, and we ordered the suspension of the administrative detention order, as we found that the petitioner no longer posed a risk that required administrative detention.

 

135.     Thus, in both cases a solution was found that did not require recourse to the Law under review, but remained within the framework of the Patient Rights Law. There is no guarantee, and no one can provide such assurances, that this would be the case in every instance, and we must take into consideration instances of mass strikes as well. In any event, it is presumed that in considering requests submitted under the relevant Law, the courts will bear in mind the possibility for achieving, as far as possible, a balanced, proportional solution that will respond both to the prisoner’s autonomy and to the sanctity of life, and also – as was the case in the matters of Alan and Al-Qiq – to the need to preserve national security. Implementing the Law is, of course, a last resort -- a “doom’s day weapon” of sorts.

 

136.     As for the third test -- the proportionality test stricto sensu -- as noted and as is generally known, this is a value-based test that examines whether there is a proper relationship between the public benefit deriving from the law under review, and the infringement of the constitutional right that will be caused by its implementation (see the Prisons Privatization case, p. 626). It seems that the Law passes this test as well. The Law creates a proportional, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life, through close supervision and monitoring of the process and employing it as a last resort. Let us again recall that the procedure commences with a medical opinion by the treating doctor. The request is then submitted by the Prisons Commissioner, with the approval of the Attorney General or whomever he has appointed on his behalf – as a last resort designed to prevent a risk to the life of a hunger striking prisoner, or the risk that he may suffer severe, irreversible disability – and only after the procedural route is exhausted. Generally, the ethics committee will render its opinion on the matter, the President of the District Court or his Deputy will decide upon the request, and that decision is subject to appeal to this Court. The treatment to be provided would be the minimum required, and the caregiver is not obliged to provide the treatment permitted by the court. As we see – and this should be emphasized – we are concerned with a structured arrangement that involves, alongside the doctors of course, very senior levels of the legal system and judiciary, built in careful stages, and as noted, as a last resort. Based on my great familiarity with these systems, I can confidently say that the determinations in this area will be appropriately thorough. It should also be emphasized that before approaching the court, the treating physician must make a “significant effort” to attempt to persuade the prisoner to grant his consent to treatment. Thus, the physician must explain the legal process and its potential consequences to the prisoner. The court must hear the prisoner, and it is permitted to hold the hearing at the hospital in order to do so. Even when permission is granted for coercive treatment, the caregiver must again attempt to persuade the prisoner to consent to the treatment, and as noted, the treatment provided must be kept to the absolute minimum, and must be done in a manner that will ensure the greatest protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering. It seems, then, that the gradual, balanced procedure, which is accompanied by medical and legal monitoring and supervision, achieves a proper relationship between the benefit that may derive from the Law, and the potential infringement of the constitutional right due to its implementation.

 

137.     As for the security consideration (sec. 19N(e)), there is no denying that it raises apparent discomfort in regard to the relationship between individual autonomy and broader considerations as specified above. However, as we have explained and again emphasize, since the dominant purpose is saving a life and preserving its sanctity, as part of that universal and especially Jewish ethos in a Jewish and democratic state, we are satisfied that everything possible has been done in order to reduce infringement, and that the presiding judge will ensure this under the concrete circumstances. In the past, I had the opportunity to address the tension between the security needs and human rights:

 

                        The relationship between questions of human rights and the needs and challenges of security will remain on the agenda of Israeli society and Israeli courts for years to come. The peace negotiations that Israel is conducting are ongoing, but even the greatest optimists do not expect that the country will arrive at its safe haven in the foreseeable future. The inherent tension between security and issues of rights will therefore continue, and will find its central legal expression in the interpretation of Basic Law: Human Dignity and Liberty. The discussion of questions such as when rights give way to security, and of the proper balance between protecting existence and preserving humaneness – a sharp contrast that fully reflects the dilemma – will go on. We will continue to deliberate the question of the relationship between the command “For your own sake, therefore, be most careful” (Deut. 4:15) in its collective sense, and “For in His image did God make  man’ (Gen. 9:6) and “Great is human dignity, since it overrides a negative precept of the Torah” (Berachot, 19b). The Court will seek the balance between security and rights so that the name “security” shall not be taken in vain, but neither will security be abandoned (from my article On Basic Law: Human Dignity and Liberty and the Security System,  21 Iyunei Mishpat 21, 22 (5758) (Hebrew) 21, 22; my book Paths of Governance and Law (2003) 226).

 

These words seem as apt today as when they were written eighteen years ago..

 

138.     As noted by the State, the security consideration itself cannot justify commencing a procedure under the Law, and certainly cannot, in and of itself, ground permission to treat a prisoner against his will. The security considerations under the Law can be taken into account only when a treating physician has found that the medical condition of the prisoner is extremely serious and that there is a real risk to his life, or that he may suffer serious, irreversible disability, and that it is for the purposes of saving his life – which is the main purpose of the Law. In any event, the treatment that will actually be provided – if and to the extent provided, according to the caregiver’s discretion (sec. 19P(e) of the Law) – shall be determined according to medical considerations alone (the end of sec. 19P(a) of the Law). I would add, not insignificantly, that the security considerations were originally included in the main provision of the Law, which addresses judicial discretion and the considerations that the court must address (sec. 19N(e) of the Law), as has also been noted. However, ultimately, the role of these considerations was limited such that the court may weigh considerations of national security only when evidence to that effect has been presented, and when there is real concern for serious harm to national security, but all this only after the medical journey, which is primary.

 

139.     We would emphasize that sec. 19N(e) is exceptional, and will  be implemented only very sparingly, in extreme cases in which the State presents evidence indicating a near certainty of serious harm to its security (see and compare other cases where individual rights were weighed against security considerations,  HCJ 9349/10 Anonymous v. Minister of Defense (2011); HCJ 1514/01 Yaakov Gur Aryeh et al. v. Second Television and Radio Authority (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r...). Even in such cases, as noted, this consideration will be an attendant, secondary consideration to the primary purpose of the Law – saving the life of the prisoner for whom treatment is sought, even if against his will.

 

140.     It should further be noted in this context that while raised in our case explicitly, it cannot be ignored that in many instances in which the question of treating a hunger striking prisoner arises, it is in regard to an administrative detainee. These cases raise additional challenges, that, by nature, involve different legal aspects than those arising in the case of a prisoner on hunger strike after conviction and sentencing, because being targeted at prevention, they inherently involve the question of the security risk posed by the detainee, to the extent that he is physically and mentally competent. Under such circumstances, the security considerations may tip the scale toward a solution that obviates the need to force-feed the hunger striking prisoner, which will, as noted, remain a last resort (and see the above cases of Alan and Al-Qiq).

 

141.     Before concluding, I would emphasize that we do not, God forbid, seek to minimize the value and importance of IMA and the moral position it wishes to express in this matter. IMA’s moral objection to the Law that is the subject of these proceedings relies primarily upon the Tokyo Declaration of the World Medical Association (hereinafter: WMA) of 1975, updated in 2006, which provides physicians with guidelines prohibiting their involvement in torture or other cruel, inhuman or degrading punishment in relation to detention and imprisonment. Section 6 of the Tokyo Declaration prohibits the forcible feeding of prisoners on a hunger strike. In December 2007, IMA adopted the Tokyo Declaration and endorsed its latest version in a position paper. IMA also refers to the WMA’s Declaration of Malta of 1991, also updated in 2006, which comprehensively focuses on voluntary hunger strikes, not only by prisoners, and defines principles and guidelines designed to assist physicians in handling the dilemmas that arise when treating those on hunger strikes. The Declaration establishes that forcible nutrition despite informed refusal is unethical, unjustifiable and constitutes degrading, inhuman treatment. The Declaration includes detailed instructions as to how to treat those on hunger strike. The principal parts of the Declaration were endorsed by IMA in 2005, while defining the rules for treating those on hunger strike, including: “a physician will not take part in the forcible feeding of a person on a hunger strike.” The IMA rules were ratified several times, most recently in a hearing of the ethics board in September 2013.

 

142.     However, and without taking these positions lightly -- even if I asked myself where the sanctity of life is in these – they do not represent the current legal state, in Israel or abroad, but rather particular ethical positions. They may derive form cruel practices of countries among which, thank God, we are not counted. Moreover, as the State presented, there are doctors and ethics experts who hold a different position. Thus, the position paper that was presented to this Court (Appendix 9 to the Knesset response of Sept. 9, 2015) states as follows:

 

In extreme situations – when all else has failed, and after every possible effort has been made to secure the consent of the person on hunger strike to end his strike, and when there is real, tangible risk to his life should he continue his hunger strike – the moral value of protecting human life and the ethical-professional duty of the doctor to save his life outweigh the infringement of his autonomous will (ibid., para. 3, emphasis original.)

 

The Law that is the subject of these proceedings is aware of the ethical dispute, and thus explicitly states that it does not “require the caregiver to provide medical treatment to the prisoner on hunger strike” (sec. 19N(e)). As the discussions of the Internal Affairs and Environment Committee on this issue reveal, this subsection was inserted into the final draft, although it was not included in the Government Bill, due to the desire to emphasize  that no doctor is obligated to provide treatment, and this despite the fact that the original language of the Law – in sec. 19N(a) – stated that upon the decision of the District Court, “the physician may provide the prisoner with the above medical treatment…” (minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 47-51 (June 17, 2014)). Clearly, the additional emphasis in sec. 19N(e) was designed to give real expression to the above position of some doctors, and to the ethical complexity of the issue.

 

143.     Nevertheless, given our constitutional legal system, and given the state of the law in various countries, as noted, I believe that the position of the World Medical Association, or the position of the Israeli Medical Association, cannot, itself, lead to the striking down of the Law that is the subject of these proceedings, which was enacted by the Israeli Knesset. As then Deputy President Sussman wrote:

 

                        The Petitioner’s argument that he is subject to a moral or medical-ethical obligation under his physician’s oath, or according to the ethics rules of the medical profession, or his medical conscience is irrelevant, with all due respect to those ethical duties – and one who strives to go beyond the letter of the law is praiseworthy. However, we are not concerned here with ethical duties, but rather with legal ones (HCJ 447/72 Dr. Bernardo Yismachovitz v. Aharon Baruch, Income Tax Assessor for Investigations, Tel-Aviv and Center, IsrSC 27(2) 253, 266-67 (1973)).

 

            These words are also apt to the matter before us, mutatis mutandis. Of course, each doctor may look to his conscience and to the physician’s oath and decide as he may.

 

Conclusion

 

144.     Ultimately, the Law passes the constitutionality tests in striking a delicate balance among the different values we have discussed. This is said given the graduated procedure that the Law sets out, which includes several mechanisms for medical, legal and judicial checks. Section 19N(e), whose primary concern is the security purpose, meets the constitutional tests as well, however recourse to it must be very sparing and limited to extreme circumstances, and proper evidentiary foundation. By nature of the issue, this Law is not a source of comfort. There are those who might say that it is possible to “live without it”, assuming other solutions may be found within the existing statutory framework. In any event, having been enacted, we have examined its constitutionality and have reached the above conclusion, being convinced that there may be instances where saving lives demands this, and that the sanctity of life is our highest priority as human beings and as a court.

 

145.     Following the above, I had the opportunity to read the opinion of my colleague Justice Mazuz. His proposal in paragraph 20, in the substantive sense – that is, that the security  issue be considered after the medical deliberation – is not far different from what was stated in my opinion (for example, in para. 138, and particularly at the end). This is also consistent with the order set out in section 19N of the Law, in that subsection (d), which appears first and is dedicated to the medical condition, while and subsection (e), which follows, concerns the security consideration. The best practice is, therefore, discussion of the main issue – the medical one – and only afterward the security issue, as I have written. However, I would clarify that in order not to completely tie the hands of the trial court, I would propose that we establish that the court should begin its deliberation with the medical issue as a basis for determining the case, and that the security issue be addressed last. The court has discretion whether to make an interim decision on the medical issues, which may be appropriate as a general rule, or whether to combine all aspects of the decision together, according to the circumstances of the case, as long as the order detailed above, and the dominance of the medical issue are observed.

 

We therefore do not grant the Petition. There is no order as to costs.

 

 

 

 

Justice M. Mazuz:

1.         I concur with the outcome reached by my colleague Deputy President E. Rubinstein as to the constitutionality of the Amendment to the Prisons Ordinance (Amendment No. 48) Law, 5775-2015, whereby sections 19L-19S were added to the Prisons Ordinance [New Version], 5731-1971 (hereinafter: the “Ordinance Amendment” and “Ordinance”). Still, I am not at ease in regard to section 19N(e) of the Ordinance, which concerns considerations of public peace and safety (hereinafter: the security consideration), and in my opinion it requires clarification and the establishment of boundaries. My colleague discussed the facts, the parties’ arguments, the reasoning and the constitutional argument in detail, and therefore I can present my position briefly.

 

2.         I accept the position of the Knesset and the State authorities that the Patient Rights Law, 5756-1996 (hereinafter: the “Patient Rights Law” or the “Law”) does not fully respond to the complex situations of prisoners on hunger strike who reach a stage where their lives or health are at risk, and that the balance of values and interests established by the Law for the purposes of “providing medical treatment without consent” (sec. 15 of the Law) in regard to an “ordinary” patient” does not exhaust the range of complexities in the circumstances of prisoners on a hunger strike.

 

3.         Section 13 of the Patient Rights Law establishes the general principle, which reflects the right of the individual to personal autonomy, whereby “no medical care shall be given unless and until the patient has given his informed consent to it”.

 

Naturally, a sick person seeks to be cured, and in any event, as a general rule, he is presumed to give consent to medical treatment that may cure him or improve his condition. Cases where the patient refuses treatment are unusual, such as instances where a patient is dying, is experiencing unbearable pain and suffering, and refuses to accept medical treatment that could prolong his life (an issue that is primarily regulated in the Terminally Ill Patient Law, 5766-2005), or other instances where, due to religious or other beliefs, a sick person or patient refuses particular medical treatments (such as amputation of limbs or receiving vaccinations). Therefore, in such circumstances, the Patient Rights Law strikes a delicate balance between the individual’s right to autonomy and the value of the sanctity of life, when the assumption is, as noted, that as a general rule, these two values are not in conflict (this is also the root of the presumption established in sec. 15(2)(c) in regard to retroactive consent, which I will address below).

 

This is not the case for a prisoner on a hunger strike. The hunger striker is not “sick” in the ordinary sense. He is a person who voluntarily and knowingly puts himself in a position where his health is compromised in order to express protest or to exert pressure in order to advance a personal goal or public cause. The hunger striker is not interested, of course, in endangering his health or dying, but he is willing to put his health, and at times even his life, at risk in order to advance his goals. In this sense, he is substantially different from an ordinary patient. The refusal of a hunger striker to receive medical treatment is at the core of his activity, and it is not an unusual or rare situation. In addition, in a case of a hunger strike that is part of a group hunger strike, primarily by prisoners or detainees, it is not always clear whether it indeed reflects the autonomous personal choice of each person on strike, or whether it is a result of  group pressure, or possibly, even coercion. Furthermore, a hunger strike by prisoners and its outcomes have consequences that go beyond the personal matter of the person on a hunger strike.

 

In light of all the above, the complex of considerations and balances in regard to a person on a hunger strike is substantially and substantively different from that which concerns an “ordinary” patient as addressed by the Patient Rights Law.

 

4.         Section 15 of the Patient Rights Law focuses on the exceptions to the general principle that medical care requires informed consent. In this section, the Law permits providing medical treatment in the absence of consent, under particular conditions, in two basic situations: the first concerns cases where it is impossible to secure the patient’s consent because of his medical condition (physical or mental), or because of a medical emergency (paras. (1) and (3)), and the second, which is more relevant to our case, addresses situations where the patient is at serious risk but still “refuses medical treatment”. In cases of refusal of treatment, sec. 15(2) stipulates that a caregiver may provide the medical treatment even against the patient’s will, where the ethics committee – after hearing the patient – authorizes providing the treatment, once it is persuaded that all the following conditions have been met”

 

                        (a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’smedical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

The condition in paragraph (c) is not simple or obvious. It is an attempt to bridge between the right to personal autonomy and the value of the sanctity of life. Arguably, it is a somewhat artificial bridge, but it is still based, as noted, upon the natural presumption that a sick person wishes to be healed.

 

The provision of sec. 15(2) may then provide a solution in cases where there is no objective, rational reason for the patient’s refusal to accept life-saving treatment, or treatment that may significantly improve his condition, and therefore it may be assumed that, in retrospect, he may come around and give his consent. However, there would appear to be some difficulty in meeting the requirement of paragraph (c) in the case of a hunger striker, whose clear, manifest refusal to accept treatment is at the core of the act of hunger striking, and is designed to prevent frustration of the hunger strike and its purposes.

 

5.         In addition, when a prisoner (including detainee) in State custody is concerned, the State has direct responsibility for protecting his life and health (beginning of sec. 19N(4) of the Ordinance, and see further, section 11 of the Ordinance and section 322 of the Penal Law, 5737-1977). Thus, inter alia, the State provides food and health services to prisoners, and is even obligated to take active steps to prevent suicidal acts by prisoners, or prevent harm to them even against their will (see, for example, Article B.1 of Chapter B of the Ordinance in regard to holding a prisoner in segregation). As we know, Basic Law: Human Dignity and Liberty not only establishes the sanctity of life as one of the basic principles of the Basic Law (sec. 1), but also imposes an active duty upon State authorities to protect the life and body of each person (sect.4). This active duty is of particular weight when a prisoner in State custody is concerned, and the State is directly responsible for his life and his health. Moreover, the State also has a responsibility to protect the security of the prison and to protect the wellbeing of other inmates in the prison, and of course, also has the duty and responsibility to protect the safety and security of the general public, which may be affected by events involving hunger strikes by one group of prisoners or another. The State’s general obligation to preserve public welfare and safety is, of course, heightened when the source of the risk are those who are held in State custody, and are in the State’s charge. As we know, strikes by political prisoners in general, and security prisoners in particular, may also lead to events outside of the prison gates – which are often the purpose of the strike – that could pose a threat to public welfare and safety.

 

All of these considerations distinguish the issue of coercive treatment of a prisoner on hunger strike from the issue of treatment provided to an “ordinary” patient in the absence of consent, and they may justify limiting the prisoner’s right to autonomy in this regard.

 

6.         In light of the above, the arrangement established in sec. 15 of the Patient Rights Law for handling a situation of a patient who refuses treatment, clearly does not adequately address the circumstances of a hunger strike, nor exhaust the complexity of the situation of a hunger strike by prisoners. The constitutional balance underlying the arrangement established by the Patient Rights Law, which attributes dominant weight to individual autonomy, is not necessarily appropriate to the balance required in addressing prisoners in general, or the situation of prisoners on a hunger strike in particular. When we are concerned with a prisoner held in State custody, the element of personal autonomy is weakened (although not negated). On the other side of the equation, alongside the value of the sanctity of life, stand elements of the State’s responsibility for the life and health of the prisoner, as noted, as well as its responsibility for the consequences of the hunger strike for the immediate environment  of the prisoners on hunger strike, and beyond.

 

7.         Moreover, even from the perspective of the infringement on autonomy, when a prisoner on hunger strike is concerned, this is effectively a different type of infringement than in regard to a patient refusing treatment, as the person on hunger strike is not interested, as noted, in dying (even if he may be prepared for this), and in any event the infringement of his autonomy is not in the denial of his ability to exercise his will over his body, but rather is actually focused upon denying him the possibility to go on hunger strike. That is an infringement of his freedom of expression and right to protest, which in any event are limited in regard to prisoners. This Court has already held that a hunger strike:

 

… is not among the rights granted to a person while he is incarcerated in prison. Both elements of a hunger strike – the hunger and the strike – compromise the proper administration  of the prison. As for the first element, the refusal to eat in itself constitutes a prison offense under section 56(8) of the Prisons Ordinance [New Version]. In our case, this is not any ”ordinary” refusal to eat, but rather  a refusal that expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order discipline in prison (HCJ 7837/04 Borgal v. Prison Service, IsrSC 59(3) 97, 102.)

 

I would parenthetically note, that I believe that there is a measure of exaggeration in the general statements (to which my colleague referred to in para. 85 of his opinion) that a prisoner retains all human rights but for the right to freedom of movement and those that derive from it. This is not the place to elaborate, but it seems to me that this is inaccurate both on the abstract level, and certainly on the practical level. The deprivation of freedom of movement is not the purpose of imprisonment, but rather a means for punishing the prisoner. Imprisonment is a penalty imposed upon those convicted, which is generally intended to reflect the principle of retribution (the proportionality principle) for their criminal conduct. Infringing the freedom of movement of a prisoner is, indeed, a result of his sentence and a central characteristic of it, but limiting his freedom of movement does not exhaust the range of penal elements inherent to incarceration, as if it were, house arrest could suffice. A prisoner is subject to no small number of additional restrictions that are not necessarily required by the restriction of his freedom of movement. Indeed, a prison sentence does not itself automatically void the constitutional human rights granted to each person, and certainly not the right to human dignity, with its derivative rights, and the above statements should be seen to some extent as a methodological rule that establishes the point of departure for review (in the absence of explicit legal provisions), whereby a prisoner retains human and civil rights except to the extent that their limitation is a result and necessary consequence of the nature of the prison sentence imposed upon him, and of his status as an inmate in a prison facility run according to necessary disciplinary rules.

 

8.         Under these circumstances, it is easy to understand why the State wishes not to be dependent in realizing its said responsibility – to the life and health of the prisoner, as well as the welfare of the public and its safety – only upon the mechanism of sec. 15(2) of the Patient Rights Law, which was not intended, as noted, to respond to the complex dilemma of treating prisoners on a hunger strike, and cannot always provide a suitable solution. Therefore, there is need for a specific, supplementary arrangement in order to cope with situations for which the mechanism established in the Patient Rights Law falls short. I cannot accept, as noted above, the Petitioners’ argument that the Patient Rights Law fully responds to the relevant situations, nor can I accept their argument that considerations of public safety and welfare are irrelevant to the matter at hand. A central role of the governing authorities, as such, is to protect public safety and welfare, and in this regard we should bear in mind that we are concerned with prisoners whose incarceration is premised upon the purpose of protecting public safety and welfare from them.

 

9.         This, in short, is the general theoretical basis that justifies establishing the supplementary arrangement in the Ordinance Amendment. Moving forward, an examination of the details of the arrangement, and whether and to what extent they meet the constitutionality tests (the Limitations Clause) is required. My colleague the Deputy President discussed the different components of the constitutionality tests and the Limitations Clause in detail, and in general, I concur and see no need for repetition. It should be emphasized that the statutory arrangement that was established was achieved after a long, thorough legislative effort, and it includes a long list of supervisory mechanisms and strict safeguards as prerequisites to granting permission to provide medical treatment (including nutrition) without the consent of the prisoner, and these are their main aspects:

 

a. As a condition for commencing proceedings, a medical opinion as to an immediate risk to the life of the prisoner, or severe, irreversible disability is required, as well as an opinion as to the necessary treatments for preventing such risk.

b. A decision by the Prison Commissioner, with the approval of the Attorney General, as to the need to approach the President of the District Court for permission to provide medical treatment without the prisoner’s consent, is required.

c. A copy of the request to the court, along with the medical opinion, must be submitted to the ethics committee, which is to give its opinion as to the medical issues concerning the prisoner after hearing the prisoner.

d.         The court’s authority to grant permission for providing medical treatment without consent is limited to circumstances where the court finds that without the treatment “there is real possibility that within a short time the prisoner’s life would be at risk, or that he would suffer severe, irreversible disability, and that the medical treatment is expected to improve his condition”.

e. The provisions of the Patient Rights Law continue to apply to the prisoner as long as a decision has not been handed down by the court.

f. The court may grant permission for such treatment only when it is satisfied that significant efforts have been made to secure the prisoner’s consent for treatment, after being given a detailed explanation of his medical condition and consequences of a continued hunger strike for his condition, as well as all the relevant medical information, and the prisoner continued to refuse treatment. And in addition, after receiving the opinion of the ethics committee in the matter, and hearing the prisoner, to the extent it is possible considering his medical condition, or his attorney.

g. The court’s authority is to “permit” medical treatment without the consent of the prisoner, but not to order such treatment.

h. The medical treatment to be provided to the prisoner without his consent must be limited to the necessary minimum for protecting the life of the prisoner or for preventing severe, irreversible disability.

i. Treatment shall be provided “in the manner and location that would ensure maximum protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering to the prisoner.”

j. The decision of the court is subject to appeal to the Supreme Court, which will consider the appeal within 48 hours of its submission.

 

To these we should add – as noted by my colleague the Deputy President, and as was also made clear by the representatives of the State authorities and the Knesset, in writing and orally – that the arrangement established in the Ordinance Amendment does not replace the Patient Rights Law, but it is a residual, supplementary arrangement, that is, an arrangement that may be implemented only after procedures under the Patient Rights Law have been exhausted, and only where such procedures cannot prevent the risk to a prisoner’s life or health.

 

10.       We thus find that this is a complex procedure, full of strict medical and legal monitoring mechanisms, alongside strict substantive tests. Implementing the established procedure is reserved for extreme cases where other tools have failed, and it is limited to the minimum necessary to save the life of a prisoner at risk due to a hunger strike, or to prevent a severe, irreversible disability.

 

The Security Consideration

11.       As noted, I concur, in general, with the conclusions of my colleague the Deputy President as to the issue of the constitutional analysis of the Ordinance Amendment. As for the security consideration established in section 19N(e), I see some difficulties that must be addressed and clarified,  as explained below.

 

12.       The Ordinance Amendment details, inter alia, the considerations that the court must take into account in granting permission for medical treatment without the consent of the prisoner, all of which concern the medical-health aspect (sec. 19N(d)). Section 19N(e) of the Ordinance adds an additional, optional consideration, as follows:

 

                        (e) The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court.

 

13.       The legislative history of the Amendment clearly shows – and this is not in dispute – that the consideration in regard to the consequences of a prisoners’ hunger strike, primarily security prisoners, for public welfare and safety (the security consideration) was one of the primary considerations that led to initiating the Ordinance Amendment. As I noted above, I accept that the arrangement established in sec. 15 of the Patient Rights Law does not always fully respond to the need for providing treatment without consent in the circumstances of a hunger strike by prisoners, with all its implications, first and foremost in regard to the responsibility and duty to protect the life and physical integrity of a prisoner. Thus, I do not find any flaw in the fact that the security consideration was of the factors that motivated the legislative process of the Ordinance Amendment (and as such I see no reason to refrain from expressing this even in the “purpose clause”).

 

14.       However, once the purpose of creating a legal means for preventing the death or severe, irreversible disability of a prisoner on a hunger strike has been accomplished, there might seem to be no further need for establishing the security consideration as an additional factor for the discretionary stage of the court’s decision as to whether to permit coercive treatment, since the “security” purpose is already achieved as an inevitable secondary result of preventing harm to the health of the prisoner. The purposes of protecting the sanctity of life and guarding public welfare and safety are not contradictory, but rather complimentary in the area with which we are concerned. Since the potential harm to public welfare is a product of the harm to the life of a prisoner on strike, saving the life of the hunger striking prisoner by providing proper care (even coercively) itself responds to the interest of protecting public welfare and safety. Therefore, it might appear that we have no need whatsoever for this consideration as a separate consideration at the stage of the court’s decision as to whether to grant permission for treating a prisoner without his consent.

 

15.       While a “redundant provision” is not constitutional grounds for striking down a statute, it seems that in our case this is not merely a matter of “esthetics”. Including sec. 19N(e) in the manner in which it was included in the statute’s final version, at the stage of the court’s discretion and decision in deciding a request to grant permission to provide medical treatment without consent, may cause the confusion of different issues. It raises questions as to the place and role of this consideration in the court’s decision, and raises concerns as to deviating the decision-making process from the necessary focus on health and medicine to considerations of national security and public order.

 

It should also be noted that although comparative and international law provide support for the approach that permits medical treatment without consent, including forced feeding of prisoners on hunger strike for medical considerations, as detailed by my colleague the Deputy President, there is no precedent, to the best of our knowledge, for including considerations of security and public order as component factor in the discretion for such a decision.

 

16.       According to the early versions of the Bill, as published in the memorandum that was submitted to the Knesset, the security consideration was one among various factors of medicine and of public safety and welfare that the court must take into account before making its decision. Removing the security consideration, in the final version approved by the Knesset, from the general discretion provision (sec. 19N(d)), and placing it in a separate, optional provision (sec. 19N(e)), emphasizes that the court’s decision must be rooted in the medical considerations, whereas the security consideration is but an additional, optional consideration, that should be taken into account only where all the medical-health factors have been met.

 

And indeed, the Respondents accept that under the statute as ultimately enacted by the Knesset, commencing a proceeding of approaching the court in order to obtain permission for treatment without consent must be based solely on medical factors, and that the security factor may never, itself, justify commencing a proceeding. The Respondents also accept that a conditio sine qua non for the court to grant permission is meeting all the health-medical conditions. Thus, the question arises – what, therefore, is the need for the security consideration, and primarily, what role may it fill in the court’s decision?

 

17.       The Petitioners’ attorneys argued that the security consideration is, in effect, the “end all, be all”, and that in practice this consideration is that which tilts the scales, and will come at the expense of the medical considerations, and that the security consideration “will always satisfy the doubt” in the court’s discretion.

 

As opposed to this, the Respondents’ attorneys argued that the security consideration was never designed to outweigh the medical considerations or replace them, and that it may come to the fore “only when all the medical conditions have been met”. But once the court finds that the medical conditions have been met, it may, if evidence to this effect be presented to it, give weight to the security consideration, as a balancing factor to the non-medical considerations grounding the hunger strike, in order to determine the request to grant permission for coercive treatment.

 

18.       It is easy to see that the concern raised by the Petitioners is not enirely unfounded. Establishing the security considerations as a separate consideration that the court must address (“the court shall consider…”), to the extent that relevant evidence has been produced, indeed raises a concern as to the attribution of weight, and perhaps even determinative weight, to considerations of security and public order at the expense of the medical considerations and the right to autonomy, at least in cases where there is doubt or deficiency as to the existence of the medical-health conditions such that they alone do not justify granting permission for coercive treatment.

 

Indeed, the test that was established for taking security considerations into account, according to which it is limited only to cases where evidence was brought before the court as to a “concern from human life or a real concern for serious harm to national security” is a strict test. Yet, there is still the concern that the security consideration may fill the gap where there is doubt or deficiency as to the fulfillment of the medical-health considerations as noted.

 

19.       Under these circumstances, the question arises as to whether these difficulties may compromise the constitutionality of sec. 19N(e) of the Ordinance.

 

After examining the issues, I do not believe that these concerns are sufficient to justify striking down the provision itself. However, such difficulties do, in my opinion, warrant establishing guidelines and restrictions as to the manner of implementation of the provision in regard to the security consideration. This, considering, inter alia, the restraint and caution necessary in judicial review, and in light of the rule that when a statute has several intermingled purposes, judicial review shall focus upon the dominant purpose of the statute, without disregarding the secondary purpose (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221, 342 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 (2002)). This is especially so when in our case the security purpose, with its different aspects, is also a legitimate purpose, and when this purpose in itself is not sufficient for commencing proceedings and cannot satisfy granting permission.

 

20.       As noted above, the Respondents also accept that the security consideration, in and of itself, does not justify commencing proceedings for permission, and is certainly not sufficient for granting permission for coercive treatment. This holding – along with the holding, which is also acceptable to the Respondents – that the court may not permit coercive treatment unless the medical and health conditions have been fully met, requires preventing circumstances of conflation and confusion that might color a decision made on the basis of the security consideration, without the medical and health conditions having fully been met.

 

21.       This difficulty, and the concerns that accompany it, which as noted, are not entirely without foundation, may be resolved by a procedural separation between the examination and decision phases as to the fulfillment of the medical and health requirement, and the phase of examining the security consideration, to the extent it may be raised. Accordingly, at the first stage, the court should conduct a hearing on the medical and health conditions – the substantive conditions – that are a conditio sine qua non, and decide whether these are indeed fully met in the case before it. Only having so found, will the court proceed to the second stage, and address the security consideration, to the extent that evidence to this effect has been presented in accordance with the provisions of sec. 19N(e) of the Ordinance. After exhausting both stages, the court will make its final, comprehensive determination upon the request for granting permission for treatment in the absence of consent. In this framework, and on the basis of the above finding that all the medical and health conditions have been met, the court must strike a balance among all of the relevant considerations: on the one hand – the position of the prisoner as to the relevant medical treatment, and as to the purpose of the hunger strike, that is, the right to personal autonomy and to freedom of expression (sec. 19D(d) of the Ordinance); and on the other hand – considerations of protecting the life and health of the prisoner (sec. 19D(d)), as well as the public interest reflected in the security consideration, to the extent evidence to this effect was presented (sec. 19D(e)).

 

At this point, is appropriate that we emphasize that a broad view of the arrangement established in the Ordinance Amendment clearly reveals that the legislature intended to give primary weight to considerations relating to the prisoner – balancing protecting his life and health against his right to personal autonomy and self-expression. Most of the provisions in the arrangement concern these, both in its substantive and procedural aspects, while the security consideration is included solely as a supplementary, optional consideration, strictly limited to cases, backed by evidence, of “concern for human life or a real concern for serious harm to national security”. This approach by the legislature should guide the court in determining a request to grant permission under the Ordinance Amendment.

 

The said a procedural separation, which is designed to ensure the full meeting of the medical and health conditions, and to prevent conflation and confusion between the medical and health conditions and the security condition, is important for purposes of the appeal process as well. Section 19R of the Ordinance establishes that the decision of the court on the request to grant permission is subject to appeal to the Supreme Court, and that this Court “shall hold a hearing in the appeal within 48 hours from the time of its submission”. The need for swift determination is clear, and is required by the nature of the matter. The transparency of the proceedings and the decision that would be achieved by the above procedural separation would also facilitate an expedited decision by the Supreme Court on the appeal.

 

22.       Indeed, it is still possible to wonder if “a trifle is worthy of the King’s trouble” [Esther 7:4], and whether the harm posed by the security section is greater than the benefit derived from it, when the purposes grounding the Ordinance Amendment can seemingly be achieved without it, whereas its existence raises concerns and arguments. However, we are not concerned with review of the wisdom of the legislature, and in light of and subject to the above, it cannot be said that we are concerned with unconstitutionality. However, I believe the relevant State organs would do well to revisit and consider the repeal of sec. 19N(e).

 

23.       In conclusion, subject to my above comments, particularly as stated in para. 21 above, I concur with the conclusion of my colleague the Deputy President that we must deny the Petitions.

 

 

 

 

 

Justice N. Sohlberg:

1.         I concur with my colleague Deputy President, E. Rubinstein’s comprehensive opinion, and my conclusion as to the constitutionality of the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Amendment) is as his.

 

A complex – human, moral and legal – issue was brought before us: the sanctity of life, national security, the right to autonomy, the right to equality, freedom of expression, the State’s responsibility for prisoners in its custody – these are all combined in our issue. As usual, the Deputy President addressed the issue with knowledge, wisdom and reason – considering the importance of each of these considerations for our matter, as well as the delicate balance among them, in accordance with the stages of constitutional review, in a logical, orderly manner. Most of this is  academic rather than practical. In light of our experience with the petitions of hunger striking prisoners and detainees so far, and in view of the monitoring mechanisms, the stages of the procedure and the strict conditions established in the framework of the Amendment, it is both my hope and expectation that we will not reach the stage of forcible feeding in its extreme form, and even the need to address coercive medical treatment of hunger striking prisoners will be  rare, if at all. The primary effect of the Amendment is its clear expression of a value judgment of intrinsic practical benefit.

 

3.         I shall very briefly add a few words as to the proper place and role of the security considerations in sec. 19N(e) of the Amendment. As noted by my colleague Justice M. Mazuz (para. 13 of his opinion), the security consideration was among the primary motives for the enactment of the Amendment. Review of the Bill’s explanatory notes and the minutes of the various discussions along the legislative process leaves no room for doubt in this regard. However, and most importantly, the constitutionality of the Amendment must be reviewed, first and foremost, in light of the specific arrangements it establishes, as they were written into the law books, and these  – as  the Deputy President demonstrated – give priority to the medical considerations. These considerations “overtook” the security considerations along the legislative “journey” and outweighed them. As emphasized by the Respondents, while the medical considerations may justify providing medical treatment to a hunger striking prisoner against his will, even without security considerations, the security considerations, in and of themselves, can never justify granting permission for such medical treatment (para. 138 of the opinion of the Deputy President). This position may lead one to wonder: if the security purpose is indeed secondary to the medical purpose, and is but another layer placed upon it, what then is the benefit that derives from the provision of section 19N(e) of the Amendment? Is “a trifle worthy of the King’s trouble”, as my colleague Justice Mazuz wonders (para. 22 of his opinion)?

 

4.         It is true that, in many instances, protecting a prisoner’s life and realizing the medical purpose would entirely achieve the security purpose, as well. In the matter at hand, the medical purpose and the security purpose are not at odds – indeed, they are sisters and they complement one another (see para. 14 of the opinion of Justice Mazuz). However, there are still situations where the security considerations may be of some significance for the determination of the court. As we may recall, under sec. 19N of the Amendment, the court may permit providing medical treatment. May – but is not obliged. This means that in certain circumstances, in striking the balance between the sanctity of life on one hand, and the right to autonomy on the other, the scales may remain balanced. In other words – even if the State succeeds in showing that without receiving medical treatment there is a real possibility that within a short period of time the prisoner’s life would be at risk, or that he may suffer a severe, irreversible disability, the court still holds a certain margin of discretion in balancing the sanctity of life and the right to autonomy, and determining as its wisdom dictates. Within that margin of discretion, there is also room for considerations of concern for human lives, or a real concern for serious harm to national security, to the extent such evidence has been presented. And note: this does not in any way detract from the State’s duty to withstand the “trials” of the “medical journey” (as the Deputy President described it in para. 138 of his opinion). Only if the state has met its burden to show that the medical considerations have been satisfied, and if the court is still in doubt whether there is justification to permit medical treatment, is there room to consider the security considerations as well.

 

5.         My colleague Justice Mazuz, following the reasoning of the Petitioners, is concerned about attributing excessive weight to the considerations of security and public order at the expense of the medical considerations and the right to autonomy (para. 18 of his opinion). Therefore, he proposes to set restrictions upon the implementation of sec. 19N(e), in the form of a “procedural separation” between the examination of the medical considerations and the examination of the security considerations. I do not share his opinion in this regard, and I concur with the view of the Deputy President that we must take care not to tie the hands of the trail court. Aside from the question of our authority to do this in the framework of these proceedings, I believe that there is no substantive justification for doing so. Once this judgment has made it absolutely clear that the medical considerations are a sine qua non threshold condition without which coercive medical treatment cannot be provided, and that the security consideration is merely an additional layer that may be given expression in a limited spectrum of cases, I see no further need for concern about attributing excessive weight to the security considerations to an extent that would require creating a “procedural separation”. Therefore, I agree with the formula proposed by the Deputy President, whereby the court will begin by examining the medical issue as a basis for its determination, while the security issue will be reserved – if required – as a last issue for examination.

 

Therefore, I concur in the conclusion of the Deputy President that the Petitions must be denied, and with the formula he proposed in paragraph 146 of his opinion.

 

 

 

 

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

 

Given this 8^th day of Elul 5776 (Sept. 11, 2016).

 

 

 

 

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL SITTING AS THE

HIGH COURT OF JUSTICE

 

 

HCJ 355/79 HCJ 370/79 HCJ 373/79 HCJ 391/79

 

Before: Hon. President M. Landau

Hon. Vice President H. Cohen Hon. Justice A. Barak

 

 

Petitioners:   1. Aryeh Ben Binyamin Katlan,

2.            Shimon Tzion Dovivechi,

3.            Meir Ben Aharon Marciano v.

Respondents: 1. Prison service

2. Ramla Detention Center Administration

 

 

Argued:         8 Av 5739 (August 1, 1979)

9 Kislev 5740 (November 29, 1979)

Decided:        24 Nissan 5740 (April 10, 1980)

 

 

The Supreme Court sitting as the High Court of Justice

[April 10, 1980]

Before President M. Landau, Vice President H. Cohen and Justice A. Barak

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: The Prison Service was struggling with the phenomena of drugs smuggling into the Ramla Detention Centre by inmates who swallowed drugs packages while outside the Centre. Prison authorities decided to deal with the matter by performing enemas on detainees. On July 31, 1979 the Prison Authority issued a directive regulating a policy of administering enema’s to detainees, where the warden of the Detention Centre established probable cause to suspect that the detainee was smuggling drugs inside his body. The procedure was to be performed discreetly in a manner consistent with all hygiene rules and medical guidelines. The directive allowed carrying out an enema against the will of the detainee if a doctor provided assurances that it would not be detrimental to his health. If the inmate resisted and the medical staff believed his resistance made it is impossible to conduct the procedure, the detainee would be put into solitary confinement for no longer than 48 hours, in order to supervise the discharge of the drugs. Each of the Petitioners had been administered an enema, but no drugs were found. The main question arising from the petitions was whether the Respondents were authorized to perform enemas on the detainees without their consent.

