Prisons Ordinance

HCJ 1892/14

 

 

 

Petitioners:                  1.         The Association for Civil Rights in Israel

                                    2.         The Ramat Gan College of Law and Business

                                    3.         Physicians for Human Rights

 

                                                            v.

 

Respondents:              1.         Minister of Public Security

                                    2.         Prison Service Commissioner

                                    3.         Minister of Justice

 

In the Supreme Court sitting as High Court of Justice

[June 13, 2017]

 

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

 

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

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

 

Israeli cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

Judgment

 

Deputy President E. Rubinstein:

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

 

Background

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

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

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

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

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

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

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

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

The Arguments of the Petitioners

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

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

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

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

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

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

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

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

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

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

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

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

1.         Establishing the appropriate living space for an inmate;

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

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

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

The Position of the Respondents

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

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

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

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

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

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

The present proceedings

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

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

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

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

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

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

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

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

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

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

Review and decision

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

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

And further on (at p. 175):

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

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

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

Human dignity and the dignity of the prisoner

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

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

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

…

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

…

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

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

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

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

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

40.       But the living space allocated to an inmate throughout the prison facilities stands at only 3.1 square meters. This space is “all included” – it comprises the beds (some 1.5 square meters), storage spaces, and lavatory and shower areas. In other words, the free space allotted to an inmate for his day-to-day activity does not reach 3 square meters. The overcrowding in the prisons “violates the movement and breathing space of the inmate in the prison compound” (the Prison Privatization case [4], para. 32 of the opinion of Justice Procaccia), infringes the inmate’s privacy to the point of nullification, and allows only limited movement. The Petitioners enumerated a long list of the consequences of overcrowding for the lives of inmates, and well described how it can inherently lead to the spread of disease and to difficulties in maintaining good hygiene (see: The Public Defender’s Report, pp. 17-19). This is the case even if I do not doubt that the Prisons Service, its headquarters, district commanders and prison wardens work hard to improve the situation and maintain the health of the inmates. However, research shows that overcrowding leads to an increase in friction among the inmates, which in turn leads to violence and disciplinary breaches (Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 Wash. U.J.L & Pol’y 265 (2206); Gerald G. Gaes, The Effects of Overcrowding in Prison, 6 Crime and Just. 95 (1985). Truth be told, there is no need for research to know this – it is clear from experience and common sense. The research also points to the physical and psychological decline of inmates, an increase in the sense of pressure, tension and anxiety, as well as an increase in self-starvation (N. Dagan, “Early Prison Release: The Releasing Authority and its Discretion in Designing Penalties” (Ph.D. diss, 2013) (Hebrew); and see: Jack Call & Terence Thornberry, Constitutional Challenges to Prison Overcrowding: The Scientific Evidence of Harmful Effects, 35 Hastings L.J. 313, 319 (1984)). It is superfluous to say that overcrowding impairs the availability and accessibility of various services in the prisons. These services are divided among a larger number of prisoners, and the same is true for public spaces. We will now turn to the “terrible overcrowding in the prisons” (not necessarily in regard to Israel, and see: Cohn, The Law, 552).

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

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

            As for the sanitation and hygienic conditions:

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

And further:

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

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

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

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

            And:

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

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

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

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

46.       It cannot be denied that much has been done over the last few years to improve the situation. Prisons have been renovated and new ones have been built, and there are proven good intentions, but that is not enough. As noted, a number of reports addressed the issue of prison conditions over the years, committees were convened, and the complex reality of budgeting and logistics led to a situation in which, for years, efforts have been made, plans devised, and steps even taken – and I say this with no intention to offend anyone – but an appropriate solution in the field has not been provided for a large part – too large a part – of inmates.

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

International and comparative law

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

International law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The United States

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

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

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

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

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

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

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

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

Canada

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

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

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

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

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

…

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

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

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

68.       In conclusion, no one denies that the problem of prison overcrowding exists in many countries – inter alia, as a result of the modern punitive policy that has led to a significant decline in executions and a rise in the number of prisoners – and they seek a variety of solutions to contend with it. Accordingly, the picture provided by the comparative survey is complex, and it is therefore difficult to draw a direct analogy to the situation in this country. However, despite the differences among the various laws in regard to the scope – and at times, even the very existence – of a minimum standard for living space, there would appear to be a growing willingness, both by international systems and the legal instances of the various states, to exercise active means to remedy the problem of overcrowding. Against this background, we will now return to address the present petition, but not before expressing the view of Jewish law on the subject of the treatment of prisoners.

The treatment of prisoners in the Jewish heritage

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            Maimonides states the halakha in this matter as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jewish law in our legal system

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

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

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

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

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

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

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

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

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

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

            Not long ago, Justice Barak wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

98.       I have also had occasion to note:

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

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

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

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

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

The statutory provisions

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

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

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

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

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

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

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

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

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

            From the phrase “to the extent possible”, the Respondents learn that the State has absolute discretion in deciding the living conditions of prisoners in the existing prison facilities, in accordance with budgetary considerations and priorities that it establishes.

107.     The focus of our discussion is sec. 11B of the Ordinance. The question is whether the expression “appropriate conditions” should also be taken to comprise the minimum living space to which a prisoner – and similarly, a detainee – is entitled in the State of Israel. We are, therefore, concerned with an issue of interpretation.

108.     As Prof. Barak wrote:

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

            To this I added in one case:

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

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

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

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

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

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

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

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

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

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

115.     In the present matter, I am of the opinion that all of the sources point to the fact that the objective purpose – and as noted, the subjective as well – of sec. 11B is to establish appropriate, minimal standards applicable to every inmate, as such, and that the area of his cell is among them. As we have shown, minimal living space is a necessary condition for preserving a person’s dignity and his right to a minimally dignified existence. As stated, there is no dispute that the absolute majority of Israel’s inmates live under conditions that by the standards established by the State itself – and as noted, this is also supported by international law and comparative law – are not consistent with minimal living conditions for an inmate’s dignified existence. This is repugnant to the fundamental principles of our law, the constitutional right to dignity enshrined in Basic Law: Human Dignity and Liberty, Jewish heritage, the position of international law, and to what is acceptable according to comparative law, as we showed in detail above. Moreover, having found that the subjective purpose of the law is not unambiguous, but the objective purpose of the law clearly favors the position of the Petitioners, and since in interpreting a law concerning human rights, as in the present case, significant weight should be given, a priori, to the objective purpose (Barak, Purposive Interpretation, 255), we can only conclude that sec. 11B should be interpreted as establishing a principle of minimal living space that must be applied to every prisoner – and correspondingly, to every detainee – in Israel. I would add the following two points: First, we must examine the subject of a prisoner’s living space through the lens of basic human rights, and ask ourselves how we would feel living in a 3 square meter space over the course of years. Second, even were we to assume that the matter is open to different interpretations, when we are concerned with basic human rights, we must choose the one that realizes broader rights, rather than the opposite.

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

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

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

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

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

119.     Indeed, inasmuch as the subsidiary legislator is presumed not to have intended to contradict the intent of the primary legislator, I am of the opinion that in employing the expression “to the extent possible” in reg. 8, the subsidiary legislator intended to say that the minimum standard would gradually be put into effect for all prisoners in all prisons within a reasonable period of time, as is customary when we are concerned with an administrative agency, and in accordance with the rule established under sec. 11 of the Interpretation Law, 5741-1981, that “any empowerment, and the imposition of any duty, to do something shall, where no time for doing is prescribed, mean that it shall or may be done with due dispatch …” (emphasis added – E.R.), and see in this regard, D. Barak-Erez, Administrative Law, vo. I, 407 (2020) (hereinafter: Barak-Erez) (Hebrew). In the present matter, some two decades have elapsed since the relevant regulation was established in the Arrest Regulations, and many years have also passed since the parallel regulation was enacted in the Prisons Regulations. That cannot be accepted as a reasonable time when we are concerned with a fundamental right of the first order, and where the infringement is severe and disproportionate, and surely when the State’s response reveals that the matter is not expected to change substantially in the near future. As Justice Levy once noted: “The obligation to act reasonably – which applies to all the acts of the Respondent – is a primary obligation. Reasonableness – we would again recall – means meeting a reasonable timetable” (HCJ 2065/05 Maher v. Minister of Interior [35]; and also see HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [36], 451). Moreover, we cannot accept an interpretation by which the subsidiary legislator intended to establish an arbitrary rule that would discriminate among prisoners in manner that would infringe their basic rights simply due to budgetary considerations, and under which there would be no minimum standard that would apply to every inmate as such, but rather would be subject to the (actually, absolute) discretion of the executive (in this regard, see: HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance [37], para. 38). In any case, the interpretation given by the subsidiary legislator is but one of the elements that the Court must consider in interpreting a statute, and as noted, an interpretation by which no minimum standard applicable to every inmate would be set would be incompatible with other sources by which the purpose is determined – fundamental principles of the system, our constitution as expressed in the Basic Laws, human dignity in Jewish law, and the comparative and international law cases cited. Having concluded that the purpose of the law leads to a clear conclusion in regard to the need for a minimal standard for the living space of the incarcerated prisoner, what is stated in subsidiary legislation cannot change that conclusion. A prisoner is a person, regardless of in what prison he is imprisoned, and the minimal standard must be universal.

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

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

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

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

A.        The minimum living space for every prisoner and detainee shall be set at 4 square meters exclusive of the lavatory and shower area, as requested in the petition (or 4.5 square meters inclusive of the lavatory and shower area).

B.        To that end, the State will do what is necessary so that, within 9 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower area; within 18 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 4.5 square meters, including the lavatory and shower area, or 4 square meters without them.

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

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

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

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

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

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

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

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

 

Justice U. Shoham:

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

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

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

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

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

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

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

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

 

Justice H. Melcer:

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

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

The “living space” of a prisoner and a detainee

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional background considerations that justify making the order absolute

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

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

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

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

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

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

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

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

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

As a Jewish State – How?

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

The principle of preserving the dignity and welfare of a prisoner was expressed, inter alia, in Jewish law, and was also implemented in Israeli law by Justice M. Elon. Thus, for example, in HCJ 337/84 Hokma v. Minister of Interior [1], 826, it was stated: “We hold as an important principle that every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard. This rule has its roots in Jewish heritage since time immemorial: In accordance with what is stated in Deuteronomy 25:3: “lest your brother shall be dishonored before your eyes”, the Sages established an important principle in Jewish penal theory: “once he has been flogged he is considered your brother” (Mishna Makkot 3:15). It is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain.

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

As a Jewish State – How?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            In this regard, I would note:

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

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

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

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

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

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

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

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

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

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

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

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

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

The status of Jewish law

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

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

            I will, nevertheless, permit myself some remarks.

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

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

 

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

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

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

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

 

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

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

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

PPA 4463/94

Avi Hanania Golan

v

Prisons Service

 

The Supreme Court

[25 August 1996]

Before Justices E. Mazza, M. Cheshin, D. Dorner

 

Appeal with leave on the judgment of the Tel-Aviv–Jaffa District Court (Justice A. Even-Ari) on 15 July 1994 in MP 142/94.

 

Facts: The appellant asked the respondent for permission to publish articles about prison life in a local newspaper. The respondent refused. The appellant filed a petition in the District Court against this refusal, but his petition was rejected. Leave was given to appeal the District Court’s decision to the Supreme Court.

 

Held: (Majority opinion — Justices E. Mazza, D. Dorner) The respondent has a duty to uphold human rights, and it must make reasonable efforts and devote reasonable resources to do this.

(Minority opinion — Justice M. Cheshin) The respondent’s argument that it is not its task to censor newspaper articles is reasonable, and in view of the character of the appellant and his behaviour in the past, the respondent cannot reasonably be expected to rely on the appellant’s undertaking to restrict himself to writing only about himself. The likelihood that allowing the appellant his desire will lead to infractions of prison discipline is not remote. In view of the very difficult task faced by the prison authorities, they should be allowed a broad discretion in deciding questions of prison order and discipline.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

 

Basic Laws cited:

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 2, 4, 8.

 

Statutes cited:

Knesset Elections Law (Amendment no. 17), 5746-1986.

Prisons Ordinance [New Version], 5732-1971, ss. 1, 42, 43, 47, 56, 56(41), 62A, 71-72F, 131A, 132.

 

Regulations cited:

Prisons Regulations, 5738-1978, rr. 18, 19, 20, 24A, 24B, 25-34, 33, 49, chap. 5.

 

Israeli Supreme Court cases cited:

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

[2]      CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[3]      HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[4]      PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[5]      HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[6]      HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[7]      CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[8]      CrimApp 7223/95 — unreported.

[9]      HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[10]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[11]    CA 105/92 Re'em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[12]    HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407l IsrSJ 4 208.

[13]    CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Company Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30.

[14]    HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[15]    HCJ 6218/93 Cohen v. Israel Bar Association [1995] IsrSC 49(2) 529.

[16]    HCJ 215/59 Geller v. Minister of Interior [1959] IsrSC 13 1703.

[17]    HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

[18]    HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[19]    HCJ 96/80 Almalabi v. Prisons Service [1980] IsrSC 34(3) 25.

[20]    HCJ 157/75 — unreported.

[21]    HCJ 454/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

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

[23]    HCJ 881/78 Mutzlach v. Damon Prison Commander [1979] IsrSC 33(1) 139.

[24]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[25]    HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[26]    HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

[27]    HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[28]    HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [1996] IsrSC 50(2) 822.

[29]    HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[30]    HCJ 7111/95 Local Government Centre v. The Knesset [1996] IsrSC 50(3) 485.

[31]    HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [1994] IsrSC 48(2) 1.

[32]    HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [1995] IsrSC 49(5) 751.

[33]    HCJ 399/95 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

 

Magistrates Court cases cited:

[34]    CrimC (TA) 7036/92 — unreported.

 

American cases cited:

[35]    Procunier v. Martinez 416 U.S. 396 (1974).

[36]    Coffin v. Reichard 143 F. 2d 443 (1944).

[37]    Brown v. Peyton 437 F. 2d 1228 (1971).

[38]    Pell v. Procunier 417 U.S. 817 (1974).

[39]    Jones v. North Carolina Prisoners’ Union 433 U.S. 119 (1977).

[40]    Bell v. Wolfish 441 U.S. 520 (1979).

[41]    Turner v. Safley 482 U.S. 78 (1987).

[42]    Thornburgh v. Abbot 109 S. Ct. 1874 (1989).

[43]    Milwaukee Pub. Co. v. Burleson 255 U.S. 407 (1921).

[44]    Nolan v. Fitzpatrick 451 F. 2d 545(1971).

 

Jewish law sources cited:

[45]       II Kings 4, 8-10.

 

For the appellant — D. Yakir.

For the respondent — Y. Shefer, Senior Assistant to the State Attorney.

 

 

JUDGMENT

 

 

Justice E. Mazza

This is an appeal with leave on the judgment of the Tel-Aviv-Jaffa District Court (Justice A. Even-Ari), in which a prisoner’s petition filed by the appellant (a prisoner at Ashmoret Prison) against the refusal of the respondent (the Prisons Service) to allow him to publish a personal column or articles written by him in the local newspaper Mid-Netanya was denied.

Basic background

2. The appellant is a prisoner currently serving terms of imprisonment to which he was sentenced after he was convicted in two trials: in the first trial the appellant was convicted of the offences of fraud, forgery, impersonation and escape from lawful custody. For these offences, he was sentenced (at the end of 1988) to six years imprisonment and was also given a suspended sentence. This was the fourth substantial term of imprisonment to which the appellant was sentenced; he has a string of past convictions for many offences of the same kind. After the appellant began to serve this term of imprisonment, the appellant escaped from lawful custody, and while he was outside the prison, he proceeded to commit additional offences of fraud. When he was caught, he was brought to trial once again and was convicted of escaping from lawful custody and of the other offences that he committed during the period of the escape. For his conviction on these offences, he was sentenced to an additional term of imprisonment and the suspended sentences were activated. The total term of imprisonment that the appellant was sentenced to serve, under the two sentences, amounts to ten and a half years, starting on 18 November 1988. The appellant served his first year of imprisonment at Ashkelon Prison. Afterwards, he was transferred to Ashmoret Prison, and since then he has been imprisoned there. Because of activity in which he was involved in the past, the appellant was classified as a prisoner in need of maximum protection. Therefore he has been imprisoned, throughout his imprisonment, with a few prisoners of this type, in conditions of isolation from all the ordinary prisoners.

3.    In 1989, while he was a prisoner at Ashkelon Prison, the appellant sent several articles that he wrote to a local newspaper Mikol Makom, which is published in Ashdod. In these he described prison life. The articles were published, and the owner of the local paper (the management of the newspaper Yediot Aharonot) even made a payment to the appellant as the author. In January 1994, the appellant asked the respondent to allow him to publish in the local newspaper Mid-Netanya a personal column, or a series of articles, about life at Ashmoret Prison. His request was refused. The appellant filed a petition against the refusal in the District Court, under section 62A of the Prisons Ordinance [New Version], 5732-1971. But the District Court saw no reason to intervene in the respondent’s decision, and it denied the petition. Now we have before us an appeal, which was filed after leave was duly given.

Disputes as to questions of fact

4.    Two of the appellant’s contentions, in his petition before the District Court, raised a factual dispute. The District Court held that the appellant did not prove either of the two contentions, but the court did not ascribe much importance to this finding; in any event, it is clear that it was not because of the appellant’s failure to prove either of the said contentions that the court decided to deny his petition. I think it advisable to remove these disputes from my path at the outset, since in my opinion too they are unimportant for the purpose of the decision.

5.    The first dispute concerned the question whether, for the publication of his articles in the local newspaper Mikol Makom (while he was still a prisoner at Ashkelon Prison), the appellant obtained permission from the respondent. The appellant argued that Mr Johnny Tester, who was spokesman of the Prisons Service at the relevant time, gave him permission to send articles for publication in this local newspaper. However, shortly afterwards, without any reason being given for this, the permission was revoked, and then he was compelled to stop sending additional articles. The respondent, which denies this contention, based its position on the fact that in the appellant’s personal file at the Prisons Service no documentation was found on the subject of granting the alleged permission. The Court gave the appellant time to file an affidavit in support of his aforesaid contention, but notwithstanding the time that was given him for this purpose, the appellant did not file any affidavit. The District Court concluded from this omission that the appellant had not proved his contention.

I wonder whether, in the circumstances of the case, the decision with regard to this contention should have been based on the appellant’s failure to file an affidavit in support thereof. Did not the appellant name the person at the Prisons Service who, according to him, gave him (and later revoked) the permission; I do not understand what prevented the respondent from ascertaining what this person had to say on the matter. But for the purpose of the proceedings, I will assume that the trial court was correct in its conclusion that the appellant did not prove his contention. What does this imply? In circumstances different from those in our case, I would indeed have inclined to attach some importance to this conclusion. Admittedly, as a rule it is correct to presume that a prisoner, who takes the law into his own hands and acts without permission from the Prisons Service, in a matter which, under the law applying to prisoners, requires permission to be granted, is likely to be found unworthy of receiving the permission, even if according to the ordinary criteria he ought to have been given the permission he seeks. But this is not the case with regard to the appellant’s request. The respondent’s refusal to give the appellant the permission he recently requested was not based on the reason that several years ago (in 1989) the appellant took the law into his own hands, in that he sent articles for publication in the local newspaper Mikol Makom without obtaining permission. The respondent did not even claim that the publication of those articles escaped its attention. In any event, from correspondence between the appellant and the editor of local newspaper Mikol Makom, which was filed in the District Court, it appears that when the appellant was told, by a representative of the respondent, that he was not entitled to send additional articles for publication in the local newspaper, the appellant immediately desisted.

6.    The second factual dispute between the parties concerns the question whether the local newspaper Mid-Netanya has any interest in publishing articles written by the appellant. The appellant’s contention was that recently, before he submitted his request to the respondent, he enquired and found that the local newspaper would be prepared to publish his articles. But the respondent claimed that it had not received any request from any newspaper that was supposedly prepared to publish articles written by the appellant. To prove his contention, the appellant summoned, as a witness on his behalf, the representative of the editor of the local newspaper. This journalist testified that she did not know the appellant. Notwithstanding, she confirmed that about three months earlier the appellant wrote to her with an offer of publishing articles about prison life. When she asked the editor of the newspaper as to her position, the editor advised her to interview the appellant, for the purpose of finding out about him before making a decision whether to publish his articles. According to her, she asked the director of the prison to allow her to interview the appellant. First she was told that ‘the matter was difficult’ and afterwards that the appellant had filed a petition and that, therefore, she should wait. Finally she was summoned to the court to testify, before she succeeded in holding the desired interview. On the main issue, she said that the editor of the newspaper treats the appellant like any new reporter offering material for publication.

Prima facie this testimony implies that the appellant did not sufficiently prove his contention that the editor of the local newspaper Mid-Netanya was indeed prepared to publish his articles. However, an affidavit filed by the respondent, given by its spokesman, obscured the issue. The affidavit stated that this journalist (the witness for the appellant) had already met the appellant in the prison, without stating in the affidavit when she visited, and whether this was before or after her appearance in the court. The affidavit also alleged against the witness that she received permission to visit the appellant and that she used the visit to interview him, without obtaining permission for this as required by the procedure regulating the conditions of meetings between journalists and prisoners. But whichever is the case, the question in dispute is unimportant. The decision as to the right of the appellant to send his writings for publication in a newspaper does not depend at all on whether the newspaper is interested or prepared to publish the material; moreover, it has certainly been proved that the local newspaper under discussion was prepared in principle to examine and decide whether the appellant’s articles merited publication.

The main disputes and the decision in the District Court

7.       In his petition to the District Court, the appellant mainly based his position on the right of freedom of speech. The appellant argued that this basic right is shared also by someone who is a prisoner, and even he (while he is a prisoner) is entitled to realize it. In addition, the appellant relied also on his right of freedom of occupation. In this respect, he argued that his imprisonment in protective custody denies him the opportunity, which is available to other prisoners, of working and taking part in rehabilitation programmes. According to him, the possibility of writing and publishing his articles will improve his condition from various perspectives. In this way, he can give expression to his feelings and escape from the anguish of the remoteness and the isolation. Moreover, with the income that will be paid to him in return for his articles he will also be able to improve somewhat his standard of living in the prison.

8.    The respondent, in its response to the petition, did not expressly deny the appellant’s contention that the right of freedom of speech is shared, in principle, also by prisoners. Notwithstanding, it based its case on its stated policy that as a rule contact should not be allowed between prisoners and journalists. In its view, it is possible to deviate from this rule only in rare cases where there is a manifest public interest in permitting such contact, or when the contact occurs within the framework of press tours initiated by the Prisons Service. On the question whether the appellant has the right of freedom of occupation, the respondent chose to address the matter on a specific level only. The appellant, it argued, cannot be allowed to engage in journalism. Such an occupation, which involves an external employer, can be allowed only within the framework of the rehabilitation plans designed for prisoners. The appellant, as a prisoner requiring protection, does not meet the criteria that determine the degree of suitability for rehabilitation; it necessarily follows that it is impossible to allow him to engage in work, apart from work carried out in full within the prison.

The respondent further argued that the appellant is a persistent offender and therefore cannot be trusted to give a faithful account in his articles of what happens inside the prison. In this context, it was stated that on the two occasions when he succeeded in making contact with journalists, the appellant abused these contacts. First, in 1987, after he escaped from a previous term of imprisonment, the appellant was interviewed by the newspaper Yediot Aharonot. In this interview, which was published in the newspaper under the headline ‘Gangsters run the prison’, the appellant gave false descriptions about what allegedly happened in the prison. On another occasion, the appellant telephoned various journalists from the prison and gave them unfounded reports about the preferential treatment of the Prisons Service authorities to the prisoner Ahmed Yassin; the appellant did this even though he did not know this prisoner at all and never met him. As a result of the report, many journalists contacted the spokesman of the Prisons Service and the governor of the relevant prison and asked them to comment on the information in their possession. As the Prisons Service discovered afterwards, it was the appellant who made contact with the journalists and gave them the false report. In view of this experience, the respondent argued, there are grounds for concern that the appellant — wittingly or even unwittingly — will cause harm by his articles to the Prisons Service, the safety of other prisoners and also his own safety, and the reputation of prison warders and other staff. Moreover, giving the appellant a higher profile, because of his publications in the media, will give him a special status vis-à-vis the prison warders and other prison staff. These, fearing that they will be harmed by him, will be deterred from carrying out their duties and exercising their authority towards him. The authority of those in charge will be diminished, discipline will become lax and the running of the prison will be disrupted. Furthermore, the appellant, who is classified as a prisoner in need of protection, is guarded carefully. By becoming prominent among the prisoners, as a result of his access to publications in the media, he may increase the degree of personal risk to which he is exposed.

The appellant tried to calm the respondent’s fears. He therefore gave notice that he undertook not to write about anyone other than himself, but to speak in his articles only about his personal life in the prison. He also declared that he was aware and agreed that all his articles would be scrutinized by the respondent before they were sent to the editor of the newspaper, and that the respondent would be entitled to disqualify any article whose content, in his opinion, might disrupt the running of the prison, the safety of the prison warders or the prisoners or the reputation of any of them. The respondent’s reply to this was that the task of examining articles was outside the scope of his duties, and that doing this was, from his viewpoint, totally impossible.

9.    In deciding the petition on its merits, the learned judge considered two conflicting interests: the right of the appellant, as a prisoner, to freedom of speech, against the need to maintain order and security in the prison. The trial judge did not address the broader issue, namely whether the stated policy of the respondent in refusing prisoners contact with the media and speaking to the media, is a policy that reflects a proper balance between the two aforesaid interests. For the judge it was sufficient to determine that in the case of the appellant there was nothing wrong in the respondent’s decision. It would appear that the judge thought (although he did not say this expressly) that it was not reasonable to require the respondent to check the appellant’s articles in order to ascertain that their content did not arouse any fear of harm to the running of the prison, discipline, security and additional values. This led, so it seems, to the finding that ‘giving [the appellant] the right of free access to the media would allow him to acquire considerable power’ (emphasis supplied). Later, referring to the judgment of the Magistrates’ Court in the most recent of the appellant’s trials, in which the appellant’s uncontrollable criminal inclination was described, the judge also found that ‘giving a person like the [appellant] the opportunity of acquiring such power will have serious ramifications on the running of the prison’. In the circumstances of the case — the judge concluded — the decision not to allow the appellant to have contact with the newspapers is a reasonable decision.

The arguments in the appeal

10. Learned counsel for the appellant argued before us that the respondent’s refusal to permit the appellant to publish his writings in a local newspaper that is prepared to publish the work is a violation of the appellant’s freedom of speech and his freedom of occupation, and it violates his human dignity. These basic liberties, which are enshrined in the Basic Law: Human Dignity and Liberty, belong to the appellant even when he is a prisoner. Restricting them is permitted only to the extent that is required by the penalty of imprisonment, or according to the accepted rules for imposing such restrictions. The freedom of speech of a prisoner, like the freedom of speech of a free citizen, can be restricted only when there is an almost certain danger of real harm to public welfare or security. In its all-embracing fear that the appellant — wittingly or unwittingly — will publish remarks that will harm the running of the prison and the welfare of the prison warders and the prisoners, the respondent does not show an almost certain danger of such harm, and it does not even comply with less strict tests, such as a real fear or a reasonable possibility of such harm. The respondent’s desire to prevent the publication of criticism of the Prisons Service, or prison conditions, does not justify imposing a prior prohibition of any speech on these subjects. Even the concern for harm to the reputation of a prison warder, or a prisoner, does not justify imposing such a prohibition. This is particularly so in our case, in view of the appellant’s consent to restrict his writings solely to his impressions and experiences of prison life; his undertaking not to refer in his articles, personally, to any of the prison staff or prisoners; and his consent, ab initio, that the respondent may, at its sole discretion, not send to their destination any articles that breach any of these conditions. Counsel for the appellant also argued that, in the circumstances of the case, the appellant should be allowed to exercise also his right of freedom of occupation. Admittedly, as a rule, it is true that the imprisonment of a person prevents him from exercising his right to this freedom in the ordinary sense. However, the appellant merely asks to be allowed to send his writings for publication, whereas the work of writing will be carried out inside the prison. Therefore it is argued that the fact that the appellant is a prisoner requiring protection, or unsuited for rehabilitation programmes that are the only framework in which prisoners are able to work outside the prison, should not have any influence on the considerations leading to the decision on his request.

11. Counsel for the respondent argued that a prison sentence not only denies a person his freedom of movement and thereby restricts his ability to realize his right to personal liberty, but it also prevents him from being able to exercise other basic liberties that he has. Somewhat differently from its position before the trial court, the respondent conceded before us that the fact of imprisonment, in itself, does not deprive the prisoner of those basic liberties that he has, when the imprisonment does not necessitate his being deprived of them. Notwithstanding, it argued that the ability of a prisoner to realize these and other liberties should be restricted to the degree required in order to enable the respondent to carry out the duties imposed on it vis-à-vis the public: to protect the safety and security of all prisoners, to maintain order, discipline and security in the prisons; and to ensure the welfare and security of the staff and prison warders serving in the prisons. The appellant’s desire to publish articles in a newspaper is indeed based on his right to freedom of speech, but recognizing the appellant’s right to do this involves a danger of harm to the running of the prisons, the safety and security of other prisoners and the safety and security of staff and prison warders. Although the respondent recognizes the right of the appellant to express in writing his impressions from his stay in the prison, it regards it as its duty to prevent him from publishing these. Granting the appellant’s request will give him, vis-à-vis both prisoners and warders, a status of a ‘journalist’, and the great power embodied in such a special status may disrupt the discipline that must be maintained in the prison. There is also a fear that the appellant will write and publish things that may incite the prison population, cause disputes between prisoners, or endanger the safety or the reputation of prison warders and other prison staff.

Counsel for the respondent further argues that the appellant may exercise his right to correspond with addressees outside the prison only within the framework of the arrangements set out in the special law for the correspondence of prisoners — in other words, within the framework of the stipulated quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., one every two months), the appellant may send letters also to various newspapers. The appellant is also entitled, like every prisoner, to put his claims in writing (against prison conditions) in applying to various official bodies: the courts, members of the Knesset and the State Comptroller. The respondent does concede that it is no longer the practice to enforce the permitted quota of prisoners’ letters, and that in practice they are permitted to write more than the quota (something which under regulation 19 of the Prisons Regulations, 5738-1978, constitutes one of the benefits that the director of the prison is authorized to allow some or all prisoners). But with regard to the appellant, who wishes to publish articles about prison life, the respondent intends to exercise its authority to the full. Under regulation 33 of the Prisons Regulations, the respondent is authorized to open and examine every item of mail sent by a prisoner and to prevent it being sent to its destination if it is found to contain information that is likely to harm prison security or discipline, or that makes it possible to identify a person, whether a prisoner or a warder, in circumstances in which such information may harm that person or the running of the prison. The respondent says that it is its intention to examine the appellant’s mail and it intends not to allow the sending of letters (or articles to newspapers) that include harmful information. Counsel for the respondent did clarify in his arguments that the respondent’s fears were aroused by the intention of the appellant to send articles to the newspapers about prison life; in other words, had the appellant asked for permission to send articles that he wrote to the newspaper on other subjects, it is most likely that the respondent would have seen no reason to deny him this.

The respondent further argues that even the appellant’s reliance on freedom of occupation cannot give him a right to receive the desired permit. The violation of freedom of occupation is necessitated by his very imprisonment and the conditions of his imprisonment. As a prisoner, the appellant can ask to be employed, but only within the framework of the accepted procedures for the employment of prisoners of his category. Publishing a regular column or articles in a newspaper, in return for payment, constitutes, de facto, working for payment outside the prison. The appellant is not entitled to claim for himself such a freedom of occupation; what is more, the appellant does not meet the suitability requirements for rehabilitation programmes, and it is only within the framework of these that prisoners may be allowed to work outside the prison.

A prisoner’s human rights

12. 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. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law. As Justice Elon said in one case:

‘It is a major rule of ours that each one of a person’s human rights, as a human being, is retained by him even when he is under arrest or imprisoned, and the fact of imprisonment alone cannot deprive him of any right unless this is necessitated by, and derives from, the loss of his freedom of movement, or when there is an express provision of law to this effect…’ (HCJ 337/84 Hukma v. Minister of Interior [1], at p. 832).

See also the decision in CrimApp 3734/94 State of Israel v. Azazmi [2], at p. 81, also given by Vice-President Elon.

The basic assumption is that the human rights ‘package’ of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is ‘inherent’ to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law. Take the basic human right not to suffer physical harm without one’s consent, which was discussed by Justice Barak in HCJ 355/79 Katlan v. Prisons Service [3], at p. 298:

‘The right to physical integrity and human dignity is also a right of a person under arrest and a prisoner. Prison walls do not separate the prisoner from human dignity. Prison life naturally requires a violation of many liberties enjoyed by the free man… but prison life does not require someone under arrest to be denied his right to physical integrity and protection against a violation of his human dignity. A person under arrest is denied freedom; he is not deprived of his humanity. Performing an enema on a person under arrest without his consent and not for medical reasons violates his physical integrity, tramples his privacy and violates his dignity as a human being… therefore, in order that the prison authorities may perform an enema without the consent of the arrested person, and thereby justify the criminal offence and civil tort of assault, they must point to a provision of statute that allows them to do this.’

But the existence of a power is insufficient. As with any administrative decision, the decision of the authority in charge of prisoners must be reasonable and based on relevant considerations and logical reasons. In other words, even when an express provision of statute gives the authority to violate a human right of a prisoner, the authority may not make use of its power before it examines the matter and is persuaded that, in the circumstances of the particular case, there are real reasons that justify depriving a prisoner of his right or restricting it. Take a person’s human right to choose the type of medical treatment that the person thinks appropriate. This is a natural right that derives from the basic human right of a person to protect his physical and mental integrity and well-being. A person is not denied this right as a result of imprisonment; a violation of this right by the authority in charge of the prisons is possible and permissible only on the basis of an express provision of law and the existence of reasons that justify the violation. As Justice Elon said in PPA 4/82 State of Israel v. Tamir [4], at p. 206:

‘This basic right of a person to his physical and mental integrity and well-being and to choose the medical treatment that he thinks appropriate for preserving them is retained by a person even when he is under arrest or in prison, and the mere fact of imprisonment does not deprive him of any right unless this is necessitated by the actual loss of his freedom of movement, or when there is an express provision of law to this effect. Consequently, when the prison authorities wish to deny the person under arrest or the prisoner of this right, they have the burden of proving and justifying that denying this right is for good reasons and is based on law’ (emphasis supplied).

It is not superfluous to emphasize that suspending a prisoner’s ability to exercise any of his other liberties (except for his right to freedom of movement) is always relative, not absolute. This rule applies not only to those liberties that the prisoner can exercise without necessarily having freedom of movement, but also to those liberties that he can exercise only with this freedom. What is the significance of a prisoner also retaining a right of the latter kind? The significance is that the prisoner has an opportunity to argue that, within the framework of the restrictions required by the imprisonment, he should be allowed to exercise, if only in part, this right too. As an example, let us again consider the right of a person to choose the type of medical treatment he thinks appropriate. Even a prisoner has this right, and by virtue thereof he may prefer to receive medical advice and treatment other than those offered to him by the Prisons Service. But the imprisonment suspends his ability to realize this right, since he does not have freedom of movement. It follows that in practice, and as a rule, the prisoner will indeed be compelled to be satisfied with the medical treatment given to prisoners in the prison. However, suspending his ability to exercise the right of choice that he has is not absolute, but relative; in appropriate circumstances, his request, that he be allowed to exercise his right, is likely to be treated sympathetically. This is the case, for example, when the treatment requested by him is of a type that can be given to the prisoner even inside the prison, and there are no objective reasons that justify refusing him this (see State of Israel v. Tamir [4], at p. 213).

13. In determining the extent of the protection given to the human rights of a prisoner, we must take into account, in addition to the considerations concerning general or special interests, also considerations concerning the imprisonment and the duties imposed on the Prisons Service: the needs of guarding all the prisoners; maintaining order and discipline in the prisons; protecting the rights and safety of other prisoners; the education and rehabilitation needs of prisoners; protecting the safety and the rights of staff and prison warders in charge of running the prisons, and protecting the safety of the prisoners imprisoned in them. The extent of protection of a prisoner’s human rights derives from the necessary balance between the right and other interests, of the individual or the public, which in the circumstances of the case must be taken into account. The premise is that the right deserves protection and should be respected. Denying the right, restricting it or violating it are permitted only on the basis of objective reasons that have a basis in law. ‘The greater the right that is violated, the greater the reasons required to justify this violation’ (per Justice Elon in State of Israel v. Tamir [4], at p. 212). With regard to several basic human needs, which prisoners require, the tendency is not to permit any violation, and these needs include ‘not only the actual right of the prisoner to food, drink and sleep, but also minimal civilized human arrangements as to the manner of providing these needs’ (per Justice Elon in HCJ 114/86 Weil v. State of Israel [5], at p. 492); see also what was said in State of Israel v. Azazmi [2], at p. 82). Everyone agrees that ‘a person in Israel, who has been imprisoned (or arrested lawfully), has the right to be imprisoned in conditions that allow civilized human life’ (per Vice-President H. Cohn in HCJ 221/80 Darwish v. Prisons Service [6], at p. 538); only ‘very serious reasons’ (in the words of Justice Y. Kahan, ibid., at p. 542), such as the need to prevent a real danger to human life, may justify any deviation from the right to prison conditions that are considered essential. This is what happened in Darwish v. Prisons Service [6]: the decision of the Prisons Service that security prisoners should not be given beds but only improved mattresses was explained on account of the fear that they would dismantle the beds and use parts of them to harm warders and other prisoners. When it was ascertained that the fear was a real one and was based on past experience, the majority opinion saw no cause to intervene in the correctness of the decision. Notwithstanding, they ordered an investigation to be made for the purpose of ‘improving, in so far as possible, the quality of the sleeping arrangements of those prisoners whom the Prisons Service was compelled to deprive of their beds’ (per Justice Elon, ibid., at p. 546).

It follows that in determining the extent of the protection given to the human rights of the prisoner, the nature of the violated right is important, and ‘classifying the right according to the aforesaid criterion depends, to a considerable extent, on the attitude of society as to the character and fundamental nature of that right’ (per Justice Elon in Weil v. State of Israel [5], at p. 492). The premise is that a prisoner is entitled to the protection of all of his human rights; a violation of a prisoner’s human right, by the authority in charge of the prison, is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority. However, the more important and central the right being violated, the greater the weight it will be given within the framework of the balance between it and the conflicting interests of the authority. This approach has always guided our decisions. Today, after human rights in Israel have been enshrined in Basic Laws that have a super-legislative constitutional status, we have a greater duty to ensure, even more than in the past, that the human rights of prisoners are respected. Recognition of the constitutional status of human rights requires their practical application in their living conditions. Recognition of their role in ensuring this must guide all the organs of government. The courts have, in this context, a central role. As President Shamgar said in CA 5942/92 A v. B [7], at p. 842:

‘The constitutional message does not focus on the declaration of the existence of a basic right, but on the essence, degree and content of the realization of the right de facto.