 

Held: Every person in Israel, including inmates and detainees, has a fundamental right to physical wellbeing and human dignity. The performance of enemas on detainees without their consent and without medical justifications, infringes these rights. Therefore, the Court held that for the Prison Service to be able to administer such procedure there must be a statute allowing them. It was determined that although Section 5 of the 1971 Prisons Ordinance permitted the searching for and confiscation of prohibited items, it did not allow for the search to be invasive. The Court ruled that the term "search" used in the Ordinance refers only to search of [over] the inmate's body and not to an invasion of his body. It reflected that a search inside the body of the person may lead to consequences that are inconsistent with human rights in Israel. The court determined that the authority to maintain order and discipline within the prison does not include the power to conduct invasive searches. Thus, the Court adjudicated that the directive that allowed for the performance of enemas on detainees, without their consent, and the procedures that were carried out in accordance with it, were illegal. It further determined that the best way to deal with the matter concerned was through primary legislation. President Landau preferred not to provide the Knesset with guidance on how to resolve the issue and determine when it is justified to conduct an invasive search against the detainee's will. He noted that the prevention of drug crimes in detention facilities and prisons is necessary, not only in order prevent lawlessness, but also for the protection of weaker prisoners from stronger ones.

 

 

On behalf of the Petitioners: Adv. S. Ziv (Aryeh Ben Binyamin Katlan)

Pro Se (Meir Ben Aharon Marciano, Shimon Dovivechi) On behalf of the Respondents: Adv. M. Naor

 

JUDGMENT

 

Justice A. Barak

 

1.            A significant amount of dangerous drugs have been smuggled into the Ramla Detention Center.

[Over time], the ability to smuggle drugs into the detention center has improved and the main importers [of the drugs] are the detainees themselves. Every evening, approximately one hundred detainees are returned to the detention center after being questioned at the police station or after appearing in court. Apparently, they obtain the dangerous drugs in the hallways of the court or at the police station when they have the opportunity to meet with friends or suppliers. Although the detainee is accompanied by a police officer, all that is needed is a momentary distraction for the detainee to obtain the drugs and either hide them under his tongue or swallow them. The drugs are packaged so that they will not break up when swallowed and remain intact inside the body. Once back in the detention center, the detainee discharges the drugs upon defecating. The drugs are then available to the detainee either for personal use or as a way of gaining power and standing in the detention center. According to the Prison Service, in exchange for the drugs, the detainee may obtain servants and partners for homosexual intercourse. Drug smuggling has created an environment of interdependence, and violence may be expected to break out any time a detainee breaks the “rules.”

2.            The prison authorities must face this serious phenomenon. They have tested various alternatives [in order to try to solve the problem]. External body checks have proven fruitless because the drugs are inside the detainee's body. According to the Prison service, isolating the detainee until he defecates is ineffective because reality has proven that the detainees do not recoil from re-swallowing the drugs after passing them. After trial and error, the Prison service

 

concluded that the only way [of dealing with the phenomenon] was by administering an enema to the [suspected] detainee. On July 31, 1979, the prison’s administration approved the following procedure. The terms of the directive state that the warden of the detention center may order the administration of an enema only when there is probable cause, based on reliable evidence, to suspect that the detainee has drugs inside of him. The enema can only be administered by a medic under the professional auspices of the medical department. The enema is administered privately, discreetly and in a manner consistent with all hygiene rules and medical guidelines. The detainee is offered the opportunity to sign a consent form stating that he is willing to undergo the procedure. If he refuses, the warden of the detention center may order the procedure against the will of the detainee provided there is a signed statement from a doctor to the effect that the procedure will not harm the health of [the detainee]. If the detainee forcefully resists the procedure and the head of the medical clinic determines that it would be impossible to administer the procedure due to the detainee’s resistance, the detainee is placed in solitary confinement for no longer than 48 hours, in order to supervise and monitor the discharge of the drugs. Isolation for longer than 48 hours requires the approval of the Commissioner of the Prison service.

3.            Enemas that were conducted in the Prison Service in the spirit of the [aforementioned] procedure, even before it was formulated in writing, [produced impressive results]. Since the opening of the Ramla Detention Center, prison officials have intercepted a significant amount of dangerous drugs (44 hashish joints, 200 grams of opium, 17 grams of heroin, 7 grams of cocaine, hundreds of methadone tablets and hundreds of other pills). The vast majority of these drugs were discovered by means of the administration of an enema. A study conducted at the end of 1978 revealed that approximately 70% of the detention center’s population use dangerous drugs. Another study conducted in April 1979 revealed that drug use fell to 2%. Prison officials credit

 

the use of the enema procedure as the reason for this decline. Furthermore, the significant decline in the amount of dangerous drugs successfully smuggled into the detention center has positive residual effects, as there are no longer stabbings, instances of homosexual intercourse or other violent phenomena, [associated] side effects of the use of drugs.

According to intelligence gathered by relevant authorities, the fear of being caught with drugs during the administration of an enema prevents detainees from using this method [of drug smuggling].

4.            The administration of the detention center had intelligence that [established] reasonable grounds to assume that each one of the Petitioners in these four petitions carried dangerous drugs inside his body. In light of this information, each one of them was administered an enema, but drugs were not found. The Respondents claim that the Petitioners consented to have the enema administered, but the Petitioners deny that this is so. Even though there is ample reason to believe the detainees did consent in writing to the procedure, counsel for the Respondent has agreed that we adjudicate this case on the assumption that the Petitioners were administered an enema without consent and despite their resistance (they ceased to resist before the enema was administered). The Petitioners claim, each one in his own words, that the administration of an enema is humiliating, degrading and violates their privacy and dignity. The question before us is whether the Respondent is authorized to order the procedure without the consent of the detainee.

5.            Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity. These rights are included in the “scroll of judicial rights”, as President Landau put it in HCJ 112/77 Fogel v. Israel Broadcast Authority, IsrSC 31(3) 657. 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 upon many of

 

the rights of a free individual (see HCJ 269/69 New Communist Party v. Police Minister, IsrSC 23(2) 233; HCJ 881/78 Mutzlah v. Warden of Deman Prison, IsrSC 33(1) 139), 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. The administration of an enema to a detainee without his consent, without any medical reason, violates his physical well being and infringes upon his privacy and his human dignity. Referring to such an intrusion into one’s body, Justice Frankfurter said, “This is conduct that shocks the conscience.” (Rochin v. People of California, 342 U.S 165, 72 S. Ct 205, 209).

Therefore, for the Prison service to be able to administer an enema without the consent of the detainee, and thereby justify a potential criminal offence and a civil act of battery, there must be a statute allowing them to do so. Ms. Naor, who, on behalf of the Respondents made an exhaustive effort to present a comprehensive and balanced picture of the problem, pointed to two legal sources which may authorize the Prison service to administer an enema to detainees and inmates. The first is a law which allows the Prison service to search detainees and inmates, and the second is a law which authorizes the Prison service to maintain order in prisons. Do these statutes serve as a statutory basis for the administration of an enema?

6.            Section 5 of the Prisons Ordinance (new version) states, “During the intake of an inmate, he shall be searched and any prohibited items are to be confiscated.” The term “inmate,” as used in this ordinance, includes detainees. Section 40(a) of the ordinance says, “Inmates are to be searched from time to time as established, and prohibited items are to be confiscated.” The original version of the ordinance stated in Section 54(1) that, “Every prisoner shall be searched on admission and at such times subsequently as may be prescribed, and all prohibited articles shall be taken from him” [English original]. It seems to us that the [Hebrew] terms [for] “shall be

 

searched” or “every inmate shall be searched,” alike the English term “searched,” allow for a search of [over] the inmate's body. However, the plain language of these terms does not seem to allow for an invasion of [inside] the inmate's body. The distinction between the outside of the inmate’s body and the inside of his body is not always easy and no scientific method of distinguishing has been suggested to us. In our opinion this distinction is grounded in common sense, and according to this, the administration of an enema, needle or a scalpel is not in the category of a “search.”

7.            The State’s approach that a “search” includes a search inside the body of the person subject to the search may lead to harsh consequences to human freedom in Israel. The authority of the Prison service to conduct searches is not limited to detainees, but applies to those visiting the prisons as well (Section 40(b) of the Prisons Ordinance). Furthermore, this authority is not unique to the Prison services, as other authorities are authorized [to conduct searches] as well, according to various legislation (See, e.g., Section 184 of the Tax Ordinance (new version); see also, LIBAI, RULES OF ARREST AND RELEASE 65 on). Above all, an arresting police officer may search the body and the belongings of an arrestee (Section 22(a) of the 5729/1969 Criminal Procedure Ordinance (arrest and search) (new version)), and the officer is permitted to check the belongings and the body of a person in the course of a house search (Section 29). If we are to allow searches to extend into the bodies of detainees via the authorization to search, we would be unable to prevent it in any other situation where searches are permitted. What would stop an officer who has reasonable suspicion that a suspect swallowed dangerous drugs from asking a doctor to obtain a blood sample, pump the person’s stomach, administer an enema or even perform surgery? In In re Guzzardi, 84 F. Supp. 294, 295 (1949), Justice Atwell stated:

 

If a stomach pump may be used, then the surgeon’s knife may be used. If the stomach pump can be justified, then the opening of one's person by the surgeon's knife can be justified [.] We would then have returned to trial by ordeal which has long since been abolished by right thinking, liberty-loving people.

Citing the above case, Justice Weinberger said with regards to the use of a stomach pump via the authorization to search:

We may venture a little further into the realm of conjecture than did the judge in the case just read from to consider whether if a search such as was made in the instant case may be approved would it not likewise follow that if the narcotics after being swallowed has passed from the stomach to the blood stream some officers might feel it incumbent upon them to drain the defendant of part of his life-blood in an effort to discover the hidden evidence?

(U.S v. Willis, 85 F. Supp 745, 748).

 

Indeed, this prediction became a reality in the United States in Rochin, where, after a violent exchange between police and a suspect and an unauthorized search of the suspect’s home, an emetic was forced into the suspect through his nostrils, making him throw up the drugs he had swallowed. [ In a decision written] by Justice Frankfurter, the Supreme Court invalidated that search, and added that it shocks the conscious and that such methods “are methods too close to the rack and screw to permit of constitutional differentiation.”

Over the years this rule has been narrowed despite the vigorous opposition of a growing minority of U.S. Supreme Court justices such as Justices Warren, Black, Douglas, and Fortas. It was determined that it is not the mere invasion into the suspect's body that shocks the conscious,

, rather it is the totality of the circumstances of the case. Therefore, the U.S. Supreme Court has held that drawing blood from a suspect -whether conscious or not - is not forbidden per se, because the act itself does not shock the conscious (See Breithaupt v. Abrams, 352 U.S. 408; Schmerber v. California, 348 U.S 757). Lower courts have extended these rules and have held

 

that a similar approach applies to various methods of stomach pumping used to uncover dangerous drugs (See, Barbour, Constitutionality of Stomach Searches, 10 U.S.F. L. REV.93 (1975), which discusses the extensive ruling in this matter). Recently, [a U.S. Court] has gone so far as to issue a search warrant allowing [authorities] to surgically remove a bullet from the body of a suspect (See Crowder v. U.S., 543 F. 2d 312).

However, it is questionable whether these decisions are consistent with the few U.S. Supreme Court decisions addressing this matter, and, most recently. Indeed, the emerging trend is to limit the authority to conduct invasive body searches (See Adams v. State of Indiana, 299

N.E. 2d 834; People v. Bracamote, 540 P. 2d 624). Nevertheless, the authority of the government to administer an enema or pump someone’s stomach has yet to be decided by the U.S. Supreme Court. The only time the U.S. Supreme Court has directly addressed this matter was in Rochin and the act was deemed illegal. I am in doubt as to whether the development of the rule in the lower courts which relied upon Breithaupt and Schmerber (which dealt with drawing blood and not the administration of an enema or stomach pumping), are consistent with the principles established by the U.S. Supreme Court in the aforementioned cases. Justice Brennan’s comments at the end of his decision in Schmerber should be noted (at 772):

The integrity of an individual's person is a cherished value of our society. That we today hold that the State’s minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions or intrusions under other conditions.

8.            We should be careful when looking towards U.S. law. Just as we are not as strict as them, as we do not exclude evidence that was obtained illegally on the basis of the illegality of its obtainment, we are also not as lenient as they are [in other respects]. Absent a statute permitting it,  we  cannot  allow  a  search  inside  someone’s  body  without  his  consent  or  a  medical

 

justification, whatever the circumstances are. Our guiding principle is the one stated by U.S. Supreme Court President Warren who wrote the dissenting opinion in Breithaupt v. Abrams, 352

U.S 408, 414 (with Justices Black and Douglas joining):

 

Law enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids whether they contemplate doing it by force or by stealth.

Taking blood from an adult without his consent is illegal in England. The question arose in S.v.S;

 

W.v. Official Solicitor (1972) A.C 24, 43, where Lord Reid stated the following, which is also appropriate for the case before us:

There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups détat but by gradual erosion; and often it is the first step that counts. So it would be unwise to make even minor concessions.

We will follow this path as well. We have already held that blood samples cannot be drawn from a suspect without his consent (See CrimA 184/62 Peretz v. Attorney General, [1963] IsrSC 17, 2104). In that spirit, we hold today that search authorization does not allow for an invasive search inside a person’s body, whether a detainee, an inmate or a suspect. It may be true that the days in which a person’s home is his castle have passed, but we have not reached the point where the inside of someone’s body is open to all. In the Canadian case, Le Lapurte and the Queen (1972) 29 D.L.R 3d 652, the court determined that a justice is not authorized to issue a search warrant pursuant to which a suspect will be cut open in order to have a bullet removed from his shoulder which was necessary for his pending trial. Justice Hugessen wrote:

If the police are today to be authorized to probe into a man's shoulder for evidence against him, what is to prevent them tomorrow from opening his brain or other vital

 

organs for the same purpose. The investigation of crime would no doubt be thereby rendered easier, but I do not think that we can, in the name of efficiency, justify the wholesale mutilation of suspected persons. The criminal law has always had to -strike the precarious balance between the protection of society on the one hand and the protection of the rights of the individual members of such society on the other. Both rights are equally important, but any conflict between them must wherever possible be resolved in a manner most compatible with individual human dignity. Even if the operation proposed were minor, and the evidence is that it is not, I would not be prepared to sanction it and I do not do so. The Crowder case may or may not be the law in the United States; it is not the law in Canada.

This applies to our case as well.

 

9.            The Prison service has been given extensive authority to maintain order and discipline within the prison (See Sections 76, 87 of the Prisons Ordinance). It is within this framework that the 5738/1978 Prison Regulations state:

“A prison guard is permitted to use all reasonable means, including force, to maintain order, to protect a guard or an inmate, or to prevent an inmate’s escape.”

According to Ms. Naor, this regulation authorizes a prison guard to use force to find dangerous drugs that the detainee has swallowed. We do not accept this approach. This regulation was not enacted for this purpose, and even if it [the regulation] would purport to permit penetration into the inmate's body in order to find dangerous drugs, I would say that it is outside the bounds of the authority granted to the Interior Minister [who enacted  this regulation] by the Prisons Ordinance. “Maintaining order” is not an authorization to administer an enema without consent.

10.          Our conclusion is that the current policy, which allows the administration of an enema without consent, and the procedures performed in accordance with it it, are illegal. It is true that Respondent has a just and right motivation, but the means he used are not grounded in law. Our decision is not an easy one because it involves two important, but conflicting, interests in which a compromise is impossible. The first interest is that of every person, including detainees and

 

inmates, to physical well being and dignity, and the other is the interest of both inmates and the State to maintain order in the prisons and keep them free of the harm caused by dangerous drugs. These two interests are important to us. If it were possible, we would try to find the proper balance between them. However, the facts upon which we base our decision, as presented, do not allow for a balance of the interests. Therefore, there is no way for us to escape the fact that we must make a clear and definitive ruling, as our reasoning must be based upon the present legal framework.

We have concluded that the authorization to conduct searches on one hand and the authorization to maintain order on the other are not an appropriate legal instrument to settle the difficult issue presented by this petition (Cf. Bachelder, Use of Stomach Pump as Unreasonable Search and Seizure, 41 J. CRIM. L. CRIMINOLOGY AND POLICE 41 (1950)). Not only does the term “search” as it is normally used not allow for the intrusion into another’s body, but also appropriate legal policy, which is aware of the severe consequences of accepting the Respondent’s approach does not allow for it either. If, despite [our reasoning], the government believes that our decision is unsatisfactory regarding the situation in the prisons, it has the power to turn to the Knesset to solve the problem, and might even request urgent legislation addressing the matter. We believe that the best way to deal with this matter is through primary legislation which may authorize the [relevant] regulator to act (See LEIGN, POLICE POWERS ENGLAND AND WALES 193 (1975)). The legislative process, by its very nature, allows the legislature to thoroughly analyze the situation and examine all possible alternatives [and address questions such as:] is there choice other than performing an enema? Are there no better alternatives? Would it not be preferable to wait until [the inmate] defecates on his own (See U.S v. Cameron, 538 F.2d 254)? Are there no medical dangers in administering an enema especially in cases in

 

which the drugs are contained in an oversized container which may tear the inmate’s bowels (as was the case in Blefare v. U.S., 362 F.2d 870)? Are there no medical dangers in leaving the drugs inside the detainee’s body as sometimes the wrapping tears open, causing the drugs to penetrate the [detainee’s] circulatory system? What sort of suspicion justifies the use of an enema? These questions, along with others, should be analyzed in depth. If after doing so, the Knesset reaches the conclusion that there is no choice other than to continue using enemas as those administered by the procedures forming the basis for this petition, this will be  the conscious determination of the elected representatives. This determination, by its nature, will be limited to its specific circumstances , without bearing directly upon other issues discussed in this decision.

If my opinion is followed, the temporary order will be made permanent and the Respondents will be required to refrain from administering enemas to the Petitioners without their consent.

No order is given for costs.

 

 

 

Vice President H. Cohen

 

I agree.

 

Sections 22 and 29 of the 5729/1969 Criminal Procedure Ordinance (new  version) (arrests and searches) allows for the search of a person’s body or property. Ms. Naor, who commendably argued for the Respondent, argued that these clauses allow for the invasive search of one’s body in addition to external searches. The new version of the law says that “[searches may be conducted] in the body…” and not “on the body”. Although all other versions of the law are no longer valid, it cannot be claimed that the new version changes anything that was written

 

on this matter in the original version (Section 16(g) of the 5724/1964 Government and Legal Procedure Ordinance); and the original version of the law (Sections 11 and 22 of the Criminal Procedure Ordinance, chapter 33 of the Law of the Land of Israel) permitted the search of the person […]. The new version of the law does not change anything written in the old law when it states “in the property or the body” instead of “the person.” The intent of the law is, just as it was before, [to allow] for the search of a person including his clothing and the property that is with him. Nobody imagined that [such a search] would include an examination of his internal organs.

Even if we are to say that the text can tolerate such a broad (and deep) interpretation, it would be inconsistent with the intent of the legislature. Even if there is a court that dares to apply an interpretation which is inconsistent with the legislature's presumed intent, if the text justifies or requires such an interpretation, it would only be to increase the remedy, ensure justice and protect human rights. This would not be the case where such an interpretation would broaden the authority of the government and reduce human rights. In such circumstances, the court will [use] the legislature's intent as a fortified wall and barricade itself in order to protect human rights.

However, the Criminal Procedure Ordinance (arrests and searches) is not relevant to this case. The prison administration had no aspiration and no intent to search for illegal drugs outside of its powers emanating from the Prisons Ordinance and the relevant regulations enacted based upon it. Neither Section 5 nor Section 40 of the Prisons Ordinance (as cited by my colleague, Justice Barak in his opinion) use the term “in his body.” Section 5 describes the search “of an inmate” [literally in Hebrew: "in an inmate"] and Section 40 describes the search “of every inmate.” Therefore, there is no valid claim that [those terms also include invasive searches]. Furthermore, we obviously cannot use the [old] Criminal Procedure Ordinance (arrest and

 

searches) to understand the new version of the Prisons Ordinance although the English original uses the same idioms.

Nevertheless, the official translation of regulation 167 of the 1925 Prisons Regulations into Hebrew, which requires a thorough search of inmates when they are admitted to prison, states that “every inmate’s body must be thoroughly searched before being admitted to prison.” But, regulation 169, which also requires every inmate to be searched when returning from work outside of the prison, was not officially translated as requiring that inmates be searched “in their bodies” but rather that a search must be conducted “in them.” This tells us that the official translator did not see any distinction between “in him” and “in his body” as both are phrases which mean search the inmate. These regulations, which date back to the period of the British Mandate of Palestine, have since been superseded (see 5727/1967 Prisons Regulations), but neither the superseding regulations, nor the 5738/1978 Regulations, explain how the search is to be conducted (truth be told, did the 1925 Regulations did not add much to [explain] the Ordinance's provisions). Also, Section 113 of the Prisons Ordinance permits the [Interior] Minister to enact regulations on different issues including the medical examination and treatment of inmates and the preventative treatment of inmates, but not regarding invasive searches of inmates’ bodies, that is if you do not derive such power from the general and residual provision granting the minister the power to regulate anything “necessary for the efficient implementation of this Ordinance, the safety of guards, discipline and wellbeing of the inmates or the proper maintenance of the prison.” In my opinion, like that of my colleague, Justice Barak, and for the same reasons, even if we could find a power that allows the minister the authority to regulate this matter, it is preferable that it would be done through legislation. I would also overturn the

 

administrative rules of July 31 1979, according to which the prison authorities may conduct their searches, even if they were regulations, because they are unreasonable.

The reasonableness of regulations and, even more so, of administrative rules, is measured according to the measure that is acceptable to most people in a democratic society and in a State governed by the rule of law. There is no better measure than the principle of human dignity. A free and enlightened society differs from a wild and deprived society in the amount of dignity recognized for each and every person. This is reflected in a classic and sublime manner by the Mishna which states, “Therefore, but a single person was created, to teach that anyone who destroys a single life is considered by scripture as having destroyed an entire world; and anyone who saves a single life is considered by scripture to have saved an entire world. Also, for the sake of peace among humankind, so that no person should be able to say to his fellow, ‘My father is greater than your father…’ Therefore, each and every person is obligated to say, ‘For my sake was the world created.’” Babylonian Talmud, Sanhedrin, Chapter 4, Mishna 5. Just as everyone is obligated (not merely permitted) to say “for my sake was the world created,” everyone is also obligated to say, “The world was created for him no less than it was for me.” It was Hillel the Elder who said that the entire Torah can be summarized by one great rule of thumb: everyone is entitled to be treated with the same dignity that you would want to be treated with (Babylonian Talmud, Shabbat 31a). Treating others with dignity is not only a significant part of Jewish heritage, it is also a precondition for the guarantee of other rights and liberties, and it is the appropriate measure for reasonableness, as mentioned above.

My knowledgeable colleague, Justice Barak, cited very instructive examples from American and English jurisprudence to demonstrate that great justices and scholars in other countries also found that human dignity outweighs the legitimate needs of maintaining order. I

 

told myself, we need not [base our conclusion] only on these sources, as we may find a basis for this ruling in the teachings of our own Sages.

The obligation to follow not only the laws of the written Torah, but also the Rabbinical laws stems from the verse which states, “According to the laws that they teach you and the judgments that they tell you to do, you shall do; do not veer from what they tell you to the right or to the left.” (Deuteronomy 17:11). This is the basis for the law that anyone who disobeys the words of the Sages is in violation of a negative commandment [a term referring to commands that are worded in a negative imperative], as the verse says “do not veer.” (Maimonides, Laws of Rebelliousness 1:2). Our Sages have said that “[the importance of] human dignity is so great, it can set aside a negative commandment of the Torah.” (Babylonian Talmud Birakhot 19b, and other sources). Rabbi Bar Sheva interpreted this rule in front of Rabbi Kahana as referring specifically to the negative commandment of “do not veer,” meaning that human dignity trumps all Rabbinical commandments, which is to be distinguished from Biblical commandments, which are not set aside for the sake of human dignity.

However, this rule seems to contradict that which is stated in Proverbs 21:30, “There is no wisdom, understanding or counsel against God.” If God commands us to fulfill the directives of the Sages, how can the Sages exempt us from this command whether for human dignity reasons or any other reason? The answer is, as the Babylonian Talmud states, “Anything the Rabbis command us to do is pursuant to their authority which stems from the verse which states: ‘do not veer,’ but when human dignity is at stake, the Rabbis added a dispensation to their enactment.” The Rabbis who have the power to forbid something may also permit that which they have forbidden; and that which they have seen fit to forbid they decided to permit when human dignity is at issue.

 

The distinction between Biblical commandments, which are not superseded for human dignity, and Rabbinical commandments, which are, directly applies to this case as well. If we view a statute as a Biblical command and regulations as Rabbinical commands [when considering matters of human dignity], we may hold that concerns for human dignity may not override a statute, but may override a regulation. As we said, when we consider [the possibility of a forced invasion of a person's body, which involves infringement of human dignity], it is clear that only the legislature can regulate such an act. So long as [the legislature] has not permitted that, or as long as infringement of human dignity [it is not necessary in order to apply the law in good faith], human dignity is immune to all harms.

If this metaphor is not exact it is only because the written Torah is eternal and cannot be changed, while legislation is man-made and can be changed or annulled and is thus more like the oral law which was developed by the Sages. This can be a lesson for our legislature. Just as the Sages allowed for their prohibitions to be set aside when human dignity was at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.

The term “human dignity” has not been explicitly defined. However, wherever it is referenced [in Jewish sources], it suggests that harming one’s dignity refers to anytime a person is humiliated, shamed or shown contempt. This is how the [Talmud] views removing one’s clothes in public (Babylonian Talmud, Menahot 37b) or preventing one from reliving himself (Babylonian Talmud, Eruvin 41b). Likewise, a foul smelling body may be removed from a house on the Sabbath because of human dignity, as it is offensive to people and is dishonorable to the body (Maimonides, Laws of the Sabbath 26:23 (citing Babylonian Talmud, Shabbat 94b)). Similarly, while it is generally forbidden to move  heavy stones on the Sabbath, and  it is prohibited to move them from one domain to another, the Sages permitted moving sharp stones

 

to the roof, which were used to cleanse one’s self after defecating, because of human dignity (Babylonian Talmud, Shabbat 81a-b). (Do not be surprised that these stones were used for this purpose. Their size was only about that of a nut according to Rabbi Meir, or an egg according to Rabbi Yehuda; Rabbi Yohanan forbade using a stylus for this purpose on the Sabbath because, as Rashi interprets, it removes hair due to its sharpness; but some say it is forbidden to use pottery shards for this purpose even on a weekday because it is too dangerous; one who cleanses himself with lime or clay is prone to a disease which hurts the eyes and can be agonizing (Babylonian Talmud, Nedarim 22a), but will be protected from intestinal diseases. I have only added this because it is related to our topic on enemas).

On the other hand, we are required to act in order to prevent others from sinning, even if it harms their dignity. For example, one who sees his friend wearing [clothing containing a prohibited mixture of wool and linen], which is a Biblical prohibition (Deuteronomy 22:11), must tear off the clothing even in public, “and even if it is his teacher who has taught him wisdom, because human dignity does not override an explicit prohibition in the Torah” (Maimonides, Laws of Forbidden Mixtures 10:29). However, this only applies when the sin is clear to all and there is no doubt as to the sin being committed and the identity of the sinner. This is not the case if we are in doubt whether an article of clothing contains a forbidden mixture, in which case it is forbidden to touch the suspect in any harmful manner (Babylonian Talmud, Menahot 37b). The same applies here. If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed. In other words, these measures taken to “prevent sin” are only permitted when used to put a stop to a crime that has

 

already commenced; they were not meant to prevent an anticipated crime from being committed [in the future].

In conclusion, maintaining human  dignity  is so important, that it  trumps the [prohibition]of bringing drugs into prison, if the only way to prevent it is by infringement of human dignity and wellbeing of the inmate.

 

 

President Landau

 

I agree with everything my distinguished colleague, Justice Barak, wrote, and I also agree with the comments of my honorable friend, the Vice President, except for the advice he gives to the legislature when he says, “Just as the Sages allowed for their prohibitions to be set aside when human dignity is at stake, the legislature should take care not to sacrifice human dignity on the altar of other needs.” Later, my honorable colleague provides the legislature guidance of sorts when he says:

If it is acceptable to enforce a prohibition by removing drugs from inside a person, this can only be when we know for certain that they are hiding drugs inside their body. However, it is not permitted merely to conduct an invasive search on someone for the purpose of determining whether a crime has been committed.

In my opinion, it would be preferable for us not to provide the Knesset with guidance on how it should resolve this important issue and leave it with the difficult task of thoroughly researching the issue and determining when it is justified to conduct an invasive search inside a person’s body against his will, which is something this Court cannot do in the framework of such a petition. The presumption is that the members of the legislature will make human dignity a priority and legislate in a way that will not harm human dignity unless absolutely necessary and only in the most specific circumstances as defined by the legislature.

 

A blind eye cannot be turned to the serious situation existing in State prisons,  as described by the warden of the Ramla Detention Center in his affidavit, details of which were already cited by Justice Barak at the beginning of his opinion. We have a vital interest in preventing drug crimes in our detention facilities and prisons, not only to prevent lawlessness, but no less importantly to protect weaker prisoners from becoming the pawns of the stronger ones who may order them around and force them to unwillingly smuggle drugs into detention facilities or into prisons. The knowledge that an invasive bodily search may be conducted on any detainee or inmate returning to prison from a furlough or from court, based solely on a suspicion and not only when there is a clear proof that the individual is smuggling drugs, is likely to deter the stronger inmates from “enslaving” weaker ones and coercing them to carry the drugs in their bodies. This actually may protect their [the weaker prisoners'] dignity from being violated by their oppressors. As was stated in the affidavit, administering an enema, towards which we all feel understandable repugnance, has proven its effectiveness by the drastic reduction of drug consumption in detention facilities and prisons. It is therefore possible that we face vital interets that outweigh the importance of preserving one’s privacy in one’s own body. Finally, regarding the words of our Sages of blessed memory, they never closed their ears to a pressing need and always knew how to enact proper laws on a temporary basis as a preventative measure when they saw that the circumstances required such action in order to prevent bad things from happening (See ELON, MISHPAT IVRI VOL. 2, 413 on).

To summarize, it seems to me that this issue cannot be solved at either the administrative level, or at the regulatory level, due to the privacy right at stake. Only primary legislation which either speaks directly to the matter or explicitly authorizes another body to act can adequately address this matter. As to the content of such legislation, I would not pre-comit myself to a one

 

solution or another , nor would I make suggestions to the legislature as to how it should proceed on the matter.

 

 

The opinion of Justice Barak is accepted.

 

 

 

Decided Today, 24 Nissan 5740 (April 10, 1980).

The Supreme Court sitting as the High Court of Justice

HCJ 2442-11

CrimApp 4002/11

 

Before:                                                His Honor President A. Grunis                                                                                   His Honor Justice E. Rubinstein                                                                                 His Honor Justice H. Melcer

 

The Petitioner in HCJ 2442/11:           Haim Shtanger, Adv.

 

The Applicant in CrimApp 4002/11:  The State of Israel

 

V.

 

The Respondents in HCJ 2442/11:         1.     The Speaker of the Knesset

                                                                2.     The Government of Israel

 

The Respondents in CrimApp 4002/11: 1.     Hagai Zaguri

                                                                2.     Ramy Azran

                                                                3.     Yossi Mirilashvili

 

                                                                        Petition to Grant an Order Nisi and an Interim Order

                                                                        and a Request to Extend a Detention

 

Date of Session:                                           12^th of Tamuz, 5771 (July 14, 2011)

 

On behalf of the Petitioner

in HCJ 2442/11:                            Himself; Adv. Guy Halevy

 

On behalf of the Applicant

in CrimApp 4002/11:                    Adv. Shaul Cohen

 

On behalf of Respondent 1

in HCJ 2442/11:                            Adv. Dr. Gur Bligh

 

On behalf of Respondent 2

in HCJ 2442/11:                            Adv. Aner Helman

 

On behalf of Respondent 1

in CrimApp 4002/11:                    Adv. Avigdor Feldman

 

On behalf of Respondent 2

in CrimApp 4002/11:                    Adv. Moshe Sherman

 

 

 

 

 

 

 

 

J U D G M E N T

 

President A. Grunis:

 

1.The question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") stands at the center of the petition before us. These arrangements were added to the Detention Law as part of the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 8) Law, 5771-2011 (hereinafter: the "Amendment to the Detention Law" or the "Law") which was legislated by the Knesset on March 14, 2011. The first arrangement amends Section 53 of the Detention Law. This arrangement provides that from now on, appeals to the Supreme Court on District Court decisions in appeals on Magistrate Court decisions regarding matters of detention, release, violation of bail or motions for reconsideration, will be appealed by permission and not as of right. The first arrangement therefore provides that, from now on, the option of a second appeal will be by permission only. The second arrangement amends Section 62 of the Detention Law and provides that a Supreme Court judge will be permitted to extend the period of detention of a defendant who is detained until the end of proceedings, beyond nine months, for a period of up to 150 days (and to re-order this from time to time). This, in cases in which it appears that it will not be possible to conclude the trial proceedings within a period of 90 days, due to the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges.

 

Background

 

2.The Criminal Procedure (Enforcement Powers – Detention) (Various Amendments) Legislative Memorandum, 5770-2010, upon which the Amendment to the Detention Law was enacted, detailed the reasoning for the new arrangements, which were incorporated into the Detention Law. It emerges from the legislative memorandum that the purpose of the first arrangement, which, as stated, addresses the revocation of the right to a second appeal and its transformation into an appeal by permission, was to reduce the number of detention hearings being held at the Supreme Court (hereinafter: the "First Arrangement"), and this is what was written in the memorandum:

 

"In light of the heavy workload imposed on the Supreme Court and the scope of appeal hearings, including "third instance" appeals, it is recommended to amend the law such that it will grant only one right of appeal on decisions regarding detention, release, violation of terms of bail, decisions on motions for reconsideration, while allowing the option of a second appeal by permission only. Additionally, in order to prevent courtroom hearings regarding the motion for permission to appeal, and in order to streamline the process, it is recommended that the Supreme Court hearing the second appeal (on a District Court's decision in an appeal) be authorized to dismiss an application in limine, based on the reasons detailed in the motion for permission to appeal, if it did not find there to be a cause justifying granting the application."

 

The purpose of the Second Arrangement, which addresses the extension of the period of detention until the end of proceedings to a period of up to 150 days, was to enable flexibility in extending detentions beyond the nine months prescribed in the Law, in unusual cases in which it is clear in advance that the maximum time period for extending the detention – 90 days – is not sufficient to exhaust the legal proceedings, even given efficient and practical management of the trial. The section specified the circumstances in which, in general, an extended detention extension will be necessary. For example, in cases of complex serious crimes or in cases in which there are a large number of defendants or witnesses (hereinafter: the "Second Arrangement").

 

3.A bill in the spirit of the said legislative memorandum (The Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010) was presented to the Knesset on July 13, 2010, as a government bill. On July 21, 2010, the Knesset plenum passed the bill in the first reading, and it was sent to the Constitution, Law and Justice Committee, to be deliberated and prepared for the second and third readings. The committee held two meetings regarding the bill. On March 14, 2011, the bill was debated in the Knesset plenum, in accordance with the updated draft that was prepared by the committee. The Knesset passed the entire bill in the second and third readings on that same day.

 

It will be noted that the First Arrangement, which addresses the right of a "third instance" appeal, underwent a number of changes over the years. At first, in Amendment no. 10 of the Detention Law of 1998 (S.H. 5748 no. 1261) the legislator distinguished between the right of a detainee to a second appeal (meaning, an appeal before the filing of an indictment) and the right of a defendant to a second appeal (meaning, an appeal after an indictment has been filed). Hence, it was prescribed that a detainee, a person released on bail, and a prosecutor may, as of right, appeal for the second time a decision regarding detainment, release, or a motion for reconsideration. In contrast, a defendant may only appeal "in a third instance" if given permission to do so by a Supreme Court judge. This provision was amended in 1995 (S.H. 5755 no. 1514), and the distinction between a "third instance" appeal prior to the filing of an indictment or thereafter was revoked, and a right to a second appeal was granted in both cases. In 1997 this section was revoked in its entirety, and was replaced by the arrangement, the change of which is deliberated in the petition before us (and which, as mentioned, allowed a second appeal as of right).

 

4.Here is the wording of the arrangement, as currently prescribed in the Detention Law. For the sake of convenience, the relevant statutory clauses are presented in their entirety and the additions to the Detention Law, which are the subject of our discussion, appear in bold:

 

Appeal of the Court's Decision	53. (a) A detainee, a person released on bail and a prosecutor may appeal a decision of a court on any matter relating to detention, release, violation of terms of bail or a decision on a motion for reconsideration, and a guarantor may appeal a matter of his guaranty before a court of appeals, which will hear the appeal by a single judge;   (a1) (1) Each of those specified in sub-section (a) may motion the Supreme Court to be granted permission to appeal a District Court decision in an appeal pursuant to sub-section (a) ;   (2) The Supreme Court shall hear the motion by a single judge, however, the Supreme Court may deny the motion in limine, without a hearing in the presence of the parties; if permission to appeal was so granted, the Supreme Court shall hear it by a single judge and it may hear the motion for permission to appeal as though it were the appeal. …
Release in the Absence of Judgment	61. (a) If, after an indictment was filed against a defendant, he was detained for a cumulative period of nine months, and his trial in the first instance did not conclude with a judgment, he shall be released from detainment, either with or without bail.   (b) (Cancelled)   (c) …
Extension or Renewal of Detention	62. (a) Notwithstanding the provisions of Sections 59 to 61, a Supreme Court judge may order the extension or renewal of a detention for a period which will not exceed 90 days, and may repeat that order from time to time, and he may also order the release of the defendant either with or without bail.   (b) Notwithstanding the stated in sub-section (a), if the Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

The Parties' Arguments

 

5.The Petitioner in HCJ 2442/11, an attorney by profession, filed his petition as a public petitioner. He requests that the Court declares the Amendment to the Detention Law void, based on two arguments. The first and main argument is a procedural argument and it relates to the legislative process of the Amendment to the Detention Law. According to this argument, during the legislative process, the Knesset deviated from the specific provisions prescribed in Sections 126 and 128 of the Knesset by-laws (hereinafter: the "By-Laws"), which delineate the manner of debating government bills. The Petitioner points to two central flaws in the process: First, after a reservation to a certain section was rejected, a separate vote was not conducted on the wording of the section as proposed by the Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee"), but rather a vote was held on the wording of the section as proposed by the Constitution Committee together with the subsequent section, with respect to which no reservation had been submitted. This vote was conducted contrary to what is prescribed in Section 126 of the By-Laws, according to which it is necessary to vote separately on each section of the law with respect to which reservations were submitted. The second flaw relates to the fact that the chairperson of the Constitution Committee did not respond to the reservations that were submitted to some of the sections of the law, despite the fact that Section 126(f) of the By-Laws explicitly provides that "The chairperson of the committee or whomever is appointed thereby or by the committee, shall respond to those who submitted reservations." In light of these flaws, the Petitioner claims, the Knesset could not vote on the Law at the third reading, and therefore it is void ab initio.

 

6.The second argument raised by the Petitioner is an argument of substance. According to the Petitioner, the arrangements that were prescribed in the Amendment to the Detention Law are contrary to the Basic Law: Human Dignity and Liberty. The crux of the Petitioner's arguments was directed at the revocation of the right to a second appeal as of right and its transformation into an appeal by permission only. According to the Petitioner, one cannot compare between the scope of the right to appeal granted to a defendant in a primary proceeding and the scope of the right to appeal of a detainee, since the former is not necessarily being detained while his trial is being held. Furthermore, according to the Petitioner, the amendment to the Law is wrong in not distinguishing between an appeal filed by the detainee and an appeal filed by the State. According to this argument, one cannot compare between the right of the detainee to a second appeal on a decision to re-detain him (after the Magistrate Court ordered his release from detainment), and the right of the State to appeal a decision to release a defendant. According to the Petitioner, where the State appeals the Magistrate Court's decision, and the District Court accepts the appeal and orders detention, the detainee is not entitled even to one appeal as of right. Therefore, his rights are infringed. As for the second arrangement, about the possibility of extending a defendant's detention period until the end of proceedings for a period of up to 150 days, the Petitioner argued that the Law denies the detainee's right to have his matter examined and reviewed by a Supreme Court judge knowingly and in advance. Therefore, it is argued, this arrangement is not proportionate, does not befit the values of the State of Israel, was not meant for a proper purpose and infringes on a detainee's right of freedom in a scope which is greater than necessary. It will be noted that in the petition, the Petitioner also argued against the legality of an additional arrangement in the Amendment to the Detention Law, which allows the Court to order a maximum 72 hour detention given a prosecutor's declaration regarding an intention to motion the Supreme Court to extend the detention. In the hearing we held in the petition, the Petitioner stated that he withdraws his arguments against the legality of this arrangement.

 

7.It will be noted that CrimApp 4002/11 was joined to the hearing in the petition before us. In this case, a detention extension of 150 additional days beyond the nine months was requested. Incidentally to the hearing regarding the application to extend the detention, the defendants raised arguments regarding the legality of the Second Arrangement. In the decision dated June 14, 2011, it was ruled that the constitutional arguments that were voiced in the hearing before us and that primarily relate to the Second Arrangement, will be examined in the framework of the petition before us (Justice H. Melcer).

 

The Respondents' Response

 

8.The Knesset and the State (hereinafter together: the "Respondents"), filed separate responses to the petition, but their arguments were similar. Therefore, we shall present the essence of their arguments together. Both the Knesset and the State rejected both parts of the Petitioner's arguments. The Knesset's response specified the proceedings that preceded the vote on the Law. The Knesset confirmed in its response that Member of Knesset Ofir Akunis, who chaired the session, added the vote on Section 2 – to which reservations had not been submitted, to the vote on Section 1 of the bill, to which a reservation had been submitted and was rejected. However, according to the Knesset, the process was not flawed, and certainly not by a "flaw that goes to the root of the process", which would justify this Court's intervention in the legislative process. While the Respondents did not deny that according to the provisions of the By-Laws, the Knesset should have put each section for which reservations had been submitted to a separate vote, they argue that the fact that the vote was held for a section for which a reservation had been submitted along with a section for which a reservation had not been submitted, does not constitute a flaw that goes to the root of the matter. The Respondents argue that, as is apparent from the minutes of the Knesset plenum session, during the course of the second reading, the plenum de facto voted separately on each of the reservations that were submitted to the bill, and rejected them all. It further emerges from the minutes that in the votes in the second and third readings the Knesset plenum also positively confirmed the wording of all of the sections of the Law, in accordance with the proposal of the Constitution Committee. In the Knesset's response it was further argued that the technical flaw did not lead to any substantive impairment of the legislative process or to its fundamental objective, i.e., the realization of the right of participation by the Members of Knesset. This, so it was argued, is because Members of Knesset were given two opportunities to consider their position regarding the bill. It is argued that in fact, this practice of voting in an aggregated manner on a section of law for which reservations were submitted, together with an adjacent section for which no reservations were submitted, is customary at the Knesset in many cases. Therefore, the Knesset argued it should be deemed a kind of custom that projects onto the proper interpretation of Section 126 of the By-Laws. The Knesset further argued that pursuant to Section 126(c) of the By-Laws, the chairperson of the session may vote on consecutive sections in an aggregated manner, unless a Member of Knesset demanded to vote separately on each or any of them. In this case, it is argued, Member of Knesset Dov Khenin – who presented the reservations – did not request such a vote. According to the Knesset, this indicates that the Members of Knesset were not of the opinion that the voting process was significantly flawed or that their right to participate in the voting process was infringed.

 

9.The Respondents also rejected the argument that the chairperson of the Constitution Committee did not respond to the reservations to the bill. They argue that a review of the minutes of the Knesset session indicates that during the presentation of the bill the chairperson of the Constitution Committee explicitly related to the reservations and explained why they should be rejected. Therefore, the Respondents were of the opinion that the flaws in the legislative process against which the Petitioner is arguing, are simply technical flaws that at most constitute a slight deviation from the provisions of the By-Laws, and have no real impact on the legislative process.

 

10.The Respondents also requested to reject the substantive constitutional arguments that the Petitioner raised. In the Knesset's response it was even argued that these arguments should be dismissed in limine, since they were raised in a general manner without specifying the substance of the constitutional infringement or the reason why the infringement does not allegedly comply with the terms of the limitation clause. To the point, the Respondents argued that an examination of the substance of the Amendment to the Detention Law does not reveal an infringement of the detainees' basic rights, since the amendment does not relate to the original decision regarding the detention and does not deny the detainee's right to appeal the detention decision. The revocation of the right to a "third instance" appeal (i.e., a second appeal), as argued in the State's response, does not lead to an infringement of the constitutional right of freedom, since the freedom of the detainee or of the defendant was already denied by a previous judicial instance. It was further argued that the basic rights to freedom and dignity do not include the right that the matter of a concrete detention be heard by a third judicial instance – neither as of right nor by permission, as is indicated in the provisions of Section 17 of the Basic Law: The Judiciary, which deals with the right to appeal in Israeli law.

 

11.The Respondents also disagreed with the Petitioner's argument that there is an infringement of constitutional rights in light of the lack of distinction between an appeal submitted by the detainee and an appeal submitted by the State. They argue that it is not unusual because when a State’s appeal on the acquittal of the defendant as part of the primary trial is granted, the defendant also does not have a right to appeal such a judgment. In any event, it was argued, the detainee will have the option of presenting its arguments before an additional instance as part of the appeal procedures, regardless of the identity of the party appealing. This last matter, as it emerges from the Knesset's response, was also discussed at the Constitution Committee, where it was argued that it should be assumed that upon examining motions for permission to appeal, the Court will examine, among its considerations, whether the decision to detain was given following an appeal of the State and whether this prejudices the detainee in such a manner that justifies granting permission to appeal.

 

12.The Respondents also requested to reject the Petitioner's arguments regarding the constitutionality of the Second Arrangement, which allows a Supreme Court judge to extend a detention until the end of proceedings, for a period of up to 150 days. The State argued that since this amendment constitutes a new arrangement, which authorizes ordering the detention of a person, it infringes on the constitutional right of freedom. However, it was argued, the infringement of the right is limited and proportionate, since it is limited to unusual cases and reflects the balance underlying the bill between the principle of the finality of the process and the types of matters which should be examined in the Supreme Court, and the realization of the substantive rights of detainees and defendants.

 

13.It will be further noted that in its response, the State elaborated on the customary practice at the Ministry of Justice pursuant to which Ministry initiatives of legislation amendments in significant matters and matters of principle in the field of criminal procedure and evidence laws are presented for examination to the Minister of Justice's Criminal Procedure and Evidence Laws Advisory Committee (hereinafter: the "Committee"). The Committee is appointed by the Minister of Justice and is headed by a Supreme Court judge. The Committee is comprised of three additional judges (two District Court judges and one Magistrate Court judge), the Deputy Attorney General (Criminal), representatives of the State's Attorney, representatives of the Public Defender, representatives of the Israel Bar Association, a lawyer from the private sector, representatives of the Israel Police and representatives from academia. The State noted in its response that both of the arrangements being examined in this petition were presented to the Committee and that after the Committee examined them it recommended that the Minister of Justice act to amend the Detention Law so that the said arrangements would be prescribed.

 

Discussion

 

The Arguments regarding the Legislative Process of the Amendment to the Detention Law

 

14.The Petitioner's arguments regarding flaws in the legislative process of the Amendment to the Detention Law focus on the proceedings in the Knesset plenum during the second reading. According to the Petitioner, the legislative process did not comply with the provisions of Sections 126 and 128(a) of the Knesset By-Laws. Section 126 of the Knesset By-Laws, entitled "Proceedings for Second Reading" and Section 128(a) entitled "Voting at Second Reading", prescribe as follows:

 

126. (a) The discussion in the second reading shall begin with a speech on behalf of the committee, by the chairperson of the committee or a committee member appointed thereby for such purpose, or, in the chairperson's absence, by a committee member appointed thereby for that purpose by the committee, and the speech on behalf of the committee shall be deemed as a proposal to adopt the bill in the second reading.

 

(b) The chairperson shall put each of the sections of the bill to a separate vote.

 

(c) The chairperson may put consecutive sections for which no reservations were submitted to a vote together, unless a Member of Knesset demanded to vote separately on each or any of them or on one of them.

 

(d) If a reservation was recorded for a specific section, the person submitting the reservation shall be given the right to speak for five minutes to explain the reservation.

 

(e) The chairperson may, with the consent of the person submitting the reservation and of the chairperson of the committee, combine the explanations for the reservations of a number of sections at once.

 

(f) The chairperson of the committee, or whomever appointed thereby or by the committee for such purpose, shall respond to the reservations.

 

(g) The right granted to each member of government to speak on behalf of the government at any stage of the discussion is also granted, at the second reading, to the deputy minister whose ministry is in charge of implementing the proposed law.

 

…

 

128 (a) The chairperson shall first vote on the proposal of the party making the reservation; if the proposal by the party making the reservation is not adopted, the section, as drafted by the committee, shall be voted upon; if the proposal of the party making the reservation is adopted, he shall vote on the section as drafted in line with the reservation.

 

15.There is no dispute that Section 126 of the By-Laws explicitly provides that the chairperson of the session must put the sections of the bill to a vote one at a time, unless there are consecutive sections for which reservations were not registered – in which case the chairperson may put them to a collective vote (assuming he was not requested to act otherwise by one of the Members of Knesset). There is also no dispute that in accordance with that stated in Section 126 of the By-Laws, the chairperson of the Constitution Committee (or another committee member appointed thereby) should have presented the bill to the plenum and responded to reservations to the bill.

 

In the case at hand, the legislative process indeed did not precisely correspond with the provisions of Sections 126 and 128 of the Knesset By-Laws. The chairperson of the session did not act in accordance with Section 126(c) in all that relates to voting on Section 1 of the bill (relating to the revocation of the right to appeal and its transformation into an appeal by permission), when it put Section 1 of the bill, with respect to which a reservation had been registered, to a vote along with Section 2 of the bill, with respect to which a reservation had not been registered. Additionally, the chairperson of the Constitution Committee did not respond to the reservations after these were presented by Member of Knesset Dov Khenin, but rather, as argued in the Knesset's response, the reservations should be deemed as having been given at the outset of his statement, when he presented the bill to the plenum. The question that arises is whether these deviations from the provisions of the By-Laws should lead to the conclusion that the Law is void or voidable, as the Petitioner claims.

 

The Court's Intervention in the Legislative Process

 

16.The legislative processes in Israel are prescribed, pursuant to Section 19 of the Basic Law: The Knesset, in the Knesset By-Laws. The Knesset By-Laws "prescribe provisions, pursuant to which the Knesset's authorities must act, in the house's 'internal' procedures" (HCJ 652/81 Sarid v. The Speaker of the Knesset, PD 36(2) 197, 202 (1982); hereinafter: the "Sarid Case"; see also Tzvi Inbar "The Legislative Processes in the Knesset" Hamishpat A 91 (5753)). Thus, in order for a "law" to pass, a series of provisions prescribed in the By-Laws, must be satisfied (see, HCJ 975/89 Nimrodi Land Development Ltd. v. The Speaker of the Knesset, PD 45(3), 154, 157 (1991); hereinafter: the "Nimrodi Case"). At the basis of the legislative process is the obligation to conduct three hearings in the Knesset plenum and to enable a discussion in the Knesset committee relevant to the bill, in order to prepare the bill for the second and third readings (ibid, ibid). The Knesset By-Laws distinguish between a private bill, which is presented by one or more Members of Knesset and a bill presented on behalf of the government. The Seventh Chapter of the Knesset By-Laws, which includes Sections 126 and 128, which are relevant to the case at hand, addresses discussions regarding bills on behalf of the government. This chapter outlines the legislative process from the submission of the bill to the Knesset, through the first reading and the discussions at the relevant Knesset committee and ending with tabling the bill for the second and third reading. Sections 126 and 128 focus specifically, on the particular procedures of voting on the bill at the second and third reading.

 

17.A series of rulings by this Court prescribes the conditions upon which the Court will intervene in internal parliamentary proceedings, and specifically, the circumstances in which a statue would be declared void on the grounds of flaws in the legislative process (see, inter alia, HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14 (2004) (hereinafter: the Poultry Farmers Case); HCJ 5131/03 Member of Knesset Litzman v. The Speaker of the Knesset, PD 59(1) 577 (2004)). In the first cases in which the scope of this Court's intervention in internal parliamentary proceedings was examined, the Court ruled that even though it is authorized to examine the Knesset's internal decisions, it will tend to intervene in internal parliamentary proceedings in a limited way, taking into consideration the extent of the alleged infringement of the fabric of the parliamentary relations (see, HCJ 761/86 Miari v. The Speaker of the Knesset, PD 42(4) 868 (1989) (hereinafter: the "Miari Case"); the Sarid Case; the Nimrodi Case). In accordance with this criterion, it was prescribed that when the alleged infringement is slight and "does not impact the structural foundations of our parliamentary system" (the "Sarid Case", page 204), the Court will tend to avoid intervening in the Knesset's internal working procedures (see also, the Miari Case, page 873; Suzie Navot "Twenty Years After the "Sarid Test": Revisiting Judicial Review of Parliamentary Decisions" Mechkarei Mishpat 19 721 (5762-5763)).

 

18.This case law, which allows limited review of the internal work of the Knesset, was interpreted even more narrowly in matters related to judicial review of the legislative process. Justice Barak elaborated on this in the Miari Case, on page 873, when ruling that:

 

"The High Court of Justice is not required to exercise every power with which it is vested. The Court has discretion in exercising the power. Exercising this discretion is of particular importance in matters related to the judicial review of the activity of entities of the legislative authority. Therefore, we will intervene in internal parliamentary proceedings only when there is a allegedly significant infringement which prejudices substantive values of our constitutional system… This self-restraint must be, first and foremost, exercised when the process in which the intervention is requested is the legislative process itself."

 

The constitutionality of the Arrangements Law was discussed during this Court's intervention in the legislative process in the Poultry Farmers Case. In this case Case it was held that the criteria for the Court's intervention in the legislative process, and for the declaration of a law as void due to flaws in the process of its legislation. Therefore, it was held that "the Court must examine, in each and every case, whether it was tainted by a flaw that "goes to the root of the process" which would justify judicial intervention, and that only a flaw that severely and significantly infringes on the fundamental principles of the legislative process in our parliamentary and constitutional system will justify judicial intervention in the legislative process (the Poultry Farmers Case, page 42, original emphases). The fundamental principles of the legislative process, so it was held in the Poultry Farmers Case, include, inter alia, the principle of the majority rule, the principle of formal equality – pursuant to which each of the Members of Knesset has one vote, the principle of publicity and the principle of participation – which guarantees the right of each Member of Knesset to participate in the legislative process (ibid, page 43).

 

19.Does the case before us indeed involve such a flaw that “goes to the root of the process" and severely and significantly infringes on the fundamental principles of the legislative process? The answer is no. The underlying purpose of the process prescribed in the Seventh Chapter of the Knesset By-Laws, and particularly in Sections 126 and 128 which are relevant to the case at hand, is to ensure that the reservations to the sections of the bill being voted on are heard. An additional purpose underlying the legislative process is to ensure that the Members of Knesset choose, in accordance with their vote, one of the drafts for each of the sections of the bill – either the draft that was proposed by the Constitution Committee or the draft that was proposed by the Members of Knesset who raised reservations. In order to realize these purposes, Section 126 prescribes a detailed procedure, in the framework of which the Members of Knesset are presented with drafts of the sections proposed in the bill, and those raising reservations are given an opportunity to express their position. Section 126 further prescribes that the chairperson of the relevant committee (or someone on his behalf) respond to the reservations and present the committee's position regarding the arguments that were raised by those with reservations. After the various positions are presented to the Members of Knesset they are requested to vote in the second reading. The chairperson of the session is required to put each section and reservation to a vote one at a time to ensure that the Members of Knesset are aware that these sections were subject to some kind of dispute, and that by their vote they are supporting one of the proposed drafts.

 

20.In the case before us the chairperson of the session acted properly with respect to most of the sections in the bill, but did not do so when putting section 1 of the bill to a vote. A review of the minutes of the session reveals that the Members of Knesset first voted on the reservation regarding section 1, and only after it was rejected did they move on to vote on section 1, but along with section 2 of the Law. Indeed, according to the provisions of the By-Laws, the Members of Knesset should have voted on section 1 separately from the vote on section 2. However, this deviation does not constitute "a substantial flaw that goes to the root of the process". Due to the separate vote on the reservation, which preceded the vote on the section, it appears that a distinction was made between the draft proposed by those who raised the reservation and the draft that was proposed by the committee. As such, the primary purpose of the legislative process was realized, and therefore no room for the argument that the root of the process was flawed in a manner justifying declaring the Law void.

 

21.The argument that the legislative process was substantively flawed because the chairperson of the Constitution Committee did not respond to the reservations that were raised by Member of Knesset Dov Khenin, is also to be rejected. As mentioned, the position of the Knesset was that the chairperson of the Constitution Committee responded to the reservations when presenting the Law for the second and third reading. Personally, I doubt if the intention of the section was an advance response to reservations that are yet to be presented during the discussion. As stated above, Section 126 prescribes a certain chronological sequence in order to allow the committee that examined the bill to convince the Members of Knesset to support the bill in accordance with the draft proposed. Reversing the order – so that the response to a potential reservation is made before the reservation is presented –misses to some extent the point underlying the section. Therefore, it would be better had they avoided that and acted in accordance with the sequence prescribed in Section 126. However, in the case at hand the minutes of the session indicate that this deviation did not lead to a significant flaw at the root of the process. It seems that Member of Knesset David Rotem, the chairperson of the Constitution Committee, knew of the reservation that Member of Knesset Dov Khenin would present after him, and therefore explicitly stated:

 

"The Hadash group proposed a few reservations which request not to cancel the right to a second appeal in decisions regarding detention and to allow the extension of detention beyond the nine months by 100 days instead of by the 150 days proposed by the committee, and to enable a "bridging" detention of 36 hours instead of 72. We request to reject the reservations, which upset the balance between making the court procedures more efficient and the detainee's rights" (Divrei Haknesset 36 42 (2011)).

 

After Member of Knesset Dov Khenin finished presenting the reservations, the chairperson of the session turned to Member of Knesset Rotem and asked him if he wishes to respond. Once he received a negative answer (from Member of Knesset Ze’ev Bielski) the chairperson said: "He doesn't want to, we shall proceed immediately to voting" (Minutes of the Knesset plenum dated March 14, 2011, page 47. The Minutes were attached to the petition and marked Annex C). It merges from here that the option of relating to the reservations was examined but rejected, probably because of the things voiced by Member of Knesset Rotem when presenting the bill to the Members of Knesset. As mentioned, it would have been better had the committee's response to the reservations been presented after they had been presented to the Members of Knesset, but in the case at hand, it appears that Member of Knesset Rotem's reference satisfies the principle need for a reference to the merits of the reservations, even if the sequence in which it was presented constituted a procedural violation of the provisions of the By-Laws. It will be parenthetically noted that in any event those who could have been prejudiced by the fact that the reference to the reservations was given in advance and not after they were presented to the committee, are those supporting the bill and not those objecting to it; since the response to the reservation is intended to convince the Members of the Knesset to vote for the draft proposed by the committee and not by those raising reservations.

 

Inconclusion,  although the Members of Knesset deviated from the provisions of the By-Laws in the legislative process, this deviation was not a flaw at the root of the process, which infringes on the fundamental principles of the legislative process in Israel, in a manner that would lead to declaring the Law void.

 

The Arguments regarding the Arrangements in the Law Infringing on the Right of Freedom

 

22.The Petitioner's second argument was directed to the merits of the arrangements. As mentioned, according to the Petitioner, these arrangements result in disproportionate infringement of the right of freedom. It will be noted at the beginning that the Petitioner's arguments in this matter were general and unclear. The Petitioner did not specify the nature of the infringement of the right of freedom, and did not clarify why the infringement does not satisfy the terms of the limitation clause. On these grounds alone the Petitioner's arguments could have been rejected (on burdens of proof in constitutional petitions see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, PD 49(4) 221, 428-429 (1995) (hereinafter: the "Mizrachi Bank Case"); HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, 2nd paragraph of Justice D. Beinisch's judgment (December 12, 2005)). Nevertheless, and in light of the importance of the main constitutional right discussed in the petition, we shall discuss the merits of this argument (see in this context, HCJ 6055/95 Tzemach v. The Minister of Defense, PD 53(5) 241, 268 (1999); hereinafter: the "Tzemach Case").

 

The Stages of Judicial Review

 

23.As is known, the constitutional review customary in our legal system is divided into three main stages. At the first stage (the "Infringement Stage"), the Court examines whether the law infringes on a constitutional right. If it is found that the law does not infringe on a right, the constitutional examination ends. If it is found that the law infringes on a constitutional right, the examination proceeds to the second stage, in which the Court examines whether the law satisfies the conditions prescribed in the limitation clause. The limitation clause conditions the validity of an infringement on the satisfaction of cumulative conditions: the infringement is prescribed by a statute or pursuant to a statute by virtue of explicit authorization therein; the infringing statute befits the values of the State of Israel; the infringing law is intended for a proper purpose, and the last condition, the proportionality condition, requires that the infringement is no greater than necessary. If the law satisfies the four conditions of the limitation clause, the infringement is constitutional, if it doesn't - the constitutional examination reaches the third and final stage, the consequence stage. At this stage, the Court is required to rule as to the consequences of the constitutional infringement (for the stages of the constitutional examination, see, among many others, the Mizrachi Bank Case, page 428; HCJ 1715/97 The Israel Investment Managers Association v. The Minister of Finance PD 51(4) 367, 383-389 (1997); HCJ 1661/05 Hof Azza Regional Council v. The Israel Knesset, PD 59(2) 481, 544-548 (2005)).

 

24.Each of the constitutional examination stages has an important purpose in the entire constitutional analysis. The first stage of the constitutional examination (the "Infringement Stage") is meant to determine the conceptual scope of the constitutional right. The boundaries of the constitutional right are outlined at this stage, by interpreting the relevant right and balancing it with other rights. The second stage of the constitutional examination (the "Limitation Clause") is meant to determine the degree of protection of the right, and the "boundaries" of the legislator and the restrictions imposed on it when infringing on constitutional rights (see, HCJ 10662/04 Hasan v. The National Insurance Institute, paragraph 24 of President D. Beinisch's judgement (February 28, 2012)). Obviously, there is a reciprocal relation between the two stages. The limits of the constitutional right are not only determined by outlining the conceptual scope of the right but also by outlining the degree of protection they shall be given. However, the distinction between the stages should not be blurred. Each of the stages has its own balances and independent objectives. Therefore, in my opinion, it is better not to skip the first stage of the constitutional examination, even if ruling at this stage is not simple, unless circumstances justify skipping this stage. This is the case, even if the discussion at the second stage will lead to the conclusion that the law satisfies the proportionality criteria (see CrimA 4424/98 Silgado v. The State of Israel, PD 56(5) 529 (2002)). Interpreting the right at the first stage, in order to determine its extent, and ruling whether there is an infringement of the constitutional right, will assist clarifying the scope of the constitutional rights. It will ensure that the Court will not be swamped with motions to examine the constitutionality of each and every law (see the Mizrachi Bank Case, Justice Y. Zamir's position, on pages 470-471; see also my position in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, PD 61(2) 202, 513-514 (2006); hereinafter: the "Adalah Case"). It will prevent debasing and diluting the constitutional rights and weakening the protection they are granted against infringement (regarding the matter of the two stages of the constitutional examination, see HCJ 10203/03 "The National Census" Ltd. v. The Attorney General, PD 62(4) 715 (2008)). Indeed, once two central stages of the constitutional discussion have formed in our system, each of them must be granted its proper place. We will turn then to examining the first stage in the case at hand.

 

Do the Arrangements of the Law Infringe the Right of Freedom?

 

25.With respect to the question whether there is an infringement of the right of freedom, the Respondents distinguished between the two arrangements discussed in this petition. As for the First Arrangement, which cancels the right to a second appeal and transforms it into an appeal by permission only, the Respondents were of the opinion that this arrangement does not infringe on constitutional rights at all, since the First Arrangement does not address the original decision regarding the detention and does not deny the right to appeal the detention decision, but rather only determines that the second appeal will be by permission and not as of right. As for the Second Arrangement, the State agreed that since it constitutes a new statutory provision that authorizes the Court to extend the detention of a person who has been detained until the end of proceedings by 150 additional days, it should be deemed an arrangement that infringes on the right of freedom. The dispute between the parties, thus, relates to the question whether the First Arrangement infringes on the right of freedom.

 

26.As we elaborated above, the first stage in the constitutional examination requires the interpretation of the constitutional right. This interpretation, as President A. Barak said (in a minority opinion), "Does not restrict nor expand. This is an interpretation that reflects the Israeli society's understanding of the substance of human rights, based on their constitutional structure and in accordance with the constitutional measurements that were prescribed in the basic laws, all while considering that which is of value and fundamental and rejecting that which is temporary and passing (the Adalah Case, page 356). Does a constitutional interpretation of the right of freedom lead to the conclusion that the right incorporates the option of filing a second appeal as of right on decisions regarding matters of detention, release, violating terms of bail or a motion for reconsideration (and on decisions of the District Court regrading matters of bail)?

 

27.I believe that there is no dispute that the right of freedom, in general, and the right of freedom from detention, in particular, is a fundamental right in Israel. It is anchored in Section 5 of the Basic Law: Human Dignity and Liberty, which prescribes that: "There shall be no deprivation or restriction of the freedom of a person by imprisonment, detention, extradition or otherwise" "Personal freedom" as Justice Y. Zamir says, "is a constitutional right of first degree, and practically speaking it is also a prerequisite for exercising other basic rights… personal freedom, more than any other right, it is what makes a person free. Therefore, denying personal freedom is an especially severe infringement" (the Tzemach Case, page 261). Detention infringes on a person's freedom in the most basic way. Detention denies the freedom from a person who has not yet been convicted by law and is still presumed innocent. At times, detention denies the freedom of a person who is only suspected of committing an offense, and his detention is necessary solely for interrogation purposes. Therefore, the infringement of freedom, which is the direct consequence of the detention, requires taking cautionary measures prior to instructing that a person be detained (see CrimApp 537/95 Ganimat v. The State of Israel PD 49(3) 355, 405 (Deputy President A. Barak) (1995); hereinafter: the "Ganimat Case").

 

28.The Respondents' position, as mentioned, was that there is no infringement of the right of freedom since the First Arrangement does not address the actual detention decision itself, but rather the possibility of appealing such decision as of right. Indeed, there is no dispute that the detention itself infringes on the right of freedom in the most substantive manner. However, does it follow that only the original decision regarding the detention infringes on the right of freedom? Does an infringement of the procedural frameworks that are meant to realize the right of freedom and protect it, not amount, at least in some cases, to an infringement of the right of freedom itself? In other words, does the right of freedom also encompass the procedural process that accompanies the detention decision? In my opinion, interpreting the right of freedom as applying only to the detention decision is an excessively limiting interpretation of the scope of the right. The importance and centrality of the right of freedom – in and of itself and as a means to promote and realize other rights – requires a broader interpretation of the right, so that it will also apply to procedural protections and procedural arrangements that are directly related to the right and its realization. Interpretation of this spirit was adopted in previous rulings of this Court. For example, it was held that the legitimacy of denying freedom depends of the identity of the entity authorized to deny the freedom and the manner in which freedom is actually denied (see, HCJ 2605/05 The Academic Center for Law and Business (Registered Amuta) v. The Minister of Finance, paragraphs 29-30 of President D. Beinisch’s judgment (November 19, 2009)). It was further held that maintaining a fair detention process is a constitutional principle that derives from the protection of the rights to freedom and dignity (CrimApp 8823/07 Anonymous v. The State of Israel, paragraph 19 of Deputy President E. Rivlin's judgment (February 11, 2010); hereinafter: the "Anonymous Case"). Indeed, this interpretation of the right of freedom, as a right that also applies to procedural protections directly and tightly related to the protection of the right, also coincides with the customary principle in our system that constitutional rights are to be interpreted from a "broad perspective" (see the words of Deputy President S. Agranat in FH 13/60 The Attorney General v. Matana, PD 16 430, 442 (1962); HCJ 428/86 Barzilay v. The Government of Israel, PD 40(3) 505, 595 (1986); see also President A. Barak's words that the "Constitutional interpretation is not pedantic, not legalistic… indeed, constitutional interpretation is from a 'broad perspective'… but the constitutional interpretation is a legal interpretation; it is part of our interpretation theory" HCJ 4128/02 Adam, Teva V’din - Israel Union for Environmental Defense v. The Prime Minister of Israel, PD 58(3) 503, 518 (2004)).

 

29.In the matter at hand, the question is whether the option to file a second appeal as of right and not by permission is one of those procedural protections directly and tightly related to the right of freedom, such that denying it constitutes an infringement of the right itself (although it is important to note that the right to appeal, in and of itself, is considered a provision of substantive law as opposed to procedural law (see HCJ 87/85 Arjub v. IDF Forces Command, PD 42(1) 353, 361 (1988); hereinafter: the "Arjub Case")). In my opinion the answer is no. Without setting hard rules regarding the procedural protections that will fall under the rubric of the right of freedom – a matter which should be examined on the merits of each case – it cannot be said that the scope of the constitutional right of freedom expands as far as granting the option of a second appeal on detention decisions as of right. This conclusion can be inferred, inter alia, from a review of the scope of the right to appeal in our legal system.

 

30.Section 17 of the Basic Law: The Judiciary provides the fundamental rule that "A judgement of a court of first instance, other than a Supreme Court judgment, can be appealed as of right". In a series of judgments this Court has discussed the nature of the right to appeal (see the Arjub Case, on pages 360-363; CrimA 111/99 Schwartz v. The State of Israel, PD 54(2) 241, 271-272 (2000) and the references appearing therein; LCrimA 3268/02 Kozali v. The State of Israel, paragraph 6 of the decision (March 5, 2003)). Although the importance of the right to appeal has been recognized in case law, the question of its constitutional status in not sufficiently clear (see, for example, Shlomo Levin, "Basic Law: Human Dignity and Liberty and Civil Procedure" Hapraklit 42 451, 462-463 (5755-5756); but see the positions of Registrar Y. Mersel in LCivA 9041/05 "Imrei Chaim" Registered Amuta v. Aharon Wisel (January 30, 2006) that since the right of appeal was anchored in the Basic Law: The Judiciary, it is customary to view it as a right that has a constitutional status. See also: Asher Grunis, Tel Sela "The Courts and Procedural Arrangements" The Shlomo Levin Book 59, 64-67 (2013). In any event, it has been held that even if the right to appeal is deemed a constitutional right, then as all the other rights, it also is a restricted and not absolute right, and it is weighed against organizational principles of stability and finality (See CApp 3931/97 Efraim v. Migdal Insurance Company Ltd. (August 5, 1997)).

 

31.The central rule in our system, pursuant to Section 17 of the Basic Law: The Judiciary, grants a litigating party the right that its matter be heard in only two instances. A hearing in a third instance will only be held, as a rule, by permission. The said Section 17 applies regardless of whether it is a criminal, civil or administrative matter, but it does not relate to interim decisions – with respect to which there is a distinction between the criminal, civil and administrative fields. In the criminal field, other than special cases, there is no right to question interim decisions. In the civil field, there is no right to appeal interim decisions, but it is possible to request permission from the appellant instance to appeal (Sections 41(b) and 52(b) of the Courts [Consolidated Version] Law, 5744-1984; see also the Courts (Types of Decisions for which Permission to Appeal will not be Granted) Order, 5769-2009; LCivA 3783/13 I.D.B. Development Company Ltd. v. Shamia (June 5, 2013)). In the administrative field, permission to appeal may only be requested with respect to certain interim decisions (see, Section 12 of the Administrative Courts Law, 5760-2000). In addition, Section 41(b) of the Courts Law provides that a District Court judgment in an appeal can be appealed to the Supreme Court if permission was granted by the Supreme Court or by the District Court in its appeal judgment (for a review of the appeal arrangements customary in our legal system, see CrimA 4793/05 Navon v. Atzmon (February 6, 2007); hereinafter: the "Navon Case").

 

32.It emerges from this review that a litigant has a vested right that its matter be heard only before two instances, the trial instance and the appellate instance. A hearing in a third instance is subject to receive permission from the authorized instance. This scope of the right to appeal is based on a number of foundations. First, it has been held in previous rulings of this court that the existence of a right to appeal strengthens the fairness and reasonableness elements of the judicial process and allows an additional opening to discovering errors. However, it was held that this reason alone should not enable multiple "appeals on appeals", and that "there must be a limited format that distinguishes between an appeal as of right and an appeal by permission" (the Arjub Case, on page 372). Secondly, it has been held that interpretation leads to the conclusion that a litigating party must request permission to appeal is not equivalent to denying the right to appeal (see CivApp 4936/06 Aroch v. Clal Finances Management Ltd. (September 25, 2006)). Thirdly, it has been found that "doing justice does not necessitate such a comprehensive examination of every matter" (ALA 103/82 Haifa Parking Ltd. v. Matzat Or Ltd., PD 36(3) 123, 125 (1982); original emphasis), and that limiting the right to appeal allows to define the discussion in a manner that promotes the principle of finality of the process. An additional reason that underlies this approach is the issue of the courts’ workload. It is clear that if every matter were to be brought before three instances, this would impose a heavy workload on the court system. The meaning of such overload is an infringement on the right of litigants that legal processes conclude within reasonable time. Therefore, the customary case law here is that a litigating party has one right to appeal, and that the authorized court will concede to the motion for permission to appeal in extraordinary cases only, in which there is legal or public importance that a certain matter be examined by a third instance (ibid, on pages 125-126).

 

33.It could be argued that in detention procedures it is necessary to deviate from the ordinary customary rules regarding the right to appeal. Thus, it would be argued that in detention procedures a different approach, which is more lenient with the detainee, is required, in light of the possible infringement of a person's freedom. Therefore, while the right to appeal, in general, includes only one appeal as of right, the right to appeal in detention matters, as a right that is protected in the framework of the right of freedom, also encompasses the option to file a second appeal as of right. I do not accept this argument. While I do not dispute the need – which is expressed in the legislation and in the rulings of this Court – to recognize the special status of detention procedures (see, for example, CrimApp 3357/03 Kaabiya v. The State of Israel (May 1, 2006); Anonymous Case, paragraphs 19-21 of Deputy President E. Rivlin's judgment; CrimApp 3899/95 The State of Israel v. Jamal PD 49(3) 164, 167 (1995)), this special status does not necessitate recognizing that the right of freedom includes a right that two different instances be required to examine a detention decision (for criticism on the right to a second appeal in detention decisions, see CrimApp 45/10 Masarwa v. The State of Israel (January 8, 2010)). In fact, accepting this position would lead to an anomaly not only between the detention laws and the other legal fields, but also within the detention laws themselves. Take for example a case in which a person was detained until the end of proceedings. Section 21 of the Detention Law grants the court to which an indictment was filed authority to order the detention of the defendant until the end of proceedings. Where an indictment was filed to the Magistrate Court, and the Court decided to detain the defendant until the end of proceedings, the detainee will be able to appeal the decision to the District Court as of right, and today, following the First Arrangement, it will be able to request permission from the Supreme Court to appeal. In comparison, a defendant against whom an indictment was filed to the District Court and the Court decided to detain him until the end of proceedings, will be able to appeal to the Supreme Court as of right, but he will not have the option to request permission from an additional instance to appeal. Will we say that the latter's right of freedom was infringed because he is not able to bring his matter before three instances? Can we not assume that the infringement of his freedom could be more severe, since in most cases detainment until the end of proceedings for an indictment filed to the District Court might continue for a more extended period of time than detainment until the end of proceedings for an indictment filed to the Magistrate Court?!

 

34.It follows that it cannot be said that in order to realize and protect the right of freedom, it is necessary that three instances review a detention decision. The meaning is that regardless of whether we classify the detention decision as a judgment or as an interim decision (see, for example, regarding the definition of a "judgment", CA 165/50 Epstein v. Zilberstein PD 6 1201, 1210 (1952); see also LCrimA 7487/07 Yakimov v. The State of Israel – The Head Military Prosecutor (April 16, 2008)), the fact that the detainee is not a-priori entitled as of right to have his matter heard by three instances, will not change. Furthermore, the fact that different decisions were adopted in each of the instances does not impact the scope of the right to appeal, and consequently, the right of freedom. Thus, there is no significance to the fact that a Magistrate Court chose to release a detainee while the District Court reversed that decision. The fact that conflicting decisions were given does not, in and of itself, lead to the conclusion that the detainee has a right that his matter be heard before a third instance (see the Navon Case, paragraph 7 of my judgment). The fact that different decisions were given in each of the instances is certainly a circumstance, among various circumstances, that the Supreme Court will consider when deciding if it is appropriate to concede to the motion for permission to appeal. This fact in and of itself does not create an automatic entitlement to an additional appeal as of right.

 

35.It is important to note that the injury that might be caused to the detainee, which is severe in and of itself, cannot justify a holding that he is entitled to be heard in three instances. There are many other situations in which a significant infringement of rights can occur, but this is not sufficient to impact the scope of the right to appeal. Suffice it to mention that there is no right of appeal at all on petitions to the High Court of Justice – the decisions of which could have a significant impact on the individual – (but rather only a petition for a further hearing, the causes for which are narrow and limited); and that there is only one right of appeal on criminal or civil judgments. Indeed, there is no dispute that the infringement of a person's freedom as a result of detention is severe, and therefore, it constitutes an important circumstance when examining the detainee's matter, including in the decision whether to grant permission to appeal to the Supreme Court. However, this is not an exclusive circumstance in the sense that that right to a second appeal is a part of the protections that fall under the rubric of the constitutional right of freedom, such that its denial is an infringement of the right itself. We will further note parenthetically that the First Arrangement, which was examined in the Petition, does not only address detention decisions, but also appeals on decisions relating to release, violation of terms of bail, motions for reconsideration and appeals on District Court decisions regarding bail. It is clear that the level of injury in the latter cases is not identical to that of detention and, therefore, the justification to deviate from the ordinary rule of a hearing before two instances, is even weaker in these cases.

 

An examination of the Supreme Court's decisions in motions for permission to appeal on decisions regarding detention, pursuant to the First Arrangement, reveals that the Court indeed takes the infringement of the right of freedom into consideration when ruling whether permission to appeal should be granted. Although the case law is that permission to appeal will be granted when the motion raises a legal question of importance as a principle, which exceeds the matter of the parties to the proceeding, the Court was willing to adopt a broader approach and to also grant motions for permission to appeal when there are special and extraordinary individual circumstances which justify a hearing before a third instance (see, for example, CrimApp 2786/11 Gerris v. The State of Israel, paragraph 7 of the decision (April 17, 2011); CrimApp 4900/12 The State of Israel v. Anonymous, paragraph 8 of the decision and the references there (June 25, 2012); CrimApp 4706/12 Anonymous v. The State of Israel, paragraph 8 of the decision (June 21, 2012); CrimApp 1200/13 Azulay v. The State of Israel, paragraph 9 of the decision (February 24, 2013)).

 

36.The conclusion is that the First Arrangement does not infringe on the right of freedom. It will be noted that the Petitioner did not raise arguments in his petition regarding the potential infringement of the First Arrangement of the right to due process or the right to access courts. Therefore, we did not see it necessary to address the infringement of these rights. As we have not found there to be an infringement of the right of freedom, this ends the constitutional examination of the First Arrangement.