Human dignity will not be guaranteed by speaking of it but by giving a real and tangible expression to its protection. In this, an important role is played by the courts that in their decisions must ensure de facto protection of human dignity, of equality, which is one of the elements of human dignity, and the protection of those persons who are unable to protect their dignity without the help of the courts.’

We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation (see CrimApp 7223/95 [8], per Justice Or). Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights. The remarks of Justice Barak in HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [9] are apt in this regard:

‘Indeed, imprisonment by its very nature necessitates a loss of freedom, but it cannot by its very nature justify a violation of human dignity. It is possible to have imprisonment that maintains the human dignity of the prisoner. The prison walls should not separate the prisoner from humanity… a prison may not become a concentration camp, and a prisoner’s cell may not become a cage. Notwithstanding all the difficulties involved, a civilized society must preserve a minimum human standard for prison conditions. It would be inhuman of us not to ensure a human standard for prisoners in our society. The objectives of criminal sentences cannot be achieved by violating the dignity and humanity of the prisoner.’

            Freedom of speech of a prisoner

14. Freedom of speech is numbered among the basic liberties in Israel. Recognition of the status of freedom of speech as a basic right was established in Israel long before the enactment of the Basic Law: Human Dignity and Liberty. In HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [10], Justice Agranat gave freedom of speech the honorary title of a ‘supreme right’ (ibid., at p. 878 {97}). Since this important ruling was given, the ‘freedom of speech is an integral part of our legal ethos’ (per Justice Barak in CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [11], at p. 201). The source from which this recognition sprang was case-law: it is one of the ‘basic rights that are “unwritten”, but which derive directly from the character of our State as a democratic State that aspires to freedom’ (per Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [12], at p. 2415 {216}). Later, however, Justice Shamgar emphasized that the character of freedom of speech ‘as one of the constitutional basic rights gives it a supreme status in law’ (CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Co. Ltd [13], at p. 295 {243}). The Basic Law: Human Dignity and Liberty enshrined the case-law recognition of the constitutional status of freedom of speech. An express opinion to this effect was stated by Vice-President Barak in HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [14] (see his remarks at p. 468 {336}); the same, I think, can be seen in the opinion of President Shamgar in HCJ 6218/93 Cohen v. Israel Bar Association [15]. This, with respect, is also my opinion. Admittedly, the Basic Law: Human Dignity and Liberty does not mention freedom of speech, nor does it define it expressly as a basic right. But this is immaterial: even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?

15. The constitutional basic right of freedom of speech is not taken away from someone when he is imprisoned; a prisoner has it even in his prison cell. As Justice Marshall rightly said (in Procunier v. Martinez (1974) [35], at p. 422): ‘A prisoner does not shed such basic First Amendment rights at the prison gate’. Notwithstanding, it is clear that imprisonment very significantly restricts the ability of the prisoner to exercise his freedom of speech, and the freedom of speech given to him is, in practice, much more restricted than the freedom of speech of a free citizen. Some of the restrictions on a prisoner’s freedom of speech are ‘inherent’ to the imprisonment. Exercising the right of freedom of speech is largely dependent on freedom of movement. Imprisonment distances the prisoner from the society in which he lived. Thus, he is deprived of the possibility of hearing and being heard by those persons or circles with whom he wishes to be in contact in order to exercise his freedom of speech. As a result of the imprisonment, he is also deprived of additional avenues of expression which he could have chosen and developed had he not been imprisoned. The prisoner has no protection against this restriction of his ability to realize in full his freedom of speech. The imprisonment to which he has been sentenced is intended to achieve sentencing objectives: to protect society from him, to deter him from further criminal acts, to reform him and rehabilitate him, and to deter also potential criminals. His removal from society, which results also in a reduction in the prisoner’s ability to realize his right of freedom of speech, is one of the main purposes of the imprisonment; moreover, this distancing is often essential also for achieving its rehabilitative objectives.

But the prisoner’s ability to exercise his freedom of speech is subject also to restrictions whose purpose is to further other unique interests, which are concerned with the proper management of the prisons: achieving the purposes of the imprisonment, maintaining security, order and discipline in the prison, protecting the safety of the prisoners and protecting the safety of prison staff and warders, etc.. These interests are also a part of imprisonment and derive from it, and protecting these also requires imposing restrictions on prisoners’ freedom of speech. These restrictions, which are the product of a deliberate decision of the authority in charge of managing the prisons, make further inroads on the prisoner’s (eroded) freedom of speech; these, to a larger extent than that required by his imprisonment and his loss of freedom of movement, change the normal balance to his detriment. Consider: the ‘normal’ protection of freedom of speech derives, of course, from the balance between the basic right of the individual to exercise this freedom and interests that are essential to society, such as national security and public safety, and other general and important values that the State is required to protect (see A. Barak, ‘Freedom of Speech and its Restrictions’, 40 Hapraklit (1991-92) 5, 13 et seq.); it should also be recalled that, in view of the importance and centrality of freedom of speech, the tendency is usually only to restrict it on the basis of a probability on the level of ‘near certainty’ that exercising the right may cause real harm to an essential interest of the State and the public. A violation of freedom of speech, which properly upholds this balance, is considered and accepted as permissible. This rule, which applies to all citizens, applies obviously also to prisoners. But the freedom of speech of prisoners suffers in two more ways; this is because in determining the extent of the protection of the prisoner’s right to freedom of speech we take into account — in addition to the normal protected interests — not only those restrictions that are a direct consequence of the actual imprisonment and the loss of freedom of movement, but also restrictions intended to further special interests involved in the proper management of the prisons. The additional restrictions imposed on prisoners’ freedom of speech are intended to assist the authorities in charge of the prisons in achieving these goals. The key question, in any decision in this matter, is, what are the proper limits of these restrictions? The question is merely a question of the proper balance between conflicting legitimate interests. How is this balance to be made? It is obvious that applying the norm in this field, as in any other field, is a matter for a decision based on judicial discretion. But what are the criteria for exercising discretion? And when will we say that a restriction on the freedom of speech of a prisoner is ‘reasonable’ in that it satisfies the balancing test?

A comparative perspective

16. The case-law of the United States Supreme Court has formulated, in this matter, several guidelines. Let us consider, in brief, the main points. Some of these may be of assistance to us.

The premise in American law — just like the accepted approach in Israel — is that prisoners, too, enjoy all constitutional rights; if the violation imposed on the constitutional right of a prisoner is unlawful, the prisoner is entitled, like any ‘normal’ citizen, to protection of his right. This was stated in one case as follows:

‘A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion’ (Coffin v. Reichard (1944) [36], at p. 445).

This conceptual approach has guided the courts also with regard to the issue of prisoners’ freedom of speech. But in the field of implementation, various approaches have appeared, some stricter and other more lenient. The strict approach has recognized a wide variety of interests that may establish a justification for imposing restrictions on this freedom. A concise summary of such interests, which apparently represents the stricter approach, can be found in the judgment of the Court of Appeals in Brown v. Peyton (1971) [37]. In that case, Justice Winter said, at p. 1231:

‘… in the case of prisoners incarcerated under lawful process, there are state interests to justify repression or restriction of First Amendment rights beyond the interests which might justify restrictions upon unincarcerated citizens. Prison officials have to confine dangerous men in unpleasant circumstances. They must protect the public at large, prison employees, and also other prisoners, who are almost totally dependent on the prison for their well being. Prison authorities have a legitimate interest in the rehabilitation of prisoners, and may legitimately restrict freedoms in order to further this interest, where a coherent, consistently-applied program of rehabilitation exists. Furthermore, many restrictions on First Amendment rights are undoubtedly justifiable as part of the punitive regimen of a prison: confinement itself, for example, prevents unlimited communication with the outside world but is permissible in order to punish and deter crime; additional restrictions may be imposed as part of the system of punishing misbehavior within prison. Finally, the state has an interest in reducing the burden and expense of administration. It may, for example, place reasonable restrictions on the number of publications received by each inmate in order to limit the burden of examining incoming materials. But the fact that interests of these sorts frequently arise does not excuse the necessity of a showing that they exist in particular cases.’

In several later cases, the United States Supreme Court examined the question whether regulations or administrative rules, which impose restrictions on prisoners’ freedom of speech, pass the test of constitutionality; in a few of these judgments, several criteria for deciding cases were established. In Procunier v. Martinez [35], which considered the constitutionality of censoring correspondence between prisoners and parties outside the prison, two conditions were laid down for permitting the violation: first, that the violation is necessary for furthering an important and substantial interest of the State, which is unrelated to the restriction of the freedom of speech; and second, that the extent of the violation of freedom of speech does not exceed the degree required to further the purpose for which it was imposed. In the words of Justice Powell, at pp. 413-414:

‘Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or the practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.’

The case of Pell v. Procunier (1974) [38], which was considered soon after Procunier v. Martinez [35], examined the constitutionality of the prohibition imposed on prisoners against being interviewed by the media. In this case, the court recognized the existence of additional grounds for permitting the violation of prisoners’ freedom of speech. The rule set out stated that —

‘A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates’ free speech rights must be balanced against the State’s legitimate interest in confining prisoners to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions’ (ibid., at pp. 817-818).

What can be seen from a comparison of the two tests, in brief, is the following: according to each of the approaches a proper balance is required between the freedom of speech and the conflicting protected interest. The difference between them lies in the definition of the nature of the protected interests: are considerations of security, order and discipline or the rehabilitation of the prisoners the only ones that constitute ‘an important or substantial governmental interest’, which are capable of justifying imposing restrictions on the freedom of speech of a prisoner, or are interests arising from all the penological and criminal rehabilitation needs or involved in the needs of the proper management of the prisons (‘legitimate penological objectives of the corrections system’) capable of justifying imposing such restrictions? This issue was considered once again in Jones v. North Carolina Prisoners’ Union (1977) [39], which concerned the constitutionality of the prohibition imposed on meetings of the ‘Prisoners’ Union’, prisoners joining this union and correspondence between them and it; and in Bell v. Wolfish (1979) [40], which concerned the restriction of the right of prisoners to receive hard-cover books if these were not sent to them directly by the publisher or the book club.

The decision as to the proper test was given in Turner v. Safley (1987) [41], in which it was held (per Justice O’Connor) that the test of the constitutionality of the violation of a prisoner’s freedom of speech is whether it is ‘reasonably related to legitimate penological interests’ (see ibid., at p. 89). Relying on a synthesis of the previous case-law, this judgment delineated four main criteria, by means of which the constitutionality of the violation of a prisoner’s human right should be examined (see ibid., at pp. 89-92). For the sake of brevity, I will satisfy myself by quoting the brief synopsis of the remarks from the book of J. W. Palmer, Constitutional Rights of Prisoners (Cincinnati, 4th ed., 1991), at p. 37:

‘… (a) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral government interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional rights that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de minimis costs to valid penological interests being evidence of unreasonableness.’

The ‘rational connection’ test between the restriction imposed on the freedom of speech and legitimate goals in the field of the treatment of offenders and the proper administration of the prisons, which was delineated in Turner v. Safley [41], was adopted by the court in additional judgments (see, mainly, Justice Blackmun’s opinion in Thornburgh v. Abbot (1989) [42], in which it was held that a practice authorizing the prison authorities not to deliver to prisoners publications that were received for them, if they thought that the publications endangered the security of the prison, prima facie stood up to the constitutionality test.

The prisoner’s freedom of speech and the problems faced by the authorities

17. The penalty of imprisonment, which exists in Israel, and the method in which imprisonment is carried out de facto, are different from the ‘corrections system’ practised in the United States. But among the problems that concern the authorities in charge of the treatment of prisoners and the management of the prisons, in Israel and in the United States, there are also quite a few similar issues. There is no difficulty in determining that maintaining order and discipline in the prisons constitutes a legitimate interest of every State. This is certainly also the case in Israel. In so far as something is indeed required to prevent a danger to order and discipline in the prisons, this is sufficient to serve as a ground for restricting the freedom of speech of (some or all) prisoners. Also the need to rehabilitate prisoners — where the success of a rehabilitation programme depends on this — may prima facie justify imposing a similar restriction. With regard to all of these, we can find support, inter alia, in the ruling given in Procunier v. Martinez [35]. But I am prepared to accept that not only maintaining order and discipline in the prisons, but also other considerations deriving from the needs of ‘proper management’, in its wider sense, may sometimes justify imposing certain restrictions. Assuming this premise, and adapting the other elements accordingly, we can avail ourselves also of the criteria established in Turner v. Safley [41]. In this spirit, we can summarize that in order to justify a violation of a prisoner’s freedom of speech (and any other basic right), it is insufficient to show the existence of a conflicting interest that justifies a violation, nor even the existence of a regulation that permits a violation of the right, but it must also be shown that between the provision that allows the violation and the conflicting interest — on account of which it is proposed to violate the right — there is a logical connection and objective proximity. Remoteness or vagueness of the connection are a sign that the violation is unjustified. We must also consider specific questions of balance and proportion: does the extent of the violation of the right exceed the degree necessary for achieving the legitimate purpose that requires the violation? Does the provision that causes the violation leave the prisoner with alternative ways of enjoying his right, or what remains of it? Can the Prisons Service, by adopting reasonable steps within the framework of its limited resources, avoid or reduce the violation? The answer to each of these questions is likely to influence the decision on the question whether the statutory arrangement that allows the violation reflects a correct and proper balance.

Notwithstanding, it is important to emphasize that these rules are only guidelines. They are based on certain assumptions with regard to all the ethical questions that underlie them. They do not determine the weight that should be given to each of the conflicting interests. They do not determine the balancing point at which we should draw the line distinguishing between a permissible violation and a prohibited violation of a prisoner’s human right. The definition of the balancing point is not a matter for a technical decision, but for a judicial decision. This determination is the result of a value decision, based on considerations of social policy. Within the framework of its decision, the court is called upon to determine the relative weight of each of the conflicting interests and to mark the proper balancing point between them. The weight of the conflicting interests is not constant, and even the balance between them is liable to change. What was once correct and accepted is not necessarily correct now as well; and not everything that is acceptable to us and accords with our outlook is likely to be accepted and correct in a decade or two. We can illustrate this with an example from the past. Consider the right of prisoners to participate in elections for the Knesset. A petition to enable prisoners to exercise this important basic right was brought before the court at the end of the 1950s, but was denied on the ground that ‘it is inconceivable that this should be possible from a practical viewpoint, in view of the number of persons in the prisons, and the police forces that will be required for an operation of this kind…’ (HCJ 215/59 Geller v. Minister of Interior [16], at p. 1704). But another petition on the same issue, which was filed approximately twenty years later, resulted in a reversal. Admittedly, even on this occasion the court could not see a practical possibility of granting the relief sought by the petitioners; but this time it decided and clarified that the legislator and the authorities in charge of implementation should prepare themselves at an early date, from a statutory and administrative viewpoint, in order to enable prisoners and arrestees to exercise their right to vote (Hukma v. Minister of Interior [1]). And so, as a result of this judgment, the Knesset Elections Law (Amendment No.17), 5746-1986, was enacted, and this provides an arrangement that enables prisoners and persons under arrest to exercise their right to vote. This is a clear example of a change in ethical approach, which changed the relative weight of the conflicting interests and delineated a new balancing point between them (see the remarks of Justice Elon in Weil v. State of Israel [5], at pp. 492-493).

18. When balancing a basic right of a prisoner against a conflicting interest of the Prisons Service, the proper relative weight should be given to both side of the equation. The greater and the more important the right, the greater and more important must be the opposing interest that is required to overcome it. But the conflict is not always or necessarily symmetrical. Sometimes it will transpire that upholding the right of the prisoner is also beneficial to the public interest. Once again, consider the ability of prisoners to exercise their right to vote. No-one disputes that that this ability realizes an important part of freedom of speech. But the exercise of this right by the prisoner also furthers the goal of rehabilitation, from which not only the prisoner is likely to benefit, but also society. As Justice Elon said in State of Israel v. Tamir [4], at p. 212:

‘Not violating the rights of the prisoner, which he had before he was deprived of his freedom of movement, is in the interests of the prisoner, in order to preserve, in so far as possible, the connection between him and free society, from which he came and from which he is temporarily separated, by the prison walls; it is also in the interests of society, in order to further, in so far as possible, the rehabilitation of the prisoner and thereby to facilitate his return and reintegration into society, of which, even while he is in prison, he is a part.’

It need not be said that the rehabilitation of prisoners is also one of the legitimate interests entrusted to the Prisons Service. It follows that protecting the ability of the prisoner to exercise his right is not always or necessarily in direct conflict with these interests. But let us not ignore the main point: the main significance in recognizing the ability of the prisoner to exercise his right of choice lies in preserving the basic value of human dignity.

19. Let us return to basic principles. Protecting the freedom of speech, as part of human dignity, is the main guarantee for safeguarding the individual’s intellectual freedom. Within the framework of freedom of speech, man realizes his desires and aspirations that are part of his nature and that reflect his intellectual freedom: to be educated and acquire knowledge, to be involved in communal life, to hear the opinions of others and express his own views. Imprisonment denies the individual his freedom of movement, thereby imposing a serious restriction, not merely on his basic right to personal liberty, but on the practical ability to realize his intellectual freedom as he sees fit. Admittedly, imprisonment has no access to the inner sanctum of intellectual freedom — the ability of the prisoner to think, believe, and preserve his humanity. However, as we have already said (in paragraph 15 above), the ability of the prisoner to exercise his right to freedom of speech is far more restricted and limited than the ability of the free citizen. The (restricted) freedom of speech enjoyed by the prisoner should therefore be given the widest protection possible.

This approach is clearly reflected in case-law. Consider HCJ 144/74 Livneh v. Prisons Service [17]. In that case, the court set aside the decision of the prison governor not to allow (the petitioner in that case) to bring into the prison the writings of Marx, Engels, Lenin and Mao Tse-Tung. The governor based his decision on the fear that bringing these books into the prison would incite political arguments between the prisoners. In setting aside this ground, Justice H. Cohn said:

‘We commend the prison governor for being continually mindful of keeping the peace inside the prison. But it has never been said that in order to “keep the peace” he may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (ibid., at p. 689).

Further on, at p. 690, he added:

‘The prison governor has not been given authority to prohibit bringing books into the prison in order that he may choose, according to his taste, what a certain prisoner ought to read and what he ought not to read.’

It is still clear and obvious that the Prisons service has the power to prevent bringing books into the prison. What then is the criterion for deciding when he may exercise this power? This issue was answered by the court in HCJ 543/76 Frankel v. Prisons Service [18]. This petition challenged a decision of the prison governor not to allow two books to be brought in. The court saw no reason to interfere with the decision with regard to one of the books, which was found to contain inciting material. This was not the case with regard to the second book. The decision to forbid this book also was set aside. Vice-President Justice Landau, explained the distinction, and to establish the test he availed himself of the decision of the court in Livneh v. Prisons Service [17], which set aside a decision of the prison governor not to allow the writings of Marx, Engels, Lenin and Mao Tse-Tung to be brought into the prison. The following are the remarks of Justice Landau in Frankel v. Prisons Service [18], at p. 209:

‘Indeed, these writings urge revolution, but reading them does not amount to a near-certain danger to the peace that this court determined as the criterion in the leading decision of Justice Agranat in HCJ 73/53, Kol HaAm v. Minister of Interior. This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend’ (emphasis supplied).

In Frankel v. Prisons Service [18], as stated, the court saw no grounds for intervention in the decision of the prison governor not to allow a book with inflammatory material to be brought into the prison. ‘In the tense conditions that prevail in the prison’ — the judgment says, at page 209 — ‘a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions’. Once the book was found to contain inflammatory material, the court thought that the prison governor had broad discretion to act within the framework of his authority. It should be said that also in other cases where the court decided not to intervene in decisions that harmed the education or entertainment needs of prisoners, the decision was based on the recognition of the existence of security considerations. Thus, for example, in HCJ 96/80 Almalabi v. Prisons Service [19], no fault was found with a decision of the Prisons Service to prohibit prisoners convicted of security offences from having transistor radios. The reasoning underlying this decision was that a transistor radio in the possession of a prisoner convicted of a security offence could be used for transmitting broadcasts and messages that could lead to a breach of order and security inside the prison. The court saw no reason to intervene in the correctness of this consideration.

It follows that the prison authorities have the means that can impose restrictions on some possible expressions of intellectual freedom, but they are allowed to do this, usually and mainly, when there is a near certainty of real harm to public safety, or real harm to keeping the peace, order and discipline inside the prison. It is admittedly possible that, in the process of weighing up the matter, weight will also be given to other interests, which do not derive from security considerations or the need to maintain order and discipline, but which are concerned with the need for proper administration of the prisons in the broad sense (such as administrational efficiency, economy of resources, etc.). But taking into account the importance and centrality of freedom of speech, the relative weight of these additional interests is not great. In general, these alone will be insufficient to deny the right, and they may be considered only in determining the degree to which the prisoner will be allowed to exercise his right.

It need not be said that even when an authority has a solid reason for restricting the freedom of speech of a prisoner — i.e., when there is a real likelihood that the speech will harm public safety or endanger order and discipline in the prison — the authorities must still comply with the proportionality test, and may not violate the right of the prisoner more than is necessary to forestall the risk. The authority must remember that a violation of the freedom of speech of a prisoner is always a further violation, and it is particularly enjoined to resist the temptation of exercising its power unnecessarily or to an unnecessary degree. When it considers making use of this power, the person in authority in the Prisons Service would do well to be mindful of the remarks of Justice H. Cohn in Livneh v. Prisons Service [17], at p. 690:

‘… many evils, which are necessarily involved in prison life, are added to the loss of liberty. But let us not add to the necessary evils, which cannot be prevented, restrictions and violations that are unnecessary and unjustified. The powers given to prison governors to maintain order and discipline must be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without real justification.’

Freedom of speech in writing and publication

20. Writing is one of the more basic forms of speech. As Justice Holmes said:

‘… the use of mail is almost as much a part of free speech as the right to use our tongues… ’ (Milwaukee Pub. Co. v. Burleson (1921) [43], at p. 437).

Naturally, prisoners also have the right to express themselves in writing. The most common form is in the correspondence that the prisoner is entitled to have with his relations and friends. Our case-law has not yet considered the question of the right of a prisoner to express himself in the written media. But I see no reason to distinguish between this form of expression and other modes of expression available to the prisoner. The accepted criteria for restricting the freedom of speech of a prisoner are also appropriate for this form of expression. Note than I am not addressing the question whether prisoners should be allowed free and uncensored access to the media. Nor am I addressing the question whether the media should be allowed free and uncensored access to prisoners. I am considering only one possible channel of all the possible channels of communication between prisoners and the media: the right of the prisoner to send from the prison to a newspaper editor (or another branch of the media) a letter or an article intended for publication, when the prisoner does this in the same way and within the framework of the same restrictions subject to which he is allowed to send other letters.

We should point out that in the United States there is no doubt as to the right of the prisoner to write to the newspapers and even to write critically of the prison authorities and prison conditions. Moreover, the accepted approach there is that criticism of a prisoner about his prison conditions not only upholds the right of the prisoner to express himself publicly (through the media) about a matter that concerns him, but also the right of the public to know about what happens in State prisons, since what happens in the prisons is not open for inspection, and because of the natural tendency of the authorities that administer the prisons to hide from the public even their good intentions to improve the conditions that prevail there. A statement of this approach can be found in the remarks of the Court of Appeals in Nolan v. Fitzpatrick (1971) [44], at pp. 547-548:

‘We need not adopt the broad principle that a prisoner retains all First Amendment rights to conclude, as we do, that he retains the right to send letters to the press concerning prison matters. In so concluding, we rely primarily on the fact that the condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners’ right to speak is enhanced by the right of the public to hear. This does not depend upon a determination that wardens are unsympathetic to the need to improve prison conditions. But even a warden who pushes aggressively for reforms or larger appropriations within his department and before appropriate officials and legislative committees may understandably not feel it prudent to push for more public laundering of institutional linen.’

The court was aware of the argument that publishing the letters of prisoners in newspapers, when the letters contained particularly harsh criticism of prison conditions, was liable to stir up passions among the prison population and create a near-certain danger of a violent outburst and a breach of prison security. In its response to this argument, the court went so far as to say that the way to deal with such an extreme danger was to prohibit bringing into the prison the issue of the newspaper that contains the dangerous publication, and not by refusing ab initio to send it for publication. As the court said, at p. 549:

‘The most that can reasonably be said is that, depending upon conditions in the prison when the letter or news story based on it returns to the prison, some particularly inflammatory letters may create a “clear and present danger” of violence or breach of security. In that extreme case, prison officials can cope with the situation by refusing to admit the dangerous issue of the newspaper to the prison rather than by refusing to mail the letter at the first instance.’

The authority may not censor a letter of a prisoner because its contents are uncomplimentary to the prison authorities, or even contain factually inaccurate information. This, it will be remembered, was discussed by the court in Procunier v. Martinez [35], at p. 413:

‘Prison officials may not censor prisoner correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.’

Also in Pell v. Procunier [38] the court considered the broad right of a prisoner to send letters to the media. In Pell v. Procunier [38], the court found no defect of unconstitutionality in the regulation prohibiting prisoners from conducting face-to-face media interviews, but the prohibition was recognized as reasonable in view of the opportunity available to prisoners to write to the media, a method that was less burdensome than allowing newspaper journalists into the prison (see ibid., at p. 424).

Furthermore, counsel for the appellant argued that, according to the practice in force in Canada, prisoners are allowed to publish their writings in the press. As proof of this contention, he presented to us a series of eight items, written by a prisoner, which were published over a period of approximately two months in The Globe and Mail, which is published in Toronto. The contents of the articles (entitled ‘Life in Prison’) are a harsh criticism of the rehabilitation policy of the authority in charge of administering the prisons and of the effect of this policy on the lives of prisoners.

From the general to the specific

21. The appellant wishes to exercise his right of freedom of speech by publishing his writings in a local newspaper distributed in Netanya. The respondent, the Prisons Service, opposes the application. Do the considerations, upon which the respondent relies in its opposition, reveal a justification for preventing the appellant from publishing his articles in the newspaper? I believe that the answer to this question is no. Let us first say that the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences. In these circumstances, we are not required to decide that the appellant’s freedom of speech gives him a right to write in the press about the running of the prison and the life of prisoners as he sees fit. We are also not required to consider the question whether the interest embodied in the public’s right to know about prison conditions and what happens inside the prisons justifies restricting the authority and power of the respondent not to send a letter or article of a prisoner for publication merely for the reason that it contains criticism of prison conditions or of the Prisons Service. These questions deal with related issues from the field of freedom of speech: does the public’s right to know about what is happening in the prisons justify reducing the restrictions placed on the freedom of speech of prisoners? Does upholding the public’s right imply that the media should be given freer access to prisons and the possibility of communicating with the prisoners? These questions, which are significant in themselves, do not arise in this case and can therefore be left undecided. In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.

22. What, then, is the nature of the respondent’s opposition? Why does it interest him whether the appellant is allowed to send articles to the local newspaper, in the same way that he may send letters to whomsoever he wishes, and to describe in his articles (in the way that he can and is entitled to do in his letters) his life and experiences in the prison?

The respondent’s position is complex. On the one hand, it does not question the right of the appellant to write letters to the newspaper; and if the newspaper decides to do so, it can publish the appellant’s letters in the form of articles; however, the respondent says that the appellant is entitled to do this only within the framework of the quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., sending one letter every two months). On the other hand, the respondent admits that as a rule it no longer enforces the quota of letters that prisoners may send. But it intends to enforce this with regard to the appellant. Its reason for this distinction is that in his writings the appellant intends to describe his life in the prison. Were it not for this, the respondent candidly says, it would see no reason to treat the appellant more strictly with regard to the quota of letters. According to the respondent, if the appellant wishes to write about general matters, it can and is prepared to treat him more liberally. In other words, the main reason for refusing the appellant’s request to be allowed to send his writings to the newspaper is not the writing itself, but the content of the writing. The respondent’s position is based on the fear that publication of articles on prison life will undermine the running of the prisons, cause a breach of discipline and endanger the safety and security of the staff and warders. The respondent sees reason for concern that the publication of articles about the appellant’s life in the prison will result in him being regarded by prison warders and prisoners as having the status of a journalist. Thus he would acquire power not enjoyed by other prisoners. This phenomenon would undermine discipline. It also believes that there is a fear that the appellant’s articles would stir up the prisoners and cause strife between them and the prison staff or amongst themselves. The appellant’s argument that the respondent can allay all these concerns by virtue of its authority to censor and disqualify written material that the prisoners send from the prison is dismissed by the respondent with the response that the task of examining the articles falls outside its duties and that doing this is, from its point of view, wholly impossible.

23. I cannot accept the respondent’s position. Had it based its position solely on the provisions of section 47 of the Prisons Ordinance [New Version], which determines the quota of letters that a prisoner is allowed, we would be required to interpret this provision in order to examine whether the prisoner’s right to correspond with the media is also limited to the same miniscule quota stipulated in the section (sending one letter every two months). However, the respondent admitted that the letter quota of prisoners is no longer strictly enforced. Already in HCJ 157/75 [20] it was stated that the respondent no longer acts de facto in accordance with the provisions of section 47, but ‘allows prisoners to write one letter every two weeks’. If the respondent does not even enforce this quota, it can only be commended for this. But the respondent cannot be allowed to make the argument that it does not enforce the letter quota for most prisoners, but it intends to enforce it vis-à-vis the appellant, and this not necessarily because of the appellant’s desire and request to send articles that he writes to a newspaper editor, but merely because he intends to devote his articles to describing his life in the prison. There is nothing improper in the subject of the letters; and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner. However, the respondent does not trust the appellant to keep his promise to act as he undertakes and declares he will act. I have no difficulty in understanding this. The respondent is neither expected nor required to rely upon the appellant’s word. It has clear authority — and no-one in this case disputes the validity of its authority — to examine and censor the appellant’s articles, and if it discovers that the contents of a particular article pose a danger, on the level of near certainty, to order or discipline, it can withhold the article and prevent it from being sent. The respondent says that this task falls outside its duties and that in practice it cannot perform it. I do not believe that the respondent may make the argument that examining the articles falls outside the scope of its duties, since the authority given to it under regulation 33 of the Prisons Regulations — ‘to open and examine any letter and any other document of a prisoner’ — shows that its duties include also the examination of such articles. Therefore I cannot agree with the learned judge that granting the application of the appellant will give him ‘free access to the media’, thereby ‘enabling him to acquire considerable power’. Subjecting the letters to the prior censorship of the respondent rules out the possibility that the appellant will have free access to any branch of the media. Under such conditions, there is no real basis for concern that the appellant will be able to ‘acquire power’.

24. I could, perhaps, have understood the respondent’s position had it been satisfied with the argument that a limit should be placed on the length or number of the articles that the appellant should be allowed to send to the newspaper. It is not for nothing that the respondent says that there it sees no practical possibility of examining the articles. This is simply because, in view of the many and burdensome tasks that the Prisons Service is required to carry out, the means available to it for censoring the letters of prisoners are not unlimited. It is also conceivable that sending an article intended for publication in a newspaper may justify, from the respondent’s viewpoint, more detailed consideration that that devoted to the ordinary letter. The need to examine long articles, or to do so on a frequent basis, is likely to be difficult for those concerned, and if the burden becomes too heavy, their ability to carry out their other duties properly will be affected. This difficulty raises a common problem: often the authorities face the difficult of finding the resources required by it in order to comply with its duty to uphold basic human rights. But even when the argument is expressly made, it is not usually given much weight. Not long ago I had the opportunity of addressing this question (in HCJ 4541/94 Miller v. Minister of Defence [21], at p. 113 {197}):

‘I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel, at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

“The rhetoric of human rights must be founded on a reality that sets these rights on the top level of the scale of national priorities. The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden” (Barak, in his book supra, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 528).

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3rd ed., 1992, at p. 873.’

These remarks are also relevant in this case. The respondent — like every organ of government — has a duty to uphold basic human rights. It must take this duty into account when allocating and distributing its financial resources. Indeed, to tell the truth, I do not expect that in carrying out its duty, in the case of the appellant, the respondent will encounter any practical difficulties. The writings of the appellant that were originally published in the local newspaper Mikol Makom have been submitted to us. It transpires that all of the appellant’s writings were brief, written in simple language, and dealt with everyday matters of prison life. If the writings of the appellant from now on are similar in format to his earlier articles, the respondent will not need great resources or efforts in order to carry out all the examinations required. Even the quantity of the anticipated articles need be no cause for concern. In any event, the respondent has the power to limit the quantity; had it proposed, in these proceedings, that the appellant should be limited to writing one article a week, I would have seen no reason to disagree with the reasonableness of its proposal.

Freedom of occupation

25. I have reached the conclusion that the appeal should be allowed, on the basis of the appellant’s contention that the respondent’s decision unlawfully violates his freedom of speech. This makes it unnecessary to consider in detail the additional contention of the appellant that the respondent’s decision also violates its right of freedom of occupation. However, although it is not needed for reaching a decision, I feel I should say that even in this respect the respondent’s position did not satisfy me. As a rule, within the limitations necessitated by imprisonment, even a prisoner enjoys the basic right of freedom of occupation, and the restrictions imposed on his right must comply with the conditions of the limitations clause in section 4 of the Basic Law: Freedom of Occupation (see: A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 600). The respondent’s response, it will be recalled, was that the appellant — as a prisoner requiring protection and for that reason prevented from participating in a rehabilitation program and working outside the prison — cannot be allowed to engage in writing for a newspaper, since such an occupation involves an ‘external employer’. I fear that this answer misses the point. The appellant did not ask to be allowed to take part in regular work outside the prison, nor did he ask to be allowed to leave the prison for the sake of his work, like prisoners who are engaged in work within the framework of the rehabilitation programmes. His request was to be allowed to act as a ‘freelance writer’ and to send the articles that he will write inside the prison precincts to the editor of the newspaper. Activity of this kind is similar to a hobby that a prisoner is allowed to enjoy in his free time or in his cell. It is not part of the system of the ordinary activities of prisoners, which the respondent is required to administer, and the rules governing the occupations of the prisoners do not apply to it.

26. If my opinion is accepted, the appeal will be allowed, the judgment of the District Court will be set aside, and the appellant will be granted the relief sought.

 

 

Justice M. Cheshin

I have read with interest the profound and comprehensive opinion of my colleague, Justice Mazza. My colleague has discussed the subject in all its aspects, and has explored every horizon. My colleague has written a kind of Magna Carta of the Israeli prisoner, and this bill of rights includes both basic principles and also rules and doctrines implied by the basic principles. I agree with every word of my colleague, in so far as they serve as a foundation. Notwithstanding, I have difficulty agreeing with the conclusions that my colleague wishes to deduce from the basic principles, which are principles we all accept. Since I do not disagree with colleague as to the infrastructure, I shall not elaborate on the basic principles but I shall concentrate my remarks on applying those basic principles to this case.

The question

2.    The question requiring a decision in this case is very simple: does a prisoner have the right to be a newspaper correspondent, and to write for a newspaper a regular weekly column about everyday life in the prison where he is imprisoned? Does the prisoner have the right to be a journalist, and to send regular and frequent articles about the prison where he is imprisoned to a newspaper — or newspapers? The appellant claims that a prisoner has this right, whereas the respondents reject the appellant’s argument that he has the right. Let us emphasize and clarify from the outset: the question is not whether a prisoner has — or does not have — the right to engage in the profession of journalism while he is in prison. The respondents expressly stated before us that they do not dispute the right in principle of a journalist, who is a prisoner, to send articles to a large-circulation newspaper. This would be the case, for example, were we speaking of articles about cooking or gardening, or articles about art, the Bible or literature. But the appellant is not interested in any of these. He has set his heart on writing particularly about prison life — and only about prison life — and the respondents strongly oppose this. The appellant claims he has a constitutional right. The respondents, for their part, deny he has a right, and they argue that writing for a newspaper, as the appellant requests, might undermine proper prison order and discipline. We must decide between these opposing interests.

On the constitutional rights of a prisoner

3.    When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison. See and compare, for instance, Katlan v. Prisons Service [3]; Darwish v. Prisons Service [6]; Yosef v. Governor of Central Prison in Judaea and Samaria [9]; Weil v. State of Israel [5]. Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly. This is human dignity, in the simple and ordinary sense of the concept.

Moreover, a prisoner is entitled to ‘conditions that allow civilized human life’ (per Vice-President H. Cohn in Darwish v. Prisons Service [6], at p. 539): food to eat, water to drink, clothes to wear, a bed to sleep in, fresh air to breathe, and sky to look at. By way of poetic analogy, let us recall the ‘small attic’ prepared and made for the prophet Elishah by that ‘great woman’, which contained ‘a bed and a table and a chair and a lamp’ (II Kings 4, 8-10 [45]). But other rights enjoyed by a free man must naturally be restricted inside the prison. When someone enters a prison, he loses his freedom; this needs no explanation. But a person does not only lose his freedom thereby, but also other rights, rights that naturally accompany freedom — that accompany it and are secondary to it. Thus, for example, there is the rigid and inflexible daily schedule of a prisoner, whether with regard to hours of sleep, whether with regard to hours of work and rest, whether with regard to eating times and whether with regard to everything that he is allowed to do inside the prison. This is also the case with the inability of a prisoner to continue to engage in his ordinary profession. The same is true of a prisoner’s contacts with the world outside the prison, such as telephone calls or correspondence, and this is so, for example, with regard to family visits to the prison.

4.    All these rights — these and others besides — are reduced automatically when a person enters a prison. The need to ensure the regular running of a prison, including security and order, neither allows nor facilitates recognition of the rights of a prisoner as though he were a free man. A main and basic consideration in the proper and regular administration of a prison is the supreme need to maintain security inside it, to protect the safety of the persons in its precincts — both prisoners and warders — and ensuring strict order and discipline. Below we shall call all of these ‘order and discipline’. The way to accomplish all these objectives naturally implies a clear hierarchy of authority — and persons in authority — and strict obedience to orders given during the daily routine. On a smaller scale, prisons may be compared to an army or police force, but the strictness of order and discipline must be more rigid in the prisons, if only because of the segment of the population in them: a population of persons who have broken the law — some of whom are hardened and tough criminals — a population in which many are embittered and believe that society has done them an injustice and discriminated against them, aggressive and violent persons, persons with low anger thresholds and devoid of any motivation whatsoever to help others or to be helped by others. When we consider this prison population, it will become clear to us that the work of prison warders and administrators is work of the utmost difficulty. We will also realize —and this is directly relevant to this case — that order and discipline are the material of which a prison is built. Without order and discipline, in the broad sense of these concepts — which can only mean strict order and discipline — a prison cannot be run and the whole system will suffer the consequences.

Indeed, a reading of the Prisons Ordinance [New Version] and the Prisons Regulations (below we will refer to these as the Ordinance and the Regulations, respectively), shows us — as we already knew — that order and discipline are the essence of prison administration. The Ordinance and Regulations abound with provisions concerning order and disciple, and we shall mention, by way of example, only a few provisions. The first provision is that of section 56 of the Ordinance, which deals in its 41 subsections with ‘prison offences’. In closing, section 56(41) says the following:

‘Prison Offences

56. A prisoner who does one of the following has committed a prison offence:

(1) …

(41) Any act, behaviour, disorder or neglect that harm good order or discipline, even if they are not set out in the previous paragraphs.’