 

Does the Second Arrangement Satisfy the Conditions of the Limitation Clause

 

37.As mentioned, there was no dispute between the parties that the Second Arrangement infringes on the right of freedom. We are therefore left to examine whether this arrangement satisfies the conditions of the limitation clause. For the sake of convenience, we will requote the language of the Second Arrangement:

 

(b) Notwithstanding that which is stated in sub-section (a), if a Supreme Court judge was of the opinion that it will not be possible to conclude the trial proceedings within the period of 90 days stated in sub-section (a), because of the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges, he may order the extension of the detention to a period which shall not exceed 150 days, and may re-order this from time to time, and may order the release of the defendant, with or without bail.

 

38.The first condition of the limitation clause requires that the infringement be by a law or pursuant to a law. There is no dispute that in the case at hand this condition is satisfied, since the Second Arrangement is prescribed in the law amending the Detention Law. The second and third conditions address the purposes of the infringing law. According to the second condition, the infringing law must befit the values of the State of Israel, and according to the third condition it should be demonstrated that the infringing law is intended for a proper purpose. We will now examine both of these conditions.

 

39.The purpose of the Second Arrangement, similar to the purpose of the entire amendment, as it emerges from the explanatory notes to the bill, was "to shift the balance between the principle of finality and the types of matters that should be examined by the Supreme Court and the realization of the substantive rights of detainees and defendants " (Explanatory notes to the Criminal Procedure (Enforcement Powers – Detention) (Amendment no. 9) (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, Government Bills 533). Regarding the Second Arrangement, the legislative memorandum stated that: "Experience shows that in some cases it is clear in advance that the maximum time period for extending the detention prescribed in these sections is not sufficient to exhaust the legal proceedings. This is sometimes the case in cases of complex severe crimes in which the defendants are detained until the end of the proceedings against them, in which there are many witnesses. At times, numerous hearings are required, which significantly extends the duration of the trial, and consequently the period of the defendant's detention (the legislative memorandum was attached to the State's response dated July 7, 2011, and marked Res/1).

 

40.The underlying purpose of the Second Arrangement was to reduce the number of Supreme Court hearings on motions to extend detentions in particularly complex cases in which it is clear that the period of time the legislator allocated (90 days beyond the nine months of detention) will not be sufficient to conclude the trial. That, even when the trial is conducted efficiently and purposefully it cannot be said that this is not a proper purpose. In light of the heavy workload imposed on the Supreme Court and the entire justice system, reducing the number of detention extension hearings – in special circumstances and based on criteria prescribed in the law – is a proper and vital purpose. This purpose will allow the Court to dedicate time to other proceedings before it, including other criminal cases and detention procedures, and reduce the period of time required to rule thereon. In this context, we will mention Section 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides a series of conditions for a fair trial, including the need to conclude legal proceedings within a reasonable time. It cannot be said that this purpose does not befit the values of the State of Israel as a Jewish and democratic state. Reducing the time of handling cases and responding to the needs of those approaching the court system is a purpose that definitely befits the values of the State.

 

41.The main question to be decided with respect to the Second Arrangement is its compliance with the proportionality condition. As is known, it is customary to divide the condition that the infringement is no greater than necessary into three sub-tests. The first sub-test examines whether there is a rational connection between the means selected by the law and the purpose thereof. In the case at hand, it is clear that there is a rational connection between the means – extending detention by 150 days instead of by 90 days – and the purpose of reducing the number of hearings in the Supreme Court. The second sub-test examines whether the selected means is the less harmful means. As stated in the State's response, the means selected balances between the infringement of the detainee's freedom and the need to adjust the options to extend the detention in order to fit complex cases, cases of severe crimes and cases in which it is clear to the Court that a 90 day extension will not be sufficient. One of the main balances outlined in the Law is that the Law did not revoke the option of extending a detention by 90 days (pursuant to Section 62 of the Detention Law), but rather left that as is, and allowed the Court to choose, as a matter of discretion and as an exception to the "standard" detention extension, the option of extending the detention by 150 days. An additional balance is that the authority is vested with a judge of the highest instance. Furthermore, in order to exercise this authority, one of the special conditions listed in the section, which lead to the conclusion that it will not be possible to conclude the examination of the case in a shorter period of time,  must be satisfied, i.e., the nature of the offense, the complexity of the case or multiple defendants, witnesses or charges. These balances indicate that the legislator selected the less harmful means in order to realize the purpose.

 

42.The third sub-test, the proportionality test "in the narrow sense", requires that there be a reasonable relation between the infringement of the constitutional right and the social advantage  derived from it. This test is also satisfied in the case at hand. Prior to the amendment of the Law, there was a problematic situation as motions to extend detentions beyond nine months would be filed to the Supreme Court, and the Court would grant the motions in cases in which it was clear that the trial was not foreseen to conclude within 90 days. And then, upon the lapse of the 90 days, a motion would again be filed to the Supreme Court, and so forth. In one of these decisions, Justice A. Procaccia elaborated on the need to adjust the Detention Law to the reality of "mega-cases" in which a large number of defendants are indicted together and many witnesses testify. In CrimApp 644/07 The State of Israel v. Natser (February 20, 2007), Justice Procaccia stated:

 

"Section 61 of the Detention Law limited the basic time period for detention until the end of proceedings to nine months, without making any distinction between types of criminal proceedings that are to be adjudicated based on the judicial time that is necessary for their examination. He did not draw a distinction between the types of charges with regard to the complexity of the issue to be decided. Similarly, the period of nine months of detention was applied equally to indictments relating to one or a small number of defendants, and to indictments that include a long list of defendants. Additionally, no distinction was made regarding the duration of the detention for trial purposes, between charges in which it is necessary to have a small number of prosecution witnesses testify and those in which it is necessary to have dozens of witnesses testify. Moreover, Section 61 of the Law did not reflect the judicial time actually required for conducting proceedings that involve large criminal organizations, which by their very nature require investment of extensive resources and judicial time. This provision of the Law does not reflect the deep changes that occurred in the nature of crime in the country as a result of the escalation of the development of criminal organizations and the complexity and severity of their activities, which have greatly increased over the last decade, and which clearly impact the judicial time required to rule in criminal proceedings related to them. The procedural needs in managing complex cases which involve multiple defendants, charges and witnesses, do not generally coincide with the Law's uniform and general determination regarding nine months of detention as a basic period in which the criminal proceeding should be concluded" (paragraph 17 of the decision). See also CrimApp 7738/06 The State of Israel v. Sharon Parinian, paragraph 10 of the decision (October 5, 2006).

 

The Second Arrangement attempts to solve this problem, by providing the Supreme Court judge deliberating the motion to extend the detention the option to choose between a "standard" detention extension, up to 90 days, and a "special" detention extension up to 150 days. The Second Arrangement only allows to do this in special cases in which the Court is convinced that the judicial time required to conclude the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses. The Court must be convinced that the proceeding is conducted by the trial court efficiently, and that the detention extension is not requested because of an inefficient conduct of the trial. In my opinion, the combination of these circumstances strikes the proper balance between the infringement of freedom – which no one disputes exists – and the purpose underlying the Second Arrangement.

 

43.The conclusion is that the Second Arrangement complies with the proportionality condition. It follows that the infringement of the right of freedom is proportionate, and the Petitioner's arguments regarding the illegality of the Second Arrangement should be dismissed. In this framework, the indirect attack regarding the legality of the amendment, the arguments for which were presented as part of the hearing regarding the detention extension in CrimApp 4002/11 is also dismissed.

 

Summary

 

44.It emerges from the stated above that both of the arguments presented by the Petitioner in HCJ 2442/11 are to be denied. Procedurally speaking, while we found that the legislative process of the amendments which are the subject of this petition deviated from the provisions of the Knesset By-Laws, the deviation did not constitute a "flaw that goes to the root of the process", which justifies this Court's intervention. On the merits of the amendment, we also rejected the Petitioner's substantive arguments (which are largely identical to the arguments raised in CrimApp 4002/11). We held that the revocation of the right to appeal "in a third instance" while only granting permission to appeal, does not infringe on the right of freedom, although we found that in certain circumstances, which will be determined in each case on its merits, the constitutional right of freedom also extends to the procedural proceedings bound with the exhaustion of the actual right. We further held that the amendment that allows to extend a detention by 150 days infringes on the right of freedom, but this infringement complies with the limitation clause, and is therefore constitutional. The result is that both parts of the petition are denied.

 

45.One methodological note before summation. In the case before us the legislator brought about a change in an existing law. This is not a new law that is meant to address a matter that was not regulated by law. There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants compared to the previous legal situation. However, the mere adverse change does not necessary lead to the conclusion that there is an infringement of a constitutional right or that the amendment does not satisfy the conditions of the limitation clause. We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law. Indeed, with regard to the two arrangements, the legal status that preceded the amendment set a higher threshold than the constitutional threshold, as suspects and defendants had the right to file a second ("third instance") appeal and the detention extension period was limited to 90 days. However, as emerges from the analyses we presented, the constitutional threshold is lower than the threshold the legislator had set under the arrangement preceding the amendment to the Law. Therefore, the fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law. Graphically speaking, it can be said that when amending the law, the legislator has leeway between the legal threshold prescribed before the amendment (which, as mentioned, was higher than the constitutional threshold) and the constitutional threshold. As long as the amendment to the law did not prescribe a threshold lower than the constitutional threshold, the new arrangement cannot be deemed unconstitutional. In this context we should mention the validity of law clause in the Basic Law: Human Dignity and Liberty (Section 10). This section sets a different threshold: even if the law preceding the Basic Law infringes a constitutional right and does not satisfy the limitation clause, it shall not be deemed invalid (subject to the interpretation of the law the validity of which is preserved under Section 10 of the Basic Law, see the Ganimat Case, pages 375-76, 389-401, 410-417), even if had such law been legislated today, we would have said that the constitutional threshold had been infringed.

 

46.Epilogue. The petition is denied. The constitutional arguments raised in CrimApp 4002/11 are also denied. In the circumstances of the matter – no order for expenses is issued.

 

The President

 

Justice E. Rubinstein

 

a.I agree with the result reached by my colleague the President and with the essence of his legal constitutional analyses, subject to a few remarks. Indeed, this amendment to the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (the Detention Law) is not suited for constitutional judicial review, but in my opinion there is a difference between its two parts. The arrangement amending Section 53 of the Detention Law is an amendment that revokes a most unusual situation compared to other countries and the past in our own country, a situation in which the Supreme Court is required, as of right, to consider a detention as a third instance, as we experienced until recently. In contrast, the arrangement amending Section 62 of the Detention Law is not a simple arrangement, since its implication is an extension of up to 150 days – five months of detention – instead of 90 days, without judicial review, this is not simple at all. Indeed, as my colleague explained (paragraph 42, and as emerges from the explanatory notes to the Criminal Procedure (Enforcement Powers – Detention), Amendment no. 9 (Second Appeal by Permission and Extension or Renewal of Detention) Bill, 5770-2010, following the recommendation of the Criminal Procedure and Evidence Laws Advisory Committee, headed by this Court's Justice (currently Deputy President) Miriam Naor, Government Bills 5770, 1229-1330 and the words of Justice Procaccia in CrimApp 644/07 The State of Israel v. Natser (February 20, 2007)) – the 150 days arrangement does not exceed the constitutional proportionality test; as it was designated for special cases "in which the Court is convinced that the judicial time required to complete the criminal proceeding is expected to be especially lengthy in light of the complexity of the case, or the existence of multiple defendants or multiple witnesses.." Legally speaking, I agree with this. However, alongside this I would like to raise a small warning flag and say that I think that in practice, a 150 day extension should certainly be the exception.

 

b.Regarding the matter of extending detentions by a 150 days, I think that it is necessary to distinguish between the authority and its exercise. As mentioned, the authority, in and of itself, is within the boundaries of the constitutional proportionality. See for example Section 5(c) of the Imprisonment of Unlawful Combatants Law, 5762-2002, where judicial review once every six months was prescribed. However, I will admit that when the case at hands relates to the denial of freedom from a person who is presumed innocent, I would tend to allow relatively frequent judicial review, and five months is a long time. Therefore, one must be extremely diligent in complying with all of the conditions of the law as prescribed and the justification in the circumstances, including the conduct in the trial court, in order to grant 150 days. I will add that based on my impression of the decisions handed down by this Court, approximately a half of the motions for 150 days were not granted and 90 days were granted instead, and the vast majority of the remaining ones were by consent. I will not specify so as not to overburden.

 

c.As for the second appeal, that is deliberating the case in a third instance (the amendment of Section 53), it is obviously clear that the right to an appeal in and of itself has a distinguished status (see Section 17 of the Basic Law: The Judiciary, regarding an appeal on a judgment of court in the first instance, which was granted constitutional status; see also Y. Ben Nun and T. Havkin The Civil Appeal (3 ed., 2013) page 35; Y. Mersel "The Right to Appeal or an Appeal as of Right? Section 17 of the Basic Law: The Judiciary and the Essence of an Appeal" The Shlomo Levin Book (2013) 141; the references in my opinion in LCivA 5208/06 Davis v. Malca (June 29, 2006) and in LFamA 8194/08 Anonymous v. Anonymous (December 10, 2008)). However, in the matter of a third instance I will add a few short words from the “field”. The third instance appeal as of right in Section 53 was first legislated in the during the period in which the entire Detention Law was legislated, meaning, a short while after the Basic Law: Human Dignity and Liberty was legislated in 1992 and as part of the effort to give it substance; see the review of the legislative history in the explanatory notes to the bill at hand on pages 1328-1329; as it emerges therefrom, in the far past, even an appeal by permission was not an option; the option to request permission was granted in 1988, and in 1996 it became a right. Amendment no. 8 of the Detention Law transpired in light of the lessons learned by the Criminal Procedure and Evidence Law Advisory Committee, headed by Justice Naor, lessons which all of us at this Court have shared. I will quote from my words in CrimApp 6003/11 Taha v. The State of Israel (August 18, 2011):

 

"The legislator decided that this Court, given the workload it carries, cannot continue with what it has been doing for years, and which clearly has moral value, in light of the presumption of innocence and the essence of the detention – denying freedom, that is - allowing third instance appeals as of right. This, I believe, is unique to this Court compared to fellow courts in democratic states, many of which (see the United States, Britain and Canada) only address appeals by permission. When I have told a Supreme Court judge from these countries of the number of cases we have per year (currently approximately 10,000 cases and a few years ago up to approximately 12,000 cases per year) compared to theirs (80 per year), and that each detention has an appeal as of right to this Court – he became sympathetic or anxious. This does not mean that the door has been locked for cases that should be permitted to appeal to this Court as a third instance, and the legislator left this open to be developed by case law; for a review of current case law see the decision of Justice Amit in CrimApp 5702/11 Tzofi v. The State of Israel (August 8, 2011)."

 

d.It appears that there is no dispute, and it is common sense, with all due sensitivity to the denial of freedom which results from the detention of a person who is presumed innocent, and that it is not feasible in the long term to have the public resources to deliberate this as of right in three judicial levels. Until the amendment "Israel had something that did not exist in any nation, a right to a detention being heard in two appellate instances …" (CrimApp 3932/12 Elafifi v. The State of Israel (June 3, 2012)). Changing this does not contradict the approach that the right to appeal is a constitutional right of some degree or another. Indeed, in practicality, those night and Sabbath eve and afternoon hearings of appeals as of right regarding "detention days" (detention for interrogation purposes), of which we had our share over the years, hardly exist anymore. Permission to appeal in a third instance is granted scarcely. In this sense, the legislator reinstated "reasonable normalcy", taking into consideration that there already is one appeal as of right, as prescribed. Upon review of my colleague Justice Melcer's remarks, with which I agree, I also noticed that the "right of the option to request permission to appeal" which he addresses, can also be found in this Court's customary practice. In contrast, for example, to the United States, where the denial of a motion for permission to appeal, is summarized in the words "cert denied" – in Israel the denial of such a motion is well reasoned and in great detail.

 

e.As said, I concur with my colleague the President.

 

Justice

Justice H. Melcer

 

I agree with the comprehensive and meticulous judgment of my colleague, President A. Grunis, and with the emphases of my colleague, Justice E. Rubinstein.

 

In light of the importance of the distinctions that arose in this case, I allow myself to add two insights:

 

(a)Alongside the right to appeal – the option to request permission to appeal is also a right, however narrower than the former. It follows that the second alternative – requesting permission to appeal – can be seen as a means of review of the decision which is the subject of the request, and this is sufficient after the initial constitutional right to appeal has been exhausted. A similar approach and development can also be found in comparative law - see for example:

 

In the Unites States: Jonathan Sternberg, Deciding Not to Decide: The Judiciary Act of 1925 and the Discretionary Court, 33 J. SUP. CT. HIST 1 (2008).

 

In Canada: R v Gardiner [1982] 2 S.C.R. 368 ;

Bora Laskin, The Role and Functions of Final Appellant Courts: The Supreme Court of Canada, 53 CAN. BAR REV. 469, 471 (1975).

 

In Australia: Smith Kline & French Laboratories (Australia) Ltd. v Commonwealth (1991) 173 CLR 194;

David Solomon, Controlling the High Court’s Agenda, 23 U.W AUSTL. L. REV. 33 (1993);

Sir Anthony Mason, The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal, 15 U. TAS. L. REV. 1 (1996);

Marrie Kennedy, Applications for Special Leave to the High Court 1 High Ct. Q. Rev. 1 (2005);

 

See also: John Anthony Jolowicz, Appeal and Review in Comparative Law: Similarities Differences and Purposes 15 MELB. U. L. REV 618. (1986)

 

In this context,  remember that in contrast to the motion for permission to appeal, in our country's legal system there are certain situations in which even this limited right (to motion for permission to appeal) is denied (even if only during the trial) – see: Sections 41(c)(1) and 52(c)(1) of the Courts (Consolidated Version) Law, 5744-1984. The Courts (Types of Decisions for which Permission to Appeal shall not be Granted) Order, 5769-2009. This is the law with regard to most interim decisions in criminal proceedings. See: the President's decision in LCivA 3783/13 I.D.B Development Company Ltd. v. Shamia (June 5, 2013). The difference in the case at hand requires further consideration.

 

(b)The arrangement amending Section 62 of the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996, that allows a Supreme Court judge to extend detention up to 150 days, in certain given cases – is within the framework of the "statutory leeway" (also referred to as the "boundaries of proportionality"), albeit, in my opinion, it is situated at the "far end" of such boundaries. It follows that constitutional relief should not be granted, since intervention of such nature in such circumstances is reserved only to the most extraordinary cases, and this is not the case here. See: HCJ 1661/05 Hof Azza Regional Council v. The Prime Minister, PD 59(2) 481 (2005); my judgment in HCJ 6784/06 Major Shlitner v. The Director of Pension Payments (January 12, 2011).

 

The appropriate remedy in such cases is judicial restraint in exercising the authority, and this is indeed how we act.

 

                                                                                          Justice

 

It was decided as stated in President A. Grunis' Judgment

 

Given today, 18^th of Tamuz, 5773 (June 26, 2013).

 

 

The President                          Justice                                     Justice

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

Before President D. Beinisch and Justices E.E. Levy, A. Procaccia

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

[2]        HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

[5]         HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[6]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[7]        HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[8]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

[11]      HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

[24]      CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[25]      HCJ 1661/05 Gaza Coast Regional Council v. Knesset [2005] IsrSC 59(2) 481.

[26]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[27]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[28]      HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876.

[29]      HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

[31]      EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [1985] IsrSC 39(2) 225;  IsrSJ 8 83.

[32]      CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[35]      HCJ 2967/00 Arad v. Knesset [2000] IsrSC 54(2) 188.

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

[38]      HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

[44]      HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801.

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

[52]      HCJ 6302/92 Rumhiah v. Israel Police [1993] IsrSC 47(1) 209.

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

'... the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.'

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

8. 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, or according to a law as stated by virtue of explicit authorization therein. '

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought before it from the viewpoint of the prisoner, who has not seen the material and cannot argue against it. In the words of Justice A. Procaccia: "… the court has a special duty to act with great care when examining privileged material and to act as the 'mouth' of the prisoner where he has not seen the material against him and cannot defend himself" (HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria [47], at para. 6; see also CrimApp 3514/97 A v. State of Israel [48]).

Thus we see that in view of the reliance on administrative evidence and the admission of privileged evidence ex parte, the court conducting a judicial review under the Internment of Unlawful Combatants Law is required to act with caution and precision in examining the material brought before it. The scope of the judicial review cannot be defined ab initio and it is subject to the discretion of the judge, who will take into account the circumstances of each case on its merits, such as the quantity, level and quality of the privileged material brought before him for his inspection, as opposed to the activity attributed to the prisoner that gives rise to the allegation that he represents a threat to state security. In a similar context the following was held:

'Information relating to several incidents is not the same as information concerning an isolated incident; information from one source is not the same as information from several sources; and information that is entirely based on the statements of agents and informers only is not the same as information that is also supported or corroborated by documents submitted by the security or intelligence services that derive from employing special measures' (per Justice E. Mazza in HCJ 5994/03 Sadar v. IDF Commander in West Bank [49], at para.  6).

Considering all the aforesaid reasons, the requisite conclusion is that reliance on inadmissible evidence and privileged evidentiary material is an essential part of administrative detention. In view of the fact that the quality and quantity of the administrative evidence that supports the cause of detention is subject to judicial review, and in view of the caution with which the court is required to examine the privileged material brought before it ex parte, it cannot be said that the arrangement prescribed in s. 5(e) of the Law, per se, violates the rights of prisoners disproportionately.

(5)     Prisoner's meeting with his lawyer

44. S. 6 of the Law, which is entitled "Right of prisoner to meet with lawyer"' provides the following:

'6. (a) The internee may meet with a lawyer at the

earliest possible date on which such a meeting may be held without harming state security requirements, but no later than seven days prior to his being brought before a judge of the District Court, in accordance with the provisions of s. 5(a).

(b) The Minister of Justice may, by order, confine the right of representation in the proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to the provisions of s. 318(c) of the Military Justice Law, 5715-1955.'

The appellants raised two main arguments against the proportionality of the arrangements prescribed in the aforesaid s. 6: first, it was argued that under s. 6(a) of the Law, it is possible to prevent a meeting of a prisoner with his lawyer for a period of up to seven days, during which a hearing is supposed to be conducted for the prisoner under s. 3(c) of the Law. It is argued that conducting a hearing without allowing the prisoner to consult a lawyer first is likely to render the hearing meaningless in a manner that constitutes an excessive violation of the right to personal liberty. Secondly, it was argued that s. 6(b) of the Law, which makes representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel, also violates the rights of the prisoner disproportionately.

Regarding the appellants' first argument: no one disputes that the right of the prisoner to be represented by a lawyer constitutes a major basic right that has been recognized in our legal system since its earliest days (see in this regard CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [50], at para. 14, and the references cited there). According to both the basic principles of Israeli law and the principles of international law, the rule is that a prisoner should be allowed to meet with his lawyer as a part of the right of every human being to personal liberty (see the remarks of President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 380-381). Therefore, s. 6(a) of the Law provides that a prisoner should be allowed to meet with his lawyer "at the earliest possible date." It should, however, be recalled that like all human rights, the right to legal counsel, too, is not absolute, and it may be restricted if this is essential for protecting the security of the state (see HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [51], at p. 849; HCJ 6302/92 Rumhiah v. Israel Police [52], at pp. 212-213). As such, s. 6(a) of the Law provides that the meeting of the prisoner with his lawyer may be postponed for security reasons, but no more than seven days may elapse before he is brought before a District Court judge pursuant to s. 5(a) of the Law. Since pursuant to the aforementioned s. 5(a) a prisoner must be brought before a District Court judge no later than fourteen days from the date on which the internment order is granted, this means that a meeting between a prisoner and his lawyer may not be prevented for more than seven days from the time the detention order is granted against him.

Bearing in mind the security purpose of the Internment of Unlawful Combatants Law and in view of the fact that the aforesaid Law was intended to apply in prolonged states of hostilities and even in circumstances where the army is fighting in a territory that is not under Israeli control, it cannot be said that a maximum period of seven days during which a meeting of a prisoner with a lawyer may be prevented when security needs so require falls outside the zone of proportionality (see and cf. Marab v. IDF Commander in Judaea and Samaria [8], where it was held that "[a]s long as the hostilities continue, there is no basis for allowing a prisoner to meet with a lawyer," (at p. 381); see also HCJ 2901/02 Centre for Defence of the Individual v. IDF Commander in West Bank [53]).

In addition to the above, two further points should be made: first, even though the prisoner may be asked to make his submissions in the course of the hearing under s. 3(c) of the Law without having first consulted a lawyer, s. 6(a) of the Law provides that the state should allow the prisoner to meet with his defence counsel "no later than seven days prior to his being brought before a judge of the District Court…." It follows that as a rule, the prisoner is represented in the process of judicial review of the granting of the detention by virtue of the Law. It seems that this could reduce the impact of the violation of the right to consult a lawyer as a part of the right to personal liberty. Secondly, it should be emphasized that the maximum period of seven days does not exempt the state from its obligation to allow the prisoner to meet with his lawyer at the earliest possible opportunity, in circumstances where security needs permit this. Therefore the question of the proportionality of the period during which a meeting between the prisoner and his defence counsel is prevented is a function of the circumstances of each case on its merits. It should be noted that a similar arrangement exists in international law, which determines the period of time during which a meeting with a lawyer may be prevented with regard to all the circumstances of the case, without stipulating maximum times for preventing the meeting (see in this regard, Marab v. IDF Commander in Judaea and Samaria [8], at p. 381).

45.  The appellants' second argument concerning s. 6(b) of the Law should also be rejected. Making representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel under the provisions of s. 318(c) of the Military Justice Law, 5715-1955, is necessary for security reasons, in view of the security-sensitive nature of administrative detention proceedings. The appellants did not argue that the need for an unrestricted authorization as aforesaid affected the quality of the representation that they received, and in any case they did not point to any real violation of their rights in this regard. Consequently the appellants' arguments against the proportionality of the arrangement prescribed in s. 6 of the Law should be rejected.

 (6)      The length of internment under the Law

46.       From the provisions of ss. 3, 7 and 8 of the Internment of Unlawful Combatants Law it emerges that an internment order under the Law need not include a defined date for the end of the internment. The Law itself does not prescribe a maximum period of time for the internment imposed thereunder, apart from the determination that it should not continue after the hostile acts of the force to which the prisoner belongs against the State of Israel "have ceased" (see ss. 7 and 8 of the Law). According to the appellants, this is an improper internment without any time limit, which disproportionately violates the constitutional right to personal liberty. In reply, the state argues that the length of the internment is not "unlimited", but depends on the duration of the hostilities being carried out against the security of the State of Israel by the force to which the prisoner belongs.

It should be said at the outset that issuing an internment order that does not include a specific time limit for its termination does indeed raise a significant difficulty, especially in the circumstances that we are addressing, where the "hostile acts" of the various terrorist organizations, including the Hezbollah organization which is relevant to the appellants' cases, have continued for many years, and naturally it is impossible to know when they will cease. In this reality, prisoners under the Internment of Unlawful Combatants Law may remain in detention for prolonged periods of time. Nevertheless, as we shall explain immediately, the purpose of the Law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be issued without a defined date for their termination does not depart from the zone of proportionality, especially in view of the judicial review arrangements prescribed in the Law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent "unlawful combatants" as defined in s. 2 of the Law from returning to the cycle of hostilities, as long as the hostile acts are continuing and threatening the security of the citizens and residents of the State of Israel. On the basis of a similar rationale, the Third Geneva Convention allows prisoners of war to be interned until the hostilities have ceased, in order to prevent them from returning to the cycle of hostilities as long as the fighting continues. Even in the case of civilians who are detained during an armed conflict, the rule under international humanitarian law is that they should be released from detention immediately after the concrete cause for the detention no longer exists and no later than the date of cessation of the hostilities (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518-519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war).

The conclusion that emerges in view of the aforesaid is that the fundamental arrangement that allows a internment order to be granted under the Law without a defined termination date, except for the determination that the internment will not continue after the hostile acts against the State of Israel have ended, does not exceed the bounds of the room for constitutional maneuver. It should, however, be emphasized that the question of the proportionality of the duration of internment under the Law should be examined in each case on its merits and according to its specific circumstances. As we have said, the Internment of Unlawful Combatants Law prescribes a duty to conduct a periodic judicial review once every six months. The purpose of the judicial review is to examine whether the threat presented by the prisoner to state security justifies the continuation of the internment, or whether the internment order should be cancelled in circumstances where the release of the prisoner will not harm the security of the state or where there are special reasons justifying the release (see s. 5(c) of the Law). When examining the need to extend the internment, the court should take into account inter alia the period of time that has elapsed since the order was issued. The ruling in A v. Minister of Defence [1] concerning detention under the Emergency Powers (Detentions) Law, per President A. Barak, holds true in our case as well:

'Administrative detention cannot continue indefinitely. The longer the period of detention has lasted, the more significant the reasons that are required to justify a further extension of detention. With the passage of time the measure of administrative detention becomes onerous to such an extent that it ceases to be proportionate' (ibid., at p. 744).

Similarly it was held in A v. IDF Commander [16] with regard to administrative detention by virtue of security legislation in the region of Judea and Samaria that -

'The duration of the detention is a function of the threat. This threat is examined in accordance with the circumstances. It depends upon the level of risk that the evidence attributes to the administrative prisoner. It depends upon the credibility of the evidence itself and how current it is. The longer the duration of the administrative detention, the greater the onus on the military commander to demonstrate the threat presented by the administrative prisoner' (ibid., at para. 7).

Indeed, as opposed to the arrangements prescribed in the Emergency Powers (Detentions) Law and in the security legislation, a court acting pursuant to the Internment of Unlawful Combatants Law does not conduct a judicial review of the extension of the internment order, but examines the question of whether there is a justification for cancelling an existing order, for the reasons listed in s. 5(c) of the Law. Nevertheless, even an internment order under the Internment of Unlawful Combatants Law cannot be sustained indefinitely. The period of time that has elapsed since the order was granted constitutes a relevant and important consideration in the periodic judicial review for determining whether the continuation of the internment is necessary. In the words of Justice A. Procaccia in a similar context:

'The longer the period of the administrative detention, the greater the weight of the prisoner's right to his personal liberty when balanced against considerations of public interest, and therefore the greater the onus placed upon the competent authority to show that it is necessary to continue holding the person concerned in detention. For this purpose, new evidence relating to the prisoner's case may be required, and it is possible that the original evidence that led to his internment in the first place will be insufficient' (Kadri v. IDF Commander in Judaea and Samaria  [47], at para. 6).

In view of all the above, a court that conducts a judicial review of an internment under the Internment of Unlawful Combatants Law is authorized to confine and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant" and in view of the time that has passed since the internment order was issued. By means of judicial review it is possible to ensure that the absence of a concrete termination date for the internment order under the Law will not constitute an excessive violation of the right to personal liberty, and that prisoners under the Law will not be interned for a longer period greater than that required by material security considerations.

(7) The possibility of conducting criminal proceedings parallel to an internment proceeding by virtue of the Law

47. S. 9 of the Law, which is entitled "Criminal proceedings", provides the following:

'9. (a) Criminal proceedings may be initiated against an unlawful combatant under the provisions of any law.

(b) The Chief of Staff may make an order for the internment of an unlawful combatant under s. 3, even if criminal proceedings have been initiated against him under the provisions of any law.'

According to the appellants, the aforesaid s. 9 violates the right to personal liberty disproportionately since it makes it possible to detain a person under the Internment of Unlawful Combatants Law even though criminal proceedings have already been initiated against him, and vice versa. The argument is that by conducting both sets of proceedings it is possible to continue to intern a person even after he has finished serving the sentence imposed on him in the criminal proceeding, in a manner that allegedly amounts to cruel punishment. In reply the state argued that this is a fitting and proportionate arrangement in view of the fact that it is intended to apply in circumstances in which a person will shortly finish serving his criminal sentence and hostilities are still continuing between the organization of which he is a member and the State of Israel; consequently, his release may harm state security.

In relation to these arguments we should reiterate what we said earlier (at para. 33 above), i.e. that initiating a criminal trial against a person is different in its nature and purpose from the measure of administrative detention. In general it is desirable and even preferable to make use of criminal proceedings where this is possible. Recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are not possible, due to lack of sufficient admissible evidence or because it is impossible to disclose privileged sources. However, the reality of prolonged terrorist operations is complex. There may be cases in which a person is detained under the Internment of Unlawful Combatants Law and only at a later stage evidence is discovered that makes it possible to initiate criminal proceedings. There may be other cases in which a person has been tried and convicted and has served his sentence, but this does not provide a satisfactory solution to preventing the threat that he presents to state security in circumstances in which, after having served the sentence, he may once again become a security threat. Since a criminal trial and administrative detention are proceedings that differ from each other in their character and purpose, they do not rule each other out, even though in my opinion substantial and particularly weighty security considerations are required to justify recourse to both types of proceeding against the same person. In any case, the normative arrangement that allows criminal proceedings to be conducted alongside detention proceedings under the Law does not, in itself, create a disproportionate violation of the right to liberty of the kind that requires our intervention.

Interim summary

48.  Our discussion thus far of the requirement of proportionality has led to the following conclusions: first, the measure chosen by the legislator, i.e. administrative detention that prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel, realizes the legislative purpose and therefore satisfies the requirement of a rational connection between the legislative measure and the purpose that the Law is intended to realize. Secondly, the measures mentioned by the appellants in their arguments before us, i.e. recognizing them as prisoners of war, bringing them to a criminal trial or detaining them under the Emergency Powers (Detentions) Law, do not realize the purpose of the Internment of Unlawful Combatants Law and therefore they cannot constitute a suitable alternative measure to internment in accordance with the Law. Thirdly, the specific arrangements prescribed in the Law do not, per se and irrespective of the manner in which they are implemented, violate the right to personal liberty excessively, and they fall within the bounds of the room for constitutional maneuver granted to the legislature. In view of all this, the question that remains to be examined is whether the combination of the arrangements prescribed in the Law satisfies the test of proportionality in the narrow sense. In other words, is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose? Let us now examine this question.

Proportionality in the narrow sense - A reasonable relationship between  violation of the constitutional right and the public benefit it engenders

49.       The Internment of Unlawful Combatants Law was enacted against the background of a harsh security situation. The citizens and residents of the State of Israel have lived under the constant threat of murderous terrorism of which they have been victim for years and which has harmed the innocent indiscriminately. In view of this, we held that the security purpose of the Law - the removal of "unlawful combatants" from the terrorist organizations' cycle of hostilities against the State of Israel - constitutes a proper purpose that is based on a public need of a kind that is capable of justifying a significant violation of the right to personal liberty. For all these reasons, we were of the opinion that the legislature should be accorded relatively wide room for maneuver to allow it to choose the proper measure for realizing the legislative purpose (see para. 31 above).

As we have said, the measure that the legislature chose in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention in accordance with the arrangements that are prescribed in the Law. There is no doubt that this is a damaging measure that should be employed as little as possible. However, a look at the combined totality of the above arrangements, in the light of the interpretation that we discussed above, leads to the conclusion that according to constitutional criteria, the violation of the constitutional right is reasonably commensurate with the social benefit that arises from the realization of the legislative purpose. This conclusion is based on the following considerations taken together:

 First, for the reasons that we discussed at the beginning of our deliberations, the scope of application of the Law is relatively limited: the Law does not apply to citizens and residents of the State of Israel but only to foreign parties who endanger the security of the state (see para. 11 above).

Secondly, the interpretation of the definition of "unlawful combatant" in s. 2 of the Law is subject to constitutional principles and international humanitarian law that require proof of an individual threat as a basis for administrative detention. Consequently, for the purpose of internment under the Internment of Unlawful Combatants Law, the state must furnish administrative proof that the prisoner directly or indirectly played a material part - one which is neither negligible nor marginal - in hostile acts against the State of Israel; or that the prisoner belonged to an organization that is perpetrating hostile acts, taking into account his connection and the extent of his contribution to the organization's cycle of hostilities in the broad sense of this concept. In our remarks above we said that proving the conditions of the definition of "unlawful combatant" in the said sense includes proof of a personal threat that arises from the form in which the prisoner was involved in the terrorist organization. We also said that the state has declared before us that until now it has taken pains to prove the personal threat of all the prisoners under the Law specifically, and it has refrained from relying on the probative presumptions in ss. 7 and 8 of the Law. In view of this, we saw no reason to decide the question of the constitutionality of those presumptions (see paras. 24 and 25 above).

Thirdly, we held that in view of the fact that administrative detention is an unusual and extreme measure, and in view of its significant violation of the constitutional right to personal liberty, the state is required to prove, by means of clear and convincing evidence, that the conditions of the definition of "unlawful combatant" are fulfilled and that the continuation of the internment is essential. This must be done in both the initial and the periodic judicial reviews. In this context we held that importance should be attached both to the quantity and the quality of the evidence against the prisoner and to the extent that the relevant intelligence information against him is current (see paras. 22 and 23 above).

Fourthly, we attributed substantial weight to the fact that internment orders under the Internment of Unlawful Combatants Law are subject to preliminary and periodic judicial reviews before a District Court judge, whose decisions may be appealed to the Supreme Court, which will hear the case with a single judge. Within the framework of these proceedings, the judge is required to consider the question of the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In view of the reliance upon administrative evidence and the fact that privileged evidence is admitted ex parte, we held that the judge should act with caution and great precision when examining the material brought before him. We also held that a court that conducts a judicial review of internment under the Law may restrict and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant", and in view of the time that has elapsed since the internment order was issued. For this reason we said that it is possible, through the process of judicial review, to ensure that the absence of a specific date for the termination of the detention order under the Law does not violate the right to personal liberty excessively, and that prisoners by virtue of the Law will not be interned for a longer period than what is required by substantial security considerations (para. 46 above).

Finally, although the arrangements prescribed in the Law for the purpose of exercising the power of internment are not the only possible ones, we reached the conclusion that the statutory arrangements that we considered do not exceed the bounds of the room for maneuver to an extent that required our intervention. In our remarks above we emphasized that the periods of time prescribed by the Law for conducting a preliminary judicial review after the internment order has been granted, and with respect to preventing a meeting between the prisoner and his lawyer, constitute maximum periods that do not exempt the state from the duty to make an effort to shorten these periods in each case on its merits, insofar as this is possible in view of the security constraints and all the circumstances of the case. We also held that internment under the Internment of Unlawful Combatants Law cannot continue indefinitely, and that the question of the proportionality of the duration of the detention must also be examined in each case on its merits according to the particular circumstances.

In view of all of the aforesaid considerations, and in view of the existence of relatively wide room for constitutional maneuver in view of the essential purpose of the Law as explained above, our conclusion is that the Internment of Unlawful Combatants Law satisfies the third subtest of the requirement of proportionality, i.e., that the violation of the constitutional right to personal liberty is reasonably commensurate with the benefit accruing to the public from the said legislation. Our conclusion is based on the fact that according to the interpretation discussed above, the Law does not allow the internment of innocent persons who have no real connection to the cycle of hostilities of the terror organizations, and it establishes mechanisms whose purpose is to ameliorate the violation of the prisoners' rights, including a cause of detention that is based on a threat to state security and the conducting of a hearing and preliminary and periodic judicial reviews of internment under the Law.

Therefore, for all the reasons that we have mentioned above, it is possible to determine that the violation of the constitutional right to personal liberty as a result of the Law, although significant and severe, is not excessive. Our conclusion is therefore that the Internment of Unlawful Combatants Law satisfies the conditions of the limitation clause, and there is no constitutional ground for our intervention.

From the General to the Specific

50.  As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out pursuant to security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the nullification of the security legislation in force there, on 20 September 2005 the Chief of Staff issued internment orders for the appellants under the Internment of Unlawful Combatants Law.

On 22 September 2005 the Tel-Aviv-Jaffa District Court began the initial judicial review of the appellants' case. From then until now the District Court has conducted four periodic judicial reviews of the appellants' continuing internment. The appeal against the decision of the District Court not to order the release of the appellants within the framework of the initial judicial review was denied by this court on 14 March 2006 (Justice E. Rubinstein in CrimA 1221/06 Iyyad v. State of Israel [54]). Before us are the appeals on three additional periodic decisions of the District Court not to rescind the appellants' internment orders.

51.  In their pleadings, the appellants raised two main arguments regarding their particular cases: first, it was argued that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. Secondly, it was argued that even if the Internment of Unlawful Combatants Law is constitutional, no cause for internment thereunder has been proved with respect to the appellants. According to this argument, it was not proved that the appellants are members of the Hezbollah organization, nor has it been proved that their release would harm state security.

52.  We cannot accept the appellants' first argument. The end of military rule in the Gaza Strip did not obligate Israel to automatically release all the prisoners it held who are inhabitants of the Gaza Strip, as long as the personal threat posed by the prisoners persisted against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in arts. 132-133 of the Fourth Geneva Convention. Art. 132 of the Convention establishes the general principle that the date for the release of prisoners is as soon as the reasons that necessitated their internment no longer exist. The first part of art. 133 of the Convention, which relates to a particular case that is included within the parameters of the aforesaid general principle, goes on to provide that the internment will end as soon as possible after the close of hostilities. Art. 134 of the Convention, which concerns the question of the location at which the prisoners should be released, also relates to the date on which hostilities end as the date on which prisoners should be released from internment. Unfortunately, the hostile acts of the terrorist organizations against the State of Israel have not yet ceased, and they result in physical injuries and mortalities on an almost daily basis. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the prisoners that it held when military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual danger posed by the prisoners against the background of the continued hostilities against the security of the state.

53. With regard to the specific internment orders against the appellants by virtue of the Internment of Unlawful Combatants Law, the District Court heard the testimonies of experts on behalf of the security establishment and studied the evidence brought before it. We too studied the material that was brought before us during the hearing of the appeal. The material clearly demonstrates the close links of the appellants to the Hezbollah organization and their role in the organization's ranks, including involvement in hostile acts against Israeli civilian targets.  We are therefore convinced that the individual threat of the appellants to state security has been proved, even without resorting to the probative presumption in s. 7 of the Law (see and cf. per Justice E. Rubinstein in Iyyad v. State of Israel [54], at para. 8(11) of his opinion). In view of the aforesaid, we cannot accept the appellants' contention that the change in the form of their detention - from detention by virtue of an order of the IDF Commander in the Gaza Strip to internment orders under the Law - was done arbitrarily and without any real basis in the evidence. As we have said, the change in the form of detention was necessitated by the end of the military rule in the Gaza Strip, and that is why it was done at that time. The choice of internment under the Internment of Unlawful Combatants Law as opposed to detention under the Emergency Powers (Detentions) Law was made, as we explained above, because of the purpose of the Law under discussion and because it is suited to the circumstances of the appellants' cases.

The appellants further argued that their release does not pose any threat to state security since their family members who were involved in terrorist activities have been arrested or killed by the security forces, so that the terrorist infrastructure that existed before they were detained no longer exists. They also argued that the passage of time since they were arrested reduces the risk that they present. Regarding these arguments it should be said that after inspecting the material submitted to us, we are convinced that the arrest or death of some of the appellants' family members does not per se remove the security threat that the appellants would present were they to be released from detention. We are also convinced that, in the circumstances of the case, the time that has passed since the appellants were first detained has not reduced the threat that they present. In its decision in the third periodic review, the trial court addressed this issue as follows:

'The total period of the detention is not short. But this is countered by the anticipated threat to state security if the prisoners are released. As we have said, a proper balance should be struck between the two. The experts are once again adamant in their opinion that there is a strong likelihood that the two prisoners will resume their terrorist activity if they are released. In such circumstances, the operational abilities of the Hezbollah infrastructure in the Gaza Strip and outside it will be enhanced and the threats to the security of the state and its citizens will increase. The current situation in the Gaza Strip is of great importance to our case. The fact that the Hamas organization has taken control of the Gaza Strip and other recent events increase the risks and, what is more, the difficulty of dealing with them.... It would therefore be a grave and irresponsible act to release these two persons, especially at this time, when their return to terrorism can be anticipated and is liable to increase the activity in this field. I cannot say, therefore, that the passage of time has reduced the threat presented by the two prisoners, who are senior figures in the terrorist infrastructure, despite the differences between them. Neither has the passage of time reduced the threat that they represent to an extent that would allow their release.'

In its decision in the fourth periodic review the trial court also emphasized the great threat presented by the two appellants:

'The privileged evidence brought before me reveals that the return of the two to the field is likely to act as a springboard for serious attacks and acts of terror. In other words, according to the evidence brought before me, the respondents are very dangerous. In my opinion it is not at all possible to order their release. This conclusion does not ignore the long years that the two of them have been held behind prison walls. The long period of time has not reduced the threat that they represent' (at page 6 of the court's decision of 20 March 2008).

In view of all of these reasons, and after having studied the material that was brought before us and having been convinced that there is sufficient evidence to prove the individual security threat represented by the appellants, we have reached the conclusion that the trial court was justified when it refused to cancel the internment orders in their cases. It should be pointed out that the significance of the passage of time naturally increases when we are dealing with administrative detention. At the present time, however, we find no reason to intervene in the decision of the trial court.

In view of the result that we have reached, we are not required to examine the appellants' argument against the additional reason that the trial court included in its decision, relating to the fact that the evidence was strengthened by the silence of the first appellant in the judicial review proceeding that took place in his case, a proceeding that was based, inter alia, on privileged evidence that was not shown to the prisoner and his legal representative. The question of the probative significance of a prisoner's silence in judicial review proceedings under the Internment of Unlawful Combatants Law does not require a decision in the circumstances of the case before us and we see no reason to express a position on this matter.

Therefore, for all of the reasons set out above, we have reached the conclusion that the appeals should be denied.

 

Justice E.E. Levy:

I agree with the comprehensive opinion of my colleague, the President.

It is in the nature of things that differences may arise between the rules of international humanitarian law - especially written rules - and the language of Israeli security legislation, if only because those conventions that regulate the conduct of players on the international stage were formulated in a very different reality, and their drafters did not know of entities such as the Hezbollah organization and the like.

Therefore, insofar as it is possible to do so by means of legal interpretation, the court will try to narrow these differences in a way that realizes both the principles of international law and the purpose of internal legislation. In this regard I will say that I would have preferred to refrain from arriving at any conclusions, even in passing, regarding the provisions of ss. 7 and 8 of the Internment of Unlawful Combatants Law, 5762-2002. These provisions are a central part of this Law, as enacted by the Knesset. Insofar as there are differences between them and the provisions of international law, as argued by the appellants and implied by the state's declarations with regard to the manner in which it conducts itself de facto, the legislature ought to take the initiative and address the matter.

Justice A. Procaccia:

I agree with the profound opinion of my colleague, President Beinisch.

Appeals denied as per the judgment of President D. Beinisch.

8 Sivan 5768

11 June 2008

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14^th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

2. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

3. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

	Previous Law	New Law (the Amending Order)
Initial detention until being brought before a judge for offenses that are not security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-18 year olds: 48 hours Adults: 48 hours + an option to extend up to 96 hours
Initial  detention until being brought before a judge for security offenses	Eight days	Minors: 12-14 year olds: 24 hours 14-16 year olds: 48 hours 16-18 year olds: 96 hours Adults: 96 hours + an option to extend up to 8 days
Judicial  detention for interrogation purposes prior to filing an indictment	30 days Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days. Can be extended beyond the 90 days for three additional months.	Minors: 15 days Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days. Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.   Adults: 20 days Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days. Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.
"Bridge Detention" for the purpose of filing an indictment	Unlimited	Eight days
Detention after filing indictment and before the commencement of the trial	Unlimited	60 days
Detention until the end of proceedings in offenses that are not security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: A year Extensions of up to six months each.
Detention until the end of proceedings in security offenses	Two years Extensions of up to six months each.	Minors: A year Extensions of up to three months each. Adults: 18 months Extensions of up to six months each.

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

	Initial detention until being brought before a judge	Detention before indictment	Detention until end of proceedings	"Bridge  Detention " for purpose of filing an indictment
In the Region – Offenses that are not security offenses	48-96 hours	20-75 days	A year + extensions of up to six months each.	Eight days
In Israel - Offenses that are not security offenses	24-48 hours	15-30 days	Nine months + extensions of up to three months each.	Five days
In the Region – Security offenses	96 hours – 8 days	20-75 days	18 months + extensions of up to six months each.	Eight days
In Israel – Security offenses	24-96 hours	20-35 days	Nine months + extensions of up to three months each.	Five days
Minors in the Region – 12-14 years old	24-48 hours	15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 14-16 years old	48-96 hours	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in the Region – 16-18	Like adults: 48-96-8 days	Offenses that are not security offenses: 15-40 days Security offenses: 20-75 days	A year	Eight days
Minors in Israel – 12-14	12-24 hours	20-40 days	Will not be arrested until the end of proceedings	Five days
Minors in Israel – 14-18	24-48 hours	20-40 days	Six months + extensions of up to 45 days each.	Five days

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6^th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

C.A. 358/63

C.A. 362/63

 

State of Israel

v.

Joseph Schwarz and others

 C.A. 358/63

 

Josheph Schwarz

v.

State of Israel and others

C.A. 362/63

 

 

The Supreme Court sitting as a Court of Civil Appeal.

[December 31, 1963]

Before Agranat D.P., Witkon J. and Manny J.

 

 

Tort - vicarious liability of State for acts of assault by its servants - ratification - Civil Wrongs (Liability of the State) Law, 2952, sec. 2.

 

 

Joseph Schwarz sued the State. the Governor of Shatta Prison and several warders for damages for injuries he had sustained from blows whilst under arrest and in prison. Against the State he claimed vicarious liability. In the District Court he was successful on the ground that the acts perpetrated were done by an organ of the State and impliedly with its permission. The State appealed.

 

HELD The State, like every other corporate body, may become vicariously liable in tort for the acts of its servants done in the course of their duties. It may also become liable by express authorization or ratification of acts not coming within such duties.

 

Israel case referred to:

 

(1)        C.A. 176/62 - Ben-Zion Lev and Baruch Bloshinski v, Zahava Tordzman and others (1962) 16 P.D. 2625.

 

English cases referred to:

 

(2)        William Ranger v. Great Western Railway Co. (1854) 10 E.R. 824.

(3)        Lennard's Carrying Co. Ltd.v. Asiatic Petroleum Co. Ltd. (1915) A.C. 705.

 

Mrs. H. Evnor for the appellants in C.A. 358/63.

E. Haetzni for the appellant in C.A. 362/63.

 

 

 Manny J.:       Joseph Schwarz (hereinafter called "the plaintiff") took action in the Tel Aviv District Court, against the state of Israel, the Governor of Shatta Prison and three of its warders claiming a sum of IL. 54,000 for bodily injuries he had sustained from blows by three Israeli police detectives when arrested on suspicion of having committed a crime, and by three of the defendant warders whilst in Shata Prison.

 

Paragraph 2 of the Statement of Claim reads:

 

            "The (State of Israel) is sued for the actions of the following persons

           

(a) the Israel Police, Tel-Aviv District, Central Branch for Surveillance and Detection, three officers of which struck the plaintiff;

 

(b) the Prison Service, Shatta Prison, several members of whose staff struck the plaintiff twice and, together with (the Governor of Shasta Prison) and others, prevented or delayed treatment after he was badly injured."

 

Paragraph 29 of the Statement of Claim claims:

 

"(State of Israel) is liable to pay the sum (claimed) for vicarious liability, since the defendants 2 - 5 are policemen or warders in the State Service and/or (the State of Israel) is their employer. The actions or omissions of defendants 2 - 5, the subject of this action, were effected in the course and within the confines of their service and/or work for (the State of Israel)."

 

            The plaintiff applied by motion for leave to amend the Statement of Claim in two respects:

           

(1)        The addition of the following paragraph:

 

"29a: Further and/or alternatively (the State of Israel) is liable for the injurious acts, the subject of the action, by reason of tortious negligence. Its negligence manifested itself in failing to take sufficient care, and/or not maintaining sufficient disciplinary control over its officers and subordinates (including those responsible for the imposition of discipline) and/or in not taking suitable measures of control over its officers and other subordinates (including those whose task is to exercise control over lower grades) and/or in not suitably supervising its various officers and subordinates (including those whose task is to supervise lower ranks), and/or in not adopting suitable instructive and explanatory methods and/or in appointing officers, commanders, policemen and warders (and senior grades of command in general) who are not suitable to their tasks and/or in leaving such unsuitable functionaries in their posts despite their unsuitability and/or in committing acts or omissions (through its various functionaries, from the Minister of Police and below) which tended to encourage, and in any event did not deter the actions which caused the injuries, the subject of this action."

 

(2)        The addition of the following paragraph to paragraph 29 of the Statement of Claim:

 

"(The State of Israel) expressly authorised the acts of the other defendants before, and alternatively after, the acts, the subject of the action.

 

Such subsequent authorisation was given by a series of acts and omissions by (the State of Israel) which constituted express ratification of the following acts (here appears a long description of the acts and omissions which according to plaintiff's counsel constitute such express ratification)."

 

            The District Court gave the plaintiff leave to amend paragraph 29 of the Statement of Claim "to the extent that he intends to show that the State expressly authorised the actions of the other defendants, before the acts, the subject of the claim", but refused to permit the other amendments.

           

            In allowing these amendments, the court added:

           

"Indeed, it is true to say that this also seems to me superfluous, because I see the State's liability for the beatings during arrest as its act, since the assault was done by people who are regarded as an organ of the State or, in other words, what they did is an act which according to written law, they must carry out with State permission." In the course of his decision the court develops a theory on which to base the above ruling.

 

            Against this decision the State of Israel as well as the plaintiff appealed.

           

            The State asks for the following:

           

(a)   annulment of that part of the court's decision which lays down that an act of assault committed by a warder or State employee, is an act of the State itself, and

 

(b)   in so far as the court's decision is understood to mean that the plaintiff will be permitted to rely on the acts and omissions specified by him for founding the plea of ratification in order also to prove express prior authorisation, a finding that the plaintiff is not entitled to do so.

 

            Let me say at once in relation to this ground of appeal that from reading the District Court's decision and the plaintiff's application for amending the Statement of Claim, no such interpretation arises. From the second particular of the plaintiff's application it clearly seems that the use the plaintiff wants to make of the series of acts and omissions detailed in the application, is merely to create a basis for the plea of "ex post facto authorisation", "the ratification", and the court's decision itself leaves no room for drawing the conclusion that the court indeed allowed use of this series of the acts and omissions in order to prove the plea of express preceding authorisation. I do not think therefore that there is any foundation whatsoever for this ground of appeal.

           

            As to that part of the court's decision in which it lays down and develops the idea that the acts of assault should be regarded as acts of the State because they were committed by people who carry out the duties of a policeman or warder, it seems to me that this idea is basically erroneous since there is no authority for it neither in law or even in the cases.

           

            Section 2 of the Civil Wrongs (Liability of the State) Law, 1952, expressly provides that:

           

"For the purposes of civil liability, the State shall, save as hereinafter provided, be regarded as a corporate body."

 

            It is notorious that a corporate body can act and bear responsibility only through its agents and employees. The liability of such a body for civil wrongs committed by its agents or employees in the course of their work is therefore vicarious liability:

           

Pollock on Torts, 15th ed., p. 51;

Salmond on Torts, 13th ed., pp. 70, 71;

Halsbury-Simonds, Vol. 37, p. 133;

Palmer's Company Law, 20th ed., p. 131;

James, General Principles of the Law of Torts, 1959, p. 34;

Ranger v. Great Western Railway Co. (1854) 10 E.R. 824, 830.

 

            As distinct from such vicarious liability, an incorporated body can also be liable under the well-known principle that whoever authorises or ratifies the commission of a civil wrong by another person is liable as though he himself committed it. (Section II(1) (a) of the Civil Wrongs Ordinance, 1944). But for that, it is necessary that the authorisation or ratification be given by the highest controlling authority of the corporate body or by somebody else to whom the general powers of the corporate body have been transferred. (Salmond on Torts, 13th ed., pp. 70 - 73; Lennard's Carrying Co. v. Asiatic Petroleum (3)) In addition, in the event that the civil wrong is assault, the authorisation or ratification needs to be express (Section 26 of the Civil Wrongs Ordinance).

           

            In applying these rules to the State, it seems to me:

           

(a) that a person who fulfils the function of a policeman or warder in the State, is only an employee or agent of the State and the relations created beween it and them are employer/employee relations, and the State's liability for their acts and omissions is vicarious liability;

 

(b) that the body corresponding to the highest governing authority in a corporate body is the Government.

 

            Hence, in order to impose on the State direct liability for the assaults committed by the policemen and warders, the plaintiff must prove that the Government or someone else to whom it transferred its powers in this matter, expressly authorised or expressly ratified those acts of assault.

           

            And indeed in the application to amend the Statement of Claim, the plaintiff petitioned the court that he should be permitted to amend paragraph 29 by adding the cause of action that "the State of Israel expressly authorised the defendants' actions before ... the acts", and the court granted the application. But it seems to me that the court made a mistake in so doing.

           

            Amendment of a Statement of Claim is not a routine matter allowed anyone who applies for it, but in every case lies in the discretion of the court. When the amendment applied for is the addition of a new cause of action to the Statement of Claim, that cause of action must be pleaded before the court can exercise its discretion.

           

            In the present case, the cause of action was pleaded very vaguely and it was seriously defective; it did not set out how express authorisation was given; it did not set out when and by whom it was given; and thus we know nothing from its wording and contents.

           

            For these reasons, I think, the court erred in the exercise of its discretion and leave should not have been given at all.

           

            The District Court tries to find express authorisation for the acts of assault in regulation 128 of the Prison Regulation, which forbids an officer to hit a prisoner unless forced to do so in self-defence or to prevent his escape. I quote from the court's decision:

           

"Warders and policemen are expressly empowered by the Regulations to apply force, as stated in Section 24 of the Civil Wrongs Ordinance. The only justification is defence, and the State therefore is liable for the assault it expressly authorised, even if the assaulter did not abide by what is provided in the Prison Regulations."

 

            It seems to me that this claim is also mistaken. The authorisation given by regulation 128 above is limited to those cases mentioned in the regulation, and it does not extend to intentional and unjustifiable acts of assault. In order to impose liability on the State for the latter, the plaintiff must prove that there was express authorisation or express ratification for those acts of assault: Lev v. Tordzman (1), and implicit authorisation or ratification would not help him.

           

            For these reasons, I am of the opinion therefore that that part of the District Court's decision should be annulled, in which it determines and reasons that the policemen's or warders' acts of assault are acts of the State itself, and so also the amendment to paragraph 29 of the Statement of Claim that it permitted.

           

            The plaintiff's appeal is against the court's refusal to permit use of acts and omissions detailed in the application for proving "implicit ex post facto authorisation of the acts of assault" and the addition of paragraph 29a to the Statement of Claim.

           

            As to the first complaint, I went into all those acts and omissions which the plaintiff sets out in his application and I could not discover in them any express authorisation for the acts of assault. Therefore, the District Court was correct in refusing to allow their inclusion in the Statement of Claim.

           

            As to the amendment of the Statement of Claim by the addition of paragraph 29a, it seems to me that the District Court was not right in rejecting the application. The cause of action in paragraph 29a is based on negligence. It is absolutely different and separate from the cause of action of assault and its elements are also totally different from the cause of action of assault. In certain cases a duty rests on an employer to see that his employees are competent and suitable. This rule possibly applies also to people employed in the police and prison services, and therefore, prima facie, there was no room for rejecting the plaintiff's application to include that paragraph in the Statement of Claim.

           

            For the said reasons I am therefore of the opinion that we must:

           

(l)    uphold the State's appeal in part, in the sense that that part of the District Court's decision (extending to the end of the decision) is to be set aside in which it holds that the acts of assault can be regarded as acts of the State; and also the amendment which it permitted to paragraph 29 of the Statement of Claim;

 

(2)   uphold the plaintiff's appeal in part, in the sense that the amendment of the Statement of Claim by the inclusion of paragraph 29a should be permitted;

 

3. subject to what was said in (a) and (b) above, to dismiss to State's appeal and the plaintiff's appeal without an order for costs.

 

AGRANAT D.P.:                   I concur.

 

WITKON J.:                           I concur.

 

Appeals allowed in part and dismissed in part.

Judgment given on December 31, 1963.

 

 

CrimA 111A/99

Arnold Schwartz

v.

State of Israel

 

The Supreme Court Sitting as the Court of Criminal Appeal

[June 7^th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, T. Strasberg-Cohen, D. Dorner, D. Beinisch

 

Application to the Supreme Court sitting as the Court of Criminal Appeals for the stay of the execution of a sentence.

 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Legislation cited:

Penal Law 5737-1977, ss. 43, 44, 87, 87(a), 87(c), 345(a)(1), 347(a), ch. 6, sections B, H.

Basic Law: Human Dignity and Liberty, ss. 5, 10.

Basic Law: the Judiciary, s. 17.

Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996, ss. 21(a)(1)(c), 44.

Bail Ordinance 1944. 

Criminal Procedure Law 5725-1965.

 

Draft legislation cited:

Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522.

               

Israeli Supreme Court cases cited:

[1]     RA 7929/96 Kozali and Others v. State of Israel (not yet reported).

[2]     CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel IsrSC 37(1) 477

[3]     FH 16/85 Harrari v. State of Israel, IsrSC 40(3) 449.

[4]     CrimA 757/85 State of Israel v. Harnoi IsrSC 39(4) 292.

[5]     CrimA 1100/91 State of Israel v. Jeffrey IsrSC 47(1)418.

[6]     MAppCrim 2161/92 Fadida v. State of Israel (unreported).

[7]     MApp 123/76 Ikviah v. State of Israel IsrSC 30(3) 223.

[8]     MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel IsrSC 9 673.

[9]     MApp 2/52 Locksner v. Israel Attorney General IsrSC 1(1) 169.

[10] Mot 118/79 Richtman v. State of Israel IsrSC 33(2) 45.

[11] Mot 156/79 Kobo v. State of Israel IsrSC 33(2) 63.

[12] Mot 132/81 Pitusi v. State of Israel IsrSC 35(2) 817.

[13] MApp 430/82  Michalshwilli v. State of Israel IsrSC 36(3) 106.

[14] MApp 10/62 Cohen v.  Attorney General IsrSC 17 534.

[15] MApp 183/80 Sharabi v. State of Israel IsrSC 34(4) 517.

[16] Mot 52/50 Maatari v. Attorney General of Israel IsrSC 4 414.

[17] MAppCrim 166/87 State of Israel v. Azran and Others, IsrSC 41(2).

[18] MAppCrim 2599/94 Danino v. the State of Israel (unreported).

[19] CrimA 8549/99 Ben Harosh v. State of Israel (unreported).

[20] CrimA 3695/99 Abu Keif v. State of Israel (unreported).

[21] CrimA 4263/98 Luabna v. State of Israel (unreported).

[22] CrimA 3594/98 Ploni (John Doe) v. State of Israel (unreported).

[23] CrimA 1050/98 Siamo v. State of Israel (unreported).

[24] MAppCrim 6877/93 Ploni (John Doe) v. State of Israel (unreported).

[25] MApp 28/88 Sussan v. State of Israel (unreported).

[26] MAppCr 4331/96 ElMakais v. State of Israel IsrSC 50(3) 635.

[27] MAppCr 5719/93 Forman v. State of Israel (unreported).

[28] MAppCr 6689/94 Attias and others v. State of Israel (unreported).

[29] MAppCr 8574/96 Mercado v. State of Israel (unreported).

[30] MAppCr 8621/96 Kuzinski v. State of Israel (unreported).

[31] MAppCr 4590/98 Sharabi v. State of Israel (unreported).

1. CrimA 7068/98 Hachami v. State of Israel (unreported).

[33] CrimA 9/55 Yegulnitzer v. State of Israel IsrSC 9 891.

[34] CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel IsrSC 30(1) 57, at p. 75).

[35] MAppCr 3360/91 Abu Ras and others v. State of Israel (unreported).

[36] CrimA 7282/98 Uda v. State of Israel (unreported).

[37] HCJ 6055/95 Sagi Zemach and others v. Minister of Defense and Others (not yet reported).

[38] HCJ 87/85 Argov and others v. Commander of the IDF Forces for Judea and Samaria, IsrSC 42(1) 353.

[39] HCJ 1520/94 Shalem v. Labour Court and others, IsrSC 58(3) 227.

[40] MAppCr 2708/95 Spiegel and others v. State of Israel IsrSC 59(3) 221.

[41] LCA 5587/97 Israel Attorney General v. Ploni (John Doe) IsrSC 51(4) 830.

[42] MApp 15/86 State of Israel v. Tzur, IsrSC 40(1) 706.

[43] MAppCr 537/95 Genimat v. State of Israel IsrSC 49(3) 335.

[44] HCJ 1715/97 the Office of Investment Managers in Israel and others v. Ministry of Finance and others, IsrSC 51(4) 367.

[45] MAppCr 3590/95 Katrieli v. State of Israel (unreported).

[46] MAppCr 37171/91 State of Israel v. Golden IsrSC 45(4)807.

[47] MAppCr 4092/94 Tioto v. State of Israel (unreported).

[48] CrimA 6579/98 Friedan v. State of Israel (unreported).

[49] CrimA 3602/99 Ploni (John Doe) v. State of Israel (unreported).

[50] CrimA 3976/99 Ephraimov v. State of Israel (unreported).

 

American cases cited:

[51] U.S. v. Miller 753 F.2d 19 (1985).

[52] McKane v. Durston 153 U.S. 684 (1894).

[53] Jones v. Barnes 463 U.S. 745 (1983).

 

Canadian cases cited:

1. R v. Demyen (1975) 26 C.C.C, 2d 324, 326.
2. R v. Pabani (1991) 10 C.R., 4th. 381.
3. Mcauley v. R (1997) Ont. C.A. Lexis 3.
4. Baltovich v. R (1992) Ont. C.A. Lexis 257.
5. R v. Parson (1994) 30 C.R. 4th 169.
6. R. v. Farinacci (1993) 86 C.C.C. 32.
7. Cunningham v. Canada (1993) 80 C.C.C 492.
8. Miller v. The Queen (1985) 23 C.C.C 99.
9. R v. Branco (1993) 87 C.C.C 71.

 

Israeli books cited:

1. S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999)

 

Israeli articles cited:

1. S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ Hapraklit 52 (1986) 451.
2. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ The Annual Book for Law in Israel (Tel-Aviv, 1986) 481.

 

Foreign books cited:

1. R. Pattenden English Criminal Appeals 1844-1994 (Oxford, 1996).
2. Stuart Charter Justice In Canadian Criminal Law (Scarborough, 2nd ed., 1996).
3. W.R. LaFave, J.H. Israel Criminal Procedure (St. Paul, 2nd ed., 1992).
4. P.W. Hogg Constitutional Law of Canada (Scarborough, 4th ed., 1997).

 

Foreign articles cited:

1. M. Damaska “Structures of Authority and Comparative Criminal Procedure” 84 Yale L.J. (1974-1975) 480.
2. D.L. Leibowitz “Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984” 54 Fordham L. Rev. (1985-1986) 1081.
3. M.M. Arkin “Rethinking The Constitutional Right To a Criminal Appeal” 39 UCLA L. Rev. (1991-1992) 503.
4. A.S. Ellerson “The Right To Appeal And Appellate Procedural Reform” 91 Colum. L. Rev. (1991) 373.
5. D. Gibson “The Crumbling Pyramid: Constitutional Appeal Rights in Canada” 38 U.N.B. L.J (1989) 1.
6. T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the 1984 Bail Reform Act” 62 Notre Dame L. Rev. (1986) 192.

 

Other:

1. 8A Am. Jur. 2d (Rochester and San Francisco, 1997).

 

 

 

For the Applicant—D. Ronen

For the State —N. Ben-Or, A. Shaham

For the Public Defender-K. Mann, D. Pinto, D. Ohana, R. Yitzhaki

 

JUDGMENT

Justice D. Beinisch

By what standards will an application to stay execution of a prison sentence of a person who has been convicted and whose appeal is pending be considered?  That is the issue brought before us in this application.

The facts in the background of the fundamental discussion before us are as follows:

1.  The applicant was convicted in the District Court in Tel-Aviv-Jaffa of the offense of rape under section 345(A)(1) of the Penal Law 5737-1977 (hereinafter: “the Penal Law”) and for committing sodomy, an offense under section 347(A) of the Penal Law.  Following his conviction, the applicant was sentenced to four years in prison, including three years of actual imprisonment and one year on probation.  The court also ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down the District Court granted the application of the applicant’s counsel and stayed the date of commencement of the sentence by one month.

2.  The applicant appealed the decision to this court.  At the time of the filing of the appeal, his counsel submitted the application before us to stay execution of the sentence imposed on him (hereinafter: “application for stay of execution”).  On 1.21.99 Justice Zamir determined, after hearing the parties’ arguments, that execution of the prison sentence imposed on the applicant would be stayed until a further decision was made on the application.  Justice Zamir noted in his decision that in accordance with the accepted policy of this court as to applications for stay of execution “it is doubtful that it is appropriate, in this case, to stay the commencement of the prison term.”

However, the judge decided that it would be appropriate for the application before him to be transferred to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before a panel.  Justice Zamir explained his decision as follows:

“Lately thought has been given to the accepted policy of this court regarding applications for stay of the execution of imprisonment until the disposition of the appeal.  Various approaches have been expressed by judges in the case law. (See, for example, HCJ 3501/98 Dekel v. State of Israel; CrimA 7068/98 Hachami v. State of Israel).  The doubt as to the accepted policy of the court in this matter has drawn in part from the Basic Law: Human Dignity and Liberty; and in part from the customary practice in certain countries.

It appears to me that it is not appropriate to go on with the present situation, in which each justice considering applications for stay of execution makes a decision according to his world view, and the time has come for this court develop a policy that will be able to guide every judge considering such applications.”

In light of this decision, the President of the Court ordered consideration of the application before an extended panel of nine justices.

3. Before turning to the examination of the substance of the issue which has arisen before us, we must give thought to the preliminary issue that has come up during the course of the consideration of the case, which is the issue of the status of the Public Defender in the framework of the proceedings in this court.   After the application was brought for consideration before an expanded panel, the Public Defender submitted an application before the court entitled “application to submit a written brief as a friend of the court.”  The applicant’s counsel consented to the application and the State opposed it.  On 5.19.99, after hearing the parties’ arguments on the matter, we determined that we would grant the application in such a manner that the Public Defender would be allowed to submit a brief.  We further determined that “the decision whether to affirm the argument itself as well as the decision as to the status of the Public Defender in this case – would be considered by the panel in the judgment.”

The issue of recognition of the institution of “friend of the court” in our legal system in general, and the status of the Public Defender as “friend of the court” in particular, was considered in the judgment of President Barak in RA 7929/96 Kozali and others v. the State of Israel [1].  In his decision on this matter the President distinguished between the question of the authority of the court to order the joinder of a person or entity to a proceeding before it with the status of “friend of the court,” and the question of the discretion the court is to exercise when making the decision on an application to join such a party or person.  In accordance with that decision, the authority to join exists, in principle, and the court must examine in each and every individual case – according to its circumstances – whether it is to be exercised, in consideration of the totality of considerations relevant to the matter.  Such consideration relates primarily to the degree of potential contribution which is entailed in the requested joinder against the concern that such joinder would do damage to the efficiency of the discussion, to the parties and to their rights:

“One must stand guard in this matter and ensure that indeed there is in the joinder of another party to the proceeding a contribution to be made to the discussion itself and the public interest.  One is to examine in each and every case, whether such joinder does not cause damage to the efficiency of the deliberation, to the parties to the dispute and to their basic rights…  Indeed before a party or a person is given the right to express his position in a proceeding to which he is not an original party, the potential contribution of the proposed position is to be examined.  The essence of the applying entity is to be examined.  Its expertise, experience and the representation it affords the interest in whose name it seeks to join the proceeding.  The type of proceeding and its procedure is to be examined.  The parties to the proceeding itself are to be ascertained as well as the stage at which the joinder application was submitted.  One is to be aware of the essence of the issue to be decided.  All these are not comprehensive criteria.  There is not enough in them to determine in advance when it will be appropriate by law to join a party to the proceeding as a “friend of the court,” and when not.  At the same time these criteria must be weighed, inter alia, before such joinder is to be decided upon.” (Ibid. paragraph 45)

The issue that arises before us is a question of general importance in the realm of criminal procedure: it arises and is discussed as a matter of course before courts, and by its nature it is relevant to a broad public of accused persons.  Our discussion of the matter does not primarily focus on the concrete facts of the case, but the fundamental question which arises, inter alia, against the background of lack of uniformity in the law in practice.  In discussion of this type, the Public Defender, whose function by law is the representation of accused persons in criminal proceedings, has a clear interest.  In consideration of the expertise and the experience of the Public Defender in the representation of accused persons, their joinder to the proceedings before us may contribute to the deepening of the discussion and its clarification.  On the other hand, joinder of the Public Defender, at the phase in which the joinder application was submitted, will not burden the administration of the proceedings significantly, as it is merely an interlocutory proceeding in the framework of a pending appeals case.  Taking these considerations into account, we felt that the joinder of the Public Defender to the proceedings before us as “friend of the court” was to be allowed.

Claims of the Parties

4.  In detailed and thorough arguments, the parties laid out before us a broad picture, and supported each of their respective arguments with multiple references.  The sum of the argument of the applicant, joined by the Public Defender, is that the accepted approach in our case law as to the stay of execution of a prison term of a convicted person whose appeal is pending (which we will discuss later at length), is not appropriate and requires renewed examination and change.  According to the applicant’s claim, the law has no provision as to the immediate execution of the prison sentence, but rather the legislature left determination of the commencement of the execution of the prison term to the discretion of the court.  This argument relies on s. 44 of the Penal Law, which establishes that a court that imposes a prison term “may order that the sentence commence from the date it shall determine.”  As to the discretion given to the court to determine the date of commencement of the prison term, counsel for the applicant argues that the court is to adopt a “broadening” policy as relates to applications that deal with stay of execution during the pendency of the convicted person’s appeal on the judgment, in a manner that except for exceptional circumstances – which fall within the grounds for detention pending completion of the proceedings – the execution of the prison sentence will be delayed until the disposition of the appeal.  The applicant’s counsel rests his argument primarily on the status of the right of appeal, whether as a constitutional basic right or whether as a right of recognized central importance in our legal system, and on the presumption that immediate execution of a prison sentence, may, as a rule, harm effective realization of the right of appeal.

The Public Defender claims that the law practiced in Israel today in the matter of stay of execution of prison sentences during the pendency of an appeal is not clear cut; alongside judicial approaches which emphasize the immediate execution of the sentence as a board rule, and the stay of its execution as only an exception, there are to be found in the case law of this court – particularly in recent years – other approaches as well, which tend to broaden the range of cases in which the execution of the prison sentence will be stayed while the convicted person’s appeal is pending.  Thus, argues the Public Defender, even when the judicial rhetoric is seemingly strict in relation to the possibility of stay of an appeal, the application of the rules, in fact, tends to be lenient with applicants for stay of execution of prison sentences during the pendency of the appeal.  It is the argument of the Public Defender, in light of the murkiness as to the law that applies in the matter of stay of execution of prison terms during the pendency of the appeal, that it is appropriate to re-examine the issue.  In the framework of this examination, the Public Defender claims, central weight is to be given to concerns of irreversible harm to human liberty if after the imprisonment of the convicted person it turns out after the fact – once the appeal is heard –that the imprisonment was partially or entirely unjustified.  Thus, the Public Defender claims that the right of appeal as part of due process, is derived from the right to dignity and liberty and as such is a protected constitutional right in the provisions of the Basic Law: Human Dignity and Liberty.  According to the approach of the Public Defender in the framework of the proper balancing between the basic rights of the convicted person and the public interest in immediate enforcement of the judgment, the court, as a rule is to grant applications to stay execution of prison terms until the disposition of the appeal, with the exception of exceptional cases in which there is a reasonable risk of flight of the convicted person from the law, or that the convicted person poses a risk to public safety, or that particularly severe damage to public confidence in the enforcement system is expected.

The State seeks to rebut the arguments of the appellant and the Public Defender.  The starting point of the argument the State brought before us is that it is the directive of the legislature that a prison term is to be executed immediately upon sentencing.  The State learns this from the provision of section 43 of the Penal Law, according to which one who is sentenced to prison will have his prison term calculated from the date of sentencing, unless the court orders otherwise.  Alongside the rule of immediate execution, the legislature granted the court discretion to stay the execution of the sentence to another date, as per section 87(a) of the Penal Law.  The State argues that  the law followed by this court in the matter of stays of execution is stable and clear, and properly balances the various interests involved in the matter, and it is not proper to deviate from it.  According to the State’s approach, the Basic Law: Human Dignity and Liberty has no impact on the matter before us; it is a matter of existing legislation, which is not subject to constitutional review but merely interpretive influence.  Even as to this last issue, there is nothing in the Basic Law  which changes the accepted law followed by this court, according to which execution of the prison sentence will be stayed only in exceptional circumstances; the sum of the argument is that after the conviction of a person criminally, and his sentencing to prison, he no longer benefits from the presumption of innocence and he no longer enjoys the right to freedom from imprisonment.  His liberty has been denied by the judgment of an authorized court which sentenced him, and the question of stay of execution of a prison sentence no longer involves violation of personal liberty which is protected by the Basic Law.  To base this claim the State refers us to the approach of the American and Canadian Law in this matter.  Alternatively, the State claims, that even if the convicted person has the right to liberty which may be violated pursuant to consideration of the stay of the execution of his sentence, then the law that has come forth from this court, as to stay of execution of a prison sentence during the pendency of the appeal, fulfills the constitutional balancing required by the Basic Law.

The   Normative Framework

5. The practice of the law in the matter of the stay of execution of a prison sentence during the pendency of the appeal has developed in the case law of this court from its earliest days.  Tracing the developments in the case law reveals that from the beginning the law developed against the background of what was customary in British common law and this was applied in our system even before the relevant statutes in this matter were legislated, some of them directly, others indirectly.  Eventually, the case law based the law in practice on the construction of the legislated provisions.  Thus it was established that the rule is that a prison term is to be executed immediately and execution of a prison term is not stayed except “in extraordinary circumstances” or if there exist special circumstances which justify the stay.  This rule is anchored in the basic principle of our system, according to which the law is determined at the trial level, in which oral evidence is heard, and in which the facts are determined based on impressions of witnesses.  The level of proof required in a criminal proceeding is high – proof beyond a reasonable doubt – and with the conclusion of the proceeding, once it has been determined that guilt has been proven beyond a reasonable doubt, the convicted person is denied the presumption of innocence.  So too, in our system – unlike the continental system which views the consideration at the trial level and the appeals level as one unit – the appeal is not part of the criminal proceeding; the appeal is an additional proceeding, limited in its scope from the first proceeding since as a rule evidence is not heard during it, and it is a review proceeding.  As background, it must be remembered, that in common law countries, from where we have drawn the fundamentals of our system, determining guilt based on the facts is left to a jury which makes the determination in the trial court.  It appears that this legal structure, according to which one must separate the trial level from the appeals level, has influenced the development of the rule according to which upon the conclusion of the proceeding at the trial level expression is to be given to the punitive result dictated by the conviction.

Relevant Statutory Provisions

6. A number of statutory provisions relate to the matter before us.  Since we are dealing with the execution of a sentence that was imposed on a person after their criminal conviction, we will turn first to Chapter 6 of the Penal Law entitled “Modes of Punishment.”  In Title B of Chapter 6 above,  entitled – “Imprisonment,” there are two provisions relevant to our discussion – section 43 and section 44.  We will bring these provisions verbatim:

 

“Calculation of the Prison Term	43.	One who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise: if the convicted person was free on bail after the sentence, the days he was free will not be counted as part of the period of the sentence.
Postponed Imprisonment	44.	If the court imposes a prison sentence, it may order that the sentence commence from the date it shall determine.”

 

An additional provision which applies in our matter is found in section 8 of chapter 6 above, in section 87 of the statute:

 

“Postponement of Dates.	87	(a)  If a date is established for the execution of a sentence, in one of the sections of this chapter or by the court according to it, the court is permitted to stay the execution to another date.
		(b)  If the execution of the sentence was stayed according to subsection (a), the court may stay it an additional time for special reasons which will be recorded.
		(c)  The court staying the execution of a sentence according to this section may condition the stay on bail or other conditions as it sees fit; the provisions of sections 38 to 40 and 44 of the Criminal Procedure Law, 5725-1967 will apply to bail according to this section with the necessary changes.
		(d)  The court’s decision in accordance with this section is subject to appeal.”