The second provision we shall mention is that of section 132 of the Ordinance, concerning the authority of the responsible Minister to enact regulations:

‘Minister’s Regulations

132. ...

(1)        ...

(17) Any other matter, with regard to which this Ordinance states that it is possible to enact regulations, and any other matter that must be regulated for the sake of the effective implementation of this Ordinance, the welfare and efficiency of prison warders, the proper administration of prisons and their discipline and the safe custody of prisoners inside the prison precincts and when they are working outside the prison precincts.’

This is also the case with regard to other provisions in the Ordinance and the Regulations, such as the provision of Regulation 18, which says:

‘Purpose of order

18. Order and discipline shall be maintained in the prison strictly, while paying attention to maintaining security and a proper routine.’

This is followed by the provision of regulation 20:

‘Use of reasonable force

20. A prison warder may use all reasonable means, including the use of force, to maintain good order, for the protection of a warder or prisoner and to prevent the escape of a prisoner.’

5.    Before we examine the actual case before us, let us begin by saying that the contacts of a prisoner with the world outside the prison are subject to an express and detailed arrangement in the Ordinance and the Regulations. The broad rule in the Ordinance and the Regulations is that a prisoner does not have an inherent right to be in contact with persons outside the prison, except in so far as the Ordinance and the Regulations give him this right. Thus, for example, section 42 of the Ordinance provides:

‘Prohibition of transfer

42. A person shall not transfer a prohibited object to a prisoner, nor shall he transfer a prohibited object to another person from a prisoner or on his behalf.’

The definition of a ‘prohibited object’ (in section 1 of the Ordinance) is:

‘An object that this Ordinance or the Regulations do not allow to be brought into a prison, to be removed from a prison or to be in the possession of a prisoner.’

In other words: prima facie, a prisoner does not have a right to correspond with persons outside the prison, unless he has an express right to do so. A prisoner is unlike a free person in this respect: a free person may maintain contact with others, unless he is forbidden to do so, whereas a prisoner may not have contact with others who are outside the prison, unless he is permitted to do so. Such is the loss of liberty and such are the implications of this loss. Section 43 of the Ordinance further provides:

‘Prohibition against placing

43. A person shall not place a prohibited object so that it comes into the possession of a prisoner, or the possession of another person on behalf of a prisoner, or by transfer from prisoner to prisoner.’

As to the actual question in our case, section 47 of the Ordinance provides and instructs us:

‘Convicted prisoner

47. (a) A convicted prisoner may be allowed to write a first letter when he is admitted to the prison.

(b) At the end of the first three months of his imprisonment, and thereafter — every two months, he may be allowed visits from friends within the sight and hearing of a prison warder, and he may be allowed to write and receive a letter.’

A convicted prisoner is therefore entitled to send a letter every two months. In practice, the prison authorities are lenient with prisoners, and they allow them to send letters once every two weeks. But the principle remains: the rule is a prohibition against contact with the outside world, and the exception is a relaxation of the prohibition in so far as the Ordinance and the internal procedures allow, at the discretion of the prison authorities. This is true of correspondence and it is true of visits to the prison. See, for example, chapter 5 of the Regulations on the subject of ‘Visits and letters’, which includes regulations 25 to 34.

6.    In order to clarify our remarks and so that they may not be misconstrued, let us add the following: a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack. Notwithstanding, the constitutional rights of a person inside a prison are not like his constitutional rights outside the prison. The force of the constitutional rights inside the prison is not like their force outside the prison, for the reason that inside the prison they must contend with interests that are weightier and stronger than the corresponding interests outside the prison. The constitutional rights may be compared to a beam of light travelling freely through space, which is the constitutional right in its pure form. While it is travelling freely through space in this way, the beam of light encounters a screen that lies as an obstacle in its path. As it passes through the screen, the intensity of the beam of light becomes weaker, and its intensity after the screen is not as it was before the screen. If the beam of light is freedom of speech, the question is to what extent is it weakened when it tries to penetrate the prison walls. Prison walls are the screen, and the screen is: provisions of statute and regulations, the scope of discretion given to the prison authorities, and in addition to all these — the special status of a prison as a prison. All of these were discussed by Vice-President Justice Landau in Frankel v. Prisons Service [18] (see below, in paragraph 9), from which we can learn and understand.

The status that the appellant wishes to acquire for himself

7.    The respondents strongly object to the appellant’s request that he be allowed to be a journalist who writes regularly (a weekly column) about prison life, and they base their denial of his request on reasons of order and discipline. The respondents’ fear is that the appellant’s writing may undermine the proper order and discipline in the prison — order and discipline that are the sine qua non of the proper running of the prison — and this is why they refused the request. The atmosphere in the prison is naturally tense and crowded. This everyone knows, and the respondents fear that by means of his occupation as a journalist continually reporting to the world about what is done in the prison, the appellant is likely to acquire for himself a special status inside the prison — a status whose very existence will undermine all proper order and discipline. Indeed, in this context of a breach of order and discipline the special status that the appellant is likely to acquire arises in several different relationships. Let us examine this matter closely.

8.    First, it arises in the relationship between the appellant and prison warders and staff. All of these will know and understand that, by having a regular channel of communication from the prison to the world outside the prison, the appellant gains excessive power, and this excessive power in itself will give the appellant an elevated status in his relationship with the prison warders and staff. What warder will agree to his being vilified in a newspaper? What warder will not wish to be mentioned favourably in a newspaper? Will it not be merely natural and human for the prison warders to seek to gain access to the appellant and to try to flatter him, each in his own way? And if this is the case, will we be surprised if we find that, within a short time, the appellant — merely because he is a journalist with a weekly column in a newspaper — enjoys privileges that others do not have?

Second, it arises in the relationship between the prison warders inter se. Not only will the prison warders try to give the appellant better treatment, even if only so that he is kindly disposed to them, but through the appellant they may try to settle scores with one another. Thus, for example, one warder may whisper a secret in the appellant’s ear with regard to another warder — a secret that may be true or may be false — if only so that the appellant may publish it in the newspaper. Is this not likely to lead to unnecessary tension among the prison warders?

Third, by virtue of his new privileged status in the prison, various pieces of information will naturally be revealed to the appellant — information that would not have been revealed to him had it not been for the status that he has acquired. It need not be said that this information will give the appellant power whose significance cannot be overstated, in this case not by publishing the information but by refraining from publishing it, in return for receiving various benefits. After all, we know that there are some who make their living from information that they disclose to the public, and there are others who make their living from information that they do not disclose to the public.

Fourth, the appellant will acquire a special status among the prisoners — those who are his friends and those who are not — and one does not need much imagination to understand why this will occur. What we said about the prison warders — in their relationship with the appellant and their relationship with one another — applies to the prisoners a hundredfold.

It would appear that all these scenarios that may occur in the prison are not remote probabilities. They are likely to happen and not imaginary. And if they materialize — even in part — all proper order and discipline in the prison will be undermined, as has happened in the past. Thus, in Pell v. Procunier [38] a regulation (no. 415.071) was made that forbade journalists interviewing specific prisoners. The regulation says:

‘… press and other media interviews with specific individual inmates will not be permitted’ (ibid., at p. 819).

Prisoners and journalists attacked this regulation, claiming that it was unconstitutional. In the course of the hearing, it transpired that, before the regulation was enacted, journalists were allowed to interview prisoners as they wished, and this led to a phenomenon whereby certain prisoners became ‘public figures’, and thereby gained considerable influence over their fellow prisoners. This status, which those prisoners acquired, led to serious infractions of prison discipline, and eventually these infractions of discipline deteriorated until there was an attempted escape from the prison, in which three warders and two prisoners were killed. In order to prevent a repetition of the phenomenon, the competent authorities decided to enact the regulation. Let us cite the remarks of the court itself (ibid., at pp. 831-832):

‘Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish…

In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual “public figures” within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institution’s ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, “during an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23, sec.415.071 was adopted to mitigate the problem.” 364 F. Supp., at 198.’

If it happened there, why can it not happened here too? Who can say that the prison authorities are merely imagining this? Indeed, the possibility is not remote, for if the appellant’s plan succeeds, everyone — warders and prisoners alike — will seek him out, and the prison will hang on his every word. Even if all of this does not happen, some of it will probably come to pass.

On balancing rights and interests

9.    There are two interests struggling for supremacy: on one side, the prisoner’s interest in sending articles to a newspaper about everyday life in the prison, and on the other, the interest of the prison authorities in maintaining order and discipline, which may, in their opinion, be undermined if the appellant has his way. In this context, we should cite the remarks of Vice-President Justice Landau in Frankel v. Prisons Service [18]. Vice-President Landau cites the rule in Kol HaAm v. Minister of Interior [10] — per Justice Agranat — and the test of ‘near certain danger to public safety’ laid down. He goes on to make the following remarks about the type of prison population, the tension that prevails inside the prison, and the discretion that should be given to the prison authorities:

‘This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend. They are not dealing with persons who are free but with persons imprisoned in conditions that create great tension, which make it necessary to adopt effective measures to ensure order and discipline. Alongside this grave responsibility placed on the prison governor, the court must leave him proper discretion when exercising his powers under the law. As for bringing inflammatory written material into the prison, in the tense conditions that prevail in the prison, a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions. Notwithstanding, the prison governor can take into account the composition of the prison population in the prison run by him, and what the governor of one prison, where dangerous criminals are imprisoned, may prohibit, the governor of another prison, where prisoners are held in more liberal conditions, may permit’ (ibid., at p. 209).

See also Almalabi v. Prisons Service [19], at p. 27.

To these remarks let us say that we agree wholeheartedly. Let us apply the remarks which Vice-President Landau made with regard to bringing ‘inflammatory written material’ inside the prison to the special status that the appellant will acquire for himself if he is allowed, as he asks, to be a journalist with a weekly column who writes about prison life Can we say that a decision of someone who has the heavy burden of running a prison falls outside the zone of reasonableness? The answer, in our opinion, is a definite no.

The following are the remarks of Justice Elon in Hukma v. Minister of Interior [1], at p. 833:

‘… when a person who has been arrested or a prisoner have a right, the person with the right is entitled to enjoy his right and to demand the possibility of exercising the right, as long as exercising the right does not conflict with the duty of the prison authorities to deprive him of his freedom of movement and what derives from this duty, i.e., maintaining security rules and order in the prison. For this right is no stronger that any other basic right, which is not absolute but relative, and it is upheld and protected by finding the proper balance between the various legitimate interests of the two individuals or of the individual and the public, interests which are all enshrined and protected in the law…’

See also: Weil v. State of Israel [5], at pp. 490-491; State of Israel v. Azazmi [2], at pp. 81 et seq..

10. The work of the Prisons Service involves many difficulties, and in the words of Vice-President Justice Landau in Frankel v. Prisons Service [18], they must contend with special problems that present themselves to them. In this context, it is appropriate to cite the remarks of the United States Supreme Court about the ‘Herculean obstacles’ facing the staff of the Prisons Service. In Procunier v. Martinez [35], Justice Powell described the work of prison warders in the following manner (at pp. 404-405):

‘Traditionally, federal courts have adopted a broad hands-off attitude towards problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. For all these reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.’

Of course, this difficult work of the staff of the prison authorities does not justify ignoring the constitutional rights of prisoners. But in finding the proper balance between conflicting considerations, we should remember how difficult the task is and how heavy is the burden that the staff of the Prisons Service endure every day and every hour.

11. My colleague, Justice Mazza, mentions the ‘near certainty’ formula — the formula accepted by us since Kol HaAm v. Minister of Interior [10] — and he seeks to apply it to also to this case (see, for example, his remarks in paragraphs 15 and 19 of his opinion). We do not intend to argue with this premise. It is entirely acceptable to us and we accept it into our heart like a cherished child. But at the same time let us realize and understand that the status of an individual — and the status of the authorities vis-à-vis the individual — outside the prison is not the same as the status of an individual, and the status of the authorities vis-à-vis the individual inside a prison. 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? The analogy to our case is self-evident. Vice-President Justice Landau already discussed it in Frankel v. Prisons Service [18] (see paragraph 9, supra) when he pointed out the charged atmosphere that normally prevails in a prison — and we too will say: the question is not a question of finding the right formula for the discretion of the authorities. The heart of the matter is in realizing and understanding that what happens inside a prison is not the same as what happens outside it, and vice versa.

12. Of course, the harm done to a prisoner may not be disproportionate; there must be a correlation between the anticipated evil and the attempt to prevent it. In the words of Justice Elon in State of Israel v. Tamir [4], at p. 212:

‘… When the prison authorities wish to violate one of the rights of a prisoner, for reasons of balancing one of the prisoner’s rights against the duty of the authorities to deprive him of freedom of movement and to protect the needs of security and the prison, they shall decide upon such a violation unless they have a reasonable explanation and justification for it, for reasons of public security and prison order, which they are liable to maintain, and the extent and degree of the violation shall not be greater than what is absolutely essential on account of these reasons.

…

The greater the right that is violated, the greater the reasons required to justify this violation.’

Moreover, we have been commanded this also in the Basic Law: Human Dignity and Liberty, in section 8 (and also in section 4 of the Basic Law: Freedom of Occupation): we are required to examine whether the violation of someone’s right befits the values of the State of Israel, is intended for a proper purpose, and does so to an extent that is not excessive. See also: CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [22], per President Shamgar, at pp. 342-349, and per Vice-President Barak, at pp. 434-441. However, it seems to us that the respondents’ decision not to allow the appellant to publish a weekly column satisfies all these minimum requirements, both in principle and in view of the character of the appellant.

The appellant wishes to write about his ‘personal life’; the appellant consents to censorship of his articles

13. The appellant argues that the respondents’ fears are unfounded and the weekly column he wishes to publish in the newspaper presents no danger. How is this so? First of all, he claims that he wishes to write a column about his life in the prison, and he promises ‘to write only about his personal life’ (paragraph 9 of the application for leave to appeal). As the record of the trial court says:

‘I agree that my articles may be censored. I undertake that in my correspondence with the press, I will speak only of my personal life.’

In other words, the appellant does not intend to write about anyone else, but only about himself. If that is so, and if that remains the case, why are the respondents concerned?

This argument is no argument, especially when it is made by the appellant himself.

14. First of all, the appellant himself presented his right to write a weekly column to a newspaper as a constitutional right vested in him by law. Even my colleague, Justice Mazza, raised the appellant’s case to the highest level, and from this highest level we will learn the nature of the rights of a prisoner. But if we are dealing with a right of this kind, of what significance is it whether the appellant undertakes or does not undertake to write about one subject and not to write about another subject? If the appellant has a vested supreme right, as he claims, his undertaking is totally irrelevant. Indeed, just as the appellant claims to have a supreme right, so too the respondents claim to have a supreme duty which was imposed on them by statute. If the appellant has a supreme right, it will not be the respondents who determine its scope, but at the same time neither will the appellant determine its scope by means of a supposed ‘undertaking’, made by him, that he will write about this and not write about that. The undertaking of the appellant to restrict his writing to a specific subject cannot therefore be of any significance.

Second, I find the appellant’s argument that he intends to write about ‘his personal life’ problematic, if only for the reason that we do not know what his ‘personal life’ is. Does he intend to search the depths of his soul and write of his ‘thoughts’ — in the style of Marcel Proust — or does his ‘personal life’ also include the prison staff and the prisoners around him — the warders and prisoners who after years and years in prison have become part of his ‘personal life’? Indeed, the concept ‘personal life’ is a very broad term and we cannot know what it contains and what it does not contain.

15. The appellant goes on to ask the respondents: what cause do you have for concern because of a newspaper column that I will publish? After all, I agree that you may examine all the articles that I want to send to the newspaper beforehand. What is more, I agree that you will be entitled to disqualify any articles or parts of articles that may, in your opinion, harm the security, order and discipline in the prisons. If so, what concerns can the respondents have? This rebutting argument was accepted by my colleague, Justice Mazza. As he says (in paragraph 21 of his opinion):

‘… the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences.’

And further on:

‘In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.’

Moreover (in paragraph 23:

‘… and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner.’

We see that the appellant has undertaken to write only about his ‘personal life’, and he agrees that if he does not abide by his undertaking, then the respondents are entitled not to send a particular article or a part of a particular article to its destination, the newspaper.

Reading this, I wonder: does the appellant really intend to make an agreement with the respondents, an agreement in which he undertakes to do certain things — and only those things — while at the same time he ‘concedes’ the authority of the respondents to censor the articles that he will write if he does not abide by what he undertook not to write? For my part, this set of reciprocal obligations that the appellant and the respondents are each supposed to undertake is totally unacceptable. We are concerned with liberties, rights and duties under the law, and this ‘agreement’ that the appellant alleges — an agreement between a prisoner and the authorities — should not be allowed.

Whatever the case, I accept the respondents’ reply that it is not their task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book-publishing house. It is indeed true that the respondents were given a power (under regulation 33 of the Regulations): ‘to open and examine any letter and any other document of a prisoner’, but this power was not originally intended for reviewing a regular column in a newspaper about prison. The power is concerned with letters that the prisoner writes to his family and friends, and the inspection is intended to erase a line or a word, here or there, when a prisoner tries to abuse his right to correspond with persons outside of prison, such as, for example, in order to smuggle drugs or weapons into the prison. But this power of review was not intended for a permanent review of the kind that the appellant wants to impose on the Prisons Service. Everyone will agree that inspecting a newspaper article is not the same as inspecting an ordinary letter that a prisoner writes to his wife. We should also mention that in HCJ 157/75 [20], the court approved a decision of the prison administrators to restrict the length of letters sent by prisoners to two pages only.

16. Moreover, the appellant promised to write only about his ‘private life’, but as we have seen above, this concept of ‘private life’ is fertile ground for disputes that will without doubt sprout in the future. The appellant’s ‘undertaking’ to write only about his ‘private life’ is of no help to him, and in any event, the ‘inspection’ of his writings cannot be of any avail on the scale required.

Indeed, if the appellant is given what he wants, it will not be long before the courts will be compelled to consider — on frequent occasions — the question why and for what reason a certain article was banned, or why a certain passage was deleted from a particular article. That time is not only not remote; it has already arrived. For we see that, alongside the appellant’s arguments in the appeal that he intends to write only about his ‘personal life’ in the prison, we find that he adds the following:

‘23. The respondent’s main consideration, which can be seen throughout the affidavit, is its desire to prevent the publication of criticism that the appellant wishes to utter, namely censorship because of the content of the speech, which is improper.

24. Even the consideration of possible harm to the reputation of members of staff is improper. The reputation of prison staff is no better than the reputation of other persons that may be harmed. They too have the opportunity of suing for any insult to them if it is necessary, but this does not constitute a reason that justifies prohibiting the speech ab initio.’

What is the meaning of this argument of the appellant and how are these remarks consistent with his intention to write only about his ‘private life’? It follows that the ‘private life’ of the appellant includes, apparently, everything surrounding it, including prison warders and prisoners, and if they find themselves injured by the articles that are published in the personal column, they are welcome to go and ask for relief in the court.

The truth is revealed. The appellant intends to serve, in theory and in practice, as an ‘internal auditor’ of the prison — a kind of revisor-general — and within the framework of his weekly column, he will not refrain from writing about anything that, in his opinion, is part of his ‘personal life’. If, then, we do not know what the appellant intends to write, we will not be surprised to find that the personnel of the Prisons Service fear that the appellant’s column in the newspaper may lead to a breach of security, order and discipline. Incidentally, we should mention that under the law in force in England, prisoners are forbidden to mention explicitly the names of prison warders and prisoners. As stated in 37 Halsbury, The Laws of England, London 4th ed., by Lord Hailsham, 752-753, paragraph 1145 (subtitled ‘prisons’):

‘General correspondence may not contain any of the following matters:

(1) ...

…

(12) material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it (a) is for publication in return for payment (unless the inmate is unconvicted)… (d) refers to individual inmates or members of staff in such a way that they might be identified;

…’

If all this were not sufficient, let us also mention that, in his oral pleadings before us, Advocate Yakir also argued on behalf of the appellant that it is not the Prisons Service’s job to ‘censor falsehoods’, and it would be ‘improper’ if ‘false information’ were deleted from articles that the appellant intends to send to his newspaper. The public ought to decide — the public, rather than the Prisons Service (see also the remarks of my colleague, Justice Mazza, in paragraph 20 of his decision). After all this, does the appellant continue to argue seriously that he is prepared to accept prior inspection of his articles? I think not.

17. Moreover, the appellant’s deeds — shortly before the proceedings and during the proceedings — cast considerable doubt on his declarations and his good faith. In order not to elaborate on a description — the matter is lengthy and wearisome — let us cite some of the remarks of the trial court in this respect. The following were the remarks of Justice Even-Ari in his decision refusing the appellant’s application:

‘… An inspection of the interview that was published in Yediot Aharonot on 20 November 1989 shows that prima facie the petitioner has indeed added insult to injury — not only has he escaped from lawful custody and returned to his life of crime, but he also besmirches the Prisons Service in an interview entitled “The gangsters run the prison”.

… Later in the proceedings, it became clear that the petitioner telephoned various journalists and distributed various information about what supposedly was happening in the prison, and the spokesman of the Prisons Service was required to respond to the various enquiries of journalists, all of which while the petition was sub judice.

… It transpires that the petitioner is interested in a prisoner called “Ahmed Yassin”. He does not know him at all and has never met him, but he asks for the intervention of the media in his case and even in the petition that is sub judice before this court (see exhibit B).

Prima facie it would seem that the petitioner is still trying to make headlines — and he is spreading stories about a security prisoner whose case is very sensitive. Prima facie this is a sensitive case where unauthorized involvement may result in serious consequences. This constitutes irrefutable evidence of the irresponsible approach of the petitioner and prima facie strengthens the position that the petitioner should not be allowed the right of free access to the various branches of the media…

… The newspaper interview that was published in Yediot Aharonot shows the petitioner’s method in approaching the press. The respondent’s decision to prevent the petitioner having access to this media channel is prima facie reasonable and logical. This consideration is a normative one, intended to prevent unrest inside the prison.

… It is clear to us that giving the petitioner the right of free access to the media will allow him to acquire great power, and allowing a person like the petitioner (for a description of the petitioner’s character, see CrimC (TA) 7036/92 [34]) to acquire such power will have serious implications for the running of the prison. Therefore I think that denying the right to contact the press, in the circumstances brought before us, is reasonable.’ (parentheses supplied).

See a more detailed consideration of the matter in paragraph 7 of the opinion of my colleague, Justice Mazza. With regard to what was said by the Magistrate Court about the appellant, Justice Even-Ari was referring to the remarks of Justice E. Beckenstein concerning the appellant, that: ‘I have no doubt that we are dealing with an accused who, even if he is currently serving a prison sentence for offences of the same kind, uses every minute of prison leave given to him in order to commit more offences, for it is in his blood.’ Why then should the respondents put faith in the appellant?

18. In view of all this, taking into account the offences for which the appellant is serving his sentence in the prison, it is hardly surprising that the respondents are not prepared to accept the appellant’s statements at face value. We should remember that the appellant is currently serving a prison sentence of ten and a half years for offences involving fraud, forgery, impersonation and escaping from lawful custody. The appellant has a terrible criminal record. He has many convictions for offences of the same kind, and he has previously served three prison sentences. Some of the offences for which he is serving his current sentence were committed when he escaped from lawful custody. What more can one expect of the respondents?

19. In this context we should add that the appellant — like any prisoner — is entitled to write to the court, Government ministers, members of the Knesset and the State Comptroller (the Public Complaints Commissioner). He may write whatever he pleases, and no-one will restrain him. Moreover, the prisons have an internal review system and this too is open to the appellant, just as it is for any other prisoner. See, for example, sections 71-72F and section 131A of the Ordinance and regulations 24A and 24B of the Regulations. Similarly, the appellant is permitted to write to the newspapers (‘letters to the editor’) — within the framework of the quota of letters that he is entitled to send — naturally with certain restrictions that are required because he is a prisoner in prison. In other words, the respondents are not intending to cut the appellant off from the world, to hold him incommunicado. They merely object to the weekly column that he wants to write, and they have explained in detail their concerns.

On Israeli and American case-law

20. My colleague reviews at length and in detail case-law made in Israel and the United States, and he wishes to learn from them in our case. As for me, I have not found in this case-law any authority that supports my colleague’s approach. With regard to Israeli case-law, I have not found even one case that resembles this one. All the judgments concern a violation of human dignity — ‘dignity’ in its plain sense — or cases where the court was required to consider whether the discretion of the prison authorities was reasonable or unreasonable in the circumstances of each particular case. Wherever it was found that the respondents’ discretion was unreasonable, the Court granted the petition. With regard to human dignity, let us mention Katlan v. Prisons Service [3] (performing an enema on a person under arrest); Darwish v. Prisons Service [6] (denying beds to prisoners, for fear that they would use them to do harm; the petition was denied by a majority); Yosef v. Governor of Central Prison in Judaea and Samaria [9] (harsh prison conditions violating human dignity); Weil v. State of Israel [5] (the right of a prisoner to intimacy with his spouse); State of Israel v. Azazmi [2] (harsh prison conditions violating human dignity). One is led to ask: can the rights in these cases be compared to the ‘right’ of a prisoner to write a weekly column in a newspaper?

As to cases in which the court found that the discretion of the prison authorities was unreasonable: for example, in Livneh v. Prisons Service [17], the governor of the prison refused to allow the petitioner to bring various books into the prison, on the ground that these were likely to lead to incitement. With regard to the framework for the discretion of the prison governor, the court held that:

‘… no-one disputes that under regulation 44 of the Prisons Regulations, 5727-1977 [today regulation 49 of the Regulations], a prisoner is not entitled to bring books into the prison, unless the prison governor allows them to be brought into the prison. It follows that the governor is given discretion to allow or to forbid bringing a certain book into the prison; this Court will not interfere with his discretion, as long as he exercised it in good faith and in a reasonable manner’ (square parentheses supplied).

On the merits, the court thought that the prison governor did not act reasonably, and it therefore held the governor liable to grant the petitioner’s request.

In Frankel v. Prisons Service [18], supra, the petitioner was not allowed to bring two books into the prison. At the end of the hearing, the petition was granted with respect to one book and denied with respect to another. Again, the court only considered the reasonableness of the prison governor’s discretion. The same is true of all the other cases, in some of which the petitioners were found to be justified and in some of which no justification was found for intervention in the discretion of the respondents, all of which according to the usual and proper criterion of the reasonableness of the discretion; see, for example, HCJ 157/75 [20] (the Prisons Service is entitled to restrict the length of outgoing letters); HCJ 881/78 Mutzlach v. Damon Prison Commander [23] (not providing compulsory education for prisoners); Almalabi v. Prisons Service [19] (the prohibition against a prisoner having possession of a transistor radio); State of Israel v. Tamir [4] (supplying drugs to a prisoner on a prescription of a doctor who is not working for the Prisons Service).

With regard to the case-law that my colleague cited from the United States, I think that it contains nothing that changes the general picture. The basic considerations are known to all, and I do not find that the Prisons Service has departed from the general guidelines laid down by the courts in the United States (even if those guidelines were to bind them). This is especially so when the courts in the United States are not unanimous. Moreover, where prisons are the issue, I think that we should caution ourselves against drawing analogies from other legal systems, as long as we do not know that the sociological and psychological background there and here are identical, or at least very similar. In the final analysis, the legal norm reflects — at least in part — a given social position, and we should be careful not to draw analogies in matters that are not universally the same.

The Basic Law: Human Dignity and Liberty and freedom of speech; the Basic Law: Freedom of Occupation

21. My colleague, Justice Mazza, holds that the Basic Law: Human Dignity and Liberty ‘enshrined the case-law recognition of the constitutional status of freedom of speech’ (paragraph 14 of his opinion). How is this so? The Basic Law does not mention freedom of speech by name or by implication. ‘This is immaterial’, says my colleague:

‘Even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?’ (ibid).

I will not enter into an argument with my colleague over this possible interpretation of the Basic Law: Human Dignity and Liberty, but at the same time I will not deny that there are other possible interpretations. The question does not allow of a simple solution, and the answer does not present itself to us as if of its own accord. The subject incorporates not only the meaning of the concept of ‘human dignity’ in its linguistic, moral, political, historical and philosophical senses, but also — or should we say, mainly — the meaning of the concept in the special context of the Basic Law: Human Dignity and Liberty. This special context — which is bound up with the relationship between the organs of the State — can also directly affect the sphere of influence of ‘human dignity’. In our case, we have not considered the whole picture, or even part of it, and I will caution myself against hasty decisions and obiter dicta on issues so important and far-reaching as the question of the interpretation of the concept of ‘human dignity’.

22. Finally, the appellant claims he has a right of freedom of occupation — a right which he argues is given to him by the Basic Law: Freedom of Occupation. This argument was cast into the air of the court as if it were self-evident, and without counsel for the appellant trying to establish it on firm ground. Moreover, the right to freedom of occupation — like a person’s right to freedom of speech, and in fact any other right — is a right that must contend with other interests that oppose it and seek to reduce it. The interests that are capable of overriding freedom of speech in this case are the very same interests that can lead to a restriction of the right of freedom of occupation as well. In any event, our case lies in the valley between the freedom of speech and freedom of occupation, but its centre of gravity lies in the freedom of speech. We have dealt with this at length and we will say no more.

23. Were my opinion to be accepted, we would deny the appeal.

 

 

Justice D. Dorner

1. I agree with the opinion of my colleague, Justice Mazza.

My colleague examined the wider issues. He showed that prisoners are also entitled to freedom of speech, and that a violation of this right — as with the other basic rights to which prisoners are entitled — ‘is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority’ (see paragraph 13 of his opinion). My colleague discussed the principles involved in making the balance, and he reached the conclusion that in our case the violation of the appellant’s freedom of speech is unlawful.

My colleague, Justice Cheshin, agrees with the principles outlined by Justice Mazza, but his conclusion is that the concern of the respondent — the Prisons Service — that publication of the appellant’s articles is likely to harm prison discipline overrides the appellant’s basic right to freedom of speech, and that in order to dispel this fear the respondent need not trouble to read the articles, as the appellant suggested, in order to disqualify only those articles whose publication is expected to result in real harm to prison order and discipline.

2.    In my opinion, the test of rhetoric about basic human rights, including basic rights retained by prisoners, lies in the willingness of society to pay a price in order to uphold them. I discussed this in one case:

‘A basic right, by its very nature, requires society to pay a price. Where no price is paid for the exercising of an interest, there is no significance in enshrining it as a right, and certainly not as a constitutional basic right…

… in our democratic regime, which recognizes individual liberty as a basic right, society waives, to a certain extent, the possible protection of public safety’ (CrimFH 2316/95 Ganimat v. State of Israel [24], at p. 645).

In our case, if a certain amount of trouble that may be caused to the prison authorities is sufficient to deprive a prisoner of his right to freedom of speech, there is no meaning to the declaration that a prisoner retains this basic right.

3.    Admittedly, no-one disputes that in a conflict between the freedom of speech and prison order and discipline, the right of the prisoner to freedom of speech yields. However, the status of freedom of speech as a basic right means that a violation thereof is permitted when it befits the values of the State of Israel, is for a proper purpose and is to an extent that is not excessive. Compare section 8 of the Basic Law: Human Dignity and Liberty (hereafter also — the Basic Law); the remarks of Vice-President Barak in HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [25], at p. 760 {488}, and what I wrote in Miller v. Minister of Defence [21], at p. 138 {231}.

4.    In our case, no one disputes that the respondent has the authority to restrict the freedom of speech of prisoners, and that maintaining discipline in the prison is a proper purpose for exercising his authority. Notwithstanding, a violation of a prisoner’s freedom of speech will not be permitted unless it is to an extent that is not excessive for maintaining discipline in the prison.

5.    This rule of proportionality is complex, and includes several elements. See, for instance, HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [26], at pp. 435-436; HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [27], in the opinion of Vice-President Barak. In our case, the following requirements are particularly relevant:

First, a violation of freedom of speech will be permitted, as a rule, only when there exists a probability on the level of near certainty that allowing the speech will lead to a real and serious violation of order and discipline in the prison. This test is implied by the preferred status of the freedom of speech, since in conflicts between competing rights it has the status of a ‘supreme right’ (per President Agranat in Kol HaAm v. Minister of Interior [10], at p. 878 {97}).

This test applies also to the freedom of speech of prisoners. See the remarks of Vice-President Landau in Frankel v. Prisons Service [18], at p. 209. This is also the position of my colleague, Justice Mazza (see paragraphs 15 and 19 of his opinion), and even my colleague, Justice Cheshin, agrees with this (see paragraph 11 of his opinion).

The near certainty test is not mere words. It reflects the price that society is prepared to pay in order to realize the freedom of speech of the prisoner, for the practical significance is that the possibility of a violation which is not on the level of near certainty or an anticipated violation which is small rather than real and serious will not give rise to a sufficient ground for a violation of the prisoner’s freedom of speech.

The court addressed this issue in Livneh v. Prisons Service [17], at p. 689. In that case a prisoner was not permitted to bring certain books into the prison, on the ground that reading them might prompt political arguments between the prisoners, which would lead to unrest, thereby disrupting prison discipline. The prisoner’s petition was granted. Justice H. Cohn wrote as follows:

‘… But it has never been said that in order to “keep the peace” he [the prison governor] may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (square parentheses supplied).

Second, denying the freedom of speech is contingent on it being impossible with a reasonable effort to allay or reduce the fear of a disruption to prison discipline, by means that do not involve a violation of freedom of speech or that violate it only minimally. See what I wrote in HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [28]. In this matter, a mere financial outlay or burden entailed in these efforts cannot, if they are reasonable, justify a violation of a basic right. See the remarks of Justice Mazza in Miller v. Minister of Defence [21], at pp. 113-114 {197-198}.

Third, the burden of proof, both with regard to the likelihood of a violation of prison discipline and its seriousness and with regard to the impossibility of removing or reducing this fear with a reasonable effort rests with the authority. See what I wrote in Miller v. Minister of Defence [21], at pp. 135-136 {209}.

6.    It should be emphasized that criticism of detention conditions, even if the authority considers them to be incorrect, is not in itself a ground for violating freedom of speech. Care must be taken that maintaining discipline in the prison does not become a cloak for silencing a prisoner so that the public do not become aware of prison conditions, which prisoners certainly do not need to learn from the newspaper. It is well known that the Prisons Service does not refrain from contact with the press through the spokesman of the Service or senior employees of the Service. The prisons also conduct planned press visits as part of the public relations of the Service, which wants to present itself at its best. In these circumstances, preventing a prisoner from expressing any criticism he may have is unfair, and may even harm the public, which is entitled to be exposed to the entire ‘marketplace of ideas’. The remarks of Justice Shamgar in CA 723/74 [13], at p. 298, are relevant in this context:

‘The existence of basic rights is not disputed when matters run smoothly and the various authorities merit compliments only. The true test of freedom of speech occurs when confronted with forceful and unpleasant criticism.’

7.    My colleague, Justice Mazza, also relied on the Basic Law: Human Dignity and Liberty. In his view, even without an express provision the freedom of speech is included in the right of human dignity, within the meaning thereof in sections 2 and 4 of the Basic Law. See section 14 of his opinion.

I agree that a violation of a prisoner’s freedom of speech because he is a prisoner violates human dignity within the meaning thereof in the Basic Law. It is another question whether freedom of speech in general is protected by the Basic Law. This question is a part of the broader question whether human rights that are not expressly mentioned in the Basic Law can or should be incorporated into the Basic Law by interpreting the word ‘dignity’, thereby opening the door to judicial review of statutes that violate these rights. This question is not at all simple. See I. Zamir, Administrative Power, Nevo, 1996, at pp. 112-113.

In case-law various approaches have been expressed in this regard in obiter dicta. See, for instance, the remarks of Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [29], at p. 522 {448} on the one hand, and the remarks of Justice Zamir, ibid., at pp. 535-536 {467-468} on the other; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}.

The question of freedom of speech has also been considered in case-law. Justice Zamir’s reservation in Israel Women’s Network v. Government of Israel [29] also referred to freedom of speech. By contrast, an opinion has been expressed that ‘today it is possible to deduce freedom of speech from the protection conferred on human dignity and liberty in the Basic Law: Human Dignity and Liberty’ (per Justice Barak in CA 105/92 [11], at p. 201; see also Y. Karp ‘Some Questions on Human Dignity according to the Basic Law: Human Dignity and Liberty’, 25 Mishpatim (1985), 129, 144).

8.    Freedom of speech is a central basic human right and I do not believe that in Israel it can be regarded as being part of the right to dignity. Indeed, the Israeli legislator did not intend to incorporate the freedom of speech in the right of dignity. Quite the reverse.

Knesset Member Rubinstein, who sought to promote the enshrining of basic rights in Basic Laws by enacting Basic Laws with regard to those rights for which it was possible to obtain national consensus, proposed several Basic Laws, each of which referred to different rights. Inter alia, alongside the draft Basic Law: Human Dignity and Liberty, he submitted a draft Basic Law: Freedom of Speech (Divrei HaKnesset (Knesset Proceedings) 121, 1991, at p. 3748). At the Knesset debate on this draft, Justice Minister Dan Meridor said:

‘If there is one central principle of democracy that is no less important, and possibly more important, than election mechanisms and other mechanisms, it is the freedom of speech. A state which has regular elections, and which has many other characteristics that are similar to a democracy, but which does not have freedom of speech, is not a democracy. A state which does not have freedom of the press is not a democracy. Consequently, this is one of the most significant basic rights that characterize a free society’ (ibid., at pp. 3732-3733).

In the year 5754 (1993-1994), the Constitution, Law and Justice Committee of the Knesset submitted the draft Basic Law: Freedom of Speech and Assembly to the Knesset three times. The first two drafts were not approved on first reading, whereas the third draft was approved on first reading but was not submitted for a second reading.

Apparently, the national consensus required for enshrining freedom of speech in a Basic Law had not yet been reached, and the draft Basic Law: Freedom of Speech has not been enacted until today. In such circumstances, it seems doubtful to me whether it is possible, or at any rate appropriate, to confer super-legislative status on freedom of speech generally, by incorporating it in the right of dignity. In this matter I wrote, with respect to the principle of general equality, the following:

‘Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions’ (Miller v. Minister of Defence [21], at p. 132 {223}).

See also, Y. Karp ‘The Basic Law: Human Dignity and Liberty — A Biography of Power Struggles’, 1 Mishpat Umimshal (1992), 323, 338.

Nonetheless, there are cases where a violation of an individual’s freedom of speech constitutes a violation of his right of dignity, within the meaning of the Basic Law: Human Dignity and Liberty. When denying freedom of speech humiliates the individual and violates his dignity as a human being, there is no reasonable way of interpreting the right of dignity prescribed in the Basic Law so that this humiliation is not deemed to violate it. See and compare the remarks of Justice Zamir in HCJ 7111/95 Local Government Centre v. The Knesset [30], at pp. 496-497; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}, where I referred to the distinction between the principle of general equality and the prohibition of discrimination against groups.