As detailed above, each of the parties before us relied in their arguments on a different one of the three said provisions and regarded it as the relevant legislated framework for determining the date of execution of the prison term.  The state’s construction of section 43 of the Penal Law, according to which, as a rule, and lacking any other determination by the court, the commencement of the prison term begins with the sentencing, is consistent with the construction of said section in the case law.  Thus for example, Justice Shamgar has said regarding the construction of section 43 to the Penal Law, during discussion of a matter different than the one before us (in that matter the elements of the offense of escape from lawful custody were under consideration):

“The origin of the status of  “in custody” is a result of the integration of two significances attached to the sentence that is read to the convicted person: one, and this is the legal one, stems from the provisions of section 43 of the Penal Law, according to which: ‘one who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise…’ 

Meaning, the prison sentence begins to run from the date of the sentence, unless the court has ordered otherwise. . .    According to the simple words and the clear intent of the legislature, the broad rule is that, the prison term begins with the notice of the decision of the judicial authority.”

(CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel [2], at pp. 492-493.  Emphasis added – D.B.).

 

Similar things were stated by Justice Shamgar in FH 16/85 Harrari v. State of Israel [3] during consideration of the question of when the period of probation begins to be counted when extended by the court.

“The guiding rule which arises from the penal law is that, the commencement and the application of the sentence are from the date of the sentence, and that is, if the court has not ordered otherwise.  This is the provision of section 43 of the Penal Law that one who is sentenced to prison, his prison term will be calculated from the date of the sentence, unless the court has ordered otherwise.  The court may order a postponed sentence (section 44 or section 87 of the law above).”

(Ibid. at p. 454 emphasis added – D.B.)

7.  From the above, therefore, one may glean that, as a rule, the date of execution of a prison sentence imposed by the court is immediately upon the imposition of the sentence, unless the court has ordered otherwise.   

Alongside this rule, the legislature determined that the court may stay the date of   commencement of the prison sentence until a date other then the date of the imposition of the sentence.  To this end, all three statutory provisions that were quoted above are relevant.  The discretion given to the court to stay the date of execution of the sentence is learned from the language of section 43 itself (“unless the court has otherwise ordered”).   A separate determination as to this matter is found in section 44 of the Penal Law which is entitled “postponed imprisonment.”  It appears that according to the accepted  construction  of section 43 of the law, there is a certain overlap between the ending of section 43 and section 44.  (And indeed this was the approach of Justice Shamgar in CrimA 757/85 State of Israel v. Harnoi [4]:

“To a certain extent section 44 is no more than a more explicit statement of what was already implied from the determination in section 43. . .” )  As to section 87 of the Penal Law, its application is different from that of sections 43 and 44 at least in two primary areas.  First, section 87 deals with stay of the date of execution of a ‘sentence,’ not necessarily a prison sentence.  Second, section 87 enables the court to order the stay of execution of a sentence it handed down, even at a date after the date of sentencing.  (For the background to the legislation of this section see: CrimA 1100/91 State of Israel v. Jeffrey [5]).

To the statutory provisions mentioned above one must add an additional statutory provision which is also relevant to the matter of stay of execution of a prison term during the pendency of the appeal, and that is the directive established in section 44 of the Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996 (Hereinafter: “the Arrests Law”).  Section 44 above establishes the following:

“Release on Bail by the Court	44	(a)  A suspect who has not yet had an indictment filed against him, an accused or convicted person whose appeal is pending on his judgment and is under arrest or in prison, the court may, upon his application, order his release on bail or without bail.
		(b)  The court may order the accused or convicted  person, whose appeal is pending on his judgment, to post bail, even if it is not authorized to order his detention according to section 21 in order to ensure his appearance in court, and when it has done so, the accused or convicted person will be seen as one who was freed on bail.”

 

On the basis of the language of the section, it does not deal directly with the question of the date of commencement of the prison sentence.  But in fact it is directed at the same practical outcome that is likely to stem from stay of execution of the prison sentence according to sections 43, 44 and 87 of the Penal Law, which is that the convicted person remains free for the duration of  the period of the appeal subject to the conditions that were determined for his release (compare this with section 87 (C) of the Penal Law).  Therefore it has been decided, that the considerations that the court will weigh in an application for release of a convicted person on bail during the pendency of his appeal, will be identical to the considerations taken into account in an application to stay execution of a prison sentence until the disposition of the appeal (see MAppCrim 2161/92 Fadida v. State of Israel [6], stated by Justice Bach; and compare: MApp 123/76 Ikviah v. State of Israel [7].

With the exception of section 44 of the Arrests Law, there is nothing in the abovementioned sections of the law, in their language, which relates to the situation of stay of execution of a prison term specifically during the period of appeal, rather they are phrased in a broad manner without details as to  the grounds for the stay.  As a result of the multitude of sections in the law which relate to the matter, applications to stay the execution of prison terms for the pendency of the appeal are considered  by the appeals court in the framework of a number of procedural “tracks” whether as an application to stay execution according to section  87 of the Penal Law and its sections or whether as an application to be released on bail.  As stated above, the considerations that will be weighed by the Court in each of the above cases will generally be identical, although the issue of the relationship between the various “tracks” is not entirely clear.  It is interesting to note that in foreign legal systems, which we will discuss later, the issue which is the subject of our discussion is dealt with in sections of the law which deal with the release on bail during the pendency of the appeal of a person who was convicted and sentenced to prison, and in foreign literature and case law it is generally discussed under the title of “release on bail pending appeal.”  It is also to be noted that most of the initial decisions of the Supreme Court in which the accepted rules for stay of execution of the prison sentence were formulated were decided in applications to be freed on bail during the pendency of the appeal in accordance with the Bail Ordinance 1944 (which was cancelled in 1965 with legislation of the Criminal Procedure Law).  What is important for our purposes is that in not a single one of the law’s provisions which enable the court to stay or postpone the date of commencement of the prison sentence, did the legislature detail the considerations which will guide the court in its decision, including where an appeal on the conviction filed by the convicted person is at the foundation of the request to stay execution.  These considerations have been determined by the courts working within the framework of the authority given to them by the legislature, and we will turn to this now.

The Court Rulings in this Matter

8.  The construction that was given in the case law of this court  to legal provisions which give the court authority, with discretion, to stay the execution of the prison sentence or to release the convicted person on bail, during the pendency of appeal, was narrow.  The rule that was established was that a person who was convicted of a criminal offense, and who was sentenced to prison, would begin by serving his sentence immediately after the imposition of the sentence.  The rule that was established was that the cases in which execution of the prison term would be stayed  due to the filing of an appeal, would be “extraordinary” cases where “special circumstances” exist which justified it.  Among the many references for this approach (hereinafter for convenience we will call it – “the accepted approach”) we can bring the words of the Justice S.Z. Heshin in MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel [8].

“When the court comes to discuss the question whether it is appropriate to release on bail a person that has already been convicted but his appeal has not yet been heard, it is not entitled to ignore the determining fact that there is already a judgment against the applicant which sentenced him to prison, and only in extraordinary cases will the court or the judge hearing the application grant the request.”

(Ibid.).

(see also MApp 2/52 Locksner v. Israel Attorney General  [9]; Mot 118/79 Richtman v. State of Israel [10] at p. 47, 169; Mot 156/79 Kobo v. State of Israel [11] at p. 64; Mot 132/81 Pitusi v. State of Israel [12] at p. 819; 430/82 MApp Michalshwilli v. State of Israel [13] at  p. 107; This approach is similar to the English law in this matter see R. Pattenden, English Criminal Appeals 1844-1994 (Oxford, 1996) [66]112).

The primary reason mentioned in the case law for not staying the execution of a prison sentence during the pendency of the appeal is that with the conviction of the convicted person with the offense with which he is accused, the presumption of innocence from which he benefited until that time dissipates.  In the words of Justice Agranat:

“. . . the rule is, that prior to the conviction the person is presumed to be innocent, whereas after the conviction, the necessary presumption must be -- until it has been decided otherwise on appeal -- that he is guilty of the offenses of which he was convicted, and therefore a person will not be freed on bail at this stage, except under extraordinary circumstances.”

(MApp 10/62 Cohen v.  Attorney General [14] at p. 535).

In other decisions emphasis was placed on the existence of an authorized judicial decision which denies the convicted person's freedom, and which is valid and presumed to be legitimate as long as it has not been changed by the appeals court:

"It appears to me that in principle the determining element in this distinction (between the arrest of a person who has been convicted but not yet sentenced, and the stay of execution of a prison sentence that was imposed-- D. B.) is not  a suspect's innocence or conviction, but rather the phase at which he was convicted and sentenced, meaning the existence of a judicial decision as to denial of his liberty for the period of time detailed in the sentence.  The conviction in and of itself -- without a sentence of imprisonment -- does not constitute a "red line" between the two situations, and does not constitute but one consideration, although a weighty and serious one, in the totality of regular and accepted considerations in the consideration of the arrest of a person who has not yet been convicted."  (MApp 183/80 Sharabi v. State of Israel [15] at p. 519 emphases added -- D.  B.).

The case law mentions an additional reason for immediate execution of the sentence, except in extraordinary cases, and that is the threat of injury to public safety if the convicted person is freed during the period of appeal.  Justice Zemora discusses this in the first case in which the matter came up before this Court:

“The rule is: as to a person who was convicted and punished lawfully, public safety is to be preferred over the possibility that perhaps the convicted person will be acquitted in the appeal and it will turn out that an innocent person sat in prison.”  (Mot 52/50 Maatari v. Attorney General of Israel [16], at p. 416).

Alongside the concern for public safety the case law has recognized an additional public interest which is at the basis of the rule of immediate execution of a prison sentence, and that is the interest that is grounded  in effective enforcement of the criminal law and deterrence of potential offenders. (See MAppCrim 166/87 State of Israel v. Azran and Others [17]).

9.  As stated above, alongside the rule -- immediate execution of a prison sentence -- the case law has recognized exceptions which exist under those "special" or "extraordinary" circumstances in which it would be justified to stay the execution of the prison term despite the considerations that were detailed in previous case law.  These circumstances, in summary, are: when the conviction is for an offense that is not serious or where the circumstances of its commission are not serious; when the period of arrest which was imposed on the convicted person is short, relative to the time frame in which the appeal is expected to be heard, and there is a concern that until the determination of the appeal the convicted person will serve his entire punishment or a significant part of it; when there is a blatant possibility that the appellant will be successful in his appeal because of a manifest distortion on the face of the decision.  Justice Zamir summarized the accepted approach as to the stay of execution of a prison term as follows:

“the rule as to stay of the execution of a prison sentence was formulated some time ago, it was summarized clearly in Mot 156/79  Kobo v. State of Israel [11] and we still follow it.  The main points of the law, very briefly, are as follows:

A) The determining rule is that a person who has been sentenced to prison must begin serving his sentence immediately.  One does not stay execution of the prison sentence except "under extraordinary circumstances" or if there are "special circumstances" which justify a stay.

B) The special circumstances that are sufficient to justify a stay of execution are generally these: an offense that is not serious; a short prison term; a chance the appeal will be granted.  As to the chance that the appeal will be granted, it is necessary that in the convicting decision there is a clear distortion, or that there is a  pronounced  likelihood of success in the appeal.  To this end,  it is not necessary to examine in a detailed and concise manner the facts and reasoning on which the judgment is based.  It is necessary that the issue is apparent on the face of the decision.

Generally, the fact that the applicant was free on bail until his sentence was imposed, the fact that he does not constitute a serious risk to public safety, and that his family situation or business situation are difficult, are not sufficient to justify a stay of execution (MAppCrim 2599/94  Danino v. the State of Israel [18]).

This in fact has been the accepted law for many years, and justices in this Court follow it today as well (see for example, from among the many decisions, the following decisions: CrimA 8549/99 Ben Harosh v. State of Israel [19]; CrimA 3695/99 Abu Keif v. State of Israel [20]; CrimA 4263/98 Luabna v. State of Israel[21]; CrimA 3594/98 Ploni (John Doe) v. State of Israel [22]; CrimA 1050/98 Siamo v. State of Israel [23]; MAppCrim 6877/93 Ploni (John Doe) v. State of Israel [24]).

10.  Alongside the accepted approach as to stay of execution of a prison term during the pendency of appeal, another approach has developed over the years, which tends to be more flexible with the conditions for stay of execution until the disposition of the appeal of the convicted person.  The development of the broader approach has brought with it various grounds to justify the stay of the execution of the prison term and the freeing of the convicted person on bail until the conclusion of the hearing of the appeal, and the breaking out of the narrow framework of postponement of execution as only an exception.  This approach has been expressed in the words of Justice Bach in MApp 28/88 Sussan v. the State of Israel [25]:

“Personally,  I believe that if the convicted person’s chances of  winning the appeal seem good on the surface, and if in taking into account all the rest of the circumstances, such as the convicted person's criminal history and the danger that he poses to the public, there is no special reason for his immediate imprisonment, then the court is entitled to favorably weigh his release on bail until the appeal. . .  I also cannot entirely ignore the fact that it is a matter of a person with an entirely clean history,  that there is no apparent danger to be expected from him if execution of the sentence is stayed.  On the other hand, there is a risk, that if he is immediately arrested, and if he later wins his appeal, a result which as I stated, does not appear unreasonable, then he will serve a significant portion of a sentence which will later turn out to have been imposed unjustifiably.  In my opinion there is also a difference regarding a decision such as this between a defendant who was free on bail for the entire time before the judgment was handed down by the trial court, and a defendant that was detained pending the completion of the proceedings and seeks  now, after he has been convicted, to be freed from prison until his appeal is heard."

See also the decision of Justice Bach in MAppCr 4331/96 ElMakais v. State of Israel [26]; the decision of Justice Bach in MAppCr 5719/93 Forman v. State of Israel [27]; see also the decision of Justice Tal in MAppCr 6689/94 Attias and others v. State of Israel [28] which mentions the decision in Sussan in agreement above).

A different approach to the stay of execution of a prison sentence during the pendency of appeal in comparison to the accepted approach, has been expressed in the decisions of Justice Strasberg-Cohen in MAppCr 8574/96 Mercado v. State of Israel [29]; MAppCr 8621/96 Kuzinski v. State of Israel [30]; and MAppCr 4590/98 Sharabi v. State of Israel [31].  In these decisions Justice Strasberg-Cohen  reiterated that the rule is that the convicted person must serve the prison sentence immediately when it is imposed.  However, the Justice emphasized the need, in each and every case, to balance, in accordance with the circumstances and characteristics, the considerations and various interests involved in the matter of the stay of execution, while avoiding establishing rigid and limited categories of cases in which the imprisonment will be stayed until disposition of the appeal.  This is how this approach was presented by Justice Strasberg-Cohen in her decision in the Mercado case above:

"Indeed, it has been an accepted rule for us from long ago that a defendant who has been convicted, must serve his sentence as soon as it is imposed.  The reasons for this rule are well and good, both in the individual realm and in the public realm.  A person who is convicted and a prison sentence was imposed upon him is no longer presumed to be innocent and the very fact of his filing of an appeal does not reverse things and does not does put in the hands of the appellant a given right to stay his sentence.  As long as it has not been established otherwise on appeal, the convicted person is considered guilty by law and he must pay the price for his actions.  However, a conviction does not constitute the end of the matter.  The law has put in the hands of a person lawfully convicted, the right of appeal, which if he takes advantage of, will put his conviction and the punishment that was imposed on him, under the scrutiny of a higher court and only after the appeal is heard will the court have its final say.  We are faced with a clash between various interests worthy of protection.  On the one hand, the convicted defendant must pay the price for the deeds for which he was convicted and serve his punishment without delay, and the legal system must take care that the sentence is implemented immediately.  On the other hand, society must take care that a person does not serve a punishment of imprisonment for nothing, and that his liberty is not taken away from him when at the completion of the proceeding, he may be acquitted.  In my opinion, it is preferable to stay the prison term of ten defendants whose appeal was denied, rather than have one defendant serve his prison term, that it later turns out he did not have to serve.  However, it is not sufficient to merely file an appeal to bring about the stay of execution of a prison sentence, for if you would say so, then every prison sentence should be stayed, and I do not believe that it is correct to do so.  In order to find the right balance, we have at our disposal tools that we can use to measure and weigh all the relevant considerations and conduct a proper balancing between them."

A more sweeping approach which calls for a change in the accepted rules in the matter of stay of execution of prison terms during the period of appeal, is to be found in the decision of Justice Ilan in CrimApp 7068/98 Hachami v. State of Israel [32].

“I believe that the time has come to review the rule that a person should serve their sentence, even in if they have filed an appeal.  The reason for this is, that after the defendant has been convicted and is no longer presumed to be innocent it is proper that he serve his sentence as close as possible to the commission of the offense and the more the date is postponed -- the less efficient the punishment.  Despite this, everyone agrees that in the case where a relatively short prison term has been imposed, the execution of the punishment is to be deferred until the disposition of the appeal, lest the appellant serve his entire sentence by the time the appeal is heard.  This is also the position of the prosecution.  In my humble opinion the concern here is not just that perhaps a person will serve their entire sentence and then be acquitted.  Even a person who has been sentenced to six years in prison and serves two years by the time he is acquitted on his appeal has suffered an injustice despite the fact that  four years that he will not serve remain.

. . .  

In my opinion, the rule must be that a person should not serve their sentence until the judgment is final, unless there is a serious concern that it is not possible to guarantee that he will appear to serve his sentence or that he poses a danger to the public."

(Emphasis added -- D.  B.)

In addition to the decisions mentioned, which express each in its own way a deviation from the accepted approach, it is possible to point to decisions of the court which do not explicitly deviate from the position above, but in fact broaden the circumstances in which execution of a prison term is stayed.  From various decisions of justices of this Court there appears to be a tendency at times to take into consideration the fact that the applicant was free on bail during the course of his trial, his clean history and other personal circumstances.  Moreover, many of the decisions that were handed down do not give weight to the appeal’s chances of success and do not apply the test of "the chances of success of the appeal are apparent on the face of the judgment."  These decisions to a certain degree changed the normative picture of the situation in this matter as it appears in fact.  The Public Defender tried to persuade us with its arguments and the data presented, that in fact the courts have abandoned the guiding rule as to the immediate execution of a prison sentence, even if they avoided declaring a new policy.  It is difficult to reach this conclusion from the data that the Public Defender presented before us; this data relates primarily to decisions on appeal in the district courts that deal with relatively short prison terms that were imposed in the trial courts, and do not necessarily lead to the conclusions which the Public Defender reached.  However, it can be said that in the judgments of this Court there exists in point of fact a process of greater flexibility in the accepted approach and a broadening of the range of cases in which prison terms are stayed until the conclusion of the hearing of an appeal filed by the convicted person.

Stay of Execution of a Sentence of Imprisonment During the Period of the Appeal-Discussion

11. The first question we must ask is, is there a justification for re-examining the rules that apply in the matter of stay of execution of a prison sentence during the pendency of the appeal?  It appears that a re-examination is justified as described in the decision of Justice Zamir in the matter before us; from the details of the decisions mentioned above it appears that indeed there have been breaks in the accepted approach in the matter of stay of execution of a prison sentence during the pendency of the appeal and a certain lack of clarity has developed in light of the various approaches apparent in the case law of this court.  Moreover, the law  in the case, that was first developed about 50 years ago, grew against the backdrop of British law and developed in a normative environment in which significant changes have occurred over the years.  Among other thing significant changes have occurred in the areas of criminal law and process, the Basic Law: Human Dignity and Freedom was passed and there has been development in the status of the right of appeal.  These changes in the substantive law have practical ramifications, which indirectly impact the matter before us.  Thus, for example, the change that occurred in the  law of arrests with the passing of the Arrests Law influenced not only the fundamental realm, but also increased the number of accused who are released on bail during their trial; a fact which has increased the number of accused who at the stage of decision on an application to stay execution are being denied their freedom for the first time.  This re-examination is necessitated therefore, in light of the changes that have occurred in our law over the years, which justify examining the validity of the law against the backdrop of the normative reality of our own time.  We will turn to this now.

12. As a starting point for our discussion we are guided by the statutes which apply to the matter of stay of execution of a prison sentence during the pendency of the appeal.  As has been said above, section 43 of the Penal Law,  as it has been constructed  in case law,  establishes that a prison sentence is to be executed immediately upon sentencing, unless the court has ordered otherwise.  Decisions of this court in which it has been determined that the rule is that imprisonment during the period of appeal is not to be stayed except in special and extraordinary circumstances, apparently is consistent with the general guideline that arises from the language of section 43 as to the immediate execution of imprisonment.  However, it must be emphasized that the case law that determined the law in this case, was not generally anchored in statutory language.  It can even be said that such law is not necessarily to be concluded  from the language of the statute.  From the version of the section and its legislative placement it can be concluded that it establishes a general guideline as to the date of the execution of the sentence and the manner of calculation of the prison term, and is not exclusive to the circumstances of filing an appeal on the judgment.  In other words, the section applies to the sentencing phase and by the nature of things does not distinguish in the matter of  the date of execution of the sentence between a situation where an appeal has been filed and other situations.    As to sections 44 and 87 of the Penal Law, they too do not explicitly relate to the question of stay of execution of the sentence during the pendency of appeal; section 44 was originally intended to give the court authority to establish in the sentence, a later date for execution of the prison term, while the aim of section 87 of the Penal Law is to grant the court the authority to stay yet again the date of execution of the prison sentence  (see Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522 at p. 246, an amendment that was legislated as a result of CrimA 9/55 Yegulnitzer v. State of Israel [33], in which it was established that the court does not have the authority to stay the execution of a prison sentence from the moment that a date has been set for the commencement of its execution).  It may, therefore, be said that section 43 and sections 44 and 87 of the Penal Law do not delineate a framework that  limits the courts to stay of the execution of the sentence during the pendency of the appeal exclusively to “special” or “extraordinary” cases.

As can be seen from the above, the provisions of the Penal Law do not relate explicitly to the stay of execution of a prison sentence upon the filing of an appeal on a conviction.  However, when we come to examine the effect of filing an appeal on the date of execution of the sentence, we must take into account the accepted essence of the appeal process in our legal system.  According to our system, as opposed to what is customary in other Western European countries, the appeal in its essence is a separate process of review of proceedings that took place in the lower court.  In the European system, it is the principle of “double instances” according to which the two proceedings are handled as one unit, and the party is entitled to have both instances consider his case both from the legal and factual perspectives, that is accepted.  Because the process is not based to begin with on hearing oral evidence, the appeals court is not limited in receiving additional evidence, and as a rule the lower court does not have an advantage over the appeals court.  Apparently, for this reason, filing an appeal normally stays the execution of the decision of the lower court until the conclusion of the appeal proceedings.  We have already stated that unlike the European system, according to our system, when the proceeding in the lower court is completed the accused’s matter is decided by an authorized court, after having heard evidence and after having examined it by the stricter standard that is required in a criminal proceeding, and with this the conviction phase is complete.  Accordingly, the fact of realization of the right of appeal to an appeals court – which is the court of judicial review  -- does not necessitate stay of execution of the sentence, but rather at that phase it is necessary to express the consequences necessitated by the conviction, including execution of the sentence.  (for the difference between the two systems see S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999) [63] at pp. 30-33, 185-186; and see  M. Damaska ‘Structures of Authority and Comparative Criminal Procedure’ [70]at 489-90).

Stay of the execution of the sentence is not therefore necessitated by the very filing of the appeal, and is a matter given over to the discretion of the court.  When the application is made at the sentencing hearing it is decided by the court imposing the punishment: when the stay is requested after the appeal is filed, the decision is in the hands of the appeals court.  The court which imposes a prison sentence and decides to stay the execution of the sentence takes into account circumstances related to the defendant and the offense and among other considerations may take into account the need to enable the defendant to file an appeal.  After filing an appeal on a decision in which a prison sentence was imposed, the appeals court has another consideration which can influence the range of considerations which relate to the date of execution of the prison sentence.  The decision as to the stay of the execution of the prison sentence during the pendency of the appeal will take into account, apart from the broad rule as to immediate execution of the prison sentence also special considerations which relate to the existence of a pending appeal on the decision.  Therefore, even if from the statutory clauses we learn a broad rule of immediate execution of the sentence, still the fact of filing an appeal can influence the manner of exercise of the discretion of the court as to the stay of execution of the sentence in accordance with the authority given to it by law, and it may change the balance between the various considerations entailed in the question of the date of commencement of execution of the prison sentence.

13. As a rule, exercising discretion as to deciding the question of stay of execution of a prison sentence entails a balance between considerations which relate on the one hand to the public interest, and on the other, to the interests of the individual involved.  Filing an appeal brings in further considerations which are also related to both public and private interests.  The proper balance of the totality of considerations related to the issue will determine in which cases the convicted person-appellant will begin to serve his sentence immediately, and in which cases execution of the sentence will be deferred until the disposition of the appeal.

There is no doubt that the broad rule regarding immediate execution of a prison term rests on the public interest of effective enforcement of the law.  This interest has several aspects: first, release of a person who has been convicted of a criminal offense may endanger public safety and security; this is particularly so when it is a matter of someone who was convicted of an offense that by its nature and the circumstances of its commission indicates a risk.  Second, release of a person sentenced to prison, may undermine execution of the sentence due to the flight of the convicted person from the law, and in certain circumstances of a pending appeal there may also be the fear of obstruction of justice.  It would appear that these aspects of the public’s interest in immediate enforcement are not in question.  They are learned a fortiori from the law of detention pending completion of the proceedings which enable denying the liberty of a person who enjoys the assumption of innocence where there is a reasonable basis for their existence.  When it is a matter of a person who has been convicted and sentenced, the weight of such considerations intensifies; it is a matter of a person who no longer enjoys the presumption of innocence, but is in the realm of a criminal who has been convicted and against whom a prison sentence has been imposed.  This fact can have an impact both on assessing the danger of a person, as we are no longer basing this on prima facie evidence but rather on a reliable  judicial determination that has been made on the basis of a foundation of the more stringent rules of evidence of criminal law, and on the fear of flight from the law, due to the concrete and real threat of imprisonment.

The public interest in immediate enforcement of imprisonment has an additional aspect, which relates to the need to enact effective action of the law enforcement mechanisms while maintaining public confidence in them.  The stay of the execution of a prison sentence may cause a large time delay between the date of the sentencing and the date the sentence is served, during which time a convicted person will be free to walk about.  This has the potential to damage the effectiveness of criminal punishment, as “the more time that passes between the commission of a crime or the discovery of a certain crime and the time the criminal is convicted, the lesser the deterring influence of the punishment imposed on others which may be offenders like him.” CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel [34] at p. 75).  When a person who has been convicted of a crime and sentenced to prison walks about freely just as before, the deterrence of potential offenders may be hindered.  Justice Winograd discussed this in MAppCr 166/87 State of Israel v. Azran and others [17]).

“An incident such as this has an echo, and the release of the respondents, after they have been convicted, has or may have, a damaging effect, on potential offenders, who will mistakenly believe, that even though John Doe was convicted of rape, he is walking around free as though nothing happened.” (Ibid. at p. 810). 

Justice Dov Levin has also discussed the deterrence consideration:

“The starting point is that there is a presumption that he who has been convicted by the court of first instance is no longer presumed to be innocent and must be held accountable for his actions.  An unnecessary delay which is not necessitated by special reasons damages the deterrence aspect of the punishment.”  MAppCr 3360/91 Abu Ras and others v. State of Israel [35] (emphasis added D.B.)

 

See also the words of Justice Türkel in CrimA 7282/98 Uda v. State of Israel [36]:

“It is a matter of serious offenses and there is significance to the fact that it will be said that he who was convicted of their commission will be held accountable for them immediately after sentencing or closely thereafter.”  Moreover, public confidence in law enforcement authorities and the effectiveness of their actions, may be damaged as a result of the release of offenders who have been convicted and sentenced.  Before legislation of the Arrests Law, there was debate in this court whether considerations of deterrence and public confidence were relevant consideration in decisions as to detention pending completion of the proceedings in serious offenses.  But it is commonly accepted opinion that at the phase following overturn of the presumption of innocence, when a person’s guilt has been determined and his sentence passed, considerations related to deterrence and maintenance of the effectiveness of criminal punishment are relevant and proper.  These considerations are also relevant in the framework of exercise of discretion as to stay of execution of a prison sentence during the pendency of the appeal.  Similar considerations, related to deterrence, effective enforcement and fear of harm to public confidence in law enforcement systems as a result of the release of offenders after conviction and while their appeals are heard, we also find in the case law of other countries whose systems are similar to ours.  Thus, for example, in U.S. federal law emphasis has been placed on the element of deterrence in the framework of considerations related to the possibility of release on bail after conviction and until the disposition of the appeal.  This consideration was one of the considerations which was at the basis of the legislation of the Bail Reform Act of 1984 which made the conditions for release of convicted persons on bail during the period of appeal significantly harsher than  prior law.  (See U.S. v. Miller [51]; D. L. Leibowitz Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984 [71] 1081, 1094).

In Canada, as in the United States, the issue of stay of execution is legislated in the framework of statutes regarding the release of a convicted person during the period of appeal.  Section 679(3) of the Canadian Criminal Code establishes the conditions for release during the period of the appeal.  Subsection (c) conditions the release of a convicted person during the appeal, inter alia, with the fact that “His detention is not necessary in the public interest."  The appeals courts in several Canadian provinces interpreted the above condition as including, inter alia, the consideration of the impact of the release of the convicted person on public confidence in the law enforcement systems.

“I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence and respect for the Court and for the administration and enforcement of the criminal law.”  (R v. Demyen [54])

For additional judgments in which a similar approach was adopted see R v. Pabani [55]; Mcauley v. R [56]; Baltovich v. R [57].

It should be noted that in Canadian case law there are also other opinions which emphasize, in the framework of the “public interest” test, the fear of “pointless imprisonment.”  Lacking case law of the Canadian Supreme Court on the matter, it appears that the more accepted approach is the one presented in the Demyen case above: “At this point, it is seen to be an intelligible standard under which to maintain confidence in the administration of justice” (D. Stuart Charter, Justice In Canadian Criminal Law (2nd ed., 1996) [67] 357).  It should be commented that the approach which emphasizes the importance of the public interest in immediate enforcement of the prison term was expressed in the Demyen case above and in other cases in relation to serious offenses of violence.

14. As said, the public interest with its various aspects, including considerations of deterrence, effectiveness and protection of  public confidence in the law enforcement system, still hold when we are discussing the matter of stay of execution of a prison sentence during the pendency of the appeal.  However, where there is an appeal of a decision in which imprisonment has been imposed, the fear of damage to the public interest and the weight it is to be given is of a more complex nature.  Against the considerations we have listed above, there stands the need to avoid irreparable and significant damage to the convicted party due to his immediate imprisonment, if it turns out after the fact – after his appeal was heard – that his imprisonment was not justified.  The severity of such injury is not to be underestimated.  “. . .denying his personal liberty is a particularly harsh injury.  Indeed,  denying personal liberty by way of imprisonment is the most difficult punishment that a civilized nation imposes on criminals.”  (In the words of Justice Zamir in HCJ 6055/95 Sagi Zemach and others v. the Minister of Defense and Others [38] in paragraph 17)  Such an injury is not just the business of the individual but touches on the interests of the general public; the clear public interest is that people who will eventually be declared innocent in a final judgment not serve time in prison.  Moreover, the public confidence in legal systems and enforcement may be severely injured if it turns out after the fact that the prison time served was not justified.  Justice Strasberg-Cohen pointed this out in MAppCr 4590/96 (Mercado) [31] above:

“Indeed as a rule, the accused who is convicted is to serve his sentence without delay and is not presumed to be innocent, non-immediate execution is likely to damage public confidence in the system, however, the acquittal of a convicted person on appeal after he has served a prison sentence that was imposed on him, may damage public confidence in the system, no less so.”

A similar approach was expressed in Canadian case law:

“Whatever the residual concerns which might cause individuals to question their confidence in a justice system which releases any person convicted of murder pending appeal, they would, in my view, pale in comparison to the loss of confidence which would result from an ultimate reversal of the verdict after Mr. Parsons had spent a protracted period in prison." (R v. Parson [58]).

15. Realization of the right of appeal which is given to the convicted person by law is also a consideration which the court must take into account when determining the question of stay of execution of a prison term.  In order to determine the matter before us I do not find it necessary to make a determination as to the weighty question of the legal status of the right of appeal.  I will note only that the claim of the applicant’s counsel in this matter that from the very anchoring of the right of appeal in section 17 of the Basic Law: the Judiciary, the conclusion is to be drawn that it is a matter of a constitutional basic right that cannot be limited except in those cases where there are grounds for detention, is far reaching and not to be accepted.   The question of the normative status of the right of appeal in our system is not a simple question and it has already been determined more than once in the case law that the right of appeal is established by law and is not included among the basic rights in our law, as determined by Justice Shamgar in HCJ 87/85 Argov and others v. the Commander of the IDF Forces for Judea and Samaria [38].

“The right of appeal is not counted among the basic rights that are recognized in our legal system which draw their life and existence from the accepted legal foundational concepts, which are an integral part of the law that applies here, as in the examples of freedom of expression or the freedom of occupation.” (Ibid. at pp. 361-362).

This court in fact did not recognize the right of appeal as a basic right, but the case law has emphasized the great importance of the institution of appeal “as an integral component of fair judging.” (See the High Court of Justice case, Argov above).  In light of the importance of the right of appeal it has been decided that an interpretation which grants the right of appeal is to be preferred over an interpretation which denies it.  (See HCJ 1520/94 Shalem v. The Labour Court and others, [39] at p. 233; MAppCr 2708/95 Spiegel and others v. State of Israel [40] at p. 232).  The Basic Law: Human Dignity and Freedom does not explicitly recognize the right of appeal.  The question whether it is possible to recognize a constitutional right of appeal among the protected rights in the Basic Law: Human Dignity and Freedom has not yet been considered in the case law.  Various possibilities can be conceived for anchoring the right in the Basic Law, whether as derivative of rights explicitly detailed in the Basic Law (in our matter – the right to liberty and perhaps dignity), and whether as stemming from the principle of proportionality in the limitation clause (meaning: defining the violation of liberty, property and more without first having an appeals process, is a violation “that exceeds that which is necessary.”  Compare to the words of Justice Or – as to the right to a fair trial – in LCA 5587/97 Israel Attorney General v. Ploni (John Doe) [41] at p. 861).  On the other hand, a view has been expressed which objects to the recognition of the right of appeal as a right that is derived from the Basic Law, although in discussion of the civil aspect, primarily for pragmatic reasons and taking into consideration the characteristics of our legal system (see S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ [64] at pp. 462-463, and the discussion in his book supra at pp. 30-33).  It is interesting to note that in legal systems close to ours the right of appeal is not recognized as a constitutional right; it is not explicitly mentioned in the United States Constitution or the Canadian Charter of Rights and Freedoms, and to date has not been recognized as part of the constitutional right to due process.  (See; McKane v. Durston [52]; Jones v. Barnes [53]; W. R LaFave Criminal Procedure (2nd. ed., 1992) [68] 1136-1137).  Although voices calling for a re-examination of the law in this matter have been heard (See: in the United States – the minority opinion of Justice Brennan in the Jones case above; M. M. Arkin ‘Rethinking The Constitutional Right To a Criminal Appeal’ [72]; A.S Ellerson ‘The Right to Appeal and Appellate Procedural Reform’ [73]; in Canada see D. Gibson ‘The Crumbling Pyramid: Constitutional Appeal Rights in Canada’ [74]; R v. Farinacci [59].

As noted above, whether the right of appeal is recognized in our legal system as a basic right or not, there is no arguing its significant weight  in our system.  For the purpose of the matter which we are discussing – determining the discretion for stay of execution of a prison sentence in the framework of existing legislation – it is enough that we give thought to the rule of construction anchored in case law according to which an interpretation which gives the right of appeal is to be preferred over one that denies it.

16.  These are therefore the considerations and interests which are involved in exercising the court’s discretion in the stay of execution of a prison sentence, considerations which relate to both private individuals and the general public interest.  The court must exercise its discretion while conducting a proper balance among these considerations.  In the framework of conducting this balance special weight is to be given to the fear of unjustified violation of liberty.  The right to liberty has been recognized by this court as a basic right of the highest degree, that is to be respected and violation of it to be avoided to the fullest extent possible.  (See MApp 15/86 State of Israel v. Tzur [42] at p. 713 Justice Elon; The Judgment of Justice Heshin in MAppCr 537/95 Ganimat v. State of Israel [43] at 400-401).  Today the right to liberty is anchored in section 5 of the Basic Law: Human Dignity and Liberty.  The statutory provisions which we discussed above, which delineate the matter of stay of execution of a prison term, were in fact legislated before the legislation of the basic law and thus the provisions of the Basic Law cannot impinge on their validity (section 10 of the Basic Law: Human Dignity and Liberty).  However, the normative determination in the Basic Law, which defines the right to personal liberty as a constitutional right and which draws the balancing point between it and the various interests which society seeks to advance, influences the legal system overall; the significance of this influence, among other things is that the court’s interpretive work, as well as any exercise of discretion given to the court in the framework of existing legislation, will take place while taking into consideration the norm anchored in the Basic Law.  President Barak discussed this in the Genimat case above:

“What are the interpretive ramifications of the Basic Law: Human Dignity and Liberty for interpretation of old law?  It appears to me that one can point –without exhausting the scope of the influence – to two important ramifications of the Basic Law: first, in determining the statutory purpose at the core of an (old) statute, new and intensified weight is to be given to the basic rights established in the Basic Law.  Second, in exercising governmental discretion, which is anchored in old law, new and intensified weight is to be given to the constitutional character of the human rights anchored in the Basic Law.  These two ramifications are tied and interlaced with one another.  They are two sides of the following idea: with the legislation of the basic laws as to human rights new reciprocity was drawn between an individual and other individuals, and between the individual and the public.  A new balance has been created between the individual and the authorities.”  (Ibid. at p. 412)

17. As said above, the State claims that the defendant who has been convicted and sentenced to prison does not have a basic right to personal liberty.  Therefore, the State claims that the Basic Law: Human Dignity and Liberty has no relevance to the matter before us.  In any event the State claims that even if the right exists the law regarding stay of execution of a prison sentence meets the conditions of the limitation clause.  The general question whether the person who has been convicted and sentenced to prison has a ‘constitutional right’ to freedom, violation of which is subject to the tests of the limitation clause in the Basic Law, is a broad question.  Various approaches may be taken as to this question: thus for example it is possible to argue the absence of such a protected basic right, or to its being a right of lesser weight than other right which are anchored in the Basic Law (see A. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ [65] at p. 500; the words of Justice Dorner in HCJ 1715/97 Office of Investment Managers in Israel and others v. Ministry of Finance and others, [44] at p. 418 and on).  It is interesting to note that the Canadian case law that deals with the rights of prisoners, has recognized in certain cases the violation of the right to liberty of a convicted person serving a prison sentence, such as when there is a substantive change in the conditions of imprisonment or in the rules which apply to release on bail (see P.W. Hogg, Constitutional Law of Canada (4th. ed., 1997) [69] 1069; Cunningham v. Canada [60]; Miller v. The Queen [61] 112 – 118).

In our case there is no need to attempt and examine this question to its full extent and in the full range of situations in which it might arise.  This is because the question before us arises in a special situation and it is possible to limit the discussion to it alone.  In the matter before us, it appears to me that the State’s claim according to which determination of the question of the stay of execution of a prison sentence does not involve any violation of the right to liberty is not to be accepted.  The State is correct in its claim that when a person’s guilt has been determined by a court beyond a reasonable doubt, the assumption is that “there is a justification, which meets the standards of the limitation clause for executing the sentence imposed upon him.”  It is also true that the violation of the liberty of the convicted person is derivative of the judgment which has overturned the presumption of innocence, and from the sentence.  However, the complete distinction which the State wishes to establish in our case between denying liberty based on an authorized judgment and the determination of the date of commencement of the execution of the sentence, ignores the fact that the denial of liberty itself which is expressed in the immediate imprisonment, takes place at a stage in which the question of the accused’s  innocence has not been  finally determined.  A judicial judgment by which a person’ liberty is denied is also valid at the appeals phase as long as it has not been changed.  And yet, as long as a final decision has not been made there exists the potential to change the decision at the appeals phase and to reinstate the presumption of innocence.  In this situation, a decision whose significance is immediate imprisonment of a person, in accordance with the judgment which is the subject of the appeal, carries with it, beyond the immediate-physical violation of personal liberty, the possibility of serious violation of the liberty of an innocent person.  The severity of such violation may only be fully realized at a later stage, if, and to the extent that, the appeal of the convicted person is upheld and it is found that he served his sentence needlessly; but the existence of this possibility is the result of a decision as to the immediate execution of the prison sentence.  Against this background it can be said, that if we hold to the view that a person who has been convicted and sentenced to prison has no right to liberty then such a determination is fitting for an absolute conviction.  At the phase in which there is not yet a determination on the appeal of the convicted person, the right to liberty exists as a right but its intensity is weakened in light of the judicial determination which stands as long as it has not been overturned.

Indecision which relates to the question of violation of a constitutional right to liberty as a result of the immediate execution of a prison sentence prior to the determination of the appeal, has also been dealt with in the Canadian courts.  It is interesting to note that there, conflicting decisions have been handed down.  Thus, in the matter of R v. Farinacci [60] the prosecution’s claim – that was argued as part of a discussion as to the constitutionality of the statutory provision which deals with release on bail during the period of appeal –that the statutory provisions which deal with the release of a convicted person during the period of appeal do not violate the convicted person’s liberty, but rather the opposite is true – they advance it, and therefore are not subject to constitutional limitations, was dismissed.  In dismissing the claim the judge of the appeals court of Ontario established that:

“I cannot accept the respondent's contention that there can be no resort to s. 7 of the Charter in this case because s. 679(3) of the Criminal Code is not a provision which 'authorizes’ imprisonment but rather a provision which enhances liberty. There is, in my view, a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form. ... The respondent’s submission that s. 7 does not apply to bail pending appeal because, after conviction and sentence to a term of imprisonment, bail operates to enhance rather than to restrict liberty, proceeds from the same formalistic and narrow interpretation of constitutionally protected rights. In so far as the state purports to act to enhance life, liberty or security of the person, it incurs the responsibility to act in a non-arbitrary, non-discriminatory fashion and cannot deprive some persons of the benefits of the enhancement without complying with the principles of fundamental justice.” (Supra, at 40 - 41).

On the other hand, in another  decision in Canada the claim was dismissed according to which the statutory section which relates to release during the period of the appeal is not constitutional, while the claim of the prosecution there was upheld that the said statutory provision does not violate the right to liberty at all, as that was denied in the sentence, while the said statutory provision enables the freeing of the appellant:

“While the appellant's imprisonment clearly deprives him of his liberty, the authorization for this imprisonment does not derive from s. 679(3)(c). Rather, the appellant’s liberty is deprived by the sentence imposed by the trial judge. Nothing in s. 679(3)(c) adds to this deprivation. To the contrary, the provision affords a means of arranging the appellant's release. The appellant's liberty interests can only be enhanced by s. 679(3)(c), under which the operation of the sentence imposed by the trial judge may be temporarily suspended. There is thus no deprivation of any right in s. 679(3) (c). For this reason, I conclude that s. 7 does not apply to bail pending appeal.”

(R v. Branco) [62]).

In light of what has been said above it may be summarized and stated that when we come to establish the limits of appropriate judicial discretion for stay of execution of a prison term during the pendency of the appeal, we must do so while paying heed to the importance and the status of personal liberty, and the limits of permitted violation of it in accordance with the principles that were delineated in the Basic Law: Human Dignity and Liberty.  Justice Zamir discussed this in MAppCr 3590/95 Katrieli v. State of Israel [46], when he examined the guiding considerations in the matter of stay of execution of a prison sentence during the period of the appeal.

“Inter alia, weight is also to be given in this context to the Basic Law: Human Dignity and Liberty.  This basic right protects a person’s liberty (section 5) and although it is not sufficient to impinge on the validity of the Criminal Procedure Law, it is sufficient to influence via interpretation, the provisions of this statute as to release from detention or imprisonment.  In this vein, it is to be said that even when the law and the circumstances require denial of the liberty of a person in detention or prison, liberty is not to be denied to an extent that exceeds that which is necessary.”  (Emphasis added D.B.)

18.  In light of the various considerations and interests involved in the matter of stay of execution detailed above, how will the court exercise its discretion when coming to examine an application to stay execution of a prison sentence that has been imposed, until disposition of the appeal?  We will note first that the response of the applicant’s counsel to this question which rests primarily on the decision of Justice Ilan in the Hahami case above, is not acceptable to us.  This approach according to which the very filing of the appeal justifies stay of execution of the sentence, with the exception of cases where there is a fear that the convicted person will endanger public safety or will not appear to serve his term, is far reaching.  It does not properly distinguish between the phase of detention – when the presumption of innocence still holds, and the phase after conviction; it misses the target of the objective of giving effective deterrent expression to penal law punishment and may damage public confidence in the law enforcement system due to the release, as a matter of course, of those who have been convicted of criminal offenses.  It may also encourage filing meaningless appeals for the purpose of stay of the prison sentence.  In this matter we also cannot learn from the customary  law on this issue in the continental systems, where the criminal procedural process, the definition of the tasks of the court of appeals and the degree of its involvement in the determinations of the court of first instance is different from our system.  (See S. Levin’s book, ibid. [63] Damaska article [70] ibid.).

With that, the “accepted approach” for stay of execution of the prison sentence during the pendency of the appeal, in its traditional and limited meaning, no longer stands.  The appropriate approach to this issue must take into consideration and give weight to the totality of relevant considerations and interests which we have discussed which may apply to the various interests involved in the matter and the their degree of intensity under the circumstances and give them the appropriate relative weight.  According to this approach strict rules are not to be established for the exercise of discretion but rather guiding frameworks are to be delineated for its exercise.  The starting point must be that the court must utilize its discretion in a manner that takes into account the public interest in immediate enforcement of imprisonment, still prior to the hearing of the appeal, but must take care, however, that the realization of this interest does not harm the convicted person and their rights in a manner that goes beyond that which is necessary.  As detailed above, the directive of the legislature is that as a rule, a sentence of imprisonment is to be executed immediately after the sentence is handed down.  As we have explained, filing an appeal on a judgment does not in and of itself stay execution of the judgment, but rather the matter is given to the discretion of the court.  Nonetheless, when the court comes to decide on an application to stay  the date of commencement of the prison term on the basis of the authority given to it by law, the filing of an appeal constitutes an additional consideration that may impact the totality of considerations which are before the court, and the balance among them.  The burden is on the applicant for stay of execution of the prison sentence to convince the court that under the circumstances the public interest in immediate execution of the prison sentence  is overridden by the additional interests implicated in the case which we have discussed above.

The relevant considerations and interests will be examined by the court that is considering the applications, without purporting to present a closed list, we will discuss below the circumstances and primary considerations that the court must weigh when considering an application by the convicted person to stay execution of the prison sentence during the pendency of the appeal on the judgment:

(A)  The Severity of the Crime and the Circumstances of its Commission: the severity of the crime and the circumstances of its commission influence the intensity of the public interest in immediate enforcement of the prison sentence.  As a rule, the more severe the crime and the circumstances of its commission, the greater the public interest in immediate enforcement of the imprisonment, in its various aspects.   So too, as to the fear of the danger that the convicted person poses to the public, the severity of the crime of which he was convicted can in and of itself be an indication of his dangerousness.  As to the essence of the offenses which constitute on their own an indication of dangerousness, one can also learn from the laws of detention, according to which being accused of certain offenses creates a presumption as to the dangerousness of the accused (see: Arrests Law s. 21 (a)(1)(c)).  It is to be noted that in American law it has been established by law that a person who was convicted of committing certain serious offenses, such as violent offenses or offenses punishable by death or imprisonment beyond a certain time period, are not to be released on bail or the conditions for release are harsher than usual (see Bail Reform Act of 1984, s. 3143(b)(2); 8A Am.  Jur.  2nd. [76] 283) the severity of the crime and the circumstances of its commission also have ramifications on the intensity of the interest of protecting the effectiveness of criminal punishment and the actions of law enforcement authorities; the greater the severity of the offense and the circumstances of its commission, the greater the public interest in achieving effective deterrence from commission of similar crimes by others and the greater the fear of damage to the effectiveness of punishment and public confidence in enforcement systems if the convicted person is set free.  And note: as to this last matter I do not believe that the severity of the offense needs to be determined only according to the measure of the violence involved in its commission.  According to my approach, even the release of somebody convicted of committing offenses that do not involve severe violence and are not of the type of offenses listed in section 21 (a) (1) (c) of the Arrests Law, but which damage protected social interests of importance, including offenses of far-reaching fraud or corruption offenses that were committed through the abuse of public office, may under certain circumstances damage public confidence in law enforcement authorities and the effectiveness of criminal enforcement.  Such damage is a consideration among the considerations of the court in making a determination as to stay of imprisonment, within the examination of the background of the other facts of the case.

(B).  The Length of the Prison Term Imposed on the Convicted Person: The length of the prison term may affect the court's discretion in a number of ways.  First, when the prison term is brief, relative to the date in which the appeal is expected to be heard, there exists a fear that the convicted person will serve his sentence before his appeal is heard.  In such a case, it is appropriate to stay execution of the sentence in order to enable the convicted person to effectively realize the right of appeal which he has by law.  This approach is also acceptable within the traditional approach for staying execution of a sentence.  And it appears that it is necessitated by the accepted rules of construction as developed in the case law, according to which legislation is to be constructed in a manner that validates the right of appeal and enables its realization.  Second, the length of the prison term imposed on the convicted person may influence the assessment of the fear of flight of the convicted person from the law or attempts by him to obstruct justice; the concrete knowledge of the convicted person that if he fails in his appeal he is to expect a prolonged prison term, may increase the fear that he may flee from the law, this is so even if in the course of his trial in the trial court he appeared for his trial as required.  Third, the severity of the punishment that was imposed on the convicted person teaches us of the severity of the crime of which he was convicted, as generally punishment reflects the severity of the criminal act.

(C).  The Quality of the Appeal and the Chances of its Success: A central question to which we must give thought is what is the weight that is to be given to the fact of filing an appeal and to the chances of the appeal.  For the reasons we have already detailed, we have seen fit to reject the approach according to which the very filing of an appeal justifies stay of the execution of the sentence.  However, it appears that a perspective according to which it is appropriate to make a change from the present law, relates to the weight that is to be given to the quality of the claims raised in the appeal and the chances of its success in the framework of examining an application to stay execution of a sentence until the disposition of  the appeal.  The accepted approach in the case of stay of execution of a sentence leaves a particularly narrow opening for consideration of the appeal of the convicted, when it is not a matter of a short prison term and light offenses.  According to this approach, only conspicuous chances to win the appeal or salient distortion in the conviction justify stay of execution of the sentence during the pendency of the appeal.  This test establishes a high threshold which only in a few cases will the convicted person seeking to stay his imprisonment meet.  Such a test can injure in a disproportionate manner the freedom of the convicted person and the effective realization of the right of appeal; it creates an overly large gap between the level of examination at the preliminary phase of the decision on the application to stay execution of the sentence, and examination of the appeal itself, and increases the chances that serving the sentence will turn out retroactively to be unjust.  Under these circumstances, the means of immediate execution of a sentence may cause damage which is more than the utility contained within it.  It is not superfluous to note, that the test as to the chances of the appeal as it had been phrased in the case law, has in point of fact "been abandoned" in many decisions of this court, and even the State in its arguments before us does not phrase the appropriate rule according to its approach with such narrow language.

The consideration which relates to the chances of appeal is a relevant consideration to the question of stay of execution of the sentence during the period of appeal.  The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment before the appeal is heard on the merits.  However, it is not to be ignored that the consideration as to the chances of the appeal is a complex consideration, and assessing the chances of the appeal and its quality places before the judge difficulties which are not negligible.  From the character of the procedure which takes place during the application to stay execution of the sentence it can be derived that the judge does not have sufficient tools to assess in an informed manner the arguments raised in the appeal; the procedure takes place on the basis of a theoretical examination of these arguments and does not generally include studying the transcript and the totality of the evidence that was brought in the case.  Moreover, it is not desirable that a judge dealing with an application to stay the execution of a sentence, will make determinations that may have an influence on the discussion in the appeal itself.  Despite said difficulties, we are not dealing with an extraordinary assignment that judges are unaccustomed to.  Theoretical assessments are not new to the court, and it is accustomed to implementing considerations of this type at the phase of discussion of detention pending completion of the proceedings as well, when the presumption of innocence still stands.  A similar process of assessing the theoretical chances of an appeal, is also familiar to the court when dealing with applications to stay execution of a sentence in civil appeals.  We will note further that  in other legal systems which are similar to ours, weight is given to the chances of appeal and its quality in the framework of a determination as to stay of imprisonment until disposition of the appeal: thus, it is determined by federal law in the United States that the release of a convicted person on bail during the course of the pendency  of his appeal is conditioned on his proving that his appeal "raises a substantial question of law or fact likely to result in reversal..."  (Bail Reform Act of 1984, S. 3143 (b) (B)).  Courts are split as to the interpretation of this section, but it appears that the common approach is that the convicted person must show that the appeal raises a  question that is at least "balanced" in its chances ("close question").  (See T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the Bail Reform Act”  [75] 198). Indeed, the Canadian Law makes do with the requirement that the appeal  is not baseless or ‘frivolous,’ but in a number of decisions a statutory condition as to the lack of public interest in the imprisonment of the convicted person has been interpreted as including, inter alia, the assessment of the quality and strength of the appeal arguments. (See: R. v. Mcauley (1997) Ont. C.A Lexis 3[56]; R. v. Farinacci [59]; R v. Pabani [55]).

The theoretical assessment of the chances of appeal, in the framework of examining an application to stay execution, is not done by a "mechanical" probability test relative to the possible results of the appeal: such an examination is not possible in fact and it is not desirable for it to be undertaken by a single judge at such an early phase of the discussion.  The judge dealing with an application to stay execution of a sentence is to examine the quality of the arguments on appeal and their type, and assess their  inherent potential to influence the outcome of the appeal.  The theoretical strength of the arguments will be examined against the background of the accepted rules in our system relative to the exercise of review by the appeals court.  Thus, for example, claims by the applicants to change factual findings of the lower court which are based on its impression of witnesses, or reliable determinations of that court, will not generally be sufficient to base good theoretical chances for the appeal.  When the appeal is focused on legal questions, for which it can be determined on a theoretical level that they raise real difficulty, this will be sufficient, generally, to point to an appeal which justifies stay of execution of the sentence until these are clarified.  It is not unnecessary to note that it is not the outer legal dress which is given to the appeal argument which is determinative, but the substance of the argument and the degree of its relation and relevance to the concrete circumstances of said case, in a manner that is sufficient to influence the results of the appeal if the claim is upheld.  Thus,  it can be summarized that when it is a matter of serious arguments, that by their nature and character – if they are accepted – are sufficient to influence the results of the appeal this will contain a significant consideration for justifying stay of execution of the imprisonment until disposition of the appeal, all this taking into account the totality of circumstances of the matter.

(D.) The Criminal History of the Convicted Person and his Behavior During the Course of the Trial: as has already been noted above, these circumstances may point to the degree of dangerousness that is posed to the public from release of the convicted person and the existence of a fear of flight from the law.  This being the case, they may be relevant to applying the court's discretion when it examines whether to stay execution of a prison sentence until disposition of the appeal.  And note: this is not a matter of a consideration that stands on its own, and therefore it is not in every case that the convicted person without a criminal history or for whom it has been proven that he appeared properly during the course of his trial, will be sufficient to determine the matter of stay of execution of a prison sentence.  It may even be said that generally, at the phase after conviction, a clean record and careful adherence to the conditions of bail during the time of the trial proceedings, are not of themselves sufficient to tilt the scale to stay execution of the sentence, taking into account the impact of the conviction and sentence on the assessment of the dangerousness and on the fear of flight by the convicted person, and considerations of deterrence and effectiveness which we discussed above (see paragraph 13 supra).  But in the framework of the totality of the relevant considerations against the  examination of the severity of the offense, the degree of punishment that was imposed and the nature of the appeal, it is possible to also take into account data as to a clean criminal history of the convicted person and his good behavior during the course of the trial.

(E) The Personal Circumstances of the Convicted Person: in the framework of examining the application to stay execution of a prison sentence, it is possible to also examine, in appropriate cases, the personal circumstances of the convicted person.  A judicial decision, whose immediate significance is imprisonment of a person, whether it is a matter of the sentencing phase or whether it is the appeal phase, does not need to entirely ignore any claim as to personal circumstances of the person and as to the consequences he may expect as a result of his imprisonment.  Accordingly, personal circumstances constitute a consideration in the stay of execution of the prison sentence not only under the circumstances of the filing of an appeal.  Moreover, the existence of special personal circumstances, may also influence the weight of the public interest in immediate execution of the prison sentence.  The words of Justice Barak in MAppCr 37171/91 State of Israel v. Golden [46] which were said on the separate  topic of detention pending completion of the proceedings on the grounds of severity of the offense (prior to legislation of the Arrests Law), are appropriate here:

"The injury to the effectiveness of the criminal law and its enforcement, which is caused where someone who committed a severe offense, is "out and about" is tied, by its nature, to the theoretical circumstances of commission of the crime.  The efficiency of law enforcement will not be harmed, if someone who theoretically committed a serious offense is not detained because they are dying.  Everybody understands that the special circumstances of the case justify that even someone who theoretically committed a severe offense, will not be arrested under these circumstances.  Quite the opposite: arrest of the accused under these circumstances may create the impression that the state is taking revenge on the suspect and seeks him ill." (Ibid. at p.  814.  Emphasis added -- D.  B.)

It appears to me that the logic behind these words is appropriate, with the appropriate changes, also when we are talking of the difficult personal circumstances of the convicted person whose appeal is pending.  Indeed, taking into consideration the fact that we are now at the phase after conviction, it is possible that personal circumstances -- on their own -- will not generally have much weight in the decision of the court as to the stay of execution of a prison sentence, as the premise is that the court that imposed the sentence, also considered among the punitive considerations the existence of these circumstances.  However, there may be cases in which it appears on the face of it that this premise does not exist; thus for example, when the personal circumstances which are argued developed or changed significantly after the sentence was handed down.  So too, in other cases due to the special personal circumstances of the convicted person, such as his young age, his difficult mental condition or additional considerations for which the consequences of execution of the prison sentence may be particularly difficult.  In such cases, the personal circumstances will add additional weight to the decision to stay execution of the prison sentence until disposition of the appeal.  We will note that from examination of the decisions of this Court in applications to stay execution it appears that special personal circumstances indeed occasionally serve as a consideration among the considerations of the court when coming to determine applications to stay execution of prison sentences during the pendency of the appeal (see for example MAppCr 4092/94 Tioto v. State of Israel [47]; CrimA 6579/98 Friedan v. State of Israel [48]).

(F) Appeal as to Severity of the Punishment:  An additional consideration that is to be weighed in applications to stay execution of prison during the period of appeal, is whether the appeal is directed against the judgment and challenges the conviction itself, or whether it is a matter of an appeal that deals with the severity of the punishment that was imposed only?  As a rule, in appeals of the latter type, the tendency will be not to stay execution of the prison sentence.  When the appeal is on the severity of the punishment, the balance of the considerations and interests which is before the eyes of the court may change.  In such a case, the conviction itself -- which refutes the presumption of innocence -- is absolute, and  the same potential does not exist for it to be restored on appeal, which we discussed above.  Examining the quality of the appeal and its chances will be done while noting the rules as to the degree of intervention of the appeals court in punishment that was imposed by the trial court, and the question of the relationship between the time expected for hearing the appeal and the period of imprisonment that was imposed on the convicted person.  When on the face of it is not a matter of a punishment which deviates from the accepted punitive policy, and when the degree of punishment that is accepted in similar cases is greater than the amount of time expected for hearing the appeal, execution of the prison sentence will not be stayed except in exceptional circumstances and the burden for showing this is so will be on the applicant.  (Compare: CrimA 3602/99 Ploni (John Doe) v. State of Israel [49], Justice Ilan; 3976/99 Ephraimov v. State of Israel [50], Justice Strasberg-Cohen).

19.  As said, the list of circumstances detailed above does not purport to be exhaustive.  It exemplifies the type of circumstances and considerations that have in them to influence the application of discretion by the court when it comes to determine an application to stay execution of a prison sentence during the pendency of the appeal; these considerations relate to the public interest in immediate enforcement of the judgment on the one hand, and preservation of the rights of the convicted person on the other hand.  The court must determine each and every case according to its facts, while balancing between the different interests which we have discussed above relating to the topic.  It is important to emphasize that the considerations which we discussed are not static and do not stand on their own, but influence each other.  The work of balancing between them will be done after assessing the strength of the various interests and the weight that is to be given to each of them under the circumstances of the case.  Thus, for example, the more the convicted person can show that his theoretical chances of success on appeal are good and well founded, the lesser the weight of the public interest in immediate enforcement of imprisonment, and thus, depending on the matter, will be narrowed to those considerations of danger to the public or flight from the law, which also apply in the law of detention pending completion of the proceedings.  So too, the more it is a matter of conviction of a more severe criminal offense, the circumstances of whose commission are more severe, so too will the burden increase on the convicted person that seeks to stay execution of his prison term to show that there exist circumstances which justify stay of execution of the prison term despite the public interest in its immediate enforcement.

Conclusion

20.  In conclusion, the summary of our position as to stay of execution of a prison sentence during the pendency of appeal, is this:

A.  The filing of an appeal is not sufficient on its own to stay execution of a prison sentence.  Stay of execution of a prison sentence during the pendency of the appeal is a matter for the discretion of the court.

B.  The approach which was accepted in the case law of this Court, according to which stay of execution of a prison sentence during the period of appeal is a matter of an exception which applies only in extraordinary cases and under the existence of special circumstances, no longer holds.

C.  In applying its discretion as to stay of execution of a prison sentence during the period of appeal, the court will consider the public interest in immediate enforcement of the judgment, and considerations which relate to the convicted individual and his rights in light of the existence of a pending appeal proceeding; the court will make sure that protection of the public interest will not harm the convicted person and his rights in a manner that is not proportional.  The type of relevant circumstances and considerations which the court will take into account when applying said discretion, were detailed in our decision.

D.  The burden on the applicant for stay of execution of the prison sentence is to convince the court that under the circumstances of the case, the public interest in immediate execution of the prison sentence retreats in the face of the additional interests involved in the matter.

The approach we propose is not new to the case law of this Court; and it is integrated with a broadening trend taking shape in previous decisions of the court, such as for example in the judgments of Justice Strasberg-Cohen in the Mercado, Kochanski, and Sharabi cases above.  This approach operates to make the accepted approach for stay of execution of a prison term during  the pendency of the appeal more flexible in a manner that will reflect the totality of considerations and interests involved in the matter, while giving appropriate weight to the concern for violation of the rights of the convicted person.

From the General to the Specific

21.  Having drawn the basic framework, we turn to the application of the guidelines in exercising our discretion in the circumstances of the applicant’s case.  It should first be said that the case before us is not of the easier cases for determination, both because of the type of offense, and because of the reasons for the appeal and because of the "borderline nature" of the period of imprisonment.  Moreover, the date of determination of the appeal arrived after the applicant received, in fact, a significant stay of execution during the time that was required to formulate our approach to the fundamental issue.  However, the correct question is – if the matter of the applicant had come to us a priori -- whether based on the guidelines that we have delineated we would have upheld the application to stay execution of the prison sentence until the disposition of the appeal.  I have come to the conclusion  that were I to consider the application and make a decision as to it a priori, according to the criteria we proposed, while balancing among the relevant considerations, I would have tended in the direction of immediate execution of the prison sentence.

The offenses with which the appellant was convicted -- rape and sodomy -- are severe offenses, and seemingly by their nature are the type of offense which point to the dangerousness of the person convicted of committing them.  Generally we will rarely stay execution of the sentence for convictions of offenses of this type, for reasons of public interest, including the enforcement interest.  Moreover, the period of imprisonment that was imposed on the applicant -- 3 years of imprisonment in fact-- is not considered among the short time frames for which it is appropriate to give a stay of execution only to enable hearing of the appeal; at most, it would have been justified to move the hearing of the appeal forward, in consideration of the length of the prison term.  When we come to weigh the chances of the appeal we must give thought to the fact that the notice of appeal is directed primarily against findings of fact and findings of credibility, and does not raise serious legal questions.  Generally such an appeal, on its face and lacking reasons that would show otherwise, does not have a large theoretical chance, even if of course we cannot rule out the possibility that the claims or some of them will eventually be accepted.  To all this is to be added, that apparently it arises from the sentence that the court took into account the personal circumstances of the applicant, and the normative background, and gave them expression in the sentence that was handed down.  There are not in the personal circumstances of the applicant extraordinary considerations of the type that justify stay of execution of the prison sentence in order to prevent special harm that is expected from the fact of imprisonment.  Therefore, if the grounds for the application had been before us under regular circumstances they would not be sufficient to convince us to stay execution of the sentence.

However, when we come to determine the matter of the applicant today, we must also consider among our considerations the fact that the applicant has been free on bail for a long period of time since the sentence was handed down and his appeal may be heard soon.  For this reason, and in consideration of the date that has been set for hearing the appeal, it is not appropriate, at the present phase in the proceedings, to order the immediate imprisonment of the applicant. 

 

President A. Barak

I agree.

 

Vice-President S. Levin

I agree

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Justice T. Strasberg-Cohen

I agree.

 

Justice D. Dorner

I agree.

 

Justice Y. Kedmi

1. Stay of Execution of a Prison Sentence

My colleague, Justice Beinisch is worthy of accolades for the effort invested in preparing her thorough and comprehensive opinion.  Strength to him.

I join the result that my colleague has reached: and the framework of considerations proposed by her as a basis for consideration of an application to stay execution of the prison term against the background of filing an appeal is acceptable to me.  However, in light of the language of the summary presented in paragraph 20.b. to the judgment which states: “stay of execution of a prison term during the period of appeal,” is no longer “an exception which applies only in extraordinary cases and under the existence of special circumstances” – I find it necessary to add a qualifying comment.

The summarizing language in said paragraph may leave the impression, that stay of execution of a prison term under said circumstances is no longer an ‘exception’ to the rule which requires immediate execution of such a judgment.  In my approach, from the substantive-fundamental approach, this is not the stance which is necessitated by the clarification undertaken by my colleague in this matter in her judgment; and does not sit well with imposing the burden of persuasion – as to existence of circumstances which justify stay of execution on the applicant, as necessitated by the language of paragraph 20.d. of the summary.

Reading the judgment teaches me at least, that from the fundamental perspective the law and the case law in the following two areas have stayed as they are.  One – and this is the primary one – that based on the written law, the rule is that a prison term is to be executed immediately upon imposition, unless there exist grounds which justify staying its execution; when the individual seeking the stay, bears the burden of persuasion of the court as to the existence of the grounds.  And the second – whose practical significance does not fall below that of its predecessor – that the central consideration for justifying deviation from the said rule, is contained in the chances of the appeal’s success.  I have also learned from the judgment: that the specific secondary considerations which are grounded in the special circumstances of a said case – that were developed in this context in the case law, have also been left as is; and there is no basis for the argument heard lately in courts according to which: the provisions of the Basic Law: Human Dignity and Liberty, undermine the basis from the existing law in the matter of stay of execution and necessitate establishing an innovative approach, at the basis of which stands the constitutional right to personal liberty.

The change presented in the judgment, is, in my view, a change in the policy of the application of the existing rule; as opposed to a conceptual change which establishes a new rule.  To this character of the change – with which, as said above I agree – I found explicit expression in the words of my colleague according to which: the change “relates to the weight that is to be given to the quality of the arguments raised in the appeal and the chances of its success”; in a manner that “The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment.”  Therefore: we do not have a fundamental revolution here, rather – clarification of the proper application of the rule already existing for us according to which: from now on the threshold of requirements for stay of execution, is no longer as high as was to be understood from decisions given in the past in this matter, but lower and more flexible.

In summary, in my view – and in this I differ from the conclusion – there are two guidelines necessitated by the judgment: first – there is no room for the approach which says that “only blatant chances for success on appeal or a manifest distortion on the face of the conviction, justify stay of execution of the prison sentence during the pendency of the appeal”; and second – the judge considering the application must examine “the quality of the arguments on appeal and their type to assess the potential entailed in them to influence the results of the appeal.”

2. Joining a Party to the Proceeding as a “Friend of the Court”

Granting the Public Defender’s application to join the discussion as a “friend of the court” in the case before us, is not in line with my view in the matter.  Here are a number of comments which reflect, fundamentally, my view on the subject.

The inherent authority of the court to join a “friend” to the discussion is an exception to the character of the judicial proceeding which is customary here.  It is proper therefore to take care to make use of this authority in the rarest of cases, when the circumstances justify not only deviation from the rule, but necessitate it.  The fact that the “friend”  has the power to offer the court “assistance” in the solution of the legal problem before us, does not constitute, on its own, a sufficient basis for inviting a “friend” to join the discussion.  For it we say this, the “friend” will become the “legal helper “of the court; and in my view this is not the purpose of the existence of this institution.  In our system, the court copes with “legal issues” with the help of the “natural” parties who appear before it; when at the top of their priorities – and this is particularly so of defense attorneys – stand the accused and not consideration of the analytical-fundamental legal issue, which relates to the totality of accused or others involved in the criminal act which is the subject of the discussion.  The court does not need offers of professional legal help from the broad public; and particularly not from those who have an interest in promoting one solution or another to a problem that is to be determined in the discussion taking place before it.

As a rule, therefore, it is appropriate, in my view, to limit the invitation of a “friend,” to circumstances of “procedural necessity,” meaning: to circumstances in which the involvement of the “friend” is necessary to ensure the existence of a proper and fair discussion in the matter of the accused standing trial; as opposed to circumstances in which “friends” seek to present their own positions in the matter under discussion.  The friend is indeed the friend of the Court; however, from a practical standpoint, he is the friend of the accused who is in distress. In the case before us, the application of the Public Defender to be joined to the discussion as a “friend” of the court did not come against the background of coming to the aid of a defendant in distress in order to ensure a fair trial in his matter; but rather, against the background of its desire to advance its fundamental position in the legal issue that has been placed by the parties before the court.  In fact, the Public Defender seeks to join itself to the discussion as the “friend of all accused,” all of them; and this so that it will have the opportunity to convince the court of the justness of a judicial policy which appears to it to be consistent with “rights of the accused.”  This is not the end  to which the Public Defender was established; and in any event, this is not the purpose of the existence of the institution of the Court.

In summary: in my view, the institution of the Public Defender was established to ensure legal representation for the accused, when circumstances exist as established in the law; and is not assigned with the advancement of the interests of all defendants as such.  In any event, even if it was assigned the task of protecting the rights of accused in general, this is not sufficient to grant it the status of “friend of the court”; and to prefer it over any other organization that sets as its goal to advance the interests of others “involved” in the criminal proceeding, such as: the entities handling the protection of rights of the victims of the offenses.  It is appropriate that advancement of the rights of all accused be done elsewhere and not in the framework of the consideration of the matter of a given accused person.

Therefore, the application to stay execution of the prison sentence is granted as per the judgment of the Hon. Justice Beinisch.

 

4 Sivan 5760

June 7, 2000

            H.C.J 268/52

            H.C.J 47 /53

           

DAVID SAPOZNIKOV

v.

THE COURT OF DISCIPLINE OF THE ISRAEL POLICE and INSPECTOR-GENERAL OF THE ISRAEL POLICE

     H.C.J 268/52

 

 

NISSIM MIMRAN

v.

Y. SAHAR, INSPECTOR-GENERAL OF THE ISRAEL POLICE AND OTHERS

     H.C.J 47 /53

 

 

 

In the Supreme Court sitting as the High Court of Justice.

[May 31, 1953]

Before: Olshan J., Silberg J., and Sussman J.

 

 

            Police Court of Discipline - Police Ordinance ss. 18, 50 - Jurisdiction - Conduct likely to cause injury" to reputation of the Force - Police officer charged with  criminal offence not committed by him qua police officer - No jurisdiction.

           

                Under section 18 of the Police Ordinance the Inspector-General may constitute Courts of Discipline to try police officers charged with disciplinary offences, the section prescribing the offences which may be the subject of such charges. One of those offences is thus described (in section 18(1)(i)): "any offence contrary to the good order and discipline of the Force.. ." The High Commissioner in Council was empowered by section 50(1)(e) to make rules "for the definition of offences to the prejudice of good order and discipline", and under that power made the Police (Disciplinary Offences) (Definition) Rules, 1941. Offence No. 23 of those Rules creates the offence of "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law" and Offence No. 47 provides that a police officer is liable to punishment for "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

                The petitioner, Sapoznikov, was convicted by a Court of Discipline of three offences "contrary to the good order and discipline of the Force", one based on Offence No. 23 and two on Offence No. 47, in that, knowing of the whereabouts of an offender who had brought goods into the country without an import license in contravention of the Customs Ordinance, he did not report thereon to the proper authorities. He was sentenced to six weeks' imprisonment, and later dismissed from the service.

                The petitioner, Mimran, was charged before a Court of Discipline with "conduct likely to cause injury to the reputation of the Force", in that he had had intercourse with a woman against her will in a police car of which he was the driver. His trial was not yet completed.

                The petitioners contended that since the offences with which they were charged were offences under the criminal law, they could not be tried in a disciplinary court.

Held:  (1)     That the Court of Discipline has no jurisdiction to try the charge against Mimran;

            (2)   By Silberg and Sussman JJ. (Olshan J. dissenting) that the Court of Discipline had jurisdiction to try only that charge against Sapoznikov which was based on Offence No. 23, but not those based on Offence No. 47.

 

Palestine cases referred to:

(1)   H.C. 111/40; George Frederic Upfold v. Superintendent in Change of Prison, Acre, (1940), 7 P.L.R. 615.

(2)        P.C.A. 24/45; Arieh Zvi Lipshitz v. Haim Aron Valero, (1947), 14 P.L.R. 437.

 

English cases referred to:

(3)        Lewis v. Morgan, (1948) 2 All E. R. 272.

(4)        R. v. Thomas, (1949) 2 All E. R. 662.

5. R. v. William Barron, (1914) 10 Cr. App. R. 81.
6. Leyton Urban District Council v. Chew and another, (1907), 96 L.T. 727
7. Scott  v. Pilliner, (1905), 91 L.T. 658.

 

Tunik for the petitioner, Sapoznikov.

Lubinsky for the petitioner, Mimran.

Miriam Ben-Porath, Deputy State Attorney, for the respondent.

 

            SUSSMAN J. This is a joint hearing of the respondents' replies to two orders nisi issued by this court, and they concern the jurisdiction of a Court of Discipline of the Israel Police to consider certain charges brought against the petitioners. Before setting out the facts which led to the bringing of these charges, it would be useful if I were to preface them with certain observations touching upon the law which lays down the jurisdiction of a Court of Discipline.

           

2.  Section 18 of the original Police Ordinance, was replaced by section 2 of the Police (Amendment) (No. 2) Ordinance, 1939, and according to section 18 as replaced, the Inspector General of Police may constitute a Court of Discipline to consider certain charges against police officers, as set out in that section. Section 18(1)(h) of the said Ordinance provides, inter alia, for the punishment of a police officer who "is repeatedly guilty of serious offences to the prejudice of good order and discipline." By section 6 of the Police (Amendment) Ordinance, 1946, an additional offence is added to the list of offences ill section 18, and is defined as follows : "Any offence contrary to the good order and discipline of the Force which the Inspector General considers should be tried by a Court of Discipline."

 

            Section 50(1)(e) of the Police Ordinance provides that the High Commissioner in Council (the words "in Council" were omitted by mistake in the Hebrew edition of Drayton's Laws of Palestine) is entitled to make rules for "the definition of offences to the prejudice of good order and discipline." The provision contained in the new paragraph (i), which, as I have said, was added to section 18(1) in the year 1946, was in force prior to the enactment of the Police (Amendment) Ordinance, 1946, having been introduced as a temporary measure in 1940 by Defence Regulations. In Upfold v. Superintendent in Charge of Prison, Acre, (1), the Supreme Court in the time of the Mandate held that a police officer could not be brought to trial before a Court of Discipline for an act regarded by the Inspector General as an "offence contrary to the good order and discipline of the Force", unless that act had previously been defined as such an offence in rules made by the High Commissioner under the powers given to Him by the said section 50(1)(e).

 

3. Acting under section 50(1)(e) the High Commissioner, in the Police (Disciplinary Offences) (Definition) Rules, 1941, specified 46 offences which, if committed by a police officer below the rank of "Superior Police Officer" shall be deemed to be offences to the prejudice of good order and discipline. Offence No. 23, for which a police officer is punishable, is in the following terms : - "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law". A further Offence, No. 47, was added to the said offences by the Police (Disciplinary Offences) (Definition)  (Amendment) Rules, 1941, and is constituted by a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

4. As I have said, a Court of Discipline may not sit to try a police officer unless constituted for that purpose by special order of the Inspector General of the Police. This means that a Court of Discipline is not properly constituted unless the Inspector General considers that there is need therefore in order to investigate an offence being one of the offences specified in section 18(1) of the Police Ordinance.1) For that reason, the language of section 18(1)(i) (which was added to the main section in 1946) is most defective, for by providing that the court shall try an offence under that same paragraph whenever the Inspector General considers that there is need for it, it creates unnecessary duplicity. But the meaning of the paragraph is this : Whilst according to the previous paragraph, the said section 18(1)(h), a police officer commits no offence for which the court would be empowered to try him unless he has been "repeatedly" guilty of serious offences to the prejudice of good order and discipline, paragraph (i) of that section provides that every offence of that kind, whether committed once or repeatedly, whether serious or not, will be a ground for complaint, and for trial before the Court of Discipline.

 

5. In the charge sheet filed against the petitioner, David Sapoznikov, a sergeant in the Police, he was charged with having committed three offences under section 18(1)(i) of the Police Ordinance, and after a trial before the Court of Discipline which the Inspector General had convened, he was found guilty of those offences. Each of the three offences was described in the information as "an offence contrary to the good order and discipline of the Force." One charge was based on Offence No. 23 of the Police (Disciplinary Offences) (Definition) Rules, 1941, and the act attributed to this petitioner was that, knowing the whereabouts of an offender who had brought goods into the country without an import licence, he did not report thereon to the proper authorities. The two additional charges were framed in accordance with Offence No. 47 of the said Rules, and in the particulars thereto, it was stated that the petitioner was charged with "acting in a manner likely to bring discredit to the reputation of the Force." The petitioner was sentenced to six weeks' imprisonment. The judgment was confirmed by the Inspector General, and as A result thereof the petitioner was dismissed from the service in accordance with section 18(7) of the Police Ordinance, as amended.

 

            The petitioner Mimran was also charged before the Court of Discipline with conduct likely to bring discredit to the reputation of the Force, in that he had had intercourse with a woman against her will in a police car. The trial of his case has not yet been concluded.

 

6. The act alleged against the petitioner, Mimran, is also an offence under section 152 of the Criminal Code Ordinance, 1936,1) and petitioner's counsel contends that such an offence, which we described in the course of tile proceedings as a "civil offence" to use the language of section 41 of the English Army Act, should not be disguised as an injury to t;he reputation of the Police, in order to have it investigated before the Court of Discipline, in which event the defendant is deprived of a right of appeal and his case is tried before police officers who are not learned in the law and do not even enjoy legal guidance. On the other hand, where the matter has been brought before the Court of Discipline, the police officer cannot be brought before the general courts for the same offence, for the act of the Court of Discipline is to be considered as res judicata. Is it reasonable, asks counsel for the petitioner, Mimran, that the investigation of such grave charges should be removed from a civil court just because the Inspector General has chosen, incidentally, to bring him before a court of the police?