However, not every violation of freedom of speech involves humiliation. For instance, it has been held that freedom of speech also includes freedom of commercial expression. See HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [31]; HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [32]. Notwithstanding, a violation of freedom of commercial expression, for example by banning an advertisement, does not usually involve humiliation, and is therefore not a violation of the right of dignity within the meaning thereof in the Basic Law. The disqualification of a newspaper item, as distinct from a literary work or an opinion, also does not usually violate human dignity. In this matter, there are grounds for examining what is the main reason underlying the principle of freedom of speech in the context of the specific speech under consideration. It is well-known that, alongside the importance of freedom of speech for human self-realization — a violation of which is a violation of human dignity — it is also required for uncovering the truth, upholding the democratic process and safeguarding social stability. See HCJ 399/85 Kahana v. Broadcasting Authority Governing Board [33], at pp. 270-277, and the sources cited there. With all the respect due to the social reasons that underlie freedom of speech, these are not necessarily derived from human dignity. An act that violates freedom of speech shall be deemed to violate the right of human dignity, within the meaning of the Basic Law: Human Dignity and Liberty, only if it clearly violates the ‘personal’ basis for freedom of speech, as distinct from the social reasons underlying it.

The ‘silencing’ of a prisoner by his warders because he is a prisoner violates his dignity. Prisoners, in the words of Justice Haim Cohn, ‘are considered by the public as devoid of dignity, as though their criminal acts show that they chose to exchange their dignity for disgrace’ (H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, Hapraklit - Jubilee Volume, Israel Bar Association, 1994, 9, 33). What underlies the denial of freedom of speech to a prisoner is the assumption that because he is a criminal he is devoid of dignity — an inferior person. Such a denial therefore violates the basic right enshrined in the Basic Law: Human Dignity and Liberty.

10. From the general, let us return to the specific: in our case, the authority has not complied with even one of the requirements I listed above (in paragraph 5) concerning proportionality. As stated, the main concern raised by the respondent is that the status of the appellant as a ‘journalist’ will give him the power to praise or criticize the prison warders, and as a result he will obtain preferential treatment to which he is not entitled, he will sow discord among members of the staff and cause unrest among the prisoners, thereby compromising prison discipline. This concern may, apparently, be allayed or significantly reduced by preventing the mentioning of names of prison warders in the articles. As stated, the appellant has gone further and is prepared to submit his articles to the respondent’s censorship. The respondent’s refusal to devote the time required for this censorship is inconsistent with his duty to make a proper effort in order to prevent a violation of a basic human right. Unlike my colleague, Justice Cheshin, I do not think that —

‘… it is not their [the prison authorities’] task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book publishing house’ (paragraph 15 of his opinion —square parentheses supplied).

In my opinion, it is a clear duty of government authorities in the State of Israel to do what is necessary to safeguard basic human rights. This is certainly the case with regard to the duty of prison warders to ensure that the basic rights of the prisoners under their authority are upheld, while minimizing violations of prison order and discipline. This role is no less important than any other role imposed on the Prisons Service, and it must ensure that the warders are trained to carry it out, just as it ensures that they are trained to carry out their other tasks. In our case, there is even an explicit provision — regulation 33 of the Regulations — which requires the respondent to carry out its role in balancing between the safeguarding of prisoners’ freedom of speech and the need to maintain prison order and discipline.

Moreover, the fact that in 1989 the appellant published articles about his life in prison without the respondent showing that this publication resulted in a disruption of prison order and discipline, indicates that the respondent’s fear, which is based on speculation only, does not have a sufficient basis. Most certainly we cannot conclude from past experience that there is a near certainty that publishing the appellant’s articles will significantly and seriously disrupt prison discipline.

I therefore agree with the opinion of my colleague, Justice Mazza, that the appeal should be allowed.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

10 Elul 5756.

25 August 1996.

 

HCJ 2605/05

1.  Academic Center of Law and Business, Human Rights Division

2.  Major-General (ret.) Shlomo Twizer

3.  Yadin Machness

v.

1. Minister of Finance

2. Minister of Public Security

3. A.L.A. Management and Operation (2005) Ltd

4. Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[19 November 2009]

Before President D. Beinisch, Vice-President E. Rivlin
and Justices A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, E. Arbel, S. Joubran, E. Hayut

 

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

 

Facts: The Knesset enacted the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (‘amendment 28’), which provides that the State of Israel will establish, for the first time, a (single) prison that will be operated and managed by a private corporation rather than by the state. The constitutionality of this law was challenged by the petitioners, who argued that amendment 28 disproportionately violated the rights of prison inmates as a result of the actual transfer of imprisonment powers to a private enterprise, and as a result of the concern that human rights in a private prison would be violated to a greater extent than in a state-run prison.

 

Held: (Majority opinion — President Beinisch, Vice-President Rivlin, Justices Procaccia, Grunis, Naor, Arbel, Joubran, Hayut) Amendment 28 violates human rights disproportionately and is therefore unconstitutional.

(President Beinisch, Vice-President Rivlin, Justices Grunis, Naor, Arbel, Joubran, Hayut) The concern that human rights in a private prison will be violated more than in state managed prisons addresses a future violation of human rights, and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. However, the human rights of prison inmates are violated ipso facto by the transfer of powers to manage and operate a prison from the state to a private concessionaire that is a profit-making enterprise. The denial of personal liberty is justified only if it is done in order to further or protect an essential public interest, and therefore the question whether the party denying the liberty is acting in order to further the public interest (whatever it may be) or is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. Therefore, amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself.

When the state transfers power to manage a prison, with the invasive powers that go with it, to a private profit-making corporation, it violates the human dignity of the inmates of that prison, since the public purposes that give imprisonment legitimacy are undermined and the inmates becomes a means for the private corporation to make profits (Justice Grunis reserved judgment on this issue).

The main public purpose underlying amendment 28 is the economic purpose of saving the state money.

The ‘additional’ violation of constitutional rights deriving from giving imprisonment powers to a private profit-making corporation is disproportionately greater than the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

The unconstitutionality of amendment 28 requires it to be set aside in its entirety, because it is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part. Were only the provisions concerning the granting of the invasive powers set aside, the remaining provisions would be unable to stand independently.

(Justice Procaccia) The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment depend upon the exercise of authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Transferring this power to a private enterprise undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional authority over the individual offender.

The main purpose of amendment 28, as can be seen from its legislative background and context, is to promote the welfare of prison inmates by reducing overcrowding in the prisons, improving services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. However, this benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign authority to a private concessionaire. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state.

(Minority opinion — Justice Levy) The state has not divested itself of its powers but merely exchanged them for supervisory powers. It is hard to see how this conflicts with the constitutional role of the government, and the mechanisms of indirect government should be examined on their merits.

It is premature to determine whether a private prison will violate human rights disproportionately. Time will tell. The law should be put to the test before the court reaches any conclusions on this matter.

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

 

Legislation cited:

Basic Law: The Judiciary, s. 15(d)(2).

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 5, 8, 9.

Basic Law: the Army, ss. 2, 3.

Basic Law: the Government, ss. 1, 44(a).

Basic Law: the Knesset, ss. 7(8), 7(9), 7A.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 12(a)(1)(b).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 23, 67.

Deferral of Service of Full-Time Yeshivah Students, 5762-2002.

Emergency Powers (Arrests) Law, 5739-1979.

Execution Law, 5727-1967, s. 5.

General Security Service Law, 5762-2002, ss. 3, 4.

Internment of Unlawful Combatants Law, 5762-2002.

Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969.

Parole Law, 5761-2001.

Penal Law, 5737-1977, art. B1.

Police Ordinance [New Version], 5731-1971, s. 8.

Prisons Ordinance [New Version], 5732-1971, ss. 45A, 76(a), 78, 95B, 95D, 95E, 128F, 128G(a), 128G(b), 128I, 128K, 128K(c)(1), 128L, 128L(a)(1), 128L(a)(2), 128L(a)(3), 128M, 128O, 128R, 128R(c)(1), 128R(c)(4), 128R(c)(5), 128S, 128U-128X, 128V-128X, 128Y, 128Z, 128AA, 128AB, 128AE, 128AF-128AG, 128AF-128AL, 128AJ, 128AO, 128AS-128BA, 128AW.

Prisons Ordinance Amendment Law (no. 28), 5764-2004.

Release from Imprisonment on Parole Law, 5761-2001, s. 9(7).

State Comptroller Law [Consolidated Version], 5718-1958, s. 9(6).

Taxes (Collection) Ordinance.

Torts (State Liability) Law, 5712-1952

o t applies the provs  provision e same way as civil servants. toerein or an inmate held in custody therein'wever, for decidingTreatment of Mentally Ill Patients Law, 5751-1991, s. 9.

 

Israeli Supreme Court cases cited:

[1]      AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [2002] IsrSC 56(3) 673.

[2]      AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel (unreported decision of 7 December 2006).

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

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

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

[6]      CrimA 6659/06 Iyyad v. State of Israel (unreported decision of 11 June 2008).

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

[8]      CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221; [1995] IsrLR 1.

[9]      HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[10]    HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security (unreported decision of 12 February 2007).

[11]    PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

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

[13]    HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[14]    HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673; [1998-9] IsrLR 537.

[15]    HCJ 2303/90 Philipovitz v. Registrar of Companies [1992] IsrSC 46(1) 410.

[16]    HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [2004] IsrSC 58(5) 202.

[17]    HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [2001] IsrSC 55(3) 79.

[18]    HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [2003] IsrSC 57(3) 652.

[19]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported decision of 11 May 2006).

[20]    HCJ 355/79 Katlan v. Israel Prison Service [1980] IsrSC 34(3) 294.

[21]    HCJ 1163/98 Sadot v. Israel Prison Service [2001] IsrSC 55(4) 817.

[22]    CrimFH 10987/07 State of Israel v. Cohen (unreported decision of 2 March 2009).

[23]    HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2006] IsrSC 60(1) 38; [2005] (1) IsrLR 340.

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

[25]    HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[26]    HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (unreported decision of 10 May 2006).

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

[28]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [2006] (1) IsrLR 443.

[29]    HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (2) IsrLR 352.

[30]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[31]    HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[32]    HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2006] (3) 464; [2005] (2) IsrLR 335.

[33]    CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[34]    CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[35]    HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[36]    HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

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

[38]    HCJ 39/82 Hanfling v. Mayor of Ashdod [1982] IsrSC 36(2) 537.

[39]    HCJ 2245/06 Dobrin v. Israel Prison Service [2006] (2) IsrLR 1.

[40]    LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[41]    HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[42]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[43]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

[44]    HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 529.

[45]    HCJ 410/90 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[46]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[47]    HCJ 4676/94 Meatreal Ltd v. Knesset [1996] IsrSC 50(5) 15.

[48]    HCJ 10203/03 National Census Ltd v. Attorney-General (unreported decision of 20 August 2008).

[49]    HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [1998] IsrSC 52(3) 679.

[50]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[51]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

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

[53]    CrimA 40/58 Attorney-General v. Ziad [1958] IsrSC 12 1358.

[54]    PPA 7440/97 State of Israel v. Golan [1998] IsrSC 52(1) 1.

[55]    HCJ 4253/02 Kariti v. Attorney-General (unreported decision of 17 March 2009).

[56]    CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [2000] IsrSC 54(2) 433.

[57]    CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [2003] IsrSC 57(4) 769.

[58]    HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [2001] IsrSC 55(3) 625.

[59]    HCJFH 5361/00 Falk v. Attorney-General [2005] IsrSC 59(5) 145.

[60]    HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

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

[62]    CrimA 7053/01 A v. State of Israel [2002] IsrSC 52(1) 504.

[63]    LHCJA 818/03 Zarka v. Israel Prison Service (unreported decision of 11 March 2003).

[64]    HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security (unreported decision of 9 March 2003).

[65]    HCJ 1319/03 Israel Bar Association v. Minister of Public Security (unreported decision of 1 March 2004).

[66]    HCJ 572/04 Berry v. Minister of Justice (unreported decision of 6 April 2005).

[67]    HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [1980] IsrSC 34(2) 566.

[68]    CA 404/61 Skivinskaya v. Uroshitz [1962] IsrSC 16(1) 347.

[69]    HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [1987] IsrSC 41(2) 449.

[70]    HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[71]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[72]    HCJ 410/91 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[73]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[74]    HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [2003] IsrSC 57(2) 102; [2002-3] IsrLR 165.

[75]    HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[76]    HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [2004] IsrSC 58(1) 529.

[77]    HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister (not yet reported).

[78]    EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[79]    HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485.

[80]    HCJ 761/86 Miari v. Knesset Speaker [1988] IsrSC 42(4) 868.

[81]    HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [1991] IsrSC 45(3) 154.

[82]    HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[83]    Pischke v. Litscher, 178 F. 3d 497 (7th Cir. 1999).

[84]    Montez v. McKinna, 208 F. 3d 862 (10th cir. 2000).

[85]    White v. Lambert, 370 F. 3d 1002 (9th cir. 2004).

[86]    Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2 (2000).

[87]    Richardson v. McKnight, 521 U.S. 399 (1997).

[88]    Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

[89]    Skelton v. Pri-Cor, Inc., 963 F. 2d 100 (6th Cir. 1991).

[90]    Rosborough v. Management and Training Corporation, 350 F. 3d 459 (5th Cir. 2003).

 

For petitioners 1-2 — G. Barnea, A. Wasserman, E. Michaely, Y. Berda.

The third petitioner represented himself.

For respondents 1-2 — Y. Genessin, R. Giladi, R. Keidar.

For the third respondent — Y. Shalheveth, B. Fiel, R. Kook, O. Roth.

For the fourth respondent — N. Elstein, R. Scherman-Lamdan, I. Eshet.

 

 

JUDGMENT

 

 

President D. Beinisch

The Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), provides that the State of Israel will establish for the first time a (single) prison that will be operated and managed by a private corporation rather than by the state. The arrangement provided in amendment 28 leads to a transfer of basic powers of the state in the field of law enforcement — imprisonment powers — the exercise of which involves a continuous violation of human rights, to a private profit-making corporation. As we shall explain below, this transfer of powers violates the constitutional rights to personal liberty and human dignity, which are enshrined in the Basic Law: Human Dignity and Liberty. The question of the constitutionality of this violation lies at the heart of the petition before us. It should already be said at the outset that, for the reasons that will be set out below, we have arrived at the conclusion that the aforesaid amendment does not satisfy the test of constitutionality.

The main facts and the arguments of the parties

1.    On 31 March 2004, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’) was published. According to the amendment, chapter C2 was added to the Ordinance. This chapter is entitled ‘Privately managed prison.’ The amendment, which resulted in the addition of sections 128F-128BB, regulates the establishment of one prison that will be built, managed and operated by a private corporation, which will enter into an agreement for this purpose with the Israel Prison Service and act as a concessionaire in accordance with a special permit that it will receive. The amendment provides, inter alia, the procedure for granting and cancelling the permit, the qualifications that should be satisfied by the corporation and its employees, the scope of the powers of the corporation’s employees and the supervisory measures that the state is required to undertake with regard to the activity of the corporation and its employees. In the Third Schedule to the Prisons Ordinance, it is provided that the privately managed prison will be constructed in the prison compound south of the city of Beer-Sheba, and its maximum capacity will be eight hundred inmates. The Schedule also lays down the conditions that should be satisfied with regard to inmates that will be imprisoned in the privately managed prison.

The petition before us was filed on 16 March 2005. The first petitioner is an academic institution, which is acting as a public petitioner in the petition before us. The second petitioner is a retired senior officer in the Israel Prison Service. The third petitioner, who was subsequently joined as a party to the petition at his request, was, on the date that he was joined as a petitioner, an inmate of a prison managed by the Israel Prison Service. On 27 October 2005 an initial hearing of the petition took place before a bench of three justices. On 15 November 2005, the third respondent (hereafter: ‘the concessionaire’) was chosen as the winning group in the tender for the construction and operation of the private prison, and the concession agreement was signed with it on 2 January 2006. On 18 June 2006 a further hearing of the petition was held before a bench of seven justices, which was presided over by President A. Barak. Following this, an order nisi was made. On 31 August 2006, following a further hearing that took place before a bench of nine justices, and after the court was notified by the Knesset’s legal adviser that draft laws had been tabled to repeal amendment 28, it was decided to postpone the hearing of the petition in order to allow the legislative proceedings that had apparently been restarted in the Knesset to be exhausted. Since these proceedings did not progress and the legal position set out in the statute under discussion was not changed, on 8 July 2007 we heard the actual petition. While the hearing of the petition was taking place, the proceedings for setting up the privately managed prison also progressed, and the third respondent was given the permit required under the law. The construction of the prison and its preparation for the initial partial admission stage were supposed to be completed by June 2009, but on 18 March 2009 we made an interim order that prevented the prison being put into operation. It should be noted that the delay that has occurred in giving this judgment derived from the complexity of the issues under consideration, which raised constitutional questions of significant importance that have not yet been decided in our case law, but mainly from the court’s desire to allow the Knesset to exhaust the legislative proceedings mentioned above and the public debate that the Knesset wished to hold on the privatization phenomenon during the 2007-2008 winter session, as stated in the Knesset legal adviser’s notice of 28 June 2007, before we considered the complex question concerning the setting aside of primary legislation of the Knesset.

2.    The petition is directed at the constitutionality of amendment 28 of the Prisons Ordinance, and the petitioners’ argument is that this amendment should be regarded as a choice by the state ‘to carry out a complete privatization of prisons in Israel.’ As will be explained below, the petition has two main arguments.

In the first argument the petitioners claim that a complete privatization of the prisons constitutes an unconstitutional violation of the constitutional rights to personal liberty and human dignity. In this context, the petitioners claim that several factors combine in this respect to cause an unconstitutional violation of constitutional basic rights. The main cause of this lies in the combination of the following: the nature of the powers that are being privatized, which include the actual power of imprisonment and the powers relating to the human dignity of the inmate and his personal liberty (such as holding a prisoner in administrative isolation, carrying out an external examination of a inmate’s naked body and using reasonable force to carry out a search on an inmate); the low standards that have been set, according to the petitioners, for staffing the positions in the privatized prison in comparison to the standards in the Israel Prison Service; and the inadequate supervision, according to the petitioners, of the actions of the private enterprise that will operate the prison. The petitioners claim that this combination is likely to lead to a violation of the inmates’ rights to liberty and human dignity in the privatized prison. According to the petitioners, this expected violation of constitutional basic rights does not satisfy the limitations clause tests laid down in s. 8 of the Basic Law: Human Dignity and Liberty.

It is argued that a violation of the basic principle that the power to enforce criminal judgments is exercised exclusively by the state, in order to achieve an economic purpose, is not a violation that is made for a proper purpose. The petitioners argue that it is also not a proportionate violation. In this respect, the petitioners claim that from the viewpoint of whether the chosen means will lead to the desired purpose, they have expert opinions that indicate that experience around the world does not show a clear connection between the privatization of prisons and an economic saving; that there are other less harmful measures that are capable of realizing the economic purpose underlying amendment 28, including the building of additional public prisons or a partial privatization that only involves powers that do not contain a predominant element of the exercise of sovereign power; and that the damage that will result from a complete privatization of prisons is disproportionate to the benefit that will arise from such a privatization (especially, according to the petitioners, in comparison to the possibility of a partial privatization of prisons).

3.    In the other argument, the petitioners claim that amendment 28 constitutes a violation of the constitutional rule laid down in s. 1 of the Basic Law: the Government, according to which ‘The government is the executive branch of the state.’ The reason for this is that the power of the state to operate prisons constitutes, according to the petitioners, a part of its authority to exercise executive power in order to enforce the law and maintain the peace; and as such the power lies at the heart of the basic principle that ‘The government is the executive branch of the state.’ According to the petitioners, since the Basic Law: the Government is a Basic Law, its normative status is a super-legislative one, and therefore any ordinary law that violates it should satisfy two requirements, one formal and the other substantive.

First, in the formal sphere, the petitioners argue that the violating law should be passed by a majority of at least 61 members of the Knesset in each of the three readings, according to the entrenchment provision set out in s. 44(a) of the Basic Law: the Government. Since amendment 28 was not passed with this majority, the petitioners claim that this alone should lead to its being set aside. Second, in the substantive sphere, the petitioners claim that the violating law should satisfy the tests of the limitations clause. The petitioners argue that these tests should also be applied, by way of judicial interpretation, to laws that violate the Basic Laws that concern the organs of the state, such as the Basic Law: the Government, even though these Basic Laws do not contain an express limitations clause like the ones provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.

4.    It should also be mentioned that we also heard the arguments of the third petitioner, Mr Yadin Machness, who at that time was serving a custodial sentence at Maasiyahu Prison. The third petitioner’s arguments focused on the practical aspects relating to the services provided to inmates in the prisons of the Israel Prison Service, in fields such as health, food and education. According to him, there is a concern that the standard of these services will decrease in the privately managed prison as a result of the economic considerations that will motivate the concessionaire operating the prison. The third petitioner also raised in his arguments a concern that use will be made of the various powers given to the private concessionaire in such a way that will allow the concessionaire to worsen the conditions of the inmates in the privately managed prison and punish them, without it first being necessary to charge the inmates in disciplinary proceedings, for which the Israel Prison Service remains responsible, even under amendment 28.

5.    All of the respondents oppose the granting of the petition. Replies to the petition were filed by respondents 1-2 (hereafter: ‘the state’), the concessionaire and the Knesset. In its reply to the petition, the state says that the construction of a privately managed prison is one of the solutions planned by it for contending with the serious shortage of prisons in Israel, and this is the main purpose underlying the enactment of amendment 28. The state also claims in the affidavit in reply that in addition to an improvement of the inmates’ prison conditions, the construction of the prison that is the subject of the petition is very much in the public interest, since it will lead to an economic saving of an estimated amount of approximately 20-25 per cent in comparison to a prison of similar standards operated by the Israel Prison Service, and on the basis of experience around the world it can be estimated that the construction of a private prison may also lead to greater efficiency in state-run prisons.

According to the state, the privatization model adopted in amendment 28 of the Prisons Ordinance is a unique and experimental model, which constitutes a ‘pilot’ test that is expressly limited to one prison and includes mechanisms to protect the rights of the inmates and effective supervision and intervention mechanisms that are available to the state and will allow it, inter alia, to reverse the process at any stage and take back control of the prison because of a breach of the terms of the permit given to the concessionaire. The state emphasizes in its pleadings that the existence of a real concern of a serious violation of inmates’ rights is one of the grounds provided in amendment 28 for the state to take away the power to manage the prison from the concessionaire. In this regard, the state further argues that amendment 28 provides measures for supervising the manner in which the concessionaire exercises the powers granted to it: these include the activity of the designated supervision unit of the Israel Prison Service inside the prison (even though the location of the supervision unit was not stipulated in amendment 28 itself, but only in the concession agreement and the permit); the supervisory powers given to the state with regard to the appointment of officers in the privately managed prison; and the extensive reporting duties imposed on the concessionaire with regard to various incidents, both under amendment 28 and under the concession agreement. According to this argument, the supervisory measures will guarantee the prison inmates’ rights. The state also points out that amendment 28 also provides that the permit for operating the prison and the concession agreement may be revoked by the state, if the permit’s conditions are breached.

The state also goes on to say that, under s. 15(d)(2) of the Basic Law:  The Judiciary and according to the case law of this court, from the moment that the concessionaire receives sovereign powers, it becomes directly subject to both administrative law and the jurisdiction of the High Court of Justice, without even resorting to the doctrine of the dual-nature corporation. In addition to the judicial scrutiny of the High Court of Justice to which the concessionaire is subject, the state says that an inmate in the privately managed prison, like every inmate in the Israel Prison Service, has the right to file a prisoner’s petition to the District Court under the provisions of the Prisons Ordinance. This possibility of judicial scrutiny of the prison conditions constitutes, according to the state, an independent and very powerful means of supervision and control that is available to every inmate at all times. Additional control mechanisms with regard to the activity of a privately managed prison to which the state refers are the scrutiny of the State Comptroller, since the concessionaire is an audited body within the meaning of this term in s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958, and the scrutiny of an advisory committee chaired by a retired District Court justice. According to amendment 28, this committee will advise the Commissioner of Prisons on the subject of upholding the rights of inmates in the privately managed prison, and also on the subject of their rehabilitation, welfare and health, and it shall submit its recommendations to the Minister of Public Security, the Commissioner of Prisons and the Internal Affairs and Environment Committee of the Knesset once a year. In view of the aforesaid, the state argues that there is no basis for the claim that it has divested itself of its powers, and it adds that in the Israeli model chosen for the privatization of the prison, a significant part of the sovereign powers is retained by the state.

The state goes on to argue that the rights of the inmates will be guaranteed not merely by the mechanisms provided in the law itself but also in the administrative sphere, by the permit for constructing and operating the prison, as well as in the contractual sphere, by the concession agreement with the concessionaire. In this regard, the state says that various powers that are potentially particularly harmful and are not essential for the ongoing management of the prison (which are given to governors of prisons managed by the state) were not given by amendment 28 to the governor acting on behalf of the concessionaire. The state also says that, even if this court holds, contrary to its position, that amendment 28 violates constitutional human rights to a greater extent than the violation of prison inmates’ rights under the general law, this violation satisfies the tests of the limitations clause.

6.    Regarding the provisions of s. 1 of the Basic Law: the Government, which provides that ‘the Government is the executive branch of the state,’ the state claims that this provision is intended to define in a ‘ceremonial’ manner the nature and character of the government in relation to the other organs of state. According to the state, the purpose of this provision does not concern any specific executive power at all, merely the general position of the government within the democratic system. The state goes on to argue that in any case the government carries out its functions as the executive branch in a variety of ways, including by relying on private entities. Therefore the government does not stop acting as ‘the executive branch of the state’ when it carries out its functions through private entities or delegates certain powers to them. The state goes on to argue that even if s. 1 of the Basic Law: the Government can be used to set aside the delegation of powers made pursuant to a statute, there is no basis for using it to disqualifying amendment 28, since the privately managed prison will be run with the full involvement of the state, and therefore the amendment will not undermine the principle that the government is the executive branch of the state. The state further argues that even if amendment 28 can be regarded as a violation of the principle provided in the Basic Law: the Government, it is a negligible and very remote violation that lies at the margin of the principle and not at its centre.

The state also says that the Israeli model chosen for entrusting a prison to private management is based on the English model that is characterized by a regulatory approach, according to which the supervision of the activity of the private concessionaire is carried out by state inspectors who are stationed inside the supervised prison. Notwithstanding, according to the state, the Israeli model of delegating powers to manage one prison to a private concessionaire is more moderate with regard to the powers given to the concessionaire and more comprehensive, compared to similar legislative models in other countries, with regard to the powers to supervise the concessionaire, and it should therefore be regarded as an ‘improved English model.’

In view of the aforesaid, the state claims that since the petition challenges a privatization determined by law, which does not violate constitutional rights, the intervention of the court should be limited to rare and extreme cases, in which the privatization shakes the foundations of democracy and the fundamental principles of the system of government; according to the state, circumstances of this kind do not exist in the case before us.

7.    The concessionaire that was chosen in the tender to build and operate the privately managed prison also argues that the petition should be denied. It argues that not only will the operation of a privately managed prison not harm the liberty, dignity and rights of the inmates, but it will result in an improvement of their conditions, because of the high standards laid down by the state in the minimum requirements of the tender for the construction and operation of the prison (standards that the concessionaire claims it undertook to improve upon) and because of the extensive supervisory powers retained by the state. The concessionaire emphasizes in its reply to the petition the importance that it attaches to the social goals that the prison is intended to realize, including the rehabilitation and education of the inmates. The concessionaire further argues that there is no basis to the petitioners’ claims regarding the concern of a violation of inmates’ rights as a result of the legislation of amendment 28. In this context, the concessionaire argues that the petitioners’ claim that the running of a prison with the assistance of a private enterprise necessarily leads to a greater danger of a violation of inmates’ basic rights than a prison entirely managed by the state needs to be proved factually on the basis of research and empirical evidence; according to the concessionaire, however, the petitioners did not even attempt to discharge this heavy burden. The concessionaire goes on to argue that even if amendment 28 violates a constitutional right protected in the Basic Law: Human Dignity and Liberty, that violation satisfies the conditions of the limitations clause. With regard to the third petitioner’s arguments regarding the concern that the concessionaire’s economic motives will result in a deterioration in the inmates’ prison conditions at the privately managed prison, the concessionaire argues that these claims do not address the constitutionality of amendment 28, merely the manner in which it is implemented, and in any case they are without merit, in view of the high standard for operating the prison set out in the conditions of the tender, the concession agreement and the concessionaire’s bid.

With regard to the petitioners’ claims that are founded on the provisions of s. 1 of the Basic Law: the Government, the concessionaire argues that this provision is a declarative constitutional provision that does not prevent a delegation of powers by the government, or the state availing itself of the assistance of private enterprises to carry out its duties.

8.    An additional argument that is raised both by the state and by the concessionaire is the claim of laches. The state and the concessionaire say that the petition before us was filed approximately a year after the Knesset enacted amendment 28, without any justification for the delay in filing the petition. In this respect, it was argued by the state and the concessionaire that the delay in filing the petition adversely changed their position, since by the date of filing the petition they had already gone to considerable expense and invested significant work and time in the project — the state in preparing the tender and the documents of the tender, and the concessionaire in studying the documents of the tender and preparing a detailed bid for the tender. It was also argued that the cancellation of the project at a late stage would harm the foreign parties who had entered into contracts with the concessionaire and relied on the legislation of the Knesset, and it might even prejudice the attractiveness of the State of Israel to foreign investors and experts, as well as other national projects requiring large investments. We should already point out at this stage that we see no reason to dismiss the petition on the ground of laches. Even if we assume in favour of the state and the concessionaire that the rules of laches also apply to constitutional petitions, and that in the present case there were both an objective delay and a subjective delay on the part of the petitioners, in view of the constitutional importance of the issues raised in the petition — both from the viewpoint of the principles of the system of government in Israel and from the viewpoint of the effect on the human rights of prison inmates — there is no basis for dismissing this petition because of the delay in filing it (with regard to the tests for examining a claim of laches, see, for example: AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [1], at pp. 678-679; AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel [2], at paras. 86-101 of the judgment).

9.    In addition to the replies of the state and the concessionaire, we also heard the position of the Knesset with regard to the petition. According to the Knesset, s. 1 of the Basic Law: the Government, which it will be recalled is the basis for the petitioners’ constitutional argument concerning the state divesting itself of its powers, does not contain any provision with regard to the manner of carrying out the government’s powers; it does not contain any provision that restricts the Knesset’s power to permit the government to act in various ways to discharge its executive function; nor does the section provide criteria for examining the constitutionality of laws. Therefore, the Knesset claims that s. 1 of the Basic Law: the Government is not relevant at all when considering the constitutionality of amendment 28. The Knesset goes on to argue that there is no basis for examining the constitutionality of the amendment in accordance with the provisions of a ‘judicial limitations clause’ that is based on the limitations clauses provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In this respect the Knesset argues that no clear case law ruling has yet been made that the Knesset’s legislative power is limited by the tests in the limitations clause even when the relevant Basic Law does not have an express limitations clause, and it adds that a substantive restriction of the kind that is found in the limitations clause in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation is unsuited to the examination of legislation that prima facie conflicts with a provision in a Basic Law that concerns the organs of the state. It should be noted that in so far as the concrete question of the privatization of prisons is concerned, the Knesset included in its arguments a comprehensive description of the phenomenon of prison privatization around the world. The Knesset emphasized that this is a ‘hard case’ of privatization and it argued that the state needs to carry out close supervision of the private entity, and that the concessionaire should be made subject to the rules of public law.

Deliberations

10. Amendment 28 of the Prisons Ordinance, whose constitutionality is being challenged by the petitioners in this case, introduced a material change in the sovereign outlook of our system of government; it departs from the ordinary and accepted outlook of privatizing government activities in that it gives a private concessionaire various powers that, when exercised, necessarily involve a serious violation of human rights. In this petition we are required to decide whether granting these powers to a private concessionaire, i.e., privatizing these powers, is constitutional (with regard to the various definitions of the concept of privatization, see Y. Katz, Privatization in Israel and Abroad (1997), at pp. 23-30). On this question, our approach will be as follows: first, we shall address the nature of the arrangement provided in amendment 28. Thereafter, we shall consider in brief the scope of judicial review of Knesset legislation. Our main deliberations on the question of the constitutionality of amendment 28 will focus on the Basic Law: Human Dignity and Liberty. At the end of our deliberations we shall address the arguments of the parties regarding the constitutional scrutiny of the amendment from the viewpoint of the Basic Law: the Government. It should immediately be pointed out that in view of the conclusion we have reached, that the amendment under discussion does not satisfy the constitutionality tests in the Basic Law: Human Dignity and Liberty, various questions that arise with regard to the constitutionality of the amendment from the viewpoint of the Basic Law: the Government do not require a decision.

The nature of the arrangement provided in amendment 28

11. The following are the main relevant provisions that were introduced by the aforesaid amendment 28.

Section 128G(a) of the Prisons Ordinance provides that ‘The service [i.e., the Israel Prison Service] may, for the purpose of carrying out its functions as stated in section 76, rely on a corporation’ that satisfies certain minimum requirements stipulated in the section, ‘and to this end it may enter into an agreement with it to construct, manage and operate one prison’ (it should be noted that the functions of the Israel Prison Service are defined in general terms in s. 76(a) of the Prisons Ordinance, which provides that the Israel Prison Service ‘shall engage in the management of the prisons, the security of inmates and everything entailed therein’). The corporation to which s. 128G(a) of the Prisons Ordinance refers is therefore the concessionaire, which is supposed, according to the provisions of amendment 28, to construct, manage and operate the ‘privately managed prison.’ The various powers given to the concessionaire under amendment 28 are naturally derived from the scope of the responsibility imposed on it. Section 128L of the Prisons Ordinance defines the spheres of responsibility imposed on the private concessionaire in the following terms:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The powers of the concessionaire and its employees, whose privatization within the framework of amendment 28 lies at the heart of the petition before us, are those powers that are derived from the spheres of responsibility provided in ss. 128L(a)(1) and 128L(a)(2) of the Prisons Ordinance, namely the responsibility of maintaining order, discipline and public security in the prison and the responsibility of preventing the escape of inmates that are held in custody in the prison. In order that the private concessionaire that manages and operates the prison can discharge its responsibility in these fields, the governor of the private prison on behalf of the concessionaire and the concessionaire’s employees (subject to several important exceptions) were given various powers, which are parallel to the powers given to the governor of an Israel Prison Service prison and the prison employees that are subordinate to him. Exercising these powers — and this petition is directed against granting them to a private concessionaire rather than against their actual existence — naturally entails a serious violation of various human rights, including the right to life, the right to personal liberty and the right to human dignity. Below we shall discuss several of the powers given to the private concessionaire’s employees at their various levels.

12. The powers of the governor of the privately managed prison are defined in s. 128R of the Prisons Ordinance, which states the following:

‘Functions and powers of the governor of a privately managed prison

128R. (a) The governor is responsible for the proper management and operation of a privately managed prison, as stated in section 128L(a), and in this respect all of the provisions under this Ordinance that apply to a prison governor shall apply to him, subject to the provisions of this section.

 

(b) In order to carry out his functions as stated in subsection (a), the governor shall be given the powers given to a governor of a prison under this Ordinance and under every other law, except for the powers according to service orders and the following powers:

 

(1) Making an order to transfer an inmate because of a contagious disease, under the provisions of section 13(b);

 

(2) Extending a period during which an inmate is held in isolation under the provisions of section 19C(a);

 

(3) Confiscating a possession under the provisions of section 44;

 

(4) Jurisdiction regarding prison offences under the provisions of article 8 of chapter 2;

 

(5) The power of an examiner with regard to a letter to a member of Knesset under the provisions of section 47D;

 

(c) In addition to the powers given to the governor under the provisions of subsection (b), he shall also be given the following powers:

 

(1) The power given to a senior prison officer to order the holding of a prisoner in isolation, under the provisions of section 19C(a);

 

(2) The power to order the conducting of an external examination of the naked body of a prison inmate, when he is admitted into custody, as stated in section 95D;

 

(3) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a prison inmate, under the provisions of section 95E(b);

 

(4) The power given to an Israel Prison Service officer to approve the use of reasonable force in order to conduct a search on a prison inmate, under the provisions of section 95F(b);

 

(5) The power given to an Israel Prison Service officer to order the taking of a urine sample from a prison inmate, an external examination of his naked body or the making of an external search, under the provisions of sections 95H(a) and 95I(c);

 

(6) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a visitor under the provisions of section 95J(b);

 

(7) The powers given to a prison security guard under the provisions of section 128AA.’

A study of the provisions of the aforementioned s. 128R shows that although the governor of the privately managed prison was not given important powers that are given to the governor of an Israel Prison Service prison (including the power to extend the period for holding an inmate in administrative isolation for more than 48 hours and jurisdiction regarding prison offences), the law still gives him powers that, when exercised, involve a serious violation of the rights to personal liberty and human dignity. These powers include, inter alia, the power to order an inmate to be held in administrative isolation for a maximum period of 48 hours; the power to order the conducting of an external examination of the naked body of an inmate; the power to order the taking of a urine sample from an inmate; the power to approve the use of reasonable force in order to carry out a search on the body of an inmate; and the power to order an inmate not to be allowed to meet with a particular lawyer in accordance with the restrictions provided in s. 45A of the Prisons Ordinance.

It should be further pointed out that in addition to all these there is a series of invasive powers that are given to the governor of the prison on behalf of the private concessionaire, which are embodied in the concession agreement rather than in amendment 28 itself.

13. Additional invasive powers are also given to the concessionaire’s employees that are subordinate to the governor of the privately managed prison. Thus, for example, s. 128Y provides which powers are given to a ‘senior employee of the concessionaire,’ which is defined in s. 128F of the Prisons Ordinance as a ‘employee of the concessionaire who carried out command and management functions’:

‘Powers of a senior employee of the concession­aire

128Y. In order to carry out his functions, a senior employee of the concessionaire shall have the following powers:

(1) The powers given to a prison security guard under the provisions of section 128AA;

 

(2) The powers set out in section 128R(c)(1) to (6), in whole or in part, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(3) The powers that are given to an examiner under the provisions of sections 47A to 47C, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(4) The power given to the governor to deny privileges, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization.’

An additional position that was created within the framework of amendment 28 is the position of ‘prison security guard.’ This position in the privately managed prison is de facto equivalent to the position of a prison officer in the Israel Prison Service. The functions of a ‘prison security guard’ are set out in s. 128Z of the Prisons Ordinance as follows:

‘Functions of a prison security guard

128Z. The functions of a prison security guard are:

(1) To maintain public safety and security in the privately managed prison;

 

(2) To prevent the escape of the inmates who are held in custody in the privately managed prison;

 

(3) To maintain order, discipline and routine in the privately managed prison;

 

(4) To discover or prevent offences that are committed within the compound of the privately managed prison or the surrounding area, when accompanying an inmate out of the privately managed prison or when chasing an escaped inmate, all of which with regard to a privately managed prison or inmate;

 

(5) To carry out any additional function that the agreement provides shall be carried out by a prison security guard.’

The powers given to a ‘prison security guard’ in order to discharge his aforesaid functions (powers that are all also given to the governor of the privately managed prison and to a ‘senior employee of the concessionaire’) are set out in s. 128AA of the Prisons Ordinance as follows:

‘Powers of a prison security guard

128AA. (a) (1) When carrying out his job and for that purpose only, a prison security guard has the powers given to a prison officer under the provisions of this Ordinance, including powers to carry out the instructions of the governor or of a senior employee of the concessionaire, as stated in section 125R(c)(1), (3), (5) and (6), subject to the following changes:

 

(a) The power under the provisions of section 95 with regard to a weapon that is a firearm, according to the meaning thereof in the Firearms Law, 5709-1949, is given to a prison security guard in the following circumstances only:

 

(1) When he is carrying out perimeter security functions on the walls of the privately managed prison or in the area surrounding the prison;

 

(2) When he is accompanying an inmate outside the privately managed prison;

 

(3) In circumstances where there has been a serious violation of order and discipline in the privately managed prison, as stated in section 128AJ(a)(1), in accordance with a permit from the commissioner and according to the conditions set out in the permit;

 

(b) He shall have the power to make an external examination of the naked body of an inmate when he is admitted into custody, under the provisions of section 95D, only in accordance with an order from the governor or from a senior employee of the concessionaire under the provisions of section 128R(c)(2);

 

(2) In this subsection, ‘senior employee of the concessionaire’ — a senior employee of the concessionaire who has been authorized for this purpose under the provisions of section 128Y(2).

 

(b) Notwithstanding the provisions of subsection (a)(1), a prison security guard shall not have the following powers:

 

(1) The powers given under the provisions of this Ordinance to a prison officer who belongs to the Anti-Drugs Unit, as defined in section 95A;

 

(2) The power to order an inmate to be held in isolation under the provisions of section 19C;

 

(3) Jurisdiction regarding prison offences, under article 5 of chapter 2, and any other power that is given to a prison officer under the aforesaid chapter.

 

(c) A prison security guard shall have the powers as stated in this section within the compound of the privately managed prison, or in the surrounding area, and when accompanying an inmate outside the prison or when chasing an escaped inmate; nothing in the provisions of this subsection shall derogate from the provisions of subsection (a)(1)(a).’

The aforesaid s. 128AA therefore gives a prison security guard, who it will be remembered is a employee of the concessionaire who operates the privately managed prison, powers that are given to a prison officer of the Israel Prison Service, subject to certain restrictions. These powers include, inter alia, the power to use a weapon in order to prevent the escape of an inmate from the prison, the power given to a policeman to arrest and detain a person without a warrant under ss. 23 and 67 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (a power that is given to a prison employee under s. 95B of the Prisons Ordinance), and the powers provided in ss. 95D and 95E of the Prisons Ordinance to carry out a search on the person of an inmate when he is admitted into custody and during his stay in the prison. Exercising these powers also leads, of course, to a serious violation of the inmates’ human rights. It should also be noted that a employee of the concessionaire who is not a prison security guard is also entitled in certain circumstances to use reasonable force and to take steps to restrain an inmate, in accordance with s. 128AB of the Prisons Ordinance, which provides the following:

‘Powers of a employee of the concessionaire to use force

128AB. A employee of the concessionaire that is not a prison security guard, who has undergone training as provided in the agreement, may use reasonable force and take measures to restrain an inmate, until a prison security guard or a prison officer comes, if one of the following is satisfied:

 

(1) The inmate commits in his presence a violent offence or causes real damage in his presence to a person or property;

 

(2) There is a real concern of harm to the health or physical integrity of a person;

 

(3) There is a reasonable concern that the inmate is escaping or is trying to escape from the privately managed prison.’

The petition before us does not address the actual existence of the aforesaid harmful powers, nor does it deny the need for them in order to operate and manage a prison properly. As stated above, the petitioners’ claims address the constitutionality of giving the aforesaid functions and powers to a private concessionaire and its employees.

The scope of judicial scrutiny of Knesset legislation

14. The premise for examining the constitutionality of amendment 28 is that it is a law passed by the Knesset that reflects the will of the representatives of the people, and as such the court is required to respect it; the court will therefore not determine lightly that a certain statute is unconstitutional (see HCJ 3434/96 Hoffnung v. Knesset Speaker [3], at p. 67; HCJ 4769/95 Menahem v. Minister of Transport [4], at pp. 263-264). Moreover, it should be recalled that a law that is enacted by the Knesset enjoys the presumption of constitutionality that imposes on someone claiming unconstitutionality the burden of showing, at least prima facie, that the statute is unconstitutional, before the burden passes to the state and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the court to adopt the assumption that the statute was not intended to undermine constitutional principles (see Hoffnung v. Knesset Speaker [3], at p. 68; HCJ 6055/95 Tzemah v. Minister of Defence [5], at pp. 267-269 {663-667}). At the same time, the court should carry out the role given to it in our constitutional system and examine the constitutionality of the legislation enacted by the legislative branch. 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. This also means that the constitutional scrutiny should be carried out with caution and restraint, without reformulating the policy chosen by the legislature (see CrimA 6659/06 Iyyad v. State of Israel [6], at para. 29 of the judgment). This rule of caution and restraint when intervening in the policy chosen by the legislature is particularly applicable with regard to court intervention in matters reflecting economic policy. President A. Barak said in this respect:

‘The court does not seek to replace the thinking of the legislature with its own thinking. The court does not put itself in the legislature’s place. It does not ask itself what measures it would choose, were it a member of the legislature. The court exercises judicial scrutiny. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or justified. The question is whether it is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, which will all satisfy the requirements of the limitations clause. Indeed, the Basic Laws are not a plan for a specific political course of action. Nationalization and privatization can both exist within their framework. A market economy or a centrally planned economy can both satisfy judicial scrutiny, provided that the economic activity that violates human rights satisfies the requirements of the limitations clause. Therefore, where there is a range of measures, the court should recognize a margin of appreciation and discretion that is given to the legislature… Determining social policy is the province of the legislature, and its realization is the province of the government, which both have a margin of legislative appreciation’ (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386; see also Menahem v. Minister of Transport [4], at pp. 263-264. For criticism regarding the limited scope of judicial intervention in economic policy, see B. Medina, ‘“Economic Constitution,” Privatization and Public Funding: A Framework of Judicial Review of Economic Policy,’ Itzchak Zamir Book on Law, Government and Society (2005) 583, at pp. 648-652).

Moreover, it is important to clarify that when speaking of legislation that results in a serious violation of protected human rights, the fact that the motive underlying the legislation is an economic one does not decide the question of the scope of constitutional scrutiny of that legislation. In such circumstances, the predominant element in the constitutional scrutiny will be the nature and degree of the violation of human rights, as well as the existence of possible justifications for that violation. The deciding factor will therefore not be the economic aspect of the legislation causing the violation, but the question whether the legislation leads to a serious and grave violation of constitutional human rights and does not satisfy the tests of the limitations clause.

15. The constitutional issue lying at the heart of the petition before us is whether and to what extent the state — and especially the government, which is the executive branch of the state — may transfer to private enterprises the responsibility for carrying out certain tasks that for years have been its exclusive concern, according to the basic constitutional principles of the democratic system in Israel, when those tasks involve a significant and fundamental violation of human rights. The question that we are called upon to decide is, therefore, whether it is possible to determine that the privatization of sovereign powers in this case is unconstitutional, even though it is done pursuant to primary legislation of the Knesset.

An examination of the constitutionality of amendment 28 in accordance with the Basic Law: Human Dignity and Liberty

16. When we examine the petitioners’ arguments that are founded on the provisions of the Basic Law: Human Dignity and Liberty, we should first decide the question whether granting the various powers involved in the management and operation of a prison to a private concessionaire, as was done in amendment 28, violates a constitutional right that is protected in the Basic Law: Human Dignity and Liberty. If we find that such a right has been violated, we should examine whether the violation is lawful, i.e., whether the violation satisfies the tests of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. If we ultimately arrive at the conclusion that amendment 28 violates a constitutional right that is protected by the Basic Law: Human Dignity and Liberty, and that this violation does not satisfy the tests of the limitations clause, we shall need to determine what is the appropriate constitutional remedy for the unlawful violation (regarding the three stages of constitutional scrutiny, see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 428; HCJ 4128/02 Israel Union for Environmental Defense v. Prime Minister of Israel [9], at p. 517).

17. The first question that we need to decide, therefore, is whether the provisions of amendment 28 involve a significant violation of a constitutional right that is protected by the Basic Law: Human Dignity and Liberty. Our deliberations as to whether amendment 28 violates the human rights of the inmates of the privately managed prison are based on the premise that imprisoning a person and holding him in custody in itself violates his right to liberty and freedom of movement. This is the case even when the imprisonment is lawful. In addition to this premise, there is another premise that has become a rule in our legal system, that 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 (see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 11 of the judgment; PPA 4463/94 Golan v. Prisons Service [11], at pp. 152-156 {501-504}). In this respect, the remarks of Justice E. Mazza are apt:

‘It is established case 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. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law’ (Golan v. Prisons Service [11], at pp. 152-153 {501}).

18. On the basis of these premises, we should examine the petitioners’ arguments with regard to the violation of basic constitutional rights that arises from the provisions of amendment 28, which focus de facto on two issues. First, the petitioners argue that there is a real concern that the powers that were provided in amendment 28 will be exercised by the private concessionaire in a manner that violates the human rights of the inmates to a greater degree than the manner in which the corresponding powers are exercised in the prisons managed by the Israel Prison Service. Second, the petitioners argue that the transfer of powers to manage and operate the prison to a private concessionaire ipso facto violates the constitutional rights of the inmates in the privately managed prison to their personal liberty and human dignity.

As we shall clarify below, amendment 28, which allows the construction of a prison that will be managed and operated by a private corporation, leads to a violation of the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise. We therefore do not need to decide the arguments of great weight raised by the petitioners regarding the potential for violating the inmates’ human rights in the privately managed prison to a greater degree than the violation of the inmates’ human rights in the prisons managed by the state. It should be noted that the petitioners’ claims in this regard were mainly based on the provisions set out in amendment 28 with regard to the nature of the powers granted to the concessionaire’s employees, the state’s supervision of the private concessionaire’s actions, the economic inducements that will present themselves to the concessionaire and the state with regard to the manner in which the prison is managed and the minimum conditions determined for the professional qualifications of the concessionaire’s employees. In this context, the petitioners also raised arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States.

19. We have examined the petitioners’ claims that are based on the concern that the human rights of inmates will be violated in the privately managed prison to a greater extent than in state managed prisons. In this respect, we are of the opinion that the concerns raised by the petitioners are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of inmates’ human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise. It would appear that the aforesaid concern troubled both the primary legislature and the granter of the concession, and for this reason broad supervision and inspection powers were provided in amendment 28 to allay this concern. Notwithstanding, we have reached the conclusion that although the concerns raised by the petitioners are not unfounded, they address a future violation of human rights and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. In this regard it should be noted that the petitioners’ claims regarding the ramifications of the privatization of prisons in other countries (and especially the United States) are an insufficient basis for this court to reach an unequivocal and a priori determination that the method of operating a prison by means of private management will necessarily result in a violation of human rights that is significantly greater than the violation of human rights in state managed prisons. The reasons for this are, first, that the legislative arrangements in other countries are different from the legislative arrangement in Israel (especially with regard to the degree of state supervision of the concessionaire and the scope of the concessionaire’s powers), and, second, that the comparative figures are not unambiguous (see: A. Volokh, ‘Developments in the Law — The Law of Prisons: III. A Tale of Two Systems: Cost, Quality and Accountability in Private Prisons,’ 115 Harv. L. Rev. 1838, 1868 (2002); U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 85-88; D.E. Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ 19 Journal of Law & Politics 253 (2003), at pp. 271-276). Our decision will therefore be based on the assumption that, despite the potential violations indicated by the petitioners, there is no empirical proof that the manner of operating private prisons necessarily leads to a greater violation of the inmates’ human rights than that in the state managed prisons. Notwithstanding, we have reached the conclusion that the actual transfer of powers to manage a prison from the state, which acts on behalf of the public, to a private concessionaire that is a profit-making enterprise, causes a serious and grave violation of the inmates’ basic human rights to personal liberty and human dignity — a violation that should, of course, be examined from the viewpoint of the limitations clause. Let us now turn to clarify our reasons for this conclusion.

The violation caused by amendment 28 to the constitutional right to personal liberty

20. Sending someone to prison — whether it is managed privately or by the state — first and foremost violates the constitutional right to personal liberty. This right is set out in s. 5 of the Basic Law: Human Dignity and Liberty, which states the following:

‘Personal liberty

5.  A person’s liberty shall not be denied or restricted by imprisonment, arrest, extradition, or in any other way.’

The right to personal liberty is without doubt one of the most central and important basic rights in any democracy, and it was recognized in our legal system before it was enshrined in the Basic Law. Denying this right is one of the most severe violations possible in a democratic state that upholds the rule of law and protects human rights. A violation of the right to personal liberty is especially serious because it inherently involves a violation of a series of other human rights, whose potential realization is restricted physically, mentally and ethically. The special status of the right to personal liberty and the serious ramifications arising from a violation thereof were discussed by Justice Zamir in Tzemah v. Minister of Defence [5]:

‘By virtue of s. 5 of the Basic Law: Human Dignity and Liberty, personal liberty is a constitutional right. Moreover, personal liberty is a constitutional right of the first order, and from a practical viewpoint it is also a prerequisite for realizing other basic rights. A violation of personal liberty, like a stone hitting water, creates a ripple effect of violations of additional basic rights: not only the freedom of movement, but also the freedom of speech, privacy, property rights and other rights… As stated in s. 1 of the Basic Law: Human Dignity and Liberty, “Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free….”. Only someone who is free can realize his basic rights fully and properly. It is personal liberty, more than any other right, that makes man free. For this reason, denying personal liberty is a particularly serious violation. Indeed, a denial of personal liberty by means of imprisonment is the most serious sanction that a civilized state imposes on offenders’ (see Tzemah v. Minister of Defence [5], at pp. 261-262 {656}; see also Iyyad v. State of Israel [6], at para. 28).

But like all human rights, the right to personal liberty, despite its exalted constitutional status, is not an absolute right.

From the provisions of s. 5 of the Basic Law: Human Dignity and Liberty, it can be seen that imprisoning a person — whether in a state managed prison or in a privately managed prison — violates his constitutional right to personal liberty. In this respect it is important to emphasize that even when a person is convicted of an offence and sentenced to imprisonment, this does not mean that he no longer has the basic constitutional right to personal liberty; however, in consequence of the conviction and the sentence that follows it, the scope of the protection afforded to this right is reduced and it is denied for the period stipulated in the sentence. This denial is justified under the provisions of the limitations clause (see CrimA 4424/98 Silgado v. State of Israel [12], at p. 550).

21. The special constitutional status of the right to personal liberty and the fact that it constitutes a condition for exercising many other human rights mean that the legitimacy of denying that liberty depends to a large extent on the identity of the party that is competent to deny that liberty and on the manner in which that liberty is denied. The basic constitutional principle underlying this approach is that in a democracy that respects human rights, the basic justification for denying the personal liberty of the individual lies in the fact that denying his liberty results in the realization of some essential public interest. Of course, this condition is insufficient in itself for denying the personal liberty of the individual, but it is an essential condition. This essential public interest that may justify, and sometimes even necessitate, the denial of the personal liberty of a particular individual, can be of various kinds. Thus, for example, usually when we are dealing with the denial of personal liberty in criminal proceedings, the public interest is expressed in the various goals of criminal punishment, such as deterrence, retribution or rehabilitation. In addition to considerations of criminal punishment, the public interest in denying the personal liberty of a particular individual may also be based on the danger that he presents to state security (see, for example, the Emergency Powers (Arrests) Law, 5739-1979, and the Internment of Unlawful Combatants Law, 5762-2002).

22. According to our approach, which will be explained below, since the denial of the right to personal liberty is justified only if it is done in order to further or protect an essential public interest, the question whether the party denying the liberty is acting first and foremost in order to further the public interest (whatever it may be) or whether that party is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. The answer to the aforesaid question is of importance to the very legitimacy of the denial of liberty. According to the basic principles of modern political philosophy, the violation of the right to personal liberty resulting from giving a private enterprise the power to deny liberty within the context of the enforcement of criminal law derives ipso facto from the fact that the state is giving that party one of its most basic and invasive powers, and by doing so the exercise of that power loses a significant part of its legitimacy. In order to clarify the nature of the violation of the right to personal liberty that is caused by amendment 28, let us now examine the principles underlying our aforementioned approach and the manner in which these principles apply to amendment 28.

23. According to modern political philosophy, one of the main factors that led to the organization of human beings in society, whereby invasive powers — including the power to send convicted offenders to prison — were given to the authorities of that society and especially the law enforcement authorities, is the aspiration to promote the protection of personal security and public order. This approach lies at the heart of the approach of the founders of modern political philosophy. In his classic work Leviathan, which was published in 1651, Thomas Hobbes discussed the nature of the roles of ‘publique ministers’ that are employed by the ‘Soveraign’:

‘For Execution

Publique Ministers are also all those, that have Authority from the Soveraign, to procure the Execution of Judgements given; to publish the Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they doe by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Bodie naturall’ (Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil (1651), at chap. XXIII).

An additional expression of the manner in which modern political philosophy regards the role of the ‘political society’ in enforcing the law and punishing offenders can be found in the work of the English philosopher John Locke, Two Treatises of Government, which was published in 1690. In the Second Treatise, Locke presents his position that society rather than each of the individuals within it has jurisdiction regarding offences and the punishment for them:

‘But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together (John Locke, Second Treatise of Government (1690), at para. 87).

This outlook concerning the responsibility of society or the sovereign (and those acting on their behalf) to enforce the criminal law and preserve public order became over the years a cornerstone in the modern political philosophy of democratic states. Although, naturally, many changes and developments have occurred since the seventeenth century in the way in which the nature and functions of the state are regarded, it would appear that the basic political principle that the state, through the various bodies acting in it, is responsible for public security and the enforcement of the criminal law has remained unchanged throughout all those years, and it is a part of the social contract on which the modern democratic state is also based. An expression of the fundamental outlook concerning the nature of the basic functions of the state and the relationship between it and the citizen can be found in the remarks of Justice I. Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 320 {34}:

‘... the relationship between the authority and the citizen is, in practice, a two-way relationship. Therefore, in my opinion, the authority’s duty to act fairly necessitates a corresponding duty to act fairly on the part of the citizen. This requirement is deeply rooted: it springs from the social contract on which the state is based. Under this contract, as it is understood in a democratic state, the authority and the citizen are not opposing forces on different sides of a barricade but stand side by side as partners in the state. In a democracy, as Justice Silberg said, “... the government and the citizen are one and the same” ... The government (in my opinion we should say: the public administration) has a duty to serve the public – to keep peace and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. But the public administration, which has nothing of its own, can only give to the public if it receives from the public. The proper relationship between the administration and the public, which is in fact the essential relationship, is a reciprocal relationship of give and take.’

In principle, the dispute between supporters and opponents of the privatization of the prisons depends largely on the question of who is the authority that is competent to deprive a person of his liberty in order to enforce the criminal law, and whether it is permitted and desirable to depart from the rule that the exercise of power in this regard lies with the state in its capacity as the representative of the public, and entrust this power to a private enterprise, such as an interested capitalist. This debate has been conducted in academic and public circles, but it has not yet been decided in the courts (see: I.P. Robbins, ‘The Impact of the Delegation Doctrine on Prison Privatization,’ 35 UCLA L. Rev. 911 (1988); J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987); A.A. White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ 38 Am. Crim. L. Rev. 111 (2001), at pp. 134-145). This highlights the special role of the state in enforcing the criminal law and in managing public prisons for the aforesaid purpose. The remarks of the American scholar, Prof. J.J. Dilulio, Jr., are pertinent in this regard:

‘At a minimum, it can be said that, both in theory and in practice, the formulation and administration of criminal laws by recognized public authorities is one of the liberal state’s most central and historic functions; indeed, in some formulations it is the liberal state’s reason for being… It is not unreasonable to suggest that “employing the force of the Community” via private penal management undermines the moral writ of the community itself’ (J.J. Dilulio, Jr., ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ Private Prisons and the Public Interest (D.C. McDonald ed., 1990), 155, at pp. 175-176).

24. According to the aforesaid constitutional principles and the basic social and political tenets of the system of government in Israel, the state — through the government and the bodies that answer to it — is regarded as the party that has the responsibility for ensuring security, public order and the enforcement of the criminal law. The various security services in Israel — including the Israel Defence Forces, the Israel Police, the Israel Prison Service and the General Security Service — take their orders from the government, and as a rule their heads are appointed by it (see ss. 2 and 3 of the Basic Law: the Army, s. 8 of the Police Ordinance [New Version], 5731-1971, s. 78 of the Prisons Ordinance and ss. 3 and 4 of the General Security Service Law, 5762-2002). When these agencies, which all constitute a part of the executive branch of the state, exercise their powers, they are acting on behalf of the state as an organized force that receives its orders from the government. Indeed, the subordination of the various security services to the elected government has always been one of the hallmarks of the State of Israel as a modern democratic state, and it is one of the basic constitutional principles underlying the system of government in Israel (for the constitutional basis for the special status of persons serving in the various security services (including the Israel Prison Service), see ss. 7(8) and 7(9) of the Basic Law: the Knesset, and the special limitations clause provided in s. 9 of the Basic Law: Human Dignity and Liberty).

25. In addition to the subordination of the security forces in the state to the government, one of the hallmarks of the great power that has always been held by the executive branch in Israel is the power given to it, through the police, the state attorney’s office and the prison service, to enforce the provisions of the criminal law in Israel. The issue before us concerns the manner of implementing one of the main elements of the criminal law enforcement mechanisms in Israel — the power to deprive of their liberty those persons who have been convicted under the law and sentenced to imprisonment. This power is one of the most invasive powers that a modern democratic state has over its subjects.

It should be noted that prima facie, in so far as imprisonment as a sentence in a criminal trial is concerned, it might be argued that the violation of the right to personal liberty caused by the imprisonment derives in its entirety from the custodial sentence imposed by the court. Indeed, from a normative viewpoint, the decision of the competent courts of the state to sentence a particular person to imprisonment is the source of the power to violate the constitutional right of that individual to personal liberty. But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison. This violation of the right to personal liberty is inflicted by the party that manages and operates the prison where the inmate is held in custody, and by the employees of that party, whose main purpose is to ensure that the inmate duly serves the term of imprisonment to which he has been sentenced (subject, of course, to the provisions of the law) and complies with the rules of conduct in the prison, which also restrict his personal liberty.

In Israel the power to punish someone who has been convicted under the law and to imprison him in order that he may serve his sentence is, therefore, one of the most significant powers of the state, and under the law the body that is responsible for carrying out this function of the state is the Israel Prison Service. This power, as well as the powers of the other security services, is an expression of a broader principle of the system of government in Israel, according to which the state — through the government and the various security services that are subordinate to it — has exclusive authority to resort to the use of organized force in general, and to enforce the criminal law in particular (for a critical discussion of the question of the monopoly given to the state to use force, see C.J. Rosky, ‘Force, Inc.: The Privatization of Punishment, Policing and Military Force in Liberal States,’ 36 Conn. L. Rev. 879 (2004).

26. The monopoly given to the state — through the executive branch and the bodies acting through it — with respect to the use of organized force is of importance in two spheres. In one sphere, we need to take into account that the democratic legitimacy for the use of force in order to restrict the liberty of individuals and to deny various human rights relies on the fact that organized force exercised by and on behalf of the state is what causes the violation of those rights. Were this force not exercised by the competent organs of the state, in accordance with the powers given to them and in order to further the general public interest rather than a private interest, this use of force would not have democratic legitimacy, and it would constitute de facto an improper and arbitrary use of violence. In the other sphere, the fact that the organized force is exercised by a body that acts through the state and is subject to the laws and norms that apply to anyone who acts through the organs of the state and also to the civil service ethos in the broad sense of this term is capable of significantly reducing the danger that the considerable power given to those bodies will be abused, and that the invasive powers given to them will be exercised arbitrarily or in furtherance of improper purposes. Naturally, both of these spheres are interrelated and affect one another, since the democratic legitimacy given to the bodies that exercise organized force on behalf of the state is what allows them in a substantive sense to exercise the powers given to them vis-à-vis any individual. At the same time, since those bodies act within the framework of the democratic political mechanism and are subject to its rules, their legitimacy is enhanced. Prof. Dilulio discussed the close connection between the identity of the party that uses force against prisoners and the legitimacy of the actual use of force in the following terms:

‘In my judgment, to continue to be legitimate and morally significant, the authority to govern those behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. Regardless of which penological theory is in vogue, the message “Those who abuse liberty shall live without it” is the philosophical brick and mortar of every correctional facility. That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual. The administration of prisons and jails involves the legally sanctioned coercion of some citizens by others. This coercion is exercised in the name of the offended public. The badge of the arresting police officer, the robes of the judge, and the state patch of the corrections officer are symbols of the inherently public nature of crime and punishment’ (Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 173).

27. Now that we have discussed the constitutional principle regarding the monopoly given to the state to use force in general, and to deny the personal liberty of individuals in order to enforce the criminal law in particular, let us now examine the relationship between this general principle and the arrangement provided in amendment 28. The main provision of amendment 28, which will form the focus of the constitutional scrutiny and from which all of the other provisions of the amendment whose constitutionality is under consideration are derived, is s. 128L of the Prisons Ordinance. This provision defines the spheres of responsibility of the private concessionaire, who is supposed to construct, manage and operate the privately managed prison. The wording of s. 128L appears in para. 11 above, but because of its importance in this case we shall cite the wording of the section once again:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The constitutional difficulty presented by amendment 28 concerns the management and operation of the prison by a private concessionaire, and in particular the responsibility imposed on it for the matters set out in the aforesaid ss. 128L(a)(1) and 128L(a)(2), namely the responsibility for ‘maintaining order, discipline and public security’ and the responsibility for ‘preventing the escape of inmates that are held in custody.’ These spheres of responsibility, from which all the other invasive powers given to the governor of the prison on behalf of the concessionaire and the concessionaire’s employees are de facto derived, are the spheres in which, according to the petitioners, the state may not delegate or transfer its responsibility to a private enterprise. Moreover, it is important to point out that the provisions of amendment 28 may also to some degree affect the length of the term of imprisonment, since the conduct of the prison inmate has a not inconsiderable effect on the possibility of his early release from prison under the Parole Law, 5761-2001. In this respect it should be pointed out that under s. 9(7) of the Parole Law, the parole board acting under the law is required to consider, inter alia, the recommendation concerning the prisoner that was given by the governor of the privately managed prison, who, it will be recalled, is appointed by the concessionaire (it should be noted that the aforesaid s. 9(7) also relates to the possibility that one of the supervisors acting in the prison on behalf of the Israel Prison Service will submit a recommendation regarding the prisoner in the privately managed prison).

28. The powers involved in maintaining order, discipline and public security in the prisons and the powers involved in preventing the escape of prisoners from custody are traditionally powers that manifestly belong to the state. The sovereignty of the state and its power to use coercive force against its subjects are typified by the power given to it to imprison persons who have been convicted by the court, to supervise those prisoners strictly, continuously and closely, in a manner that seriously (but justifiably) violates their personal liberty, human dignity and privacy, and to take various steps — including the use of deadly force in a manner that endangers the right to life and physical integrity — in order to prevent the escape of the inmates from the prison. Therefore, a prison, even when it operates within the law, is the institution in which the most serious violations of human rights that a modern democratic state may impose on its subjects may and do occur.

We have already discussed the fact that according to the basic values of society and the system of government in Israel, the legitimacy for exercising powers that involve a serious violation of the constitutional right to personal liberty derives from the fact that these powers are exercised by and on behalf of the state, after the person with regard to whom they are exercised has been tried and convicted by the legal system of the state. Imprisoning a person is the culmination of the criminal proceeding initiated against that person by the state on behalf of the entire public. The power of imprisonment and the other invasive powers that derive from it are therefore some of the state’s most distinctive powers as the embodiment of government, and they reflect the constitutional principle that the state has a monopoly upon exercising organized force in order to advance the general public interest. In this context it should be remembered that when an offender who has been convicted by a competent court and sentenced to imprisonment serves his sentence, this is not merely a technical stage of implementing the criminal law; it is a significant and integral part of the criminal proceeding that the state initiates against the individual, without which the earlier parts of the proceeding lose a significant part of their significance. Indeed, just as the state through the legislature is responsible for regulating criminal legislation, so too it is responsible for enforcing the criminal law and punishing offenders according to the law through the executive branch — a responsibility that is realized, inter alia, by imposing the role of managing and operating prisons on the state (see Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

29. The scope of the right to personal liberty and the power to violate this right lawfully are derived from the basic principles of the constitutional system in Israel that we discussed with regard to the responsibility of the state and those acting on its behalf to maintain public order and enforce the criminal law — a responsibility that justifies giving them extensive powers to violate human rights. Therefore, it is possible to say that when it is the state through its competent organs that exercises the coercive power inherent in denying prison inmates their liberty and when the state is de facto responsible for denying the liberty, the violation of the constitutional right to liberty of those inmates has greater legitimacy. Indeed, when the state, through the Israel Prison Service, denies the personal liberty of an individual – in accordance with the sentence that is imposed on him by a competent court — it thereby discharges its basic responsibility as sovereign for enforcing the criminal law and furthering the general public interest. By contrast, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined, since the sanction is enforced by a party that is motivated first and foremost by economic considerations — considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.

30. It would therefore appear that amendment 28 gives rise to a question of paramount constitutional important that lies, as we explained in paragraph 22 above, at the very heart of the right to personal liberty, namely whether it is possible to entrust the power to deny liberty to a party that operates in order to further an interest that is essentially a private one.

 Amendment 28 provides an arrangement that authorizes a private profit-making corporation to violate the constitutional right to personal liberty; by making the prison inmates subservient to a private enterprise that is motivated by economic considerations, amendment 28 creates a violation of the constitutional right to personal liberty, which is an independent violation that is additional to the violation caused by the actual imprisonment under lock and key. This violation goes to the heart of the right to personal liberty, since it involves the actual power to hold a person in prison and the conditions of his imprisonment (including the possibility of denying various benefits inside the prison). The source of the violation of the constitutional right to personal liberty that is caused by amendment 28 is therefore inherent to the identity and nature of the body that has been given the powers to violate liberties that are involved in the management and operation of a prison, in two respects. First, the state, after it has determined through its courts that a custodial sentence should be imposed on a certain person, does not bear complete responsibility for the implementation of this decision, with the violation of human rights that arises from it. This situation undermines the legitimacy of the actual sanction of imprisonment and of the violations of various human rights that derive from it (and especially the constitutional right to personal liberty). Second, in addition to the aforesaid, the inmate of a privately managed prison is exposed to a violation of his rights by a body that is motivated by a set of considerations and interests that is different from the one that motivates the state when it manages and operates the public prisons through the Israel Prison Service. The independent violation of the constitutional right to personal liberty of inmates in a privately managed prison exists even if we assume that from a factual-empirical viewpoint it has not been proved that inmates in that prison will suffer worse physical conditions and invasive measures than those in the public prisons.

Indeed, when we examine the extent of the violation of the right to personal liberty inherent in placing a person under lock and key we should take into account not merely that person’s actual loss of personal liberty for a certain period but also the manner in which he is deprived of liberty. The broad scope of the protected right finds expression in various ways, and this too justifies affording it broad protection. The right to liberty is not violated only by denying it in its entirety. The right can be violated on various levels. The manner in which the constitutional right is violated and the nature and extent of the violation naturally affect the constitutional scrutiny of the violation from the perspective of the limitations clause (see and cf. HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [14], at pp. 681-683, 692-693, 693-694 {545-549, 562-563, 564-565}; Menahem v. Minister of Transport [4], at pp. 260-261).

31. In this respect it should be stated that we see no reason to accept the concessionaire’s argument that all that amendment 28 provides is tantamount to the state availing itself of the assistance of a private enterprise rather than delegating or transferring powers to it. It is well known that a distinction between an authority availing itself of the assistance of a private enterprise in order to carry out its duties and a delegation of powers to a private enterprise has been made in our administrative law, and the main distinction between the two situations concerns the scope of the powers and the discretion given to the party to whom the competent authority delegates its powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at pp. 422-424; HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16]; I. Zamir, Administrative Authority (vol. 2, 1996), at pp. 541-550, 561-562). In the circumstances of the case before us, even if there are certain differences between the scope of the powers given to the employees of the private concessionaire that operates the prison and the scope of powers given to prison officers of the Israel Prison Service, an examination of the provisions of amendment 28 shows that the private concessionaire was given wide-ranging powers with regard to the day-to-day management of the prison, including the enforcement of order and discipline therein.

The powers given to the private concessionaire are not merely technical powers. They are invasive powers that are involved on a regular basis when discretion is exercised by the prison governor acting on behalf of the concessionaire and the employees subordinate to him, who are in control of the managing the lives of the inmates in the prison on a daily basis. Moreover, the management and operation of a prison naturally require dealing with unexpected situations in the course of direct contact with the inmates and making quick decisions on an immediate basis, where the supervision and scrutiny of the making of the decisions and the manner of exercising the discretion can only be carried out retrospectively. Indeed, it would seem that in so far as the management of private prisons is concerned, there is a very significant difficulty in making a clear distinction between the policy decision of the state and the actual manner in which it is implemented by the private concessionaire (see J. Freeman, ‘The Private Role in Public Governance,’ 75 N. Y. U. L. Rev. 543 (2000), at pp. 632-633; Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 176). In these circumstances, it is clear that the arrangements provided in amendment 28 constitute a transfer (or at least a delegation) of powers from the Israel Prison Service to the private concessionaire, which is responsible for the management and operation of the prison, rather than a government authority merely availing itself of the assistance of a private enterprise, as the concessionaire claims.

32. We should further mention that, in their pleadings in reply to the petition, the respondents (the state and the concessionaire) argued that there are various other arrangements that allow private enterprises to exercise different sovereign powers. Examples of such arrangements are the possibility of appointing a private lawyer as a prosecutor in a criminal trial by virtue of an authorization from the attorney-general under s. 12(a)(1)(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (see HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [17]; HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [18]); the possibility provided in s. 5 of the Execution Law, 5727-1967, of appointing a private individual, who has been authorized for this purpose, as an ‘officer’ for the enforcement of civil judgments; and the existence of nursing and psychiatric institutions, which operate for profit, where the members of staff have full control of the various aspects of the lives of the inmates of those institutions. The question of the constitutionality and legality of these arrangements does not arise in the petitions before us, and therefore we are not required to adopt any position with regard to it. But it is hard to deny that these are functions that are not so closely related to the manifestly sovereign functions of the state and that the violation of human rights that results from exercising them is less than that involved in the management and operation of a prison, which is the subject of the petition before us (for a discussion of the question of the constitutional and legal restrictions imposed on the privatization process, see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001); D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007); cf. also C.P. Gillette & P.B. Stephan III, ‘Constitutional Limitations on Privatization,’ 46 Am. J. Company. L. 481 (1998)).

33. In summary, the conclusion that we have reached is that amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself. It can therefore be said that our position is that the scope of the violation of a prison inmate’s constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right of an inmate when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations, even if the term of imprisonment that these two inmates serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical. This conclusion gives rise to a question, which we shall consider below, as to whether it is possible to determine that this independent violation was made lawfully in accordance with the limitations clause.

Amendment 28 violates the constitutional right to human dignity

34. In addition to the violation of the right to personal liberty, amendment 28 also violates the constitutional right to human dignity that is enshrined in section 2 of the Basic Law: Human dignity and Liberty as follows:

‘Preservation of life, body and dignity

2.  One may not harm the life, body or dignity of a person.’

In order to examine the claim that the provisions of amendment 28 cause a violation of human dignity, we first need to discuss the content of the constitutional right to human dignity and the extent to which it applies in the circumstances of the case before us. In the judgment in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19] it was held that the model adopted by the Supreme Court with regard to the scope of application of the constitutional right to human dignity is an ‘intermediate model’; in other words, the right to human dignity does not only include those clear violations that relate to a person’s humanity, such as physical and emotional injuries, humiliation and defamation, but it does not encompass all human rights. In that case President Barak addressed the content of the constitutional right to human dignity in the following terms:

‘What is human dignity according to the approach of the Supreme Court? This question should be answered by means of constitutional interpretation of the language of the statute against the background of its purpose. This interpretive approach is based on the history of the provision in the Basic Law, its relationship to other provisions in the Basic Laws, the basic values of the legal system and comparative law. It gives central weight to the case law of this court regarding the scope of human dignity. On the basis of all of these, our conclusion is that the right to human dignity constitutes a set of rights that needs to be upheld in order for dignity to exist. The right to human dignity is based on the recognition that man is a free creature, who develops his body and mind as he wishes in the society in which he lives; the essence of human dignity lies in the sanctity of his life and his liberty. Human dignity is based on the autonomy of the individual will, the freedom of choice and the freedom of action of a human being as a free agent. Human dignity relies on the recognition of the physical and spiritual integrity of a human being, his humanity, his worth as a human being, all of which irrespective of the degree of benefit that others derive from him’ (see Movement for Quality Government in Israel v. Knesset [19], at para. 35 of the judgment).

35. Whatever the content of the constitutional right to human dignity may be, no one denies that the right to dignity applies with regard to preventing the denigration of a person and preventing any violation of his human image and his worth as a human being. The right to dignity is a right that every human being is entitled to enjoy as a human being. Admittedly, when a person enters a prison he loses his liberty and freedom of movement, as well as additional rights that are violated as a result of the imprisonment; but an inmate of a prison does not lose his constitutional right to human dignity. A long time before the Basic Law: Human Dignity and Liberty was enacted, Justice Barak discussed how prison inmates and persons under arrest also enjoy the right to human dignity. Justice Barak held in this regard in HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298:

‘Every person in Israel enjoys a basic right to physical integrity and to the protection of his human dignity. These rights are included in the “charter of judicial rights”… that has been recognized by this court. The right to physical integrity and human dignity is also a right of persons under arrest and prison inmates. The walls of the prison are not a barrier between the inmate and human dignity. The regime in the prison naturally requires a violation of many liberties that free people enjoy… but the regime in the prison does not demand that the inmate is denied his right to physical integrity and to protection against a violation of his dignity as a human being. The inmate loses his freedom, but he is not deprived of his human image.’

This finding regarding the right of prison inmates and persons under arrest to human dignity was, of course, given extra force when the Basic Law: Human Dignity and Liberty was enacted and the right to human dignity became a super-legislative constitutional right that every government authority is liable to respect. The social importance that should be attributed to the protection of the human dignity of prison inmates was discussed by Justice E. Mazza in the following terms:

‘We should remember and recall that the human dignity of the prison inmate is the same as the dignity of every human being. Imprisonment violates the prison inmate’s liberty, but it should not violate his human dignity. A prison inmate has a basic right not to have his dignity violated, and every government authority has a duty to respect this right and to prevent it from being violated… Moreover, a violation of the human dignity of a prison inmate does not merely affect the inmate, but also the image of society. Humane treatment of prison inmates is a part of a humane-moral norm that a democratic society is required to uphold. A state that violates the dignity of its prison inmates breaches the obligation that it has to all of its citizens and residents to respect basic human rights’ (Golan v. Prisons Service [11], at p. 256).

36. Indeed, it is hard to deny that imprisoning someone under lock and key and imposing upon him the rules of conduct in the prison violates his human dignity. This violation is caused whether that person is imprisoned in a public prison or in a privately managed prison. Therefore, the question that we need to decide in this case is whether imprisoning a person in a privately managed prison causes a greater violation of his human dignity than imprisoning him in a public prison.

Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit. There is therefore an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation that manages and operates the prison makes a financial profit. It should be noted that the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls (cf. in this respect the question of employing employees in a prison (HCJ 1163/98 Sadot v. Israel Prison Service [21])).

37. The violation of the human dignity of prison inmates described above, which inherently derives from the existence of a privately managed prison, is naturally exacerbated by the invasive character of the powers that amendment 28 allows the private concessionaire and its employees to exercise vis-à-vis the inmates in addition to the violation inherent in the actual imprisonment. These include, as aforesaid, placing an inmate in administrative isolation for a period of up to 48 hours, the use of firearms in order to prevent inmates escaping from the prison, the use of reasonable force in order to conduct a body search on the inmates, a visual examination of the naked bodies of inmates and taking urine samples from inmates. It should also be noted that we do not accept the state’s claim that the injury caused by the exercise of authority over an inmate by a employee of a private company lies in the subjective feelings of the person making the claim and  that this is not essentially a legal argument. The violation of the human dignity of inmates in a privately managed prison is not an injury that derives from the subjective feelings of those inmates, but an objective violation of their constitutional right to human dignity.

38. An additional aspect of the violation of the constitutional right to human dignity that is caused by amendment 28 lies in the social and symbolic significance of imprisonment in a privately managed prison. This aspect of the right to human dignity, which distinguishes it from other human rights, is discussed by the learned Prof. Meir Dan-Cohen, who expresses a view that the existence of a violation of human rights that derives from a certain act or institution depends on the symbolic significance that society attributes to that act or institution, whether the source of that symbolic significance lies in its clear and express content or in some form of social consensus with regard to the aforesaid act or institution, irrespective of the empirical data regarding that act or institution (which may be the source of that symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances. Prof. Dan-Cohen writes in this respect:

‘Once an action-type has acquired a symbolic significance by virtue of the disrespect it typically displays, its tokens will possess that significance and communicate the same content even if the reason does not apply to them… As long as certain actions are generally considered to express disrespect, one cannot knowingly engage in them without offending against the target’s dignity, no matter what one’s motivations and intentions are’ (see M. Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (2002), at p. 162).

This fundamental approach to the special nature of the right to human dignity expresses an approach that befits the matter before us, when we consider the narrow and essential meaning of the right. Indeed, in many cases a violation of human dignity is accompanied by a violation of additional human rights such as a violation of the right to life and physical integrity and a violation of the right to privacy. Notwithstanding, a violation of human dignity may also be an ‘independent’ violation, when a certain act that is done or a certain institution that is created do not inherently violate other human rights, but they reflect an attitude of disrespect from a social viewpoint towards the individual and his worth as a human being. In so far as amendment 28 is concerned, this approach requires us to examine the significance that Israeli society attached to the imprisonment of a person in a prison that is managed and operated by a private corporation, whose employees are given various invasive powers over the inmates in that prison.

39. As we explained above, amendment 28 admittedly violates the constitutional right to personal liberty, but in addition it independently violates, as described above, the human dignity of the inmates in a privately managed prison. This is because the imprisonment of a person in a privately managed prison is contrary to the basic outlook of Israeli society (an outlook that we discussed in paragraphs 24-25 above) with regard to the responsibility of the state, which operates through the government, for using organized force against persons subject to its authority and with regard to the power of imprisonment being one of the clear sovereign powers that are unique to the state. When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action — both in practice and on an ethical and symbolic level — expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise. This conduct of the state violates the human dignity of the inmates of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, as described above, their imprisonment becomes a means for a private corporation to make a profit. This symbolic significance derives, therefore, from the very existence of a private corporation that has been given powers to keep human beings behind bars while making a financial profit from their imprisonment (see, in this regard, I.P. Robbins, ‘Privatization of Corrections: Defining the Issues,’ 40 Vand. L. Rev. 813, at pp. 826-827 (1987)).

The relationship between the restrictions on the concessionaire’s powers and the supervisory mechanisms provided in amendment 28, on the one hand, and the violation of the right to personal liberty and human dignity, on the other

40. When we seek to assess the nature and the intensity of the violation of the constitutional rights to personal liberty and human dignity that is caused by amendment 28, we are required to take into account the various restrictions on the private concessionaire’s activity provided in amendment 28 and the various supervisory measures for the concessionaire’s activity that were provided within the framework of the amendment. According to the state and the concessionaire, in view of the aforesaid restrictions and supervisory arrangements, it should not be said that the amendment reflects a shirking by the state of its basic responsibility for enforcing the criminal law.

41. Indeed, the respondents correctly argue that a significant attempt was made by the legislature to limit the violation of human rights caused by amendment 28; it is important to point out that no provisions were included in the amendment that allow a more serious violation of the human rights of the inmates of a privately managed prison than the violation of human rights of the inmates in state managed prisons. Moreover, it should be noted that certain invasive powers that are given to the officers of the Israel Prison Service — including the power to disciplinary adjudicate inmates and the power to order an extension of the period during which an inmate is held in administrative isolation beyond 48 hours — are not given to the employees of the private concessionaire. Moreover, section 128K of the Prisons Ordinance, which was enacted within the framework of amendment 28, regulates the manner in which the provisions of the law regarding a state managed prison will apply to a privately managed prison, and in this regard s. 128K(c)(1) of the Ordinance provides that an inmate held in a privately managed prison shall have all the rights, benefits and services that are given to an inmate in a prison that is not privately managed. Moreover, s. 128I of the Prisons Ordinance imposes on ‘the concessionaire, individuals with significant influence therein, the governor and the concessionaire’s employees’ the provisions of the Penal Law, 5737-1977, that apply to civil servants (cf. CrimFH 10987/07 State of Israel v. Cohen [22]). This provision was also intended to result in making the legal norms that apply to the employees of the private concessionaire the same as those that apply to the officers of the Israel Prison Service. In this respect it is not superfluous to point out that it would appear that the concessionaire operating the privately managed prison is subject to the judicial scrutiny of the High Court of Justice and the rules of administrative law, as it is a body that fulfils a public function under s. 15(d)(2) of the Basic Law: The Judiciary. In view of this, and since the powers of the employees of the private concessionaire are subject to restrictions parallel to those imposed on the powers of the officers of the Israel Prison Service, we cannot determine that the provisions of amendment 28, in themselves, allow the private concessionaire and its employees to violate the human rights of inmates in the privately managed prison to a greater degree than the violation of the human rights of inmates in a state managed prison.

42. In addition to the provisions described above, which were intended to make the normative position of the inmates in the privately managed prison equal to those of the inmates in the state managed prisons, amendment 28 provides various mechanisms for the state to supervise the activity of the private concessionaire (see sections 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). These supervisory mechanisms, which are apparently more comprehensive than the supervisory mechanisms that exist in other countries where private prisons operate in a similar format, are prima facie capable of reducing the concern that the violation of human rights in the privately managed prison will be greater than that in the prisons of the Israel Prison Service (regarding the supervisory mechanisms for private prisons that exist in the United States, Britain and other countries, see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 276-281; C.M. Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective (2007), at pp. 105-108; R.W. Harding, Private Prisons and Public Accountability (1997), at pp. 51-55). In this context it should also be pointed out that according to the presumption of constitutionality that amendment 28 enjoys, we should assume that the supervisory mechanisms provided in the amendment will operate properly; in any case, the arguments with regard to the manner of exercising them are the kind of arguments that are more suited to being examined in an administrative petition than in a constitutional one.

We have not overlooked the fact that amendment 28 contains a provision that is intended to contend with the concern that the violation of the human rights of inmates in the privately managed prison will be greater because of improper economic considerations. This provision appears in s. 128G(b) of the Prisons Ordinance, which provides the following:

‘Agreement between the Israel Prison Service and the corporation regarding the construction, management and operation of a privately managed prison

128G. ...

(b) The amount of the consideration for the concessionaire that will be determined in the agreement shall not be made conditional upon the number of inmates that will actually be held in a privately managed prison, but it may be determined in accordance with the availability of prison places in the number provided in the schedule or on a smaller scale as the commissioner shall determine with the approval of the comptroller-general at the Ministry of Finance.’

This provision is indeed intended to limit the concern that economic inducements will motivate the concessionaire operating the privately managed prison to act in improper ways to increase the number of inmates in the prison or to extend their terms of imprisonment.

43. The creation of the aforementioned supervisory mechanisms for the activity of the private concessionaire, as well as the various restrictions on the scope of its powers as provided in amendment 28, show that the legislature was also aware of the constitutional difficulty inherent in transferring powers to manage and operate a prison to a private corporation that is a profit-making enterprise. But the supervisory measures described above cannot provide an answer to the difficulty inherent in the very management and operation of a prison by a private concessionaire. As we clarified at length in paragraphs 29-30 and 36-39 above, and for the reasons set out there, in view of the degree of the violation of the constitutional rights caused as a result of the actual transfer of the powers of imprisonment and the invasive powers included therein to a private corporation, public supervision is insufficient to eliminate the violation and the damage that it involves. We shall discuss the relationship between the violation and the possibilities of supervision in greater detail in paragraphs 52-54 below.

Does amendment 28 satisfy the limitation clause tests?

44. Since we have found that granting powers to manage and operate a prison — together with the invasive powers involved therein — to a private corporation and its employees, as was done in amendment 28, violates the constitutional rights to personal liberty and human dignity of the inmates in the privately managed prison, we are called upon to examine whether this is a permitted violation. Indeed, the rights to personal dignity and human dignity, like the other human rights recognized in our constitutional law, are not absolute, and a certain act of legislation will not be unconstitutional solely because it violates a constitutional right. The violation of the constitutional rights to liberty and human dignity in amendment 28 will be lawful it is satisfies the conditions of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty, which provides the following:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law as stated by virtue of an express authorization therein.’

The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (see HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 52 {355}; HCJ 1661/05 Gaza Coast Local Council v. Knesset [24], at p. 546). The limitations clause provides that four cumulative conditions need to be satisfied in order that a violation of a constitutional right that is protected in the Basic Law: Human Dignity and Liberty, will be lawful: the violation of the right should be made in a law (or by virtue of an express authorization in a law); the law should befit the values of the State of Israel; the purpose of the law should be a proper one; and the violation of the constitutional right should not be excessive. If one of these four conditions is not satisfied, this means that the violation of the constitutional right is not lawful, and the provision of the law that violates the constitutional right is unconstitutional. Since we have found that amendment 28 violates the constitutional rights to personal liberty and human dignity, we should examine whether the conditions of the limitations clause are satisfied by it.

45. Regarding the first condition provided in the limitations clause — the demand that the violation of the protected constitutional right should be made by a law — no one disputes that amendment 28 satisfies this condition.

The second condition provided in the limitations clause, according to which the law that violates the constitutional right should befit the values of the State of Israel does not give rise to any real difficulty in our case. This condition refers, according to the purpose clause provided in s. 1A of the Basic Law: Human Dignity and Liberty, to ‘the values of the State of Israel as a Jewish and democratic state’ (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 53 {356}). In their petition, the petitioners raised a claim that amendment 28 is inconsistent with the values of the State of Israel as a democratic state because it violates the principle of the separation of powers. We see no reason to accept this claim in the case before us. Indeed, the values of the State of Israel as a democratic state also include the principle of the separation of powers and it is possible that a particularly serious violation of this principle in a certain law will justify a determination that the law is unconstitutional, since it is inconsistent with the values of the State of Israel as a democratic state. Notwithstanding, the petitioners’ claims in the petition before us did not focus on the question of whether this condition is satisfied, and it is indeed hard to see how this condition may be violated by anything other than unusual and exceptional circumstances; it is therefore possible to assume that amendment 28 satisfies the condition of befitting the values of the State of Israel.

The third condition provided in the limitations clause is that the violation of the constitutional right should be done for a proper purpose. The purpose of the law should be regarded as a proper purpose when it is intended to protect human rights or to realize an important public or social purpose, in order to maintain a basis for coexistence within a social framework that seeks to protect and advance human rights (see Menahem v. Minister of Transport [4], at p. 264). The nature of the violated right and the extent of the violation may also shed light on whether the purpose of the violating law is a ‘proper purpose’ (see Iyyad v. State of Israel [6],at para. 30 of the judgment). According to the state, the purpose of amendment 28 is to bring about a direct and indirect improvement of inmates’ prison conditions at a reduced budgetary cost. This purpose of improving the prison conditions of inmates in Israel — even if it is combined with an economic purpose — is a proper purpose. It should be noted that the petitioners’ claim with regard to the requirement of the proper purpose is that the purpose of economic efficiency does not in itself constitute a proper purpose that justifies a violation of constitutional rights. This claim of the petitioners is too sweeping, since there are situations in which an economic purpose will be considered a proper purpose that justifies a violation of human rights, depending on the type of purpose, its importance to the public interest and the extent of the violation of the constitutional right (see, for example, HCJ 5578/02 Manor v. Minister of Finance [25], at pp. 739-740; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [26], at para. 11 of the judgment). As we shall clarify below, the weight of the economic purpose in amendment 28 is very significant, and this aspect is capable of affecting the manner in which we consider whether amendment 28 satisfies the requirement of proportionality and the constitutional balance that it requires between various principles and values. But in the circumstances of the case before us, the mere existence of an economic purpose that is combined with an attempt to realize the purpose of improving prison conditions, as expressed in amendment 28, cannot prevent the amendment from satisfying the requirement of a proper purpose. It follows that we need to examine whether the means chosen by the legislature to realize the proper purpose of amendment 28 satisfy the requirement of proportionality.

46. The fourth condition provided in the limitations clause, on which we shall focus our main deliberations, demands that the violation caused by the law under discussion to the protected constitutional right shall be ‘to an extent that is not excessive.’ This condition concerns the proportionality of the violation of the constitutional right; in other words, even if the violation of the constitutional right is effected by a law that befits the values of the State of Israel and that is intended for a proper purpose, the law may still be found to be unconstitutional if its violation of the constitutional right is disproportionate. The requirement of proportionality therefore examines the means chosen by the legislature to realize the (proper) purpose of the legislation.

The case law of this court has recognized three subtests that are used to examine the proportionality of the violation of a protected constitutional right by an act of legislation. The first subtest is the rational connection test, which examines whether the legislation that violates the constitutional right is consistent with the purpose that it is intended to realize. The second subtest is the least harmful measure test. This test requires us to examine whether, of all the possible measures for realizing the purpose of the violating law, the measure that harms the protected constitutional right to the smallest possible degree was chosen. The third subtest is the test of proportionality in the narrow sense. This test requires the violation of the protected constitutional right to be reasonably commensurate with the social advantage that arises from the violation (see Menahem v. Minister of Transport [4], at pp. 279-280; Movement for Quality Government in Israel v. Knesset [19], at paras. 57-61 of the opinion of President Barak).

The three aforementioned subtests do not always require one option to be chosen in order to realize the purpose of the legislation. In many cases the legislature may be confronted by several options that differ in the degree to which they violate the constitutional right under discussion and the extent to which they realize the relevant legislative purposes. When there are various possibilities that may satisfy the requirement of proportionality, the legislature has a margin of legislative appreciation that we call the ‘margin of proportionality,’ within which the legislature may choose the possibility that it thinks fit. The limits of the margin of appreciation given to the legislature in a concrete case are determined by the court in accordance with the nature of the interests and the rights that are at issue. The court will intervene in the legislature’s decision only when the measure that was chosen by it departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate (see Menahem v. Minister of Transport [4], at p. 280; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [27], at pp. 812-813; Gaza Coast Local Council v. Knesset [24], at pp. 550-552).

47. With regard to the first subtest of proportionality — whether the legislative measure chosen is consistent with the legislative purpose — the dispute between the parties focuses on the question whether amendment 28 is expected to realize the economic aspect of its purpose. The petitioners claim in this respect that they have in their possession opinions that indicate that global experience does not show a clear connection between the privatization of prisons and an economic saving, and they argue that this conclusion can also be seen in various works of academic research. The state, on the other hand, relies on an opinion that was submitted to the tenders committee for the privately managed prison project, which argues that the bid of the concessionaire that won the tender is expected to bring about a saving for the state, which is estimated at approximately 20%-25% of the cost of operating a prison, with similar standards, that is built and operated by the Israel Prison Service. According to this opinion, the saving over the whole period of the concession is estimated at approximately NIS 290-350 million. This question of achieving the budgetary savings goal, as well as the goal of improving the prison conditions of the inmates, is a question that naturally depends on the manner in which the provisions of amendment 28 will actually be implemented. In the case before us, we are not speaking of a situation in which prima facie there is no rational connection between the provisions of the legislation that violates the protected constitutional right and the purposes that the act of legislation is supposed to realize. In any case, at this stage of the ‘privatization’ planning process, the state cannot prove that better conditions for the inmates will indeed be achieved with the expected budgetary savings, nor are we able to determine that amendment 28 is not prima facie capable of realizing the purposes of an economic saving and improving the prisons conditions of inmates that it was designed to achieve. Therefore, we are prepared to assume for the sake of argument that the rational connection regarding the purpose of amendment 28 does exist.

48. The second test of proportionality is, as we have said, the least harmful measure test, which requires that of all the possible measures for realizing the purpose of the legislation, the measure that violates the protected constitutional right to the smallest extent should be chosen. With regard to this subtest, the petitioners argued that it is possible to achieve the economic purpose underlying amendment 28 with measures that violate human rights to a lesser degree. This can be done, according to the petitioners, by building additional state managed prisons or by means of only a partial privatization of powers that do not contain a predominant element requiring the exercise of sovereign power. The state claims in reply that it has not yet found a sufficiently effective means of furthering the purpose of improving the prison conditions of inmates in Israel at a reduced budgetary cost that involves a lesser violation of human rights (in so far as such a violation actually exists). In this regard the state emphasizes that the arrangement provided in amendment 28 includes many significant safeguards. The state further argues that when the policy concerning the privatization of the prisons was formulated, the ‘French model’ in this field was also examined. According to the ‘French model’ for privatizing prisons (which is also used in a similar form in Germany), there is cooperation between the state and the private enterprise in managing the prison, which is reflected in the fact that various logistical services provided in the prison are outsourced, but the issues of security and enforcement are not entrusted to the private enterprise.

As can be seen from the state’s affidavit in reply, in June 2002 the Minister for Public Security approved the privatization of prisons on an ‘expanded French model,’ which also included the transfer to the private enterprise of certain powers in the fields of security and guarding. However, the state claims that ultimately, after examining the experience that has been obtained around the world in operating prisons, it was decided that the privatization would be done in accordance with the ‘English model’ (according to the state, in accordance with an ‘improved English model’), in which the management of the prison is entrusted to a private enterprise operating under the supervision of the state, which retains for itself a limited number of powers (especially powers to try and sentence inmates). The main reason given in the state’s pleadings for rejecting the ‘French model’ for privatizing prisons is that the division of responsibility and powers between the Israel Prison Service and the private enterprise that operates the prison is expected, on the basis of experience around the world, to cause many problems in the proper management of the prison. The concessionaire states in this regard that there is serious criticism of the ‘French model,’ which in the opinion of many does not give expression to the advantages of privatization and the involvement of the private sector, and that the separation of the security functions from the administrative functions makes it difficult to create a uniform policy and to define goals. The concessionaire further argues that, to the best of its knowledge, at the stage when the state considered implementing the ‘French model,’ a considerable difficulty was discovered in finding international enterprises that would be prepared to enter into an investment and partnership in Israel on the basis of this model. From these arguments it therefore follows that, according to the state and the concessionaire, the model that was ultimately adopted in amendment 28 is the one that best realizes the purposes that giving the powers to manage and operate a prison to a private concessionaire was intended to realize.

49. From the state’s affidavit-in-reply it can therefore be seen that after various options were examined with regard to the manner of implementing the privatization, each with its various administrative and economic significances, the option called by the state ‘the improved English model’ was chosen. This option is the one embodied in amendment 28. Since this option provides that powers to exercise force, which is essentially a sovereign function, will be transferred to the private enterprise’s employees, it results in a more serious violation of the personal liberty and human dignity of the inmates than the ‘French model’ for prison privatization (a model which, as aforesaid, only includes outsourcing of the logistic powers in the prison, rather than the powers relating to security and enforcement). In the circumstances of the case, we have arrived at the conclusion that the data presented to us is insufficient for determining that the option that was chosen does not satisfy the second subtest of proportionality. It is well known that the second subtest of proportionality does not merely examine whether there is a measure that violates the protected constitutional right to a lesser degree, but it requires us to examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar degree as the measure chosen by the legislature (see HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak). The state claims, with regard to the difficulty in implementing the French model, that this model does not realize the purpose of improving prison conditions with a budgetary saving to the same extent as this purpose may be realized by amendment 28. Since we are unable to determine in what less harmful way it is possible to achieve the combined purpose of improving prison conditions while making a budgetary saving, which according to the state underlies the purpose of amendment 28, and since this issue naturally requires proof that we do not have before us, the conclusion that follows is that amendment 28 also satisfies the second subtest of proportionality.

50. The third subtest of proportionality is the test of proportionality in the narrow sense. This test is essentially an ethical test in which we are required to examine whether the public benefit that arises from the legislation whose constitutionality is under discussion is commensurate with the damage to the constitutional right caused by that act of legislation (see Gaza Coast Local Council v. Knesset [24], at p. 550; Movement for Quality Government in Israel v. Knesset [19], at para. 60 of the opinion of President Barak). The existence of this proper proportion is examined by striking a balance between the relative social importance of the various principles underlying the expected public benefit from the act of legislation against the degree of harm to the violated human right. Within the framework of this subtest, we should examine the additional social benefit that arises from the legislation relative to the position before the law was enacted, and the additional damage to the constitutional right that is caused by enacting the law (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 91-92 of the opinion of President Barak). The third subtest of proportionality assumes that the constitutional violation satisfies the first two subtests of proportionality. It assumes that there is a rational connection between the act of legislation that violates the constitutional right and the purpose that the act of legislation is intended to achieve, and that the measure chosen by the legislature inflicts upon the constitutional right the least possible harm that is required in order to realize the legislative purpose. Subject to the existence of these requirements, the third subtest examines whether the purpose of the legislation justifies the measures chosen to realize it. The special function of the third subtest of proportionality was discussed by President Emeritus Barak in HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29] in the following terms:

‘... there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the judgment).

In the case before us we are required, within the context of the test of proportionality in the narrow sense, to examine the relationship between the public benefit that arises from amendment 28 and the damage caused by amendment 28 to the constitutional rights to personal liberty and human dignity of inmates in the privately managed prison. When implementing this subtest of the requirement of proportionality, we are also obliged to take into account the provisions provided in amendment 28, which we discussed in paragraphs 41-42 above, that were intended to address the concerns of a violation of the human rights of the inmates as a result of transferring imprisonment powers to a private corporation motivated by a desire to maximize its financial profits.

51. In our deliberations above, we discussed at length the type of violation of human rights created by amendment 28. In paragraphs 22-30 above, we set out in detail the special significances of the violation of liberty as a result of privatization of the prison. Inter alia, we clarified that the violation of the rights to liberty and dignity deriving from introducing a private prison system is not reflected in the actual power of imprisonment, which is invasive in itself, since the actual violation of the personal liberty also occurs when the imprisonment takes place in a state managed prison. In the case of a privately managed prison, the violation lies in the identity and character of the body to which powers are given to violate liberties in the format provided in amendment 28 of the Prisons Ordinance.

We mentioned the democratic legitimacy of the use of force by the state in order to restrict the liberty of individuals and to deny various rights that they have, when this violation is carried out by the organs of the state and for the purposes of protecting the public interest. By contrast, as we clarified above, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined and the extent of the violation of liberty is magnified. As graphically described by one of the scholars that criticize the privatization of prisons, there is a significant difference between a situation in which the party holding the keys to the prison is the state acting for and on behalf of the public, where the inmate is one of the members of that public, and a situation in which the key is entrusted to a commercial enterprise, which represents its own personal economic interest (N. Christie, Crime Control as Industry (second edition, 1994), at p. 104). This difference has implications for the type and extent of the violation. Imprisonment that is based on a private economic purpose turns the inmates, simply by imprisoning them in a private prison, into a means whereby the concessionaire or the operator of the prison can make a profit; thereby, not only is the liberty of the inmate violated, but also his human dignity.

52. Now that we have addressed the violation of human rights that will be caused by amendment 28, we need to examine, within the framework of the third subtest of proportionality, what lies on the other pan of the scales, namely the public benefit that amendment 28 is intended to advance. In its affidavit-in-reply, the state argued that this benefit is a twofold benefit — achieving a significant financial saving, which according to the state is expected throughout the whole period of the concession (which according to the wording of the permit that was attached to the state’s affidavit-in-reply is twenty-four years and eleven months) to reach the amount of NIS 290-350 million, while improving prison conditions for the inmates. In other words, it can be said that the state, in enacting amendment 28, was aware of the need to contend with the serious overcrowding that exists in Israeli prisons, which has also been addressed by this court (see Physicians for Human Rights v. Minister of Public Security [10]). The question before it concerned the means it should adopt in order to contend with this crisis, and in these circumstances the state chose a measure of dealing with the aforesaid crisis that in its opinion is the most economically viable. The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state.

It is important to mention in this context that the special defence mechanisms for prison inmates’ rights that were provided in amendment 28, on which the state and the concessionaire base their replies to the petition, do not constitute a part of the public benefit that amendment 28 is intended to achieve. An examination of these mechanisms as a whole — starting with the various restrictions that were imposed on the powers of the concessionaire’s employees that operate the prison, continuing with the state’s ongoing means of supervising the concessionaire’s activity and ending with the possibility that the state will intervene in what is happening if the private concessionaire does not carry out its undertakings — show that these mechanisms were intended to prevent the private concessionaire abusing the invasive powers given to it within the framework of amendment 28. The introduction of these mechanisms, as we said in paragraph 43 above, is an expression of the fact that the legislature was also aware of the difficulties that amendment 28 raises and the concerns inherent in giving imprisonment powers and the invasive powers deriving therefrom to a private concessionaire. We are therefore not dealing with legislative measures that were enacted merely because the legislature recognized a need to improve the protection of the human rights of inmates in Israeli prisons, but with preventative measures that were intended to neutralize, in so far as possible, the concerns that arise from a transfer of imprisonment powers to a private concessionaire, which was designed to achieve as large an economic saving as possible for the state. In this context we should further add that we are of the opinion that there is an inherent difficulty in estimating the economic benefit that is expected to accrue to the state from the operation of the privately managed prison, certainly when we are speaking of a concession period of almost twenty-five years. Prima facie, in view of the supervisory mechanisms that the state is required to operate by amendment 28, it would appear that the actual economic benefit of amendment 28 can be questioned. Notwithstanding, since it is impossible to determine categorically that amendment 28 is not expected to give rise to an economic benefit to the state, we are prepared for the purposes of our deliberations to assume, as we said in paragraph 47 above, that the economic benefit underlying amendment 28 will indeed be realized.

53. When we examine the question whether the expected benefit that will arise from realizing the purpose of amendment 28 — improving prison conditions while maximizing economic savings — is commensurate with the damage inherent in giving a private concessionaire power to harm inmates, we should remember that since the third subtest of proportionality is essentially an ethical test, it depends to a considerable extent on the values and norms that are accepted in the society under discussion. Naturally, in different countries there may be different outlooks with regard to the question of the scope of state responsibility in various fields and the relationship that should exist between the fields of activity that should be managed by the public sector and the fields in which most activity will be carried out by the private sector. These outlooks are determined, inter alia, by political and economic ideologies, the special history of each country, the structure of the political system and the government, and various social arrangements. These differences between the various countries are expressed in the content of the constitutional arrangements laid down in each country. The role of the court, which is required to interpret and give content to the various constitutional arrangements is not, of course, to decide between various economic and political ideologies; notwithstanding, the court is required to reflect the values enshrined in the social consensus and in the ethical principles that are common to the members of society, to identify the basic principles that make society a democratic society and identify what is fundamental and ethical, while rejecting what is transient and fleeting (see HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [30], at p. 780).

54. As to whether amendment 28 satisfies the test of proportionality in the narrow sense, we have reached the conclusion that the relationship between the intended social benefit of achieving an improvement in prison conditions while making a maximum financial saving by using a private concessionaire, as described in the state’s affidavit-in-reply, and the degree of the violation of human rights caused by the provisions of amendment 28 is a disproportionate one. The violation of the inmates’ human rights that is caused by establishing a privately managed prison in which the private concessionaire’s employees are given extensive powers to use force, which is in essence a sovereign power, is not a violation that is limited to a single issue or an isolated incident. Amendment 28 results in the establishment of an organizational structure whose very existence seriously violates the personal liberty of the inmates of the privately managed prison, to an extent that exceeds what is required by imprisonment itself, and the human dignity of those inmates in the basic and fundamental sense of this concept. This violation is an ongoing violation that occurs continuously for as long as an inmate is confined within a prison where he is subject to the authority of the employees of a private concessionaire. As we have said, this violation is exacerbated by the invasive character of the powers given to the private concessionaire. Indeed, the various supervision and control measures may reduce, and maybe even prevent, the concrete violation of the inmates’ human rights in the privately managed prison as compared with the violation of the human rights of inmates in state managed prisons from the viewpoint of prison conditions and routine; but as we said in paragraph 43 above, these mechanisms do not eliminate the violation of human rights involved in the actual transfer of imprisonment powers over inmates to a private profit-making corporation. In other words, in view of the great social importance of the principles underlying the granting of power to imprison offenders and the invasive powers that derive from it solely to the state, in comparison to the result achieved by realizing the goal of improving prison conditions while making as large a financial saving as possible for the state, the ‘additional’ violation of the constitutional rights to personal liberty and human dignity deriving from granting the aforesaid powers to a private profit-making corporation is disproportionate to the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

It should further be noted that the fact that amendment 28 allows the establishment of only one prison as a ‘pilot’ cannot affect the constitutional analysis that we have made. The reason for this is that, from the viewpoint of the inmates who are supposed to be housed in that prison, the violation of their human rights that derives from their imprisonment in the privately managed prison is caused irrespective of the question whether there are additional inmates imprisoned in other privately managed prisons (in this respect it should be noted that no argument was raised before us with regard to discrimination against inmates in the privately managed prison relative to the inmates in the prisons of the Israel Prison Service, and therefore we see no reason to address this issue).

Therefore, our conclusion is that the damage described above — the greater violation of rights that are in the ‘hard core’ of human rights — is not commensurate with the benefit, in so far as there is any, in the economic saving expected from the construction, management and operation of a prison by a private concessionaire. The purpose of having state managed prison authorities is to realize the law enforcement process by imprisoning persons who have been lawfully sentenced to imprisonment, and to realize sentencing goals with tools and means that the system of democratic government provides for this purpose. No one denies the need to take action to improve the welfare and living conditions of prison inmates in Israel; but blurring the boundaries between this proper purpose and the goal of financial saving, by allowing a private concessionaire of a prison to make financial profits, disproportionately violates human rights and the principles required by the democratic nature of the regime.

55. It should be noted that the petitioners claim that the important purpose of improving the prisons conditions of inmates in Israel can also be achieved in other ways that they indicated, such as building additional state managed prisons or building a prison in which the powers that will be privatized do not include giving the private concessionaire’s employees sovereign power over the inmates. Prima facie, it would appear that the main disadvantage inherent in these methods lies in the economic-administrative sphere, and we are prepared to assume in favour of the state and the concessionaire that the method of operating prisons adopted in amendment 28 will lead to greater economic and administrative efficiency than the methods indicated by the petitioners. But when we balance the violation of the human rights of prison inmates as a result of their being imprisoned in a privately managed prison that operates in the format set out in amendment 28 against the realization of the purpose of improving prison conditions while achieving greater economic and administrative efficiency, the constitutional rights to personal liberty and human dignity are of greater weight. In other words, for the reasons that we have explained above, the benefit to the public interest arising from a realization of the purpose of amendment 28 — improving the prison conditions of inmates while achieving a maximum saving by employing a private concessionaire — is disproportionate to the damage caused as a result of the violation of the human rights of inmates in the privately managed prison. Indeed, in so far as the state is required to improve the prison conditions of inmates — a proper and important purpose — it should be prepared to pay the economic price that this involves, and it should accept that ‘efficiency’ (whatever the meaning of this concept is) is not a supreme value, when we are dealing with a violation of the most basic and important human rights that the state is obliged to uphold.

Therefore, our decision in the case before us is that the social benefit arising from amendment 28 is not commensurate with the violation of protected human rights caused by the provisions of the amendment.

56. Since we have found that amendment 28 does not satisfy the third subtest of proportionality, we are led to the conclusion that the violation of the constitutional rights to personal liberty and human dignity caused by amendment 28 is a disproportionate one that does not satisfy the conditions of the limitations clause. Amendment 28 is therefore unconstitutional.

A comparative analysis of the question of prison privatization

57. Before we conclude our deliberations and examine the consequences of the unconstitutionality of amendment 28, we think it right to address in brief the parties’ arguments regarding the phenomenon of prison privatization around the world. The petitioners argued that experience in other countries shows that the violation of the human rights of inmates of private prisons is greater than the violation of the human rights of their counterparts in state prisons. The respondents for their part argued that the phenomenon of privatizing prisons is not unique to Israel, and various democratic countries, including the United States and Britain, have adopted this method of dealing with the problem of overcrowding in prisons and in order to save on the cost of imprisoning offenders. In none of these countries, it is claimed, has it been held that the privatization of prisons is unconstitutional, or that the state has a constitutional obligation to manage the prisons itself.

58. ‘Privatized’ prisons operate today in various countries around the world, but the manner in which the privatization is implemented and regulated differs from one country to another. This difference is reflected both in the spheres of activity within the prison that can be privatized and in the degree of the state’s supervision of the activity of the party operating the private prison. Thus, for example, the possibility of entering into a contract with private enterprises in order to manage and operate prisons is regulated in legislation, inter alia, in the United States (both on the Federal level and at state level) and Britain. The various acts of legislation that regulate the privatization of prisons differ from one another, inter alia, in the scope of the powers given to the concessionaire in fields that have a potentially significant effect on the human rights of the inmates. In this respect it should be noted that the approach adopted in the United States is that it is possible to give the private concessionaire the responsibility for all of the aspects involved in managing and operating the prison, including the enforcement of discipline in the prison and the use of force against inmates; however, various individual states have determined in their legislation various arrangements regarding the degree of influence given to private enterprises that operate prisons on the dates of the inmates’ release, determining disciplinary rules in the prison and determining disciplinary offences, classifying the inmates from the viewpoint of the benefits to which they are entitled and the degree of state supervision over the activity of the private enterprise (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997)). In Britain too, like in the United States, the private concessionaire and its employees have been given powers that include maintaining security and discipline in the prison and using force against the inmates; but, as a rule, the scope of the powers given to private enterprises that operate prisons is more limited in the British model than in the American model. It would also appear that the state’s supervision over the activity of the private prisons in Britain is more significant than the accepted level of supervision in the United States (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 277-278). As we said in paragraph 48 above, a different model of prison privatization has been adopted in France (and in Germany). According to the French model, private concessionaires were not given all of the duties and powers involved in managing and operating a prison, but, as can be seen from the Knesset’s reply to the petition, only those relating to logistic services. The aforementioned differences in the characteristics of the privatization of prisons in various counties may naturally have considerable significance with regard to the question of the constitutionality of the privatization.

59. From the expert opinions that were filed in this petition — the opinion of Prof. I.P. Robbins for the petitioners and the opinion of Prof. J.F. Blumstein for the concessionaire — it would appear that the courts in the United States have not hitherto held that any of the various legislative arrangements in force in the United States regarding the privatization of prisons are unconstitutional. Indeed, it would appear that the premise of the courts in the United States when considering matters concerning the privatized prisons is that the privatization of the prisons does not in itself give rise to any constitutional difficultly (a good example of this is the judgment of the Federal Court of Appeals for the seventh circuit, in which Judge Posner explained that inmates who raised a constitutional argument against their transfer from a state prison to a private prison ‘would be foolish to do so’; see Pischke v. Litscher [83], at p. 500; for a similar approach of the Federal Courts of Appeal in the United States, see: Montez v. McKinna [84], at p. 866; White v. Lambert [85], at p. 1013. See also the judgment of the Supreme Court of the State of Oklahoma, in which it rejected a claim that giving a permit to counties in the state to enter into contracts with private enterprises in order to manage and operate prisons was an unconstitutional delegation of powers by the legislature: Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County [86]). It would therefore seem that the main questions that have been considered by the courts in the United States regarding the privatization of prisons concerned the scope of the tortious liability of the private prisons and their employees in relation to that of the state prisons and their employees (see Richardson v. McKnight [87]; Correctional Services Corporation v. Malesko [88]). It should be noted, however, that several judgments in the United States have held that the public nature of the role fulfilled by the corporations that operate private prisons makes them subject to the provisions of the Constitution (see Skelton v. Pri-Cor, Inc. [89], at pp. 101-102; Rosborough v. Management and Training Corporation [90]).

60. It should also be noted that we have not found any consideration by the courts in Britain, South Africa and the European Union, as well as by the European Court of Human Rights, of the question of the constitutionality of the privatization of prisons. From the opinion of Prof. J. Jowell that was filed by the state, it would appear that hitherto no claims have been raised before the aforesaid courts with regard to the constitutionality of the privatization of prisons. Prof. Jowell’s opinion is that were arguments of this kind to be raised before those courts, they would not be expected to be successful, inter alia because of the economic character of the issue and the lack of a ground of incompatibility with the provisions of the European Convention on Human Rights.

61. It is therefore possible to summarize by saying that a comparative analysis of the case law on the question of the privatization of prisons shows that no court has yet held that the privatization of prisons is unconstitutional. On the other hand, we have also not found any significant consideration of the questions of constitutionality that the matter raises. This situation is not insignificant and it is capable of justifying great care on our part when we consider the constitutionality of amendment 28, since a comparative examination of the law applying to the privatization of prisons in other countries around the world and of the constitutional questions that this phenomenon raises may help us decide some of the questions that arise in our case and show us additional aspects of these issues. But ultimately the manner in which we interpret the Basic Laws in general and the Basic Law: Human Dignity and Liberty in particular is determined in accordance with the fundamental principles of the system of government and the legal system in Israel.

62. As we said in paragraph 53 above, different countries are likely to have different outlooks on the subject of the duties and obligations of the state in general and of the government in particular. These outlooks are capable of influencing the manner in which the specific issue of the constitutionality of the privatization of prisons is examined. In this context it should be noted that both in the United States and in Britain — unlike in Israel — there is a historical tradition of operating private prisons, which naturally is capable of influencing the manner in which the constitutionality of the privatization of prisons is regarded (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 257-258); White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ supra, at pp. 122-126). Notwithstanding, it should be emphasized that even in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons. The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of inmates in the prison, extend their terms of imprisonment or reduce prison conditions and the services provided to inmates in such a way that ultimately this will lead to a greater violation of the inmates’ human rights that what is necessitated by the actual imprisonment. Moreover, the literature raises a concern that parties with economic interests will have an influence on the length of the terms of imprisonment and the types and levels of sanctions. We should point out that this criticism should not be regarded as separable from the arrangements that exist in those systems (see, for example, S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L.J. 437 (2005), at pp. 518-523; D.N. Wecht, ‘Breaking the Code of Deference: Judicial Review of Private Prisons,’ 96 Yale L.J. 815 (1987), at pp. 829-830; J. Greene, ‘Lack of Correctional Services’ in Capitalist Punishment – Prison Privatization & Human Rights (edited by A. Coyle, A. Campbell and R. Neufeld, 2003), 56-66; M.J. Gilbert, ‘How Much is Too Much Privatization in Criminal Justice,’ in Privatization in Criminal Justice – Past, Present and Future (edited by D. Shichor & M.J. Gilbert, 2001), 41, at pp. 58-65 ; Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 110-111; White, op. cit., at pp. 138-139).

In any case, we have not found anything in the pleadings on the subject of comparative law raised by the respondents that is capable of changing our position with regard to the unconstitutionality of amendment 28.

The petitioners’ claims that are based on s. 1 of the Basic Law: the Government

63. Since we have found that amendment 28 is unconstitutional because it disproportionately violates human rights that are protected under the Basic Law: Human Dignity and Liberty, we do not need to consider the petitioners’ claims that are based on s. 1 of the Basic Law: the Government. Indeed, we accept that the Basic Law: the Government, as a Basic Law, enjoys a super-legislative constitutional status, and therefore it is possible to engage in judicial scrutiny of provisions of ‘ordinary’ legislation that are alleged to conflict with the provisions of the Basic Law: the Government (see HCJ 1384/98 Avni v. Prime Minister [31], at p. 209); but in the case before us it would indeed appear, as the respondents argue, that s. 1 of the Basic Law: the Government, which provides that ‘The government is the executive branch of the state,’ is essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system. There is therefore a difficulty in using it as a basis for arguments against the constitutionality of the privatization of various government services. The source of the aforesaid difficulty is that s. 1 of the Basic Law: the Government does not expressly determine specific duties or spheres of activity where the government has an exclusive responsibility to act. Notwithstanding, despite the aforesaid difficulty and especially in view of our outlook concerning the broad interpretation that should be given to provisions that have a constitutional status, we are inclined to interpret the provision of s. 1 of the Basic Law: the Government in a manner that enshrines on a constitutional level the existence of a ‘hard core’ of sovereign powers that the government as the executive branch is liable to exercise itself and that it may not transfer or delegate to private enterprises. As can be seen from the aforesaid, the powers involved in the imprisonment of offenders and in the use of organized force on behalf of the state are indeed included within this ‘hard core.’ Naturally, adopting an interpretation of this kind will require us to define clearly the limits of that ‘hard core,’ since it may be assumed that there is no constitutional impediment to privatization of the vast majority of services provided by the state, and this matter lies mainly within the scope of the discretion of the legislative and executive branches. Nonetheless, in view of the result that we have reached, we are not required to make any firm determination with regard to the interpretation of s. 1 of the Basic Law: the Government, and this issue can be left for consideration at a later date. Moreover, the absence of an express limitations clause in the Basic Law: the Government gives rise to the question of how the constitutionality of a provision of ‘ordinary’ legislation can be examined when it is alleged that it conflicts with a provision of the Basic Law: the Government. In any case, in the matter before us no decision is required on the question of the manner of exercising judicial scrutiny with regard to ordinary legislation that conflicts with one of the Basic Laws that relate to the system of government, such as the Basic Law: the Government. In these circumstances, we are naturally also not called upon to decide the petitioners’ claims regarding the majority with which amendment 28 was passed in the Knesset, since these claims are based on the assumption that amendment 28 conflicts with s. 1 of the Basic Law: the Government.

The constitutional relief

64. Amendment 28 is contrary to the basic principles of the system of government in Israel, since it gives the invasive powers involved in the management and operation of a prison, which until now have belonged exclusively to the state, to a private corporation that operates on a profit-making basis. We have therefore reached the conclusion that amendment 28 violates the constitutional rights to personal liberty and human dignity of the prison inmates that are supposed to serve their sentences in the privately managed prison. This violation does not satisfy the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, since it is disproportionate. Therefore we have reached the conclusion that amendment 28 is unconstitutional. This, then, gives rise to the question of the relief for the unconstitutionality.

65. Amendment 28 creates a complete arrangement regarding the privatization of one prison that will be managed and operated by a private corporation. From our judgment it can be seen that the unconstitutionality inherent in amendment 28 derives from the transfer of powers to imprison inmates and the invasive powers incorporated therein to a private corporation. Indeed, not all the provisions of amendment 28 directly concern the exercise of invasive powers against the inmates in the privately managed prison, and therefore prima facie we need to ask whether there is a basis for declaring amendment 28 void in its entirety. We see no alternative to this outcome, because the arrangement in amendment 28 is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part, and therefore were we to set aside only the provisions concerning the granting of the invasive powers, the remaining provisions would be unable to stand independently and the purpose of amendment 28 would not be realized (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 97-98 of the opinion of President Barak; A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at pp. 736-737). In this context it should be noted that we have not heard any claim that it is possible to separate the various provisions of amendment 28, and during the hearing of the petition the constitutional deliberations concerned the provisions of amendment 28 as a whole. It should be made clear that we are not adopting any position with regard to the ideal arrangement that should replace amendment 28, but we think it right to point out that the petitioners did not dispute the constitutional propriety of transferring logistical powers in the prison, such as those relating to food services, construction work and laundry, to private corporations, and our rulings in this judgment do not exclude this possibility. In any case, when this court has reached the conclusion that a certain act of legislation is unconstitutional, it is not our role to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset (see and cf.: Israel Investment Managers Association v. Minister of Finance [7], at pp. 415-416; Tzemah v. Minister of Defence [5], at p. 284 {687}).

It is also important to point out that our decision in this case is based on the violation of human rights that derives from the transfer of the actual powers to imprison offenders, which involve a violation of their human rights, to a private corporation that operates on a profit-making basis. We are not adopting any position on the legality of the transfer of other functions within the law enforcement system to private enterprises or to any other public authority. Similarly, our conclusions in this judgment do not express any opinion on the legality of the privatization of government services in other fields (such as health, education and various social services), which both in the extent to which they relate to the basic powers of the state and in the extent to which they violate human rights are different from the powers involved in holding prison inmates under lock and key.

66. After writing the aforesaid, I saw the opinion of my colleague Justice Procaccia. Obviously I am in agreement with her opinion, in so far as it relates to the state’s liability to enforce the criminal law and the protection of public order and the importance of executive power being exercised by the state in order to protect the individuals under its authority. Our paths diverge with regard to the analysis of the nature and character of the violation of constitutional human rights caused by amendment 28.

67. According to my colleague Justice Procaccia, the constitutional violation caused by amendment 28 is not a concrete violation of human rights but a risk that arises from the potential disproportionate violation of human rights of the inmate of the privately managed prison, beyond the violation caused to each inmate by his actual imprisonment. In her opinion, my colleague Justice Procaccia points to the concern that economic considerations that motivate the private concessionaire, which has been entrusted with sovereign authority, and the lack of control and deterrent measures such as those that restrict the exercise of authority by the civil service, will result in a potentially ‘major, profound and ongoing’ violation of the most fundamental basic rights of the inmates of the privately managed prison. These concerns are not unfounded, and as I said in paragraph 19 above, I too share them. Notwithstanding, in my opinion, were we only speaking of a potential violation of human rights, it is questionable whether this would justify a judicial determination regarding the unconstitutionality of primary legislation of the Knesset. As a rule, we exercise caution and restraint when exercising judicial review of Knesset legislation. Sometimes there is no alternative to exercising judicial review of legislation enacted by the Knesset, and the case before us is such a case; but I am of the opinion that the premise in constitutional scrutiny is that a mere potential violation of human rights is an insufficient basis for setting aside primary legislation of the Knesset.

Indeed, in so far as a certain provision of a Knesset law violates constitutional human rights in a manner that is inconsistent with the Basic Laws, its constitutionality should be examined in accordance with the accepted tests that our case law provides for this purpose. But in so far as we are dealing with a potential violation of human rights, as opposed to an actual violation, then as a rule such a violation will not justify judicial intervention to set aside legislation. The constitutional scrutiny of an act of legislation will take place at the stage of examining the results, after the manner in which it is implemented de facto has become clear (see and cf. HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at pp. 483-484 {354}). Therefore, my position regarding the unconstitutionality of amendment 28 is not based on a potential violation of human rights caused by the provisions of the amendment, but on the actual violation of the constitutional rights to personal liberty and human dignity caused by the provisions of the amendment themselves, irrespective of the manner in which they will actually be implemented. Moreover, apart from the fundamental difficulty inherent in exercising judicial review of Knesset legislation that is entirely based on a potential violation of human rights, I do not think that it is possible to do this in the circumstances of the case before us. The reason for this is that no adequate probative basis has been brought before us for a judicial decision regarding the potential violation that amendment 28 may cause to the human rights of inmates in the privately managed prison in comparison to the state prisons; certainly no sufficient basis was established in order for us to determine that there exists the degree of likelihood proposed by my colleague Justice Procaccia, namely ‘a near certainty that when realized will materially and seriously violate a constitutional basic right’ (see the end of para. 26 of her opinion). It should be remembered that the supervisory mechanisms provided in amendment 28 are capable, prima facie, of reducing the extent of the potential violation of the human rights of inmates discussed by my colleague Justice Procaccia. For this reason also it is hard to determine that the aforesaid probability test is satisfied in the circumstances of the case before us.

68. I should also point out that the approach of my colleague Justice Procaccia regarding the legislative purpose of amendment 28 is also, in my opinion, problematic. Indeed, I agree with the position of my colleague Justice Procaccia that the enactment of amendment 28 was based on a desire to improve prison conditions of inmates in Israeli prisons. Notwithstanding, I do not think that in the circumstances of the case and as can be seen from the state’s reply it is possible to hold that improving the welfare of the prison inmates is the main purpose of amendment 28. As I said in paragraph 52 of my opinion, if it were not for the fact that amendment 28 is based on an economic purpose, there would have been no need to enact it. The purpose of improving the welfare of prison inmates is desirable and praiseworthy, and prima facie it could have been achieved without any need for any normative change. In the circumstances of the case, the purpose of improving the welfare of the inmates cannot be separated from the economic purpose underlying the privatization, which is the main purpose of amendment 28. For this reason, I also have difficulty in examining the constitutionality of the violation of inmates’ rights caused by amendment 28 in relation to the proper purpose of improving the welfare of the inmates as proposed by my colleague. Moreover, in my opinion there is a concern that if we accept the balancing formula proposed by my colleague Justice Procaccia, this will undermine to a large degree the manner in which the limits of permitted violations of human rights are defined within the context of the limitations clause, because it may be assumed that in a considerable number of cases (and especially when we are speaking of an act of legislation that satisfies the requirement of the proper purpose), it will also be possible to ‘translate’ the value of public interest that is weighed on the scales against the violated human right into another human right (and in this regard I attach no special importance to whether we are supposedly speaking of the rights of the same individual). An analysis of this kind is likely to obscure the distinction between the human rights that are protected in our constitutional system and the values and interests that may justify a violation of those rights. My concern is that this conceptual obfuscation contains a potential for weakening the extent of the constitutional protection of human rights in our legal system.

Conclusion

69. Amendment 28 of the Prisons Ordinance causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected in the Basic Law: Human Dignity and Liberty, and therefore amendment 28 should be set aside. Since the privately managed prison whose establishment is regulated by amendment 28 has not yet begun to operate, we see no reason to suspend the declaration that amendment 28 is void for the purpose of the prison being operated and managed by a private concessionaire. Therefore, if my opinion is heard, we shall determine that amendment 28 of the Prisons Ordinance is set aside with immediate effect because of its unconstitutionality. In order to remove doubt, it should be clarified that we are not adopting any position with regard to the ramifications of the finding that amendment 28 is unconstitutional on the relationship between the state and the concessionaire in the field of private law.

 

 

 

 

Justice E. Arbel

I agree with the opinion of my colleague the president and with her reasoning.

1.    In the president’s comprehensive opinion, she set out at length the functions and powers imposed on the private concessionaire within the framework of the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), by virtue of which a privately managed prison is being built in Israel. All of the aforesaid functions and powers have been entrusted to the state since its establishment and throughout its history and have served as a fundamental element of its sovereignty. The question that lies at the heart of the petition is whether the state can unburden itself of these functions and powers and entrust sovereign functions and powers to private enterprises. Like the president, I too am of the opinion that the answer to this question is no. I would like to add three emphases of my own to her opinion: these relate to the exclusive role of the state in employing coercive force, the violation of the human right to dignity as a result of establishing the privately managed prison and the concern inherent in the privatization of prisons of a conflict of interests in certain matters.

2.    Following the classical philosophers in the field of political science, which my colleague reviewed in her opinion, the power to exercise coercive force to deny or restrict liberty is given to the state by virtue of a metaphorical ‘social contract’ that is made between it and the citizens living in it, in which the citizens voluntarily given the state the power to deny liberties and to make use of coercive force, inter alia in order to guarantee their protection and security and to protect their property (see also Élie Barnavi’s survey in his book The Rise of the Modern State (1995) (Hebrew), at pp. 68-76, 82-89, 97-108). This power that was entrusted to the state as the agent of the political community lies at the very heart of the government’s sovereign functions, alongside the power to maintain an army, a police force and courts. The transfer of these functions from the state to a private enterprise undermines the justification that underlies the exercising of the power and amounts to a refusal by the state, albeit only a partial one, to play ‘its part’ in the social contract. It makes the state a bystander that does not seek to realize independent goals of its own.

Indeed, it is the state that, by virtue of the social contract, realizes the wishes of the community. It is the state that, under that same contract, is given the powers to implement these wishes. And it is the state only that is entitled to exercise coercive measures and employ force in order to realize this purpose, while taking into account public considerations and no others. Only the state has the power to distil the collective aspiration of the community and to reflect the ‘general wishes’ inherent therein of upholding the human rights of each of its individuals (see E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 92), including those whose voices are not heard, since it alone is motivated by the interests of the general public. Only when the state wields this power does it have democratic legitimacy because of the consensual aspect and the nature of its purposes. The agreement between the citizens and the government is not fully realized by transferring the power to employ coercive force, including by means of holding someone in prison, but also by the state being the one that exercises the power as the agent of the political community, since otherwise the justification for its existence will be undermined (see P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations,’ 41 British Journal of Criminology 83 (2001)).

By transferring these powers to a private enterprise, we are no longer dealing with the realization of the wishes of the individuals members of society on the basis of their consent to transfer natural rights to the community in order to promote order and security, but with the transfer of powers to an outsider that is not a party to the social contract, is not bound by the norms inherent therein and does not necessarily seek to realize its goals. This weakens the moral standing of the state vis-à-vis the public in general, and vis-à-vis prison inmates in particular, and it de facto weakens the responsibility and commitment that it owes to the prison inmates, which are now based only on indirect supervision while the role of formulating criteria for exercising the power is left in the hands of the private enterprise. This also erodes to some extent the concept of justice, which no longer stands on its own as a goal in itself, and it may weaken the authority of the organs of state, the integrity with which they are regarded, public confidence in government and the nature of democratic government in its widest sense. In such circumstances, depriving the prison inmates of their liberty loses a significant element of the justification for it.

3.    Transferring the relevant type of powers, which includes significant and persistent aspects of the use of coercive force that are given to the state as sovereign, to a private enterprise inherently violates human rights, including the human right to dignity and the human right to liberty.

The value of human dignity on which I will focus, which for a decade and a half has enjoyed a special status of a super-legislative constitutional right in our legal system, recognizes the worth of human beings and regards them as an end in themselves (see A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 421; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at pp. 277, 280). As the philosopher Immanuel Kant said, a person should not be treated solely as a means of achieving external goals, since this involves a violation of his dignity, or in his words: ‘Accordingly, the practical imperative should be as follows: act in such a way that you treat humanity, whether in yourself or in any other person, always also as an end, and never merely as a means’ (Immanuel Kant, Fundamental Principles of the Metaphysics of Morals). In particular, the value of human dignity contains a set of rights without which man’s being a free creature has no meaning (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32]). In the context before us, this right includes, inter alia, ‘minimal civilized humane arrangements for the manner of satisfying these needs in order to uphold his dignity as a human being from a psychological viewpoint’ (see CrimApp 3734/92 State of Israel v. Azazmi [33]). Indeed, when he enters the prison, the inmate takes with him all his human rights, except for those that he is necessarily deprived of by the imprisonment, and especially the right to freedom of movement. Therefore, the state and the organs of government have the duty not to violate the inmate’s right to human dignity to a greater extent than required for achieving the purposes of the imprisonment. These are not mere words but a determination that has operative significance (see CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34], at p. 526). The question of what will be regarded as a violation of human dignity requires us to take into account, inter alia, ‘the circumstances of time and place, the basic values of society and its lifestyle, the social and political consensus and normative reality’ (Commitment to Peace and Social Justice Society v. Minister of Finance [32], at para. 13). Within this framework, care should be taken, on the one hand, not to interpret ‘human dignity’ so broadly that every human right is included in it, and on the other hand not to limit its scope merely to extreme cases of torture and degradation, since this will frustrate the purpose underlying the right (see HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [9], at p. 518; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 285).

4.    Imprisoning someone in a privately managed prison involves a violation of the right to dignity that is not merely a potential violation that depends upon the realization of concerns regarding the nature, standard and quality of the service that will be provided by the private operator, but a violation that is realized and comes into existence when the imprisonment powers and the powers ancillary thereto are exercised by a private concessionaire.

Indeed, in addition to the inmate being placed under lock and key, for the whole period of his sentence he is subject to a regime that is marked by the use of force against him in respect of each facet of his life. During his term of imprisonment, the inmate loses his independence, the strict daily schedule is dictated by the prison authorities, and his access to the protections that the law affords him against a violation of his rights is indirect and restricted. Alongside this, in prison an inmate is likely to encounter, often in an unexpected manner, concrete situations of an increased violation of his rights in certain circumstances and conditions, including the possibility of being held in administrative isolation, undergoing a body search that is carried out forcibly, being prevented from meeting a lawyer subject to various restrictions, being subjected to a visual inspection of his naked body, etc.. The power to carry out these actions, which include direct and potential aspects of a violation of the right to privacy, the right to liberty, the freedom of movement, the right to dignity and additional rights, is also granted under section 128R of the Prisons Ordinance, albeit subject to various conditions, to the governor of the privately managed prison.

Granting a power to employ invasive powers of these kinds to someone that is chosen by a private concessionaire, who is motivated by business concerns and is not subject to the authority and direct supervision of the government authority, its public traditions, its written and unwritten rules, the interest of the general public or the considerations that underlie the imposition of the sentence, undermines the rationale justifying the use of force as a proportionate measure for realizing public purposes. It implies arbitrariness, lessens the worth of human beings and violates their dignity. Employing coercive force in such a situation no longer relies on the broad consensus that is intended to allow a safe society, but on a shirking of a significant part of the direct responsibility and the need for accountability. It abandons the prison inmate, who is already at the bottom of the social ladder and in a sensitive and vulnerable situation, to his fate.

5.    Moreover, transferring imprisonment powers from the state to a party whose main purpose is by definition the pursuit of profit invites the inclusion of foreign and irrelevant considerations among those weighed by that party. These are inconsistent with the need to guarantee the rights and welfare of the inmates. This conflict of interests does not need to be realized de facto or to find any practical expression, but it is not eliminated even if, as the respondents claim, the privatization may achieve its stated goal of benefiting the inmates and improving their conditions in certain respects. The fact that a private enterprise, which is chosen and operates on the basis of its ability to maximize income and minimize expenditure, is given the powers under discussion, with their invasive elements, is sufficient reason to regard actions that are usually permitted as forbidden; it violates the human dignity of the prison inmates and exacerbates the violation of their liberty that is caused by the actual imprisonment.

Indeed, imprisonment powers are not limited merely to ‘technical’ administrative matters that do not involve any exercise of discretion by the responsible party in questions concerning a violation of human rights. Examples of this can be found in amendment 28, inter alia, in the power given to the governor of the prison to order an inmate to be held in isolation for a period of up to 48 hours in certain circumstances and under certain conditions (s. 128R(c)(1) of the Prisons Ordinance); the power of the governor of the prison to order an inmate to provide a urine sample, to conduct an external examination of his naked body and to search his body while using reasonable force in certain circumstances and under certain conditions (s. 128R(c)(4)-(5) of the Prisons Ordinance); the duty of the parole board, when it considers the possibility of commuting the term of an inmate’s imprisonment, also to take into account, among its other considerations, the recommendation regarding the inmate given by the governor of the privately managed prison (s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001), etc.. These powers involve a large element of discretion regarding parameters and criteria for exercising the power. Introducing economic considerations as independent considerations and even paramount ones, without it being necessary to reconcile the profit considerations with those underlying the imprisonment and the manner of implementing it, subordinates those considerations that are normally of the greatest importance to business considerations and allows them to be realized only in so far as they are consistent with the economic purpose, which constitutes the premise. Thus the main goal of exercising the power of imprisonment openly and unashamedly becomes a business goal; the inmates become de facto a means of realizing this goal; the ‘customers’ to whom the corporation is accountable are its shareholders; the scope of considerations is restricted and may become distorted; and the public purposes underlying imprisonment unintentionally become a secondary goal. The aspiration to reduce costs, which according to the supporters of the market economy approach is restrained in ordinary business activity by the ‘concealed hand’ in the free market mechanism and competition, has no restraint in the present case where there is no competition (which is certainly as it should be). In such circumstances, this aspiration is likely to conflict with the need to protect inmates’ rights, which costs money. Peleg, who considered the problem in a broader context, aptly said that —

‘The altruistic trust approach, which prevails today in public law, will not be voluntarily upheld by the privatized body. Between the interests of the individual and the privatized enterprise there is a huge conflict of interests (emphasis in the original). Respecting the constitutional rights of the individual costs a considerable amount of money. The privatized enterprise seeks to make a profit… Minimizing expenditure also implies a reduction in the welfare and even the health of the patient. The corporation seeks to provide a service, but mainly to make as large a profit as possible as quickly as possible. It regards itself as loyal to itself only… The worker in the privatized corporation regards the owner as his “boss,” as a kind of sovereign, who influences his welfare. Naturally he will do whatever serves his employer’s interest, thereby serving his own interest. In a choice between the employer’s interest and the patient’s interest, his choice will be clear…

The inherent conflict of interests is between the aspiration of the privatized enterprise to make as much profit as possible and the interest to improve the quality of the privatized service. The concern is strengthened when the customers are needy and weak. Privatization in the public interest is a privatization that ultimately improves the quality of the service; otherwise, one may well ask whether the privatization is really in the public interest’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 63).

As we have said, the violation of the rights of prison inmates, and especially the right to dignity, is not necessarily a concrete or a direct one. Admittedly, it is not possible, for example, to allay utterly the concern that in so far as the directors of the privately managed prison choose to reduce their costs for the salaries of prison employees whom they employ, this will lead, inter alia, to the employment of less experienced and qualified staff, who will change frequently and find it increasingly difficult to contend with the sensitive situations that arise from time to time in the prison. It is also not possible to rule out for certain the fear the hidden interests will be taken into account and that there is an increased risk of corruption when the party operating the prison is a private enterprise. But it is difficult to draw unequivocal operative conclusions from this potential that there is a greater probability of a worse violation of inmates’ human rights in a privately managed prison. The same is true with regard to concerns that the quality of services that will be provided by a privately managed prison in fields such as health care, drug addiction rehabilitation, professional training and general rehabilitation, which prima facie are addressed in the contract between the state and the operator of the prison (see Y. Feld, Crime Pays: What can be Learned from the American Experience in Privatizing Prisons (Adva Centre, 2002)). But even if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved when the invasive powers are exercised, something that undermines the moral authority underlying the activity of that enterprise and public confidence in it (Feld), since even if justice is done, it is not seen to be done. This is not a mere matter of aesthetics; the harm is real, since it upsets the delicate balance between the need to deny the liberty of the inmates in order to realize the social purposes at the heart of the criminal law and sentencing policy, and the desire to protect the basic rights of the inmates even while they are paying their debt to society. This results in an independent violation of the right of prison inmates to dignity.

6.    It is true that the supervision for which the state is responsible and the standards which the private concessionaire is required to meet seriously curtail the concessionaire’s ability to sacrifice the rights and welfare of the inmates in the privately managed prison to its profits. Indeed, as the president said, amendment 28 includes several mechanisms that reduce the concern of a violation of the basic rights of the inmates and provide an effective ‘address’ to which complaints and grievances about what happens in the prison may be sent.

However, not only is it questionable whether these supervisory mechanisms are capable of ‘covering’ all the situations in which there is a concern that the human rights of the inmates will be violated, since it is sometimes hard to predict how these will occur, but it is also doubtful whether they can truly locate and identify the nature of the considerations underlying the employment of an invasive measure that is formally permitted by the law, and prevent the preference of economic considerations when these involve a violation of the inmates’ rights. At the same time, it should be remembered that prison inmates are often a particularly weak sector of the population, and while in the prison they are in a susceptible and vulnerable position where they have been deprived of a significant number of their rights. In these circumstances, since the activity that takes place in the prison is hidden from the light of day, it is questionable whether some of the components of the supervision mechanism, which depends upon a direct flow of information from the victim to the supervisory body so that the latter can exercise its authority, will be effective. Therefore, the supervisory mechanism may become of limited value in ensuring that the privately managed prison discharges its duties, with the result that the concerns are not addressed. Moreover, the supervisory mechanism naturally provides relief in certain situations only after the event, and sometimes a period of time may pass before it is possible to prevent the continuation of an invasive practice. When we are dealing with the most basic of human rights like those that concern prison inmates that are serving their sentences, this fact may have serious repercussions. Even in places where the private concessionaire has incentives that are designed to induce him to improve from the outset the services that he provides, there is a difficulty in the fact that his decision as to whether to succumb to these incentives depends upon the degree of benefit that they afford him relative to the cost of improving the service he provides. Finally, as the president said, the aforesaid supervisory mechanism, which seeks to contend with every problem on an individual basis, cannot contend with the fundamental difficulty inherent in the transfer of imprisonment powers and the accompanying powers to a private enterprise. To a large extent, the detailed provisions regarding the mechanism highlight this difficulty.

7.    This court has said many times that —

‘Any human right that a human being has is retained even when he is held under arrest or in prison, and the mere fact of the imprisonment does not deny him any right unless it is required and implied by the actual loss of his freedom of movement, or when there is an express provision of law to this effect’ (HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; PPA 4463/94 Golan v. Prisons Service [11]; HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298).

The harm to a prison inmate held in a privately managed prison includes an independent element of a violation of his dignity that goes beyond the violation that derives from the imprisonment itself. Indeed, if the state chooses to discharge its responsibility for a prison inmate by means of indirect supervision of the prison in which he is held, the dignity of that inmate is violated. If an inmate is held in a prison where the prison employees are chosen by a private profit-making enterprise on the basis of unclear criteria, the dignity of that inmate is violated. If the liberty of an inmate is denied on an ongoing basis by a private concessionaire that has discretion to employ again him far-reaching powers that violate his basic rights, the dignity of that inmate is violated. The value of human dignity deserves broad protection, even if it is not absolute, and in the struggle against conflicting interests it should be given great weight and protected against any violation that is unnecessary or excessive. Since in my opinion the aforesaid violations of the inmates’ rights that result from the creation of the privately managed prison exceed their economic benefit, which itself is not free from doubt, and since the mechanisms provided by amendment 28 are incapable of preventing the aforesaid violations, which are of greater scope than any solution that may be given to a specific violation, I have decided to join my opinion to that of my colleague the president and order amendment 28 to be set aside.

 

 

Justice A. Grunis

I agree with the opinion of my colleague the president, subject to the reservation that I see no need to address the issue of human dignity in the context under discussion. It is sufficient merely to hold that there is a violation of personal liberty.

 

 

Vice-President E. Rivlin

I concur with the opinion of my colleague, the president. My colleague holds that transferring powers of imprisonment entrusted to the state over to a private enterprise violates the constitutional human rights protected under the Basic Law: Human Dignity and Liberty. My colleague also finds that this violation does not satisfy the provisions of the limitations clause, and as such, the Prisons Ordinance Amendment Law (no. 28), 5764-2004, should be set aside. I agree with my colleague’s reasoning and her conclusions. There is no doubt that setting aside Knesset legislation is reserved for cases in which there is a fundamental violation of protected constitutional principles that fails to satisfy the limitations clause provisions. In this case, the arrangement provided for in the law does not merely allow the state to seek assistance of private enterprise in carrying out its sovereign obligations, but rather constitutes a real privatization of imprisonment and transferral of a significant part of its powers. The violation involved in the arrangement undermines the very structure of the democratic constitution. It is also possible to hold that we are dealing with a violation that exceeds the scope of the Basic Laws, and lies in the field of the social contract upon which the existence of the state is founded. Releasing the state from the monopoly granted to it with regard to the use of force in order to protect the public interest undermines the principles upon which the entire social and constitutional foundations of the state rest.

For this reason, as well as for those set out by my colleague the president in her comprehensive opinion, I concur with the conclusion that amendment 28 of the Prisons Ordinance is void.

 

 

Justice A. Procaccia

1.    This proceeding concerns a constitutional question of great importance that touches on the limits of what the state may and may not do when exercising the coercive authority given to it in order to maintain public order and security, and regarding the transfer thereof to private hands. By the expression ‘coercive authority’ in this context I mean the powers that the state is given under the law to prosecute criminal proceedings at all of its stages — investigation, arrest, trial and imprisonment — while exercising the institutional power that allows it to restrict a person’s liberty and violate additional human rights that he has, including the rights to privacy, freedom of occupation, property and sometimes even his dignity as a human being.

2.    My colleague, President Beinisch, devoted extensive legal research and analysis to the complex subject of the relationship between the duty of the state to maintain public order and security in its broadest sense and to afford a basic protection of human rights — in this case, the rights of prison inmates — in the context of the question whether the state may unburden itself of its direct sovereign duty to manage prisons and transfer it to private hands. I agree with the conclusion that in the complex balance between these values, the necessary outcome is that the sovereign responsibility of the state to manage a prison and its duty within that framework to exercise coercive authority over the individual as a part of the process of enforcing the criminal law and implementing sentences, cannot be transferred to private hands. This is because of the potential that the core human rights given to a prison inmate may be violated to a greater extent than is permitted under the limitations clause in the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’). Therefore, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’ or ‘the Ordinance’) should be set aside.

3.    I would like to make several comments regarding the analysis of the constitutional violation inherent in amendment 28 of the Ordinance, and especially with regard to the manner of striking the constitutional balance between it and conflicting interests and rights for the purpose of examining whether it satisfies the conditions of the limitations clause in the Basic Law.

The limits and restraint of sovereign power — the doctrine of balances in the exercise of sovereign power

4.    The state has authority over and responsibility for all stages of criminal proceedings. The social contract on which the democratic political system is predicated assumes that for the purpose of ensuring the existence of human society, public order is essential, as well as a sovereign body that will be responsible for maintaining it. The state is responsible for preserving a normative system that will define the rules of what human beings may and may not do, and it will enforce compliance with these as an essential part of the protection of public order (H.L.A. Hart, Punishment and Responsibility (second edition, 2008), at pp. 4-5).

5.    The enforcement of norms of conduct, for which the state is responsible, incorporates a power to exercise authority over individuals who breach the rules of conduct and thereby undermine the social order. For this purpose, the executive branch is given powers to investigate, arrest, try, sentence and imprison. Exercising these powers naturally involves a potential violation of the basic rights of the individual — his liberty, occupation, property, privacy and sometimes even his dignity.

6.    The potential violation of human rights that is inherent in the exercise of sovereign coercive authority within the context of criminal proceedings requires a strict definition of the limits of sovereign power. Indeed, the rules concerning the exercise of sovereign power have an inbuilt system of checks that defines its limits. The existence of sovereign power and the restrictions inherent in the exercise thereof are inseparable. The legitimacy of the exercise of sovereign coercive authority over the individual is derived from the restrictions on this power. It originates in the outlook that it may be exercised only to the limited degree necessary for maintaining public order, while violating the basic rights of the individual to the smallest degree possible. The restraint of sovereign power that is exercised over the individual lies at the heart of the democratic system of government, and is of its very essence (CrimFH 10987/07 State of Israel v. Cohen [22], at paras. 4-6 of my opinion).

7.    Alongside the substantive criminal norms determined by the state for the purpose of ensuring public order, it is given powers to enforce these norms in a criminal proceeding. Within the scope of these powers, it is authorized to conduct interrogations and searches, seize property, carry out arrests, hold trials, impose sentences and imprison convicts. In the course of enforcing the norms in the criminal trial, human rights are violated, sometimes seriously. The rights to liberty and dignity, freedom of movement, freedom of occupation, property and privacy may be violated. The criminal proceeding and the basic rationale underlying it are based on an essential balance between the enforcement power given to the sovereign authority and the protection of the basic rights of the individual involved in that proceeding. The basic rules of the criminal proceeding are intended, inter alia, to restrain the sovereign power that is exercised over the individual involved in it and restrict it to the minimum necessary for achieving its proper purpose.

8.    Therefore, at every stage of the criminal proceeding, whether it is the criminal investigation, the trial, the sentence or the imprisonment, a balance is continually required between the exercise of sovereign force that is required to enforce the law and the protection of the human rights of the suspect, accused, convict and prison inmate. The organs of the state, which are each responsible for a different stage of the criminal proceeding, are constantly required to strike a balance between the essential degree to which executive coercive authority is exercised over the individual and the maximum possible protection of his basic rights as a human being, on as wide a scale as possible, subject only to realization of the proper purpose of the criminal proceeding. This applies to police officers at the investigation stage and when arresting a suspect; it applies to the court during the trial and when passing judgment; and it applies to the Israel Prison Service authorities when an inmate is serving a custodial sentence, which is also a part of the criminal proceeding (A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008) (according to the version in the appendix attached to the petitioners’ notice)).

9.    The enforcement power that is given to the state in the criminal proceeding is a power that is limited to the achievement of the enforcement purpose and no more, and it is based on a concept of proportionality: human rights should not be violated in the criminal proceeding unless it is to uphold an essential public interest, and to an extent that is not excessive in the constitutional sense of this term. The police investigators, who are responsible for exercising the authority of conducting a criminal investigation and who have the powers to carry out interrogations, make arrests and conduct searches, are subject to restrictions on the exercise of the powers given to them in order to protect the rights of the person under investigation, including his liberty, dignity and privacy. These limits on their power are dictated solely by the essential needs of the investigation, and exceeding these limits is not permissible (cf. HCJ 5100/94 Public Committee Against Torture v. Government of Israel [36]). In conducting the trial and passing sentence, the court is responsible for striking a balance between the sentencing power that it exercises over the offender and the concern for his rights as a human being and his rehabilitation. In the last stage of the criminal proceeding — the offender’s imprisonment — the prison authorities, as organs of the state, have sovereign coercive authority to take steps against inmates in order to maintain order and security inside and outside the prison. This power is also limited in nature to what is absolutely essential in order to achieve the purpose for which it is exercised, and the authorities may not exercise it in a given case beyond what is necessary. Thus sovereign coercive authority and the exercise thereof over the individual are rooted in a constant tension between guaranteeing the basic rights of the individual and protecting the community’s interest in maintaining order and public security.

10. Limiting and restraining sovereign enforcement power derives from the respect for human rights in a constitutional system of government. The recognition of human rights as elevated rights is intended to protect the status of the individual in society and the status of the minority against the power-wielding majority. Basic rights, which include the rights to life, liberty, dignity, occupation, property and privacy, are intended to safeguard not merely the life of the individual per se but also the quality and meaning of his life in accordance with modern constitutional thinking. The principle of limiting sovereign power is a part of a general constitutional philosophy that is based on a recognition that in order to maintain a proper communal life, it is essential to provide a solution to society’s need for order and public security, while at the same time respecting the basic rights of the individual. This combination of guaranteeing the public interest while protecting the rights of the individual lies at the heart of the constitutional system of government. It requires a continual balance between these two forces, around which the constitutional world revolves. The duty of striking a balance makes each of these values a relative one that cannot be realized absolutely. Notwithstanding, these conflicting values derive from the same source and reflect a general ethical outlook of a recognition of human rights in a civilized society. Human rights, despite the elevated status given to them in the constitutional system, are not absolute but relative, and they need to be balanced against and coexist with the essential interests of society. On the other hand, the sovereign enforcement power that is intended to protect public order, which is reflected in the criminal proceeding, is limited solely to what is absolutely essential for achieving its proper goal, since exercising it involves a violation of human rights. The tension that exists between the public interest in maintaining order and public security and the protection of basic human rights and the duty to strike a balance between them are among the most prominent characteristics of the system of government and constitutional law.

‘The constitutional revolution does not set aside the right of society to protect itself against offenders… Our constitutional revolution was intended to allow a violation of human rights in order to maintain a social framework that upholds human rights. It recognizes a need to restrict human rights in order to build a state that promotes human rights. Indeed, human rights and the restrictions imposed on them derive from the same source and reflect the same values. Basic rights are not absolute. They may be restricted. But the restrictions on basic rights are limited to what is necessary to protect human dignity and liberty’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and Its Implications for (Substantive and Procedural) Criminal Law,’ 13(1) Bar Ilan Law Studies (Mehkarei Mishpat) 5 (1996), at p. 10).

In this tension between the public interest and the rights of the individual, the tendency is to protect in so far as possible the scope of human rights up to the point beyond which the public interest in law enforcement may be seriously and materially harmed.

The nature of sovereign coercive authority and the state’s exercise thereof

11. The place of institutional coercive authority in modern human society, the restraint required in exercising it while continually striking a balance between it and human rights, the danger of a violation of basic rights inherent in any departure from the proper balance and the tools and means given to the state when exercising institutional power, as the party that laid down the rules for exercising that authority and that bears the legal, moral and public responsibility for implementing those tools and means, all lead to the conclusion that the sovereign body that is responsible for making the rules for exercising the authority should not be separated from the body that operates and implements them in practice.

12. The social contract, which gave the sovereign the responsibility to define norms of conduct in society, is what also gave it the responsibility for enforcing them. It delineates, in accordance with the principles of the system of government, the limits of the exercise of institutional power, the limits whereof are defined by the duty of respecting rights of the individual as a human being. The sovereign, which is responsible for determining the criminal norm and which has been given the power to punish criminals, within the broad meaning of this term, is legally, socially and morally responsible for exercising this power, while complying with all of its restrictions. In so far as the state is responsible for exercising sovereign coercive authority, so too it is responsible for guaranteeing the human rights of anyone over whom it exercises this authority. This responsibility determines the limits and restraints of power, and it restricts its scope solely to what is essential in order to achieve the proper social purpose. The exercise of sovereign coercive authority and the limits upon the exercise thereof are one and the same and cannot be separated from one another.

13. The basic rights of persons under interrogation, defendants, convicts and prison inmates within the framework of the criminal proceeding are not safeguarded solely by the existence of proper norms that are enshrined in law. Safeguarding them is conditional upon the manner in which the norms provided by law are enforced in practice by the police, the courts and the prison authorities. Restraint in the exercise of institutional power, which is the result of the balance that needs to be struck between sovereign coercive force and the basic rights of the individual, is examined de facto by its implementation on a daily basis. In the criminal proceeding, the identity of the party exercising institutional coercive authority over the individual is of supreme importance in guaranteeing the proper balance in implementing the limits of the use of power.

14. It is the state that has always exercised sovereign coercive authority over the individual in criminal proceedings. As the party that determined the norms of conduct and is responsible for their enforcement, it is the party that is directly responsible for the restraint and checks required by the exercise of power. It is the party that is supposed to be accountable to the public for the manner in which its powers in the criminal proceeding are exercised, and it has the weight of education, knowledge and experience, the tools and all the essential resources for making the necessary balances that dictate the limits of the use of power. The doctrine of balances in the exercise of sovereign coercive authority over the individual is part of the ‘genetic code’ of the sovereign authority. It is not found in the makeup of some other party that originated outside the sovereign authority, for which the duty of striking balances is foreign to its thinking and is not an inherent part of its modus operandi.

15. Moreover, the state has an effective deterrent mechanism for the manner in which sovereign coercive authority is exercised by organs acting on its behalf, in the form of administrative and judicial scrutiny of its representatives’ actions. This scrutiny has a significant deterrent effect against the abuse of sovereign power and authority by representatives of the state at the various stages of the criminal proceeding. The existence of this supervisory mechanism is a most important guarantee of the restraint and limits of sovereign coercive authority that is exercised over the individual in a criminal proceeding. An organ of the state that exercises coercive authority over the individual is subject to the administrative supervision of state authorities, is bound by the rules of ethics and disciplinary procedures of the civil service and is required to comply with strict legal criteria within the framework of the judicial scrutiny of its mode of conduct (HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at p. 424). It is therefore unsurprising that there are unequivocal restrictions on the recognition, by way of interpretation, of an implied power to delegate sovereign powers to private enterprises (I. Zamir, Administrative Authority (vol. 2, 1996), at p. 562). Indeed, such an interpretation is adopted sparingly, and only when there is a real need that justifies it (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 656). If there are restrictions on inferring the permissibility of a delegation of a sovereign power involving the exercise of administrative discretion to a private enterprise, similar restrictions apply a fortiori to the delegation of power involving coercive authority that can be exercised over the individual in a manner that violates the most basic of his human rights. It has been said of the power of criminal investigation:

‘The power to conduct a criminal investigation involves a power, and therefore also a danger, of violating the privacy, dignity, liberty and property of persons under investigation (Public Committee Against Torture v. Government of Israel [36], at p. 831). For this reason, as a rule a power given by legislation to a government authority, which authorizes someone to investigate a suspicion that an offence has been committed, should be interpreted as referring to the appointment of a civil servant who is subject to the authority and supervision of the government authority and who is subject to the disciplinary procedures and rules of ethics that apply to members of the civil service… and because of the special character of the investigative function, which when exercised involves a concern of a violation of the basic rights of the individual, it should be entrusted to civil servants’ (CrimA 4855/02 State of Israel v. Borovitz [37], at pp. 833-834 (emphases added)).

16. Ensuring the limits of sovereign power exercised over the individual in the criminal proceeding at all its stages also requires it to be exercised in such a way that it is entirely free of any suspicion of a conflict of interests of any kind. The involvement of an improper and irrelevant consideration in the exercise of sovereign coercive authority in the criminal proceeding creates a real potential risk of a distortion of the proper balance between the need to use power to achieve a purpose in the public interest and the protection of the human rights of the individual. The involvement of an improper consideration in the necessary balance between the public need for the preservation of public order and compliance with the law, on the one hand, and the individual’s rights to liberty and personal dignity, on the other, may undermine the proper equilibrium between the various forces operating in this sphere and result in improper harm to the individual. Exercising sovereign power over the individual in criminal proceedings should be entirely divorced from improper considerations, and it should be done with a complete commitment to the rules of restraint in the use of force, upon which the fate of the individual who is subject to sovereign authority depends.

17. Finally, the sovereign coercive authority exercised by the state over the citizen in the criminal proceeding is a part of a broad social consensus according to which exercising it is essential for maintaining public order and a proper social life. This consensus assumes that the exercise of coercive force will be done by the state authorities, which derive their moral and legal power from the public that has placed its confidence in them. The sovereign authority is regarded as the trustee of the public and as someone who is entrusted by it to manage society’s affairs, while showing concern for the individual that lives in that society. This public confidence is not given to any entity other than the state authorities. A private enterprise that exercises sovereign coercive authority over the individual in the criminal proceeding does not act as a public trustee. Its status and actions are not based on a broad social consensus, and its exercise of sovereign coercive authority over the individual does not enjoy the essential legitimacy that characterizes the actions of the government.

The risk in transferring the exercise of sovereign coercive authority to a private enterprise

18. Transferring the exercise of sovereign power to a private enterprise, which is not one of the organs of the state, is problematic in several respects, even though it is likely to bring with it, at the same time, social, economic and cultural benefits that serve the public interest in various fields. When speaking of a transfer of executive power that includes a real potential for violating major human rights — including a violation of liberty and dignity — the difficulty in such a transfer is particularly problematic. The balance and restraint in the exercise of enforcement power at every stage of the criminal proceeding, for the purpose of protecting human rights, cannot be relied upon in the hands of a party that is not an organ of the state. The limits of power are not protected by the basic guarantees that are intended to serve as a deterrent against any overstepping in the exercise of sovereign power and against any abuse thereof: the private enterprise that is entrusted with sovereign power involving a potential for violating core rights of the individual is not governed by the rules of conduct and the criteria that dictate the manner of exercising institutional coercive authority and regulate the action of the organs of state. The private enterprise was not born and brought up in this framework, it is unfamiliar with its concepts and it has never internalized the doctrine of balances in the exercise of sovereign power, in all of its particulars and aspects. The doctrine of balances, which demands that the public interest in maintaining order should be weighed against the duty to limit the violation of human rights to what is absolutely essential for achieving the purpose, is a doctrine that it does not know. The mechanisms of training, education, supervision and discipline that are built into the civil service for its employees, and which define the rules of exercising sovereign power, do not apply to it. The constitutional doctrine of balances that directs the way in which sovereign coercive authority is exercised at every stage of the criminal proceeding is not a part of the experience of the private enterprise when it exercises this power.

19. Moreover, when it receives authority to exercise sovereign power, the private enterprise is unavoidably associated with substantial concerns regarding conflicts of interests in its actions. Its entry into fields that are clearly areas of sovereign activity is motivated by private considerations of profitability. Considerations of economic feasibility and private profit-making are completely foreign to the doctrine of balances in the exercise of sovereign coercive authority in the criminal proceeding. Introducing various elements of viability into considerations of exercising power involves a potential for a real violation of the proper equilibrium between the relevant considerations that should be taken into account when exercising the power (HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at p. 213; HCJ 39/82 Hanfling v. Mayor of Ashdod [38], at pp. 540-542; Haifa Chemicals v. Attorney-General [18], at p. 656; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 309-310).

20. When sovereign coercive authority is exercised in a manner that violates core human rights — including the rights to liberty and dignity — a real concern arises that transferring it to a private enterprise will result in disproportionate harm to the individual, which may make such a transfer illegitimate. When sovereign authority given to the state, which is capable of violating core human rights, is exercised by a private enterprise that is motivated by considerations of its own profit, the moral and ethical basis underlying the exercise of sovereign power is undermined. According to the principles of the system of government, this power was entrusted to the sovereign as a result of a broad social consensus in order to achieve a defined purpose, and exercising it requires a strict observance of the criteria that are built into the system. There is no guarantee that these criteria will be observed by the private enterprise, and when the risk that they will be breached is likely to violate core human rights, the transfer of the powers becomes unacceptable a priori from a constitutional viewpoint. Finally, the private enterprise that exercises sovereign coercive authority does not lean in its actions on the broad confidence that society has in the state as a part of the social consensus, which gives the sovereign power and responsibility to uphold public order. The exercise of coercive authority by a party that is not the state, which violates core human rights, necessarily does not enjoy the confidence and acceptance of society. It lacks social, moral and constitutional legitimacy.

21. The existence of state supervision over the manner in which the coercive authority is exercised by the private enterprise may to some extent diminish the potential for harming the individual, but it cannot materially reduce the extent of the violation inherent therein. Such supervision is mainly an umbrella supervision, which extends over the whole system and has difficulty in encompassing, before the event, the whole scope of the routine actions of the party exercising the power, which are carried out continually. A supervisory mechanism, by its very nature, reacts only after the occurrence of an unconstitutional violation of human rights and focuses on the general normative aspect of the activity, as distinct from ordinary everyday activity, which presents the great danger of harm to the individual. By privatizing the exercise of sovereign coercive authority, the discretion to exercise this authority is given to the private enterprise, even if the general guidelines and policy guidelines are laid down by the sovereign supervisory body. State supervision does not provide a proper solution to the dilemma involved in privatizing a power to exercise sovereign coercive authority, nor does it materially reduce the potential for harm to the individual that is likely to result from such a privatization.

22. Severing the essential connection between the party responsible for exercising the sovereign authority in order to maintain public order and the party responsible for guaranteeing the core human rights of the individual as the authority is exercised is likely to cause considerable harm to the democratic constitutional basis on which the political system in Israel is based. Entrusting sovereign coercive authority in the criminal proceeding to a private enterprise involves significant harm of this kind.

The constitutional violation in transferring sovereign coercive authority to manage a prison to a private enterprise

23. Sovereign coercive authority, which is exercised within the framework of the criminal proceeding, does not end when sentence has been passed and the judgment becomes absolute. Enforcement of the judgment by way of imprisonment is an additional element of the criminal proceeding, in which the organ of state is given the power to exercise its coercive authority in order to carry out the judgment, while guaranteeing order and security both inside the prison and outside it.

24. The prison inmate is subject to inherent restrictions that derive directly from his imprisonment. The infringement upon the freedom of movement, the freedom of occupation, the right to privacy, the right to property and the freedom of expression are a direct consequence of his imprisonment. But the restrictions on the human rights of the prison inmate are not limited to these. His rights may suffer additional violations as a result of the measures taken against him by the prison authorities in order to ensure the proper running of the prison and to protect the safety of its inmates and the public outside it. The authority that manages the prison has powers to impose various restrictions on inmates in order to maintain order and security inside it, protect the safety of the inmates and the security of prison visitors, and ensure the security of the public outside the prison against risks that the inmates imprisoned inside it may present. The management of the prison should protect the public from the concern that criminal offences may be committed by inmates inside the prison or outside it, and from serious infractions of order and security inside it. Sometimes, restrictions need to be imposed on inmates for general considerations of state security (HCJ 2245/06 Dobrin v. Israel Prison Service [39]). The exercise of sovereign coercive authority for achieving these purposes adds to the infringement upon the inmate’s core human rights that is a necessary consequence of his imprisonment. It depends on the existence of public purposes of special weight that justify an additional violation of inmates’ rights that are required by the management of the prison. The exercise of coercive authority for this purpose should satisfy the tests of the limitations clause in the Basic Law. The more significant the human right involved, the stronger the reasons that are required for violating it. The measures adopted against a prison inmate to maintain order and security in their broad sense should not become an additional element of the sentence that was imposed on him. Their purpose is to achieve essential public goals that are required by the proper management of a prison (PPA 4463/94 Golan v. Prisons Service [11]; HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [33], at p. 81). The exercise of coercive authority in managing the prison is subject to the doctrine of balances that applies to the exercise of sovereign coercive authority throughout the criminal proceeding at all its stages. The guiding principle in this doctrine is intended to give maximum protection to the rights of the prison inmate so that they are not violated to a greater extent than what is essential for achieving the proper public purpose.

25. Thus, the exercise of sovereign coercive authority in the management of a prison, which involves violations of the core rights of the inmates — beyond the violation caused by the imprisonment per se — is subject to the doctrine of balances that characterizes the exercise of power at all stages of the criminal proceeding. The legality of the exercise of coercive authority in managing the prison, which is intended to secure a public interest, is dependent upon maximum insistence on the rights of the inmate, so they are not violated to a greater extent than what is required in order to achieve the proper purpose. The complex balance between the protected rights of the inmate and the needs of the prison system is the responsibility of the public authority, which is responsible for enforcing the sentence. The permitted violation of the human rights that an inmate retains while in prison depends upon the existence of a clear public purpose justifying the violation and the proportionality thereof (Dobrin v. Israel Prison Service [39], at para. 23). The responsibility for such a violation of the core human rights of the inmate is a weighty one, and it requires full awareness and recognition of the criteria required for permitting such a violation, the existence of administrative, ethical and judicial scrutiny of its propriety, and especially the absence of improper considerations that may taint the proper discretion of the authority, which should be exercised when considering whether to carry out the action that causes the violation.

26. The protection of the core human rights that an inmate retains in the prison is not consistent with the transfer of the power to exercise sovereign coercive authority to a private enterprise that will be responsible for managing the prison. Such a transfer is inconsistent with the competent authority being aware and internalizing the need for restraint and limits in the exercise of power in light of the balance required by the protection of human rights. The private enterprise is not subject to the complex rules of checks and deterrents that are included in the rules of conduct that govern the civil service. Sovereign supervision of the acts of the private concessionaire, which amendment 28 of the Ordinance regulated, is an umbrella supervision that does not guarantee sufficiently effective control of the manner of exercising the discretion and the motives involved therein. In many cases, the supervision is carried out after the event and is incapable of preventing from the outset the harm to the inmates that is likely to result from the adoption of administrative, disciplinary and punitive measures that are disproportionate. In addition to all this, the private concessionaire is motivated by extrinsic considerations of profit, which naturally taint the objective discretion that should be exercised for the purpose of using force in accordance with the doctrine of balances. The management of a prison by a private concessionaire, which involves exercising coercive authority over inmates, is likely to be motivated by inappropriate considerations, including considerations of economic viability and profit, which were the goals that led it to accept the role. In view of this reality, the degree of the potential violation of the inmates’ rights is significant, of great weight and persistent. It is directed at a particularly weak sector of the population, whose members in any case have been deprived of some of their human rights as a result of their conviction and the custodial sentence imposed upon them. The danger that irrelevant considerations will guide the private enterprise in carrying out its duties and in exercising coercive authority over the inmates is immediate and real. The considerations of increasing economic efficiency and the profits of the private enterprise may lead, for example, to a reduction in the staff that operates the prison, a lowering of standards in order to reduce costs, and consequently to harsher methods of supervising the inmates, which could potentially involve a reduction in the measure of movement and freedom given to them within the prison compound. The violation of the remaining liberty of the inmates, beyond the essential violation caused by the sentence of imprisonment as such, is a distinct possibility, that if realized would materially and seriously violate a constitutional basic right (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 25).

27. Moreover, the exercise of sovereign coercive authority over prison inmates by a private concessionaire does not enjoy a wide social consensus and public confidence as the nature of the power requires. It does not guarantee that the umbrella of human rights, which extends over every human being as such, including an offender in prison, will be upheld and protected, and that any violation thereof will always be conditional upon the reservations required by the constitutional system (Dobrin v. Israel Prison Service [39], at para. 23; HCJ 355/79 Katlan v. Israel Prison Service [20]). The exercise of sovereign coercive authority by a private enterprise in the context before us contradicts our basic sense of justice, which tells us that the exercise of coercive authority over prison inmates, whose core human rights have in any case been violated, should be done by the state, which is familiar with the requirements of the restraint of power, and which has full administrative, legal and moral responsibility for exercising this power. This was well defined by Prof. Harel in the aforementioned article, where he said:

‘The most fundamental task of the state is the task of governing justly. Just governance requires the state to govern its citizens under constraints dictated by justice. Just governance presupposes the guidance of behaviour and the issuing of prohibitions. Note that the integrationist justification provided here is premised on the assumption that the state is justified in issuing prohibitions and that the violations of these prohibitions justifiably trigger the infliction of sanctions. The integrationist justification aims to show that when these conditions are satisfied, the state, and the state alone, ought to make determinations concerning the severity of these sanctions, and then inflict them. The state cannot thus delegate these powers to private entities’ (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 18).

28. The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment and exercising coercive force over him in prison depend upon the exercise of coercive authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Failing to comply with this condition undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional coercive authority over the individual offender (J.J. Dilulio Jr., ‘What’s Wrong with Private Prisons,’ 92 Pub. Int. 66 (1988), at pp. 79-83).

The purpose underlying amendment 28 of the Prisons Ordinance

29. Investigating the purpose of amendment 28 of the Ordinance is essential for the value-balancing endeavour needed to assess the constitutionality of the legislative arrangement that transfers the management of a prison to a private concessionaire.

The president in her judgment emphasized the economic purpose — of realizing an economic saving for the state by transferring the management of the prison to a private enterprise — that underlies the amendment of the Ordinance as the one that reflects the main concrete purpose of this legislation. According to her, if improving prison conditions is the general purpose underlying the amendment, the economic purpose of saving money is the specific purpose of the legislation. This is what she says in this regard:

‘The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state’ (at para. 52).

In my opinion, the crux of the basic purpose of amendment 28 is somewhat different, and even though it does contain an element of economic efficiency, that is not the main motif but only a secondary one. Identifying the purpose of the law and its emphases is of great importance for its ramifications on the balancing of values required for examining the constitutionality of the law.

30. As I understand it, the main purpose of the amendment to the Ordinance, as can be seen from its legislative background and its context, is to promote the welfare of the prison inmate by reducing the serious overcrowding that currently exists in the prisons, improving the services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. These purposes might have been realized by privatizing the management of the prison, which would allow the state to save large amounts of money over the period of the concession, which is twenty-five years.

31. The prison system has always struggled with the obligation to uphold the right of the prison inmate to basic living conditions as a part of the protection of his dignity as a human being, even when he is imprisoned for an offence that he committed against society. Guaranteeing basic living conditions for the prison inmate, as a part of his human dignity, also requires a proper balance between the inmate’s human right to minimum living standards and the state’s obligation, with its available resources, to budget for these standards (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10]).

32. The phenomenon of major overcrowding in Israeli prisons seriously violates the movement and breathing space of the inmate in the prison compound. Over the years, the state has struggled with a situation in which even the basic right of every inmate in Israel to sleep in a bed during his prison term has not been fully respected. The significant increase in the number of prison inmates and persons held under arrest in Israel, the serious long-term security problems that result in an increase in the number of security prisoners and detainees, the rise in serious crimes and the escalating number of foreign workers and illegal aliens held under arrest until they are deported have all significantly increased the need for the resources and means required to maintain prison facilities to the required standards. These basic needs ‘consume’ the resources allocated in the state budget for managing prisons and detention facilities, and it is hard to find the additional resources needed to improve the welfare of prison inmates.

33. This court has held that the Basic Law: Human Dignity and Liberty enshrined the right to human dignity as a constitutional right and that this also includes the right to basic living standards that are intended to preserve the image in which humanity was created (LCA 4905/98 Gamzu v. Yeshayahu [40], at pp. 375-376; HCJ 5578/02 Manor v. Minister of Finance [25], at p. 736; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at paras. 14-15; Physicians for Human Rights v. Minister of Public Security [10], at para. 9). This approach has also been applied to the constitutional human rights of inmates in state prisons. It has been held that —

‘A sentence of imprisonment imposed on a person does not deprive him of the constitutional human rights given to him by the principles of the constitutional system in Israel. The prison inmate is deprived of these rights only to the extent that the restriction thereof is a necessary consequence of his loss of liberty as a result of the imprisonment, and to the extent that the violation of a protected right satisfies the elements of the limitations clause in the Basic Law’ (Physicians for Human Rights v. Minister of Public Security [10], at para. 10).

When a person enters a prison, he loses his liberty, but he does not lose his dignity (HCJ 7837/04 Borgal v. Israel Prison Service [41], at p. 101). Providing a person’s basic needs, which is an absolute condition for living with dignity, is also necessary for an inmate serving his sentence in prison, and the state is obliged to provide them and allocate the necessary resources for this purpose. If the state has a duty to provide the basic needs of its inhabitants as a part of the right to human dignity, it has an even greater obligation to the persons who are in its custody and under its protection, for whom it is directly and immediately responsible. Protecting the dignity of the prison inmate as a human being goes beyond the interest of the individual inmate. It is the interest of society as a whole, which is responsible for determining the moral and ethical norms that apply within it to its members, including prison inmates, as human beings (Golan v. Prisons Service [11], at p. 156). Thus it has been recognized that every prison inmate has a basic right to sleep on a bed, as a part of the protection of human dignity (Physicians for Human Rights v. Minister of Public Security [10], at p. 14). These basic needs are joined by the needs for food and drink, clean clothes, fresh air, a minimum living space inside the prison and responsible medical treatment. The right of a prison inmate to basic living conditions in prison has therefore been recognized as a protected constitutional right that can be qualified only when there is a conflicting value of special importance and particularly great weight, such as an exceptional emergency that may justify, in certain circumstances, a violation of the protected right. The state is obligated to provide these basic living conditions for inmates in its custody, and it must allocate the necessary budget for this purpose (see, for example, on the subject of realizing the right of every prison inmate to a bed, Physicians for Human Rights v. Minister of Public Security [10]).

34. Beyond the concern for the basic living conditions of prison inmates, which the state is obliged to provide regardless of any budgetary restrictions, there are additional elements of the inmate’s welfare that go beyond the ‘hard core’ of the basic conditions. These elements include matters concerned with reducing the overcrowding in prisons, increasing the physical living space of the inmate in the prison beyond the basic minimum provided in prison regulations, improving treatment and rehabilitation programmes for the inmates, adding cultural enrichment programmes, improving the standard of the food and medical treatment, and additional matters. Providing these conditions, which goes beyond the basic needs that there is an obligation to provide, is of an optional nature, and depends upon the national priorities reflected in the budgets of state institutions. A welfare-state should strive unceasingly to provide these welfare conditions, which go beyond the basic needs, for its prison inmates. Notwithstanding, its ability to do this depends upon the complex picture of all the national needs and on the position of the question of prison conditions on the ladder of social issues for which the state is responsible, according to the relative importance of all the national needs. In the complex reality of social life in Israel, with its many essential needs, giving budgetary preference to improving the welfare of the prison inmate beyond the basic standards required by law is not assured.

35. As I understand it, amendment 28 of the Ordinance was mainly intended to promote the welfare of the prison inmate beyond the basic conditions that the state is obliged to provide without any qualification to prison inmates, in circumstances where the allocation of budgetary resources for this purpose in the normal budgetary track is not guaranteed. The amendment to the Ordinance was intended to allow the welfare of the inmate to be advanced beyond the basic conditions that are provided for him and to which he is entitled, with an attendant significant financial saving to the state — an objective that is not guaranteed by means of ordinary budgetary measures. Indeed, the explanatory notes to the draft amendment to the Ordinance begin with the following remarks:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that it has on the conditions in which prison inmates and persons under arrest are held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Laws 73, 5764, at p. 270).

36. In enacting amendment 28 of the Ordinance, the state’s main goal was to reduce overcrowding in the prisons and to improve significantly the living conditions of the inmates beyond the essential minimum. The state gives details in its reply of 24 October 2005 and in later replies, inter alia, that the living space of prison inmates in Israel is currently between two and four and a half square metres per person, as compared with a space of between six and ten square metres that is accepted around the world; that some of the existing prison facilities are very old and do not provide proper living conditions; and that a constant increase in the number of prison inmates each year exacerbates the existing crisis in prison conditions. According to the state, the privatized prison will significantly advance the welfare of inmates from the viewpoint of improving the inmate’s living space, as well as in the fields of rehabilitation and treatment for inmates and the standard of the physical services that are provided in the prison. The average living space per inmate will increase significantly, as will the number of social workers; a major increase in the number of hours of education that inmates receive will also be possible. In addition to these improvements, the state will make a considerable financial saving (the state’s supplementary response of 16 February 2006, at paras. 15-19).

37. In its response of 29 August 2006, the concessionaire also emphasized all of the planned improvements for inmates (para. 98 of the response). These include more formal education, an increase in the scope of the employment of inmates in various jobs, an increase in the financial remuneration for the work, an increase in the physical living space far beyond the essential minimum, an improvement in the food, an increase in the number of family visiting days, an increase in the educational staff, an improvement in medical treatment, an increase in the hours of activity for the inmates and additional improvements. According to the concessionaire:

‘In practice, a careful examination… shows precisely to what extent the considerable thought that was devoted by the state and its representatives to drawing up the transaction with the concessionaire provides comprehensive and thorough solutions that allay the concerns raised by the additional petitioner in a manner that ensures that not only will the privately managed prison not harm the welfare of the inmates in comparison to a prison managed by the Israel Prison Service but to a large extent the opposite is the case: in the privately managed prison the conditions of the inmates are expected to be better than in the other prisons in Israel (supplementary main arguments of 31 December 2007).

38. The possibility of overcoming the problem of serious overcrowding in prison facilities, of improving the welfare of the inmates beyond the minimum conditions that need to be provided at all times and in all situations, while increasing efficiency and making a financial saving for the state, are to my mind the main purposes of amendment 28 of the Ordinance. It should be added that the amendment speaks at this stage of setting up one prison as an experiment, but the long-term planning is that if the experiment is successful, it will be expanded and this may affect a large population of prison inmates, inter alia by significantly improving both the physical and the therapeutic and psychological conditions in which they are held in custody in Israel.

 The constitutional balance — the relationship between the harm caused to the prison inmate by privatizing the exercise of sovereign power and the expected improvement in prison living conditions

39. The privatization of the management of the prison in amendment 28 gives rise to a constitutional question of great significance. This question in essence is whether the potential violation of the prison inmate’s core basic rights that is caused by privatizing the sovereign coercive authority of managing a prison satisfies the constitutional test of proportionality, in view, inter alia, of the purpose of the amendment to the law which was intended to improve the welfare of the inmate beyond the minimum conditions guaranteed to him and at the same time to make a financial saving for the state. The potential violation of the inmate’s core basic rights, which is expected to occur as a result of the privatization of the sovereign power, conflicts with the potential benefit to the inmate deriving from the improvement in his welfare and his living conditions, together with an economic benefit to the public. What is the result of the balance between these values, and which of them takes precedence? In this conflict, is the harm to the prison inmate so great that it justifies setting aside a law of the Knesset despite the benefit to the inmate’s welfare that it bestows?

40. Constitutional law embodies the basic values and principles of the legal system. These values and principles require decisions that involve conflicting interests, values and rights. Often the conflict is between types of interests, values and basic rights that are all of the highest importance (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [42], at p. 880 {100}). The conflict is resolved by striking a balance between the competing values, where each of the competing factors has its own importance and relative weight. The decision is made on the basis of the relative weight of the conflicting values.

‘It is only natural that there are more important principles and less important principles; … the basic difficulty involved in constitutional thinking is how to ensure objective normative criteria… for deciding between the conflicting principles… The balance and weighing need to reflect the social consensus rather than the subjective outlooks of the constitutional jurist… The judge should reflect the basic values of a nation, as reflected in its national way of life… The Israeli jurist formulates the basic principles and their relative weight against a background of the spiritual, cultural and social mores of modern Israeli society. These mores are naturally influenced by our ancient heritage, but they reflect the social consensus of the present. However, objective criteria that provide a solution to every constitutional problem do not exist. Where objective guidelines cease, the constitutional jurist is left “on his own,” and “his moment of truth” arrives. From this moment, the only guiding star that lights up his path is the constitutional principle of justice; the jurist should aspire to the solution that seems to him most just’ (A. Barak, Legal Interpretation: Constitutional Interpretation (vol. 3, 1994), at pp. 71-72).

41. The constitutional purpose is built on the values and principles that the constitutional norm is intended to realize. Sometimes these values lead in the same direction; sometimes they conflict with one another. In cases where there is a conflict, a balance needs to be struck between them in accordance with their relative weight. The balancing formula reflects the relative weight of each value. There is no single balancing formula, but a wide variety of balancing formulae that adapt themselves to the wide variety of possible situations that occur in life and the innumerable conflicts that may arise (HCJ 153/83 Levy v. Southern District Commissioner of Police [43], at p. 401 {117}).

42. In our case, the constitutional balancing formula between the conflicting values is especially complex. On one side of the equation there is the potential harm to the core human rights of the prison inmate, and especially his rights to liberty and dignity, which is inherent in the privatization of the sovereign coercive authority in the management of a prison and its transfer from an organ of state to a private enterprise. The potential harm to the individual inherent in privatizing the sovereign coercive authority in managing a prison is very considerable for the reasons that I have discussed above. It undermines and erodes the guarantees inherent in the foundations of the legal system for protecting the limits and constraints of power, which apply to the state when it exercises its sovereign power. Any undermining of these guarantees, which may result in a significant violation of the core human rights of the prison inmate, is of particularly great weight.

43. On the other side of the balancing equation, there is the main value of the amendment to the law, which is intended to promote the welfare of the prison inmate and improve his prison conditions in various fields of life, while enhancing economic efficiency for the state. This purpose is of great weight in itself, since it is intended first and foremost to promote the welfare of individuals who are already in difficult circumstances. It contributes to the protection of his dignity and welfare. Expanding treatment and rehabilitation programmes may also lead to the inmate being released early, thereby influencing his liberty and the other basic rights derived from the right to liberty.

44. The potential harm involved in the privatization of sovereign coercive authority, which is likely to violate the liberty and dignity of the prison inmate, is countered by the purpose of the privatization, which has an aspect of improving his living conditions in the prison. The improvement in such conditions has a direct effect on the realization of the inmate’s basic rights. How can this conflict be resolved, when at its heart there are forces, on the one hand, that violate the inmate’s rights and there are forces, on the other hand, that benefit him and promote his rights?

45. The dilemma in this balancing equation is particularly complex. It is not similar to the typical dilemma in which a right of one individual conflicts with the right of another individual or with a general public interest. In the equation in this case, there are conflicting interests and opposing forces that concern the same individual, the prison inmate. One seeks to eliminate the potential harm inherent in the privatization of sovereign coercive authority exercised against him in the prison, and the other seeks to uphold the law, despite the aforesaid harm, in order to enhance his welfare and improve prison conditions in the long term. We are confronted with a clash between conflicting forces that work on the prison inmate as an individual, where one seeks to prevent a violation of his basic rights resulting from a privatization of the force exercised against him, while the other seeks to contribute to his physical and emotional welfare that cannot be realized, at least at the moment, in any other way. The general public interest, which is reflected in the financial saving and greater economic efficiency that establishing the private prison will give the state, complements the factor of enhancing the welfare and improving the quality of life of the inmate in the privatized prison.

46. According to the president’s approach in her opinion, with which I agree, the main problem in the process of balancing the conflicting values, which is required in order to examine the constitutionality of amendment 28, lies in the third subtest of proportionality, within the meaning thereof in the limitations clause in the Basic Law. The third subtest focuses on the nature of the violation of a human right that is caused in order to achieve a proper purpose, and it recognizes that the realization of the purpose does not justify every means that has a rational connection to the purpose and minimizes the harm. ‘This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). The third subtest of proportionality is ethical in nature. It is intended to resolve the conflict between the various relevant factors in a manner that properly reflects the social and moral values enshrined in the social consensus, on which the democratic regime in Israel is based.

47. In our case, the question in its ethical context is what is the proper proportional balance between the improvement in living conditions for the prison inmate, together with the advancement of the economic interest of increased efficiency and a financial saving for the state, and the potential harm to the core rights of the inmate that is inherent in the privatization of sovereign coercive authority under the amendment to the Ordinance. Striking the proportional balance between the violation of the rights of the inmate caused by the privatization of the exercise of coercive authority against him and between the benefit that will arise in the future to the welfare of the inmate and the public in general from establishing a private prison is not easy. We need to decide which has greater weight: the expected harm to the prison inmate from the privatization of the coercive authority exercised against him, or the importance of improving the living conditions of the same inmate in the privatized prison, together with the saving and increased efficiency in the use of public money. It is possible to state the question as follows: does the enhanced welfare of the prison inmate anticipated from the amendment, together with the economic benefit to the state, diminish the potential harm to the inmate as a result of the privatization of the exercise of coercive authority to such an extent that it makes this harm constitutional in accordance with the test of proportionality in the narrow sense in the limitations clause?

48. The need to strike a balance between the constitutional violation of core human rights and the benefit to the very same person within the context of the same act of legislation that is subject to constitutional scrutiny does not arise often. It requires a comparison between ‘good’ and ‘evil’ that affect the same person, largely with respect to the same human rights. This is an atypical balancing equation that requires scrutiny in the special circumstances of this case.

49. In my opinion, in this balance, which is essentially an ethical one, the benefit to the welfare of the prison inmate, accompanied by a public economic interest, that will arise from the amendment to the law does not mitigate the potential harm to the inmate that will arise from the privatization of the sovereign coercive authority to such an extent that the harm becomes constitutional according to the test of proportionality in the narrow sense. The benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign coercive authority to a private concessionaire.

50. The potential harm to the individual that is inherent in the privatization of sovereign coercive authority in the criminal proceeding is great, and it goes to the very heart of the social order that gives the state the legal and moral force to exercise sovereign authority over the citizen, while restraining and limiting this power to the absolute minimum, in order to protect core human rights. The ethical, moral and legal structure of the system of government in Israel is inconsistent with the transfer of sovereign coercive authority involved in the management of a prison to a private enterprise, which may seriously harm the individual, even when it is accompanied by the positive and important purpose of improving the physical living conditions of the prison inmate and also by increased efficiency and a saving of public money. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state. It should also be recalled in this respect that improving prison conditions, which is a part of the amendment to the law, does not concern the basic prison conditions that are in any case assured by the existing legal position, but conditions that go beyond the absolute minimum. Achieving an improvement in prison conditions, although important, cannot outweigh the potential violation of the core rights of prison inmates, which is inherent in giving power to the private concessionaire to exercise sovereign authority over individuals under its control. In a democratic constitutional state, the price of enhancing the welfare of a person should not be paid in a manner that causes a possible violation of his core human rights. Such a price should not be paid, and does not satisfy the constitutional test.

51. The potential harm that is inherent in the privatization of sovereign authority is integral to it and of such a degree that it does not allow for a process of experimentation and arriving at conclusions in consequence thereof. We should seek to improve the welfare of the prison inmate, but not at the price of allowing injurious measures to be carried out against him and allowing his core rights to be violated, as the legislation that is under scrutiny in this proceeding entails.

52. The exercise of coercive authority in the criminal proceeding, in so far as it violates the core human rights of the individual, should remain in the hands of the sovereign authority, which is answerable to the public and to the foundations of the constitutional system for restraining and limiting it. This applies to police power, it applies to judicial power and it also applies to the power to manage prisons and to exercise coercive authority over prison inmates.

53. The privatization of public services by transferring the responsibility to provide them to private enterprises has been effected in recent years in several fields (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at pp. 472-473; A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). The fields that have been privatized include, inter alia, the enforcement of civil judgments, private security guards and security companies, tax collection, etc.. The problems that arise with regard to the privatization of the management of a prison are completely different from those that arise in the other fields of privatization from the viewpoint of the scope of the exercise of sovereign coercive authority over the individual that they necessitate, and from the viewpoint of the extent of their potential violation of fundamental constitutional rights.

54. The privatization of the exercise of sovereign coercive authority in the management of a prison by transferring it to a private concessionaire should therefore be set aside, since it does not satisfy the test of proportionality in the narrow sense under the limitations clause.

55. It need not be said that there is nothing that prevents a privatization of all of the operations and services that are a part of managing a prison and that do not involve the exercise of sovereign coercive authority over prison inmates.

56. I agree with the president’s position that the amendment to the Ordinance should be set aside in its entirety because it is difficult to apply a “blue pencil” to it and distinguish between its various terms that are all part of one whole. As stated, this does not preclude the privatization of those fields of management and services in the prison that do not involve the exercise of sovereign coercive authority, in so far as the competent authorities decide that this is proper.

For the aforesaid reasons, I agree with the president’s conclusions that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice E. Hayut

I agree with the opinion of my colleague the President, and with her conclusion that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: Amendment 28), according to which powers to imprison inmates were transferred to a private concessionaire (as well as a long list of invasive powers inherent therein)  should be struck down. This is due to the unconstitutional violation of the inmates' human rights to personal liberty and dignity that results from the establishment of a prison managed by a private corporation in which the inmates are subject to the authority of its employees.

1.    ,The President discussed In her opinion how, according to the basic views of modern political thinking, the state is responsible to enforce criminal law and to preserve public order by virtue of the Social Contract whereunder humans have organized themselves as a society. The President goes on to say that this state function holds an invasive power to deprive offenders of their liberty and that the transfer of this basic and invasive power to a private corporation operating for profit, is contrary to the Social Contract that originally gave these powers to the state, since as a result of that transfer ‘the exercise of that power loses a significant part of its legitimacy’ and the constitutional right of prison inmates to personal liberty is violated (para. 22 of the President’s opinion), to a greater degree that the actual imprisonment requires (para. 33 of the President’s opinion). The President also discusses in her opinion additional aspects of the violation of the constitutional rights of prison inmates, and she mentions in this regard the violation of their dignity as human beings resulting from their imprisonment in a privately managed prison; she says that this model creates a situation in which the manifestly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that derive from the private corporation's desire to make a financial profit. Thereby, in her opinion, the prison inmates become ‘a means whereby the corporation that manages and operates the prison makes a financial profit’ and therefore her conclusion is that ‘the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings’ (para. 36 of the President’s opinion). I agree with the President in this reasoning and her conclusion that these violations of the personal liberty and dignity of the prison inmates do not satisfy the tests of the limitations clause in the Basic Law: Human Dignity and Liberty, in which these basic rights are enshrined, because of the lack of proper proportionality between the social benefit that Amendment 28 provides and the human rights violation that it causes.

2.    In addition to the examination of the constitutionality of Amendment 28 from the perspective of the prison inmates' rights to personal liberty and dignity, I am of the opinion that it is also possible to discuss the difficulties that this amendment presents from the perspective of the general public, as a law that conflicts with the basic principles of the system of government and the legal system in Israel. Much has been written about the Social Contract on the basis of which human beings have organized themselves into states. Since the ‘Social Contract’ is a fiction that was invented by the fathers of modern political thought, there is a wide range of different views with regard to the nature and content of this contract (see M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (seventh edition, 2001), at pp. 111-118; W. Friedmann, Legal Theory (fifth edition, 1967), at pp. 117-127; C. Klein, ‘On the Social Contract Before the High Court of Justice,’ 5 College of Management Academic Studies L. Rev. (HaMishpat) 189 (2000)). Generally the state is regarded as having taken upon itself the role of protecting the safety, security and property of its citizens after they waived their natural rights to protect these interests and to punish anyone who harms them. For the purpose