 

7. In the case of Lewis v. Mogan (3), a seaman serving in a merchant ship was brought to trial for having absented himself for one day from his ship, contrary to regulation 47A of the English Defence Regulations. The accused argued that he had already been punished for the same act by the master of the ship, who had examined the matter and had deprived him of one day's pay. This authority is given to the master by section 114(2)(g) of the Merchant Shipping Act, 1894, whereby it is permitted to lay down in a seaman's contract of service "any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishment for misconduct." The accused's submission that the case was one of "autrefois convict" was rejected by the court on two grounds. First, that the master had not sat as a court with jurisdiction to try criminal offences, but had acted "in a domestic way." Secondly, even assuming that the subject-matter of the complaint in the two instances was identical, that an offence against the Merchant Shipping Act, 1894, is not the same as an offence against the Defence Regulations, so that the offences are not identical, and the accused cannot be heard to say that he has already been tried for an offence against the Defence Regulations.

 

            The court's attitude will be further clarified if we turn our attention to the case of R. v. . Thomas (4). There, the contention of the appellant, who had been found guilty of murdering his wife by stabbing, was that he had already been convicted by a court for the same act, when he was convicted of wounding with intent to murder, and this was the act which in the end had caused the wife's death. To support this contention, the appellant relied on section 33 of the Interpretation Act, 1889, which provides : -

           

            "Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law..... the offender shall, unless the and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence."

 

            The court answered the contention in these words : -

           

            "Certainly it (the section) adds nothing and detracts nothing from the common law. It was argued that we ought so to read the section that the last word "offence" should be read as meaning "act" and it was submitted that "act", "cause" and "offence" all mean the same thing. In our view, that is not correct. It is not the law that a person shall not be liable to be punished twice for the same act. No court has ever said so, and the Interpretation Act has not said so."

 

            Accordingly, that is to say, because of the differences in the two offences, notwithstanding the identity of the act, the appellant's contention was rejected; see also R. v. Barron (5), where it was stated: -

           

            "The test is not, in our opinion, whether the facts relied upon are the same in the two trials. The question is whether the appellant has been acquitted of an offence which is the same offence. . . . ."

 

            Section 33 of the Interpretation Ordinance, 1945, (which replaces section 25 of the original Interpretation Ordinance) corresponds to section 33 of the English Interpretation Act, yet nevertheless it is not to be inferred therefrom that the rule laid down in R. v.. Thomas (4), applies equally in this country.

           

            In addition to section 33 of the Interpretation Ordinance, 1945, section 21 of the Criminal Code Ordinance, 1936, applies to our case; and in order to make comparison easier, we quote it here in its English version: -

           

            "A person cannot be twice criminally responsible either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of same other offence constituted by the act or omission."

 

            It appears that the local legislator, in the Criminal Code Ordinance, 1936, enacted something that was not provided in the English Interpretation Act or in the Interpretation Ordinance, 1945, namely, that criminal responsibility cannot be imposed twice on a person for the same act or omission; it states, "the same act", not "the same offence". This is shown by the fact that where an act which causes injury, and for which a person has been charged, causes the victim's subsequent death, the accused in England is not immune from a murder or manslaughter charge since such offence is different from that formerly charged; and so the local legislator went out of his way expressly to provide that this instance, of an act causing a person's death, is exceptional, and that the offender may be brought to trial although already once convicted in respect of the same act which constitutes a different offence.

 

            It follows that there are grounds for the view that a police officer who has been tried for a particular act by a Court of Discipline is not liable to stand trial once more before an ordinary court on a charge of a "civil offence" arising out of the same act.

           

8. Notwithstanding that conclusion, I do not think that an act which may also constitute a "civil offence", even if it be of the category of a felony, is for that reason excluded from the jurisdiction of the Court of Discipline. The truth of the matter is that most, if not all, of the list of offences defined in the High Commissioner's rules as offences prejudicial to good order and discipline are acts which, if not committed by a police officer, are not regarded as offences, and there is a plain desire on the part of the authority which made the rules to supply the particular needs of the police force by passing a law which would impose upon it order and discipline. One must not, however, conclude that the task of the Court of Discipline, or even its main task, is to investigate such offences, which are of little importance from the point of view of the public, for in section 18(1) further offences are enumerated which are also within the jurisdiction of the Court of Discipline, and among them are acts numbered among the gravest of offences for which a person may be punished under the Criminal Code Ordinance, 1936. It seems that a police officer who "incites to mutiny" may be brought to trial either before the Court of Discipline under section 18(1)(a) of the Police Ordinance, 1936, or before a civil court under section 54(b) of the Criminal Code Ordinance, 1936. In the first case, he is liable to two years' imprisonment, and in the second case, to imprisonment for life. A police officer who assists another police officer to desert from the police, is guilty of an offence under section18(1)(f) of the Police Ordinance, or under section 56(b) of the Criminal Code Ordinance, 1936. A police officer who strikes a superior officer must be tried either under section 18(1)(e) of the Police Ordinance or according to Chapter XXVII of the Criminal Code Ordinance, 1936. It can hardly be imagined that the legislator overlooked this duplicity when he empowered the Court of Discipline to deal with charges of the gravest kind - felonies - when the accused is a police officer and the Inspector General decides to convene the court to try the matter. The reason for this is that according to the original version of section 18 of the Police Ordinance the Inspector General was authorised to order the trial of a charge before the President of the District Court, like any other civil court, and only in 1959 was the Ordinance amended by transferring the matters dealt with in section 18 to Courts of Discipline that were established at the same period. It is clear that the legislator's intention was not to detract from the jurisdiction of those courts, notwithstanding the absence of legal guidance, and the withholding of a right of appeal.

 

9. An additional argument was put forward by the petitioner's counsel, mainly by Mr. Tunik, counsel for the petitioner Sapoznikov, but common to both cases. When the High Commissioner added offence No. 47 to the above mentioned list, and laid down that a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the force" is guilty of an offence to the prejudice of good order and discipline, he in fact failed to do what was imposed upon him - so Mr. Tunik contended - and did not at all define what an offence to the prejudice of good order and discipline is. Accordingly, the argument continues, the rule should be declared invalid, and in any event there is no foundation for the charge before the Court of Discipline in respect of an offence under that rule.

 

            It seems to me that the petitioners' submission is sound, and not only on the ground submitted by them.

           

            When the legislator has transferred the power of "subordinate legislation" to another public authority, the court will not be disposed, generally speaking, to restrict that power by way of construction, but will assist the legislator who, whether because of the burden of work imposed on him or because of the other authority's special knowledge, has decided to transfer to that authority some of the duties : Leyton Urban District Council v. Chew (6). How much more so will the court act in accordance with that rule if the duty of subordinate legislation is transferred to the High Commissioner in Council, who at that time was also the legislative authority and the difference between the two acts of legislation was, accordingly, purely technical.

           

            A punishment is sometimes laid down for an act prejudicial "to good order and discipline", as in section 40 of the English Army Act, and the legislator refrains from defining the nature of such an act. In that case, the duty of definition is imposed upon the court trying the charge, which has the power not only to establish facts, but also to weigh and determine whether, on the facts as found, good order and discipline have been there prejudiced. But it is clear that the local legislator did not take that course with regard to police officers' offences. The rule laid down in Upfold v. Superintendent in Charge of Prison, Acre (1), is clear, and its meaning is that, as regards offences under section 18(1)(i) of the Police Ordinance, the power given to a Military Tribunal by section 40 of the English Army Act to weigh and determine whether or not a particular act is compatible with good order and discipline, has not been given to the Court of Discipline. A condition precedent to the transfer of a police officers' trial to a Court of Discipline is, as was decided in Upfold's case (1), that the offence has been previously defined by the rules. The legislator was desirous, therefore, that the policeman should have before him a list setting out in advance how he was to conduct himself, and he cannot be brought to trial on account of any act whatsoever, unless the act has been first defined and described by the maker of the rules as a police offence.

 

10. As the learned author of the Manual of Military Law, 1951, notes in note 4 to section 40 of the English Army Act, in explaining the expression "good order and military discipline", it is not enough that a particular act is contrary to good order; an offence under the said section 40 is not committed unless the same act is also prejudicial to military discipline. The author cites, by way of example, the case of an officer dressed in civilian clothes, who disturbs a theatrical performance by talking in a loud voice. That act, the learned author infers runs counter to good order, but is not prejudicial to military discipline. He goes on to illustrate the meaning of the said section 40 with examples of improper receipt of a loan, or of unlawful possession of property, which constitute an offence if a soldier borrows money from another soldier, or if the property in question belongs to the army, but not if he borrows money from a civilian, or if the property belongs to a civilian, since in the latter two instances the element of prejudice to military discipline is once more absent.

 

            Because of the similar language of section 18(1)(i) of the Police Ordinance ("good order and discipline of the Force"), we shall be correct in examining offence No. 47 made by virtue of the said section 18(1)(i), in the light of those considerations. It obviously follows that the draftsman of the rules in no way gave thought to the fact that the task of definition placed in his hands was restricted and limited to preserving both "good order" and "discipline" in the Force. Neither of these two objects by itself is capable of serving as an element in the definition of the offence. Alternatively, offence No. 47 actually consists of: first, "disorderly conduct", and I doubt whether this is a definition at all, or whether "disorderly conduct" is not simply the opposite of the term ''conduct contrary to good order", which the draftsman set out to define; secondly, conduct likely to bring discredit on the reputation of the Force. Let us assume that a policeman in civilian clothes disturbs a theatrical performance, like the army officer mentioned in the notes to the Manual. It may be that he will be guilty of one of the two offences under offence No. 47. There is prejudice to good order here, but no prejudice to police discipline, since the police officer's act has not been done within the framework of the police or in connection therewith. It follows, therefore, that the authority which made the rules defined as an offence something liable to be prejudicial to good order only, and took no account of the fact that an act cannot be treated as an offence unless it is also prejudicial to the discipline of the police. By reason of the fact that the offence as defined also includes within its description an act which, according to section 18(1) (i), is not regarded as an offence, we are obliged to invalidate the whole rule: Scott v. Pillimer (7); so that it does not matter that, in the present case, the petitioners' acts were also to the prejudice of police discipline, since they cannot be convicted of an offence under a rule which is devoid of any effect.

 

11. The result is that the charges, to the extent that they derive from offence No. 47 have no foundation. But the petitioner Sapoznikov was also convicted according to the fact count in the charge sheet of offence No. 23, and we have found no ground for not upholding that conviction. Mr. Tunik contends that were it not for a charge sheet which contained three charges, one of offence No. 28 and two of offence No. 47, the Inspector General would not have constituted a court and would not have transferred the petitioner's case to it for investigation on one charge only. We cannot guess whether the Inspector General would have reached that or any other decision; at all events, since no defect has been disclosed in that conviction, it is not for us to interfere with it.

 

            Accordingly, in my opinion, the order nisi issued in H.C. 47/53 ought to be made absolute. The order nisi in H.C. 268/52 ought to be made absolute insofar as it relates to the conviction on the second and third counts in the charge sheet, and must be discharged insofar as it relates to the fact count therein.

           

            SILBERG J.   I concur with the judgment of my learned colleague Sussman J. Mr. Tunik's argument that in specifying offence No. 47, the High Commissioner exceeded the powers conferred upon him by section 50(1)(e) of the Police Ordinance, seems to me to be sound. In my opinion, he not only exceeded the limits of his powers, but assumed an authority which had not been conferred upon him. Section 50(1)(e) empowers the High Commissioner in Council :

           

"to define offences to the prejudice of good order and discipline."

           

            "To define", in this context, means to fill that bare description with concrete content by naming actual deeds. What, in fact, did he do? He substituted one vague meaningless concept - "the prejudicing of good order and discipline." – with another bare concept, no less ambiguous than the first, namely, "disorderly conduct or other conduct likely to bring discredit on the reputation of the Force". Is that to be treated as a definition? How much wiser are we now than we were with the first description? Moreover, by the "interpolation" of the new, meaningless definition, he has in fact changed the content and meaning of the description given in section 50(1)(e), for he has thereby set out a different standard for evaluating the act and classifying the offence.

 

            It follows that the specifying of offence No. 47 was not only "ultra vires", but altogether "extra vires" of section 50(1)(e), that it has no effect and is invalid. That being so, since the charge against the petitioner Mimran and the two convictions, the second and the third, of the petitioner Sapoznikov are based on offence No. 47, they have no foundation and the order in relation to them ought to be made absolute.

           

            OLSHAN.  It seems to me that the intention of the legislator in section 18 of the Police Ordinance was to confer jurisdiction on a disciplinary court to deal with the conduct of policemen for the purpose of stiffening the discipline of the Force and securing efficient service. Accordingly he intended to transfer to the Court of Discipline the trying of acts which are prejudicial to the discipline and good order of the Force.

           

            The said Ordinance discloses no intention to grant a special status to a police officer regarding the liability attaching to every citizen for criminal acts, in accordance with the Criminal Code Ordinance or any other law. The maximum punishment that the Court of Discipline can inflict is that of imprisonment for two years. In the light of section 21 of the Criminal Code Ordinance, which forbids the imposing of criminal liability twice for the same act (except in the case of causing death), it cannot be that the legislator intended to tighten or lessen the measure of punishment in regard to a citizen simply because he is a police officer. Were it not for the said section 21, or if the power had been given to the Court of Discipline to inflict the punishment provided in the criminal law in every case where the act is also an offence according to the criminal law, or if the discretion of the Inspector General of Police to prefer the Court of Discipline had been limited to those cases where the punishment according to the criminal law does not exceed imprisonment for two years, it might have been possible to argue that the legislator intended to make the police officer's position more severe, because the police officer, by virtue of his position, ought to serve as an example of a law-abiding citizen.

            These remarks relate in particular to criminal offences which have no special connection with the duties and work of a police officer.

           

            It is true that in section 18 of the Police Ordinance, among the paragraphs laying down the offences which may be tried before a Court of Discipline, there are offences that are also offences according to the criminal law. Paragraph (a) deals with mutiny, (b) with incitement to mutiny, (e) with the use of force towards a superior officer, (f) with desertion. But these offences are closely connected with a police officer's duties, and the legislator expressly laid them down in the above-mentioned list of offences. Notwithstanding that those offences are closely connected with the duties of a police officer, the legislator did not regard them as being included in paragraphs (h) and (i), which speak generally of offences which are prejudicial to the good order and discipline of the Force, and so laid them down expressly. If it were necessary to set out those offences separately and expressly, because they cannot be regarded as included in paragraphs (h) and (i), a fortiori that would be so as regards other offences laid down in the criminal law that have no connection whatsoever with a police officer's duties.

           

            With regard to paragraphs (a), (b), (e) and (f), since they are directly connected with a police officer's duties, it may be that the legislator treated them as cases where the efficiency of the police service would require speedy trial before a Court of Discipline. But in the absence of express provision in that Ordinance, a similar intention cannot be imputed to the legislator in regard to other offences provided in the criminal law, which have no connection whatsoever with the question of imposing discipline.

           

            If it be said that it is hard to imagine an act which is an offence according to the criminal law but not prejudicial to good order and discipline when committed by a police officer, so that the view would be correct that in paragraph (i) in section 18 power is given to the Inspector General of the Police to put a police officer on trial before a Court of Discipline for my act constituting an offence according to the criminal law, then the question may be asked as to what was the necessity for the detail in paragraph (a) to (h) in section 18.

           

            It seems to me that the construction of section 18 is that, generally speaking, the Inspector General of the Police may put a police officer on trial before a Court of Discipline for an act prejudicial to good order and discipline, and if such an act also constitutes an offence according to the criminal law, that power may be used only if the offence is mentioned expressly in the Police Ordinance, or if the element of prejudice to good order and discipline in the act imputed to the offender is decisive.

 

            Moreover, according to section 50(1)(e), the High Commissioner in Council was given the power to make rules for defining offences to the prejudice of good order and discipline. In 1941 the Police Rules were published, in which the High Commissioner in Council specified 46 offences which are deemed to be offences to the prejudice of good order and discipline. To those offences was later added offence No. 47, which dealt with a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

            In the present cases, the petitioners were brought before a Court of Discipline for tile offence specified in No. 47. There is no doubt that the act of rape imputed to the petitioner in File 47/53, constitutes disorderly conduct likely to bring discredit on the reputation of the Force, but the question arises whether, in order to bring a police officer to trial before a Court of Discipline, the offence No. 47 may be construed as if an act of rape were such an offence. For this is an act which has no direct connection with the police officer's obligations in the matter of "good order and discipline" (with the emphasis on the word "and"), or at all events where the element of prejudice to "good order and discipline" is not the element. In other words, did the High Commissioner in Council intend to include the offence of rape in the general definition in offence No. 47? And if so, a second question immediately arises, namely, was it within the power of the High Commissioner in Council to do so by way of rule-making ?

           

            I think that the answer is in the negative. According to Articles 39, 40 and 41 of the Order in Council, the trial of criminal matters is entrusted to the courts mentioned therein. The Court of Discipline is not numbered among them. Article 38 of the Order in Council (as amended in 1935) states :

           

            "Subject to the provisions of this part of this Order and any Ordinance or rules, the civil courts hereinafter described and any other courts or tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters. . . . ."

           

            It states, "according to the provisions of any Ordinance", not "according to a regulation".

           

            As stated, the trial of criminal offences is entrusted to the courts mentioned in Articles 39, 40 and 41. Then came the Police Ordinance which enabled a Court of Discipline to try, among other things, mutiny, incitement to mutiny and desertion when committed by a police officer. As this was done by Ordinance, it does not in any way offend against the Order in Council. But could the High Commissioner in Council (the intention being not the High Commissioner as legislator – see the Interpretation Ordinance) establish by Way of regulation a Court of Discipline with jurisdiction to try an act of rape, an offence under the criminal law which is not mentioned in the Police Ordinance? The answer seems to me to be in the negative, for the establishing of a court also involves defining its jurisdiction and jurisdiction cannot generally be created by regulation (Lipshitz v Valero (2)). And if it be said that only the establishment of a court need be made by Ordinance and the extension or restriction of its jurisdiction can be effected by regulation then in the present case section 50(1)(e) of the Police Ordinance cannot be construed as conferring such a power on the High Commissioner in Council. The offences which can constitute the subject-matter of a trial by a Court of Discipline are laid down in section 18 of the Police Ordinance. The High Commissioner was only given the power to "define" the offences included in paragraph (i) of section 18. When the legislator wanted also to include in section 18 three or four offences under the Criminal Code Ordinance, because they are closely connected with police service, he did so expressly in the Ordinance itself. It cannot be that by giving power to define the acts constituting an offence "to the prejudice of good order and discipline", the power was also given to add other offences of the criminal law which have no direct and close connection with police service. The High Commissioner was given the power "to define" the offences that are "prejudicial to good order and discipline", but "to define" means to explain and enumerate the acts that are deemed to be included in the above-mentioned offences laid down in paragraphs (h) and (i) in section 18 of the Ordinance, and it is not to be construed as giving power to insert wholesale into section 18 of the Ordinance all the offences in the ordinary criminal law. As I have already explained above, had such an intention existed - because every offence without exception is to the prejudice of good order and discipline when committed by a police officer - then there would have been no necessity for all the detail in section 18 and for giving the High Commissioner the power under section 50(1)(e). Instead, one section alone would have sufficed, which contained a provision that any police officer committing any criminal offence or acting in a disorderly manner or in any manner likely to bring discredit upon the Force, may be put on trial before a Court of Discipline.

 

            I think, therefore, that in offence No. 47, the High Commissioner in Council did not intend, nor could he possibly have intended, to include the offence with which the petitioner in H.C. 47/'53 is charged, namely, an act of rape.

            Accordingly, I think that it is impossible to bring the charge of committing an act of rape before the Court of Discipline, for that offence is not included in offence No. 47. It should be emphasized that there is no charge here of using a police car for private benefit, a matter which could have been included among the offences that are within the jurisdiction of the Court of Discipline. Here the charge is of committing an act of rape, a matter which is not, in my opinion, within the jurisdiction of the Court of Discipline. A distinction must be made between a charge of using a police car for private benefit without permission (be it even for the purpose of an act of rape) and a charge of rape, for they are separate acts, and section 21 of the Criminal Code does not apply to them.1) Let us assume that the petitioner had been brought before the District Court and found guilty of an act of rape. That finding could not serve to prevent the petitioner from being punished in n Court of Discipline for using a police car without permission (that no such additional charge would, out of fairness, be brought does not alter the principle). Or, let us assume that the petitioner had been brought before the District Court and acquitted because the act had been committed with the woman's consent. That, too, could not serve to prevent the petitioner from being punished for using a police car without permission.

 

            It is not always easy to fix the line dividing a criminal offence according to the criminal law from an offence to the prejudice "of good order and discipline", which is included within the jurisdiction of the Court of Discipline. In such a case, the test is, in my opinion, whether the decisive element in the offence imputed to the police officer is the prejudice to good order and discipline.

           

            When we read the offences in the second and third counts with which the petitioner Sapoznikov was charged, it can be seen at first glance that they are the offences mentioned in section 207 of the Customs Ordinance.

           

            In the second count, the petitioner was charged with attempting to conceal from the customs officials a consignment of medical supplies, which had been brought into the country without a proper import licence, and which were hidden among knives, spoons and forks.

 

            In the third count, he was charged with inducing a customs officer to permit him to take the goods out of the customs warehouse.

           

            It is clear that the charge against this petitioner was not that "being a police officer, he made an arrangement to prevent the seizure of goods liable to forfeiture." Furthermore, he was not charged that, being a police officer, he gave or promised to give the customs official a bribe or recompense in order to induce him to neglect his duty - offences included in section 207.

           

            It was not stated in those charges that the petitioner had some part in the bringing in of the goods by the owner without an import licence; he was not charged with making an "arrangement" in order to prevent the seizure of forfeited goods; no mention is made at all of whether the goods were liable to be forfeited or not; nothing at all is said as to what was his purpose in trying to conceal from the customs official...... It is not even stated that he thereby assisted in the smuggling.

           

            It is clear that the charges were not directed to offences under the Customs Ordinance, but only to the petitioner's conduct as a police officer who fulfilled no duty in the customs offices, and who instead of disclosing the matter to the customs officials, tried to conceal it.

           

            It cannot be said therefore, that offence No. 47 does not apply here.

           

            As to the application of offence No. 47, I regret that I must disagree with the opinion of my colleague, Sussman J.

           

            I do not think that offence No. 47 specified by the High Commissioner is invalid. By section 50(1)(e), the High Commissioner is given the power to define the offences which are prejudicial to good order and discipline. Accordingly, it was the duty of the High Commissioner, as was explained in Unfold v. Superintendent of Acre Prison (1), to describe or to draft a series of acts which are to be regarded as offences to the prejudice of good order and discipline. For that purpose he specified not just one offence, but all forty-seven. Offence No. 47 comes only as an addition to all the offences which he had specified under the previous forty-six heads. It is true that the drafting of offence No. 47, unlike the others, is too vague, but for all that there is in it an indication of certain conduct which is to be regarded as being to the prejudice of good order and discipline. Just as the first offence, for example, contains an instruction to the Court of Discipline that disobedience by a police officer to an order of a superior in rank is deemed to be an offence to the prejudice of good order and discipline, so offence No. 47 contains an instruction to the Court of Discipline that a police officer acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force is deemed to be an offender guilty of an offence to the prejudice of good order and discipline.

           

            By section 50(1)(e) of the Police Ordinance, the power is given to the High Commissioner to give such an instruction, that is, the power to order that such conduct shall be deemed an offence to the prejudice of good order and discipline, and it cannot be said that offence No. 47 is null and void just because in some cases the Court of Discipline may have difficulty in determining whether the given conduct, for which a police officer has been brought before it, is disorderly conduct, within the meaning of that offence. Also, should that difficulty arise, it will be a question of construing offence No. 47, and the construction is not so difficult if one remembers that it has to be construed in the light of section 50(1)(e), under the authority of which that offence was specified.

           

            Also, in the example quoted by my learned colleague from the Manual of Military Law, if such a ease is brought before the Court of Discipline of our Police according to offence No. 47, that court will be able to reach the same conclusion. The Court of Discipline will pose the question whether the High Commissioner intended to include such conduct in offence No. 47, and will be able to arrive at the same conclusion and to answer the question in the negative. The outstanding factor in offence No. 47 is conduct likely to bring discredit on the reputation of the Force. Every police officer must act properly and he is ordered not to bring discredit on the reputation of the Force. The High Commissioner provided in offence No. 47 that conduct contrary to that offence is conduct contrary to good order and discipline. Since the Law granted him the power so to provide, we cannot say that by specifying that offence be exceeded his jurisdiction. As for the argument that his drafting is too vague, I do not think that that is a defect capable of invalidating the offence, in the same way that we would not on that ground invalidate, for example, the offence of "unprofessional conduct" in the Advocates Ordinance, or the offence in section 105 of the Criminal Code Ordinance - an act causing public mischief, and the like. As stated, certain conduct was defined in offence No. 47, and I do not think that its drafting is more vague than the above-mentioned examples.

           

            Accordingly, I find no ground for interfering in the case of the petitioner Sapoznikov, and I think that the order nisi issued on his application ought to be discharged. As to the petitioner Mimran, I think that the order nisi should be made absolute.

 

Order nisi in the petition of Sapoznikov made absolute as to the conviction on the last two counts, and discharged as to the conviction on the first count; order nisi in the petition of Mimran made absolute.

 

Judgment given on May 31, 1953.

                                                                                                                HCJ 5784/03

HCJ 6024/03

HCJ 6025/03

 

1. Louie Salama
2. Abd al Razek Farg
3. Hail Abu Hassen

v.                                

1. Israel Defence Force (IDF) Commander in Judea and Samaria
2. Judge of the Military Appeals Court

 

The Supreme Court Sitting as the High Court of Justice

[August 11, 2003]

Before President A. Barak, Justices J. Turkel and E. Rivlin

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: Based on classified evidence tying them to terror organizations, detention orders were issued against the three petitioners. The orders were extended by respondent, and these extensions were confirmed by the Military Appeals Court. Petitioners claim that the extensions are not legal. They argue that respondents should corroborate the suspicions against them with further investigation. This would allow the detention orders to be replaced by a criminal proceeding.

 

Held: The Court noted that the basic premise of administrative detention is the need to prevent future danger to the security of the state of public safety. Administrative detention is not meant to be used in place of criminal proceedings. Such detention infringes the fundamental freedoms of the detainee. As such, in reviewing administrative detention orders, court must carefully and meticulously examine the evidence against the detainee. In extending a detention order, the security authorities must examine current and up-to-date evidence against the detainee. In light of these principles, and in light of the evidence upon which the administrative detention orders were based, the court  held that the decision of the Military Appeals Court to confirm them was a proper exercise of its judicial discretion.

 

Israeli Statutes Cited:

Emergency Authority Law (Detentions), 1979

 

Israeli Supreme Court Cases Cited:

[1]HCJ 7015/02, Ajuri v. Commander of IDF Forces in the West Bank, IsrSC 56(6) 352

[2]AA 2/82, Lerner v. Minister of Defense, IsrSC 42(3) 529

[3]HCJ 554/81, Branssa v. OC Central Command, IsrSC 36(4) 247

[4]Crim FH, 7048/97 Anonymous v. Minister of Defense, IsrSC 54(1) 721

[5]AA 4/94, Ben Horin v. The State of Israel, IsrSC 48(5) 329

[6]HCJ 4400/98, Braham v. Judge Colonel Sheffi, IsrSC 52(5) 337

[7]AA 2/86, Anonymous v. Minister of Defense, IsrSC 41(2) 508

[8]HCJ 3239/02, Marab v. IDF Commander in Judea and Samaria, IsrSC 57(2) 349

[9]HCJ 5994/03, Seder v. IDF Commander in the West Bank, IsrSC (unreported decision)

[10]HCJ 297/82, Berger v. Minister of the Interior, IsrSC 37(3) 29

 

Israeli Books Cited:

[11]II B. Bracha, Administrative Law (1996)

 

For petitioners 1-3—Tamar Peleg-Shrick

For respondents 1-2—Anar Helman; Yuval Roitman

JUDGMENT

President A. Barak

 The three petitions before us deal with the question of the legality of the extension of petitioners’ administrative detention.

 

Facts, Proceedings and Arguments

 

1. Petitioner in HCJ 5784/03 [hereinafter – petitioner 1] lived in Ramallah and worked in the Palestinian Authority’s Ministry of the Environment. In 1998 he served a sentence for his activity in the Jibril terror organization. Petitioner 1 was detained in Ramallah on March 12, 2003. He is being held in administrative detention (since March 18, 2003), pursuant to a warrant issued by the Commander of the IDF Forces in Judea and Samaria [hereinafter – respondent]. His detention was extended by six months (until February 16, 2003), after which (on March 4, 2003) respondent issued another warrant extending the detention for a further six months (until September 15, 2003). Hearings regarding the second extension were held before the Military Court in Ketziot on March 17, 2003. During the hearing, in which petitioner was represented by an attorney, it was brought to his and his attorney’s attention that the classified information regarding his case ties him to the Jibril terror organization. After hearing the classified information concerning the petitioner, the Military Court authorized the extension of the administrative detention order. The Military Court noted that the detainee had been in administrative detention for a prolonged period of time, and that this fact necessitated “particular care in assessing the military intelligence which led to his detention.” Nevertheless, it was decided that the classified information presented a case of real danger to the security of the area and to public safety if petitioner 1 were to be released. The Military Court of Appeals dismissed petitioner’s appeal (on May 4, 2003). It decided that the classified information pertained to a considerable period of time, and that the picture it painted justified the extension of petitioner’s administrative detention.

 

2. Petitioner in HCJ 6024/03 [hereinafter - petitioner 2] lived in the Ramallah Al Jalzoon refugee camp. Due to the suspicion of his involvement in the Popular Front terror organization he was placed in administrative detention between the years 1994-1996. Petitioner 2 was detained April 9, 2002 and interrogated by the security forces. Respondent ordered his administrative detention on April 24, 2002. His detention was extended (for the first time) until April 7, 2003. Respondent then ordered a second extension of the detention (until October 6, 2003). The Ketziot Military Court authorized the extension (on April 13, 2003) after hearing the arguments presented by petitioner 2. It ruled that the classified information was reliable, and tied petitioner 2 to the Popular Front terrorist organization. It ruled that the information pointed to the petitioner as posing a real danger to the security of the area. The Military Appeals Court dismissed the appeal submitted by petitioner 2 on June 16, 2003.

 

3. Petitioner in HCJ 6025/03 [hereinafter - petitioner 3] lived in the Jenin district, and did not have a criminal or security record. He was detained on October 5, 2001, and was sentenced to 45 days imprisonment for illegal entry into Israel. During the course of this sentence, respondent issued an order to place petitioner 3 under administrative detention. On April 16, 2003 respondent extended this detention for the third time, until October 27, 2003. The order was issued due to the suspicion that petitioner was an activist in the Hamas terror organization. The Ketziot Military Court authorized this extension (on April 29, 2003) after hearing petitioner’s arguments. The court acknowledged that the respondent had been under administrative detention for an extended period of time but decided that, in light of the classified information presented, he still posed a security threat to the region; accordingly, the court ruled that his detention could be extended. The Military Court of Appeals dismissed the appeal submitted by petitioner 3 (on June 4, 2003). It was determined that the classified material was reliable, and substantiated the danger presented by petitioner 3 to an extent that justified prolonging his administrative detention.

 

The petitions in this case contest the extensions of these administrative detentions.

 

The Arguments

 

4. Petitioners claim that there is no legitimate reason to extend the detention orders, and that their extension is against the law. They point to the clear violation of their basic rights by their extended administrative detention. They argue that the option of administrative detention should not be used where the detainee can be prosecuted by criminal trial. According to them, no substantial effort was made to investigate the acts they are suspected of having committed, nor was any new intelligence gathered about them; therefore, they should, after a time, be released. Petitioners argue that the Military Courts should have forced the security forces to corroborate the suspicions against them with further investigation, and to condition the authorization of the extension orders upon further investigation. According to them, this would have enabled proper criminal proceedings to replace the use of administrative detention. In addition, petitioner 3 points out that he has no record of being suspected of committing hostile acts, and so the prolonged detention is unjustified.

 

Respondent claims that the extension of the administrative detentions is legal. Furthermore, he argues that it is not the place of this court, the Supreme Court, to act as another level of appeal above the Military Courts. As to the merits of petitioner’s arguments,, respondent argues that the evidence against each of the petitioners justified the extension of their administrative detention, notwithstanding the length of detention time. Regarding the obligation to investigate the evidence, respondent maintains that the evidence accumulated against petitioners is reliable and from diverse sources. In the investigations carried out by the security forces, however, no unclassified information was gathered which could be used in criminal proceedings.

 

The Normative Framework

 

5. Respondent’s authority to order administrative detention is based on the Administrative Detention Order (Temporary Provision) (Judea and Samaria) (no. 1226), 1988, which has been occasionally amended. Pursuant to this order, respondent can order an administrative detention if there is “a reasonable basis to suppose that the security of the area or of the public necessitates a certain person to be held in detention.” Section 1(a) of the order. According to the order, respondent shall not exercise this authority “unless he believes it to be absolutely necessary for clear security purposes.” Section 3 of the order. The detention order should be for no longer than six months. Respondent may order “from time to time the extension of the original detention order, for a period of no longer than six months.” Section 1(b) of the order. Respondent’s authority on this matter is subject to judicial review. A person who is placed in detention pursuant to this order must be brought before a judge with legal training within 18 days of his detention. The judge may authorize or refuse the detention, or shorten the duration of the detention. Section 4(a) of the order. The judge’s decision can be appealed to the Military Appeals Court. Section 5(a) of the order. These procedures also apply to decisions concerning the extension of detention time. Section 1(a) of the order. In the framework of these proceedings, the detainee has the right to be represented before the Military Courts by an attorney.

 

6. Petitioners’ principal argument is that the legality of extending administrative detentions is dependent upon a systematic investigation conducted by the security services to gather evidence; this would allow criminal proceedings to replace administrative detention, enabling each detainee to confront the evidence brought against him. Petitioners claim that administrative detention cannot be extended so long as an investigation of this kind is not being conducted. Indeed, it is preferable to take criminal steps against someone suspected of hostile activity of a security nature, rather than use the procedure of administrative detention. HCJ 7015/02 Ajuri v. Commander of IDF Forces in the West Bank, [1] at 373. In criminal proceedings the defendant, suspected of terror activity or of being an accomplice to such activity, can confront the evidence brought against him, a defense that is sometimes not possible in administrative proceedings. Nevertheless, it must be remembered that for reasons of protecting intelligence sources, it is not always possible to use criminal proceedings. Furthermore, it should be noted that administrative detention and criminal procedure work on separate plains. The basic premise is that administrative detention is meant to prevent future danger to the security of the state or to the public safety. Administrative detention is not meant to be a tool used to punish previous acts, or to be used in place of criminal proceedings. AA 2/82 Lerner v. Minister of Defense, [2] at 531. The authorities could gather reliable evidence that would justify placing a person under administrative detention “without the possibility of calling witnesses that would testify to what they saw or heard.” HCJ 554/81 Branssa v. OC Central Command, [3] at 251. Therefore, the use of administrative proceedings should not be conditioned on an investigation that could have bearing on the criminal plain.

 

7. All this, however, does not bring this case to its conclusion. This court has maintained that the purpose of the Emergency Authority Law (Detentions) of 1979 is to protect the security of the state but, at the same time, to also safeguard man’s dignity and freedom. See Crim FH 7048/97 Anonymous v. Minister of Defense, [4] at 740. This applies to the detention orders in the present case. The order did indeed come to protect the public’s safety and the security of the area, as per section 1(a) of the order. However, it is clear that the administrative detention severely violates the detainees’ freedom. The purpose of the order is to ensure that this violation is within legal and constitutional boundaries. Therefore, the order sets up judicial review over the decision to order administrative detention or to extend it. The information and evidence presented by the security forces should be “carefully and meticulously” examined. AA 4/94 Ben Horin v. The State of Israel, [5] at 335 (Levin, J.). Judicial review over the detention proceedings is significant. In the context of this review, the detainee is afforded the right to legal representation. The Military Court and the Military Appeals Court can question the reliability of the evidence, and not merely decide what a reasonable authority might be expected to decide, on the basis of the evidence presented. HCJ 4400/98 Braham v. Judge Colonel Sheffi, [6] at 346. This review is an internal and integral part of the administrative detention order’s legality, and of the legality of its extension. See AA 2/86 Anonymous v. Minister of Defense, [7] at 515-16; HCJ 3239/02 Marab v. IDF Commander in Judea and Samaria, [8] at 368-69. Furthermore, respondent’s decision to place a person under administrative detention, and the extension of that detention, is subject to the supervision of the Supreme Court. This Court indeed is not an address for appealing the judgments of the Military Court or the Military Appeals Court. Nevertheless, in carrying out its judicial review, this Court takes into account any grave violation of the detainee’s human rights; this violation is given full weight when examining the reasons that brought the security forces to issue an order of administrative detention, as well as when examining the discretion of  the Military Courts.

 

8. The necessity of finding the right balance between the security of the state and the protection of the detainee’s human rights does not merely find expression in the existence of a channel of judicial review. It also finds expression in the manner of the activity of the security authorities, when they decide whether to place someone in administrative detention, or to extend that detention. This is especially true regarding the administrative evidence upon which these decisions are based. As Justice Mazza recently noted:

 

Evidence regarding a number of events is not the same as evidence regarding one specific event; evidence from one source is unlike information gathered from different sources; information based solely on agents and informers is not the same as information which is reinforced by documents obtained by the security services or by intelligence gained through special means.

 

HCJ 5994/03 Order v. IDF Commander in the West Bank, [9] at para. 6 (Mazza, J.). The strength of the evidence necessary to justify administrative detention could change over time. Evidence that would justify issuing an order of administrative detention might not constitute sufficient cause to extend that detention. And evidence justifying an extension of administrative detention might be insufficient for a further extension. The security services must assess whether the administrative evidence brought against the detainee justifies extending his detention. It is their responsibility to take into account new relevant information that can be obtained by reasonable means. HCJ 297/82 Berger v. Minister of Interior, [10] at 44. At the same time, this does not mean that a lack of current evidence would warrant, in and of itself, a dismissal of an extension; it all depends on the circumstances of the case. In any event, the evidence presented by the security services must be examined in order to assess whether it proves the danger of the detainee in a measure that justifies his further detention. The severity of the suspicions, for example, as well as the strength of evidence, among other things, must be taken into account. There will be cases in which a lack of current evidence relating to the detainee would be detrimental to the respondent wishing to extend the administrative detention. In these cases, we would say that the evidence gathered by the security services does not justify holding the detainee in administrative detention any longer. See II B. Bracha, Administrative Law 304 (1996) [11].

 

From the General to the Particular

 

9. The petitioners in this case are at the stage where an extension of their administrative detention has been requested. For petitioners 1 and 2 this would be a second extension, while for petitioner 3 it would be a third. The situation demands that we closely examine the evidence used to extend the detention. Petitioners and their legal representatives appeared before us. With their consent, we were exposed to the evidence upon which the decision to extend their detention was based. Respondent presented further evidence, relating to petitioners, in addition to the evidence that existed at the time the order of administrative detention was issued. The picture that emerges regarding petitioner’s arguments is that the security services have not been negligent in gathering evidence against them; on the contrary, such additional evidence continued to be collected. In light of the evidence, we are convinced that respondent did not act amiss in his decision to extend petitioners’ administrative detention, nor was the Military Courts’ decision to authorize this extension flawed in a way that would justify the intervention of this Court. Along with the Military Appeals Court, we were persuaded that the evidence existing today against petitioner 1 paints a “reliable, complete and consistent” picture, which justified the extension of his detention. See page 2 of the Military Appeals Court’s judgment of May 4, 2003. Furthermore, concerning petitioner 2, we concur with the Military Court, who regarded the evidence tying him to the Popular Front terror organization as being “very reliable.” See page 3 of the Military Court’s judgment from April 13, 2003. The same can be said of petitioner 3, whose security record indeed is less grave than the two other petitioners. The Military Court took caution in light of the extended period of time petitioner has been in administrative detention. See page 1 of the Military Court’s judgment from April 29, 2003. However, given the evidence with which we were presented, we found no cause to intervene in the conclusions of the Military Appeals Court, whereby “the administrative detention is the only means of neutralizing the danger of the appellant.” Page 2 of the Military Appeals Court’s judgment of June 4, 2003.

 

In light of the above, the petitions are denied.

 

Justice J. Turkel

 

I concur.

 

Justice A. Rivlin

 

I concur.

 

August 11, 2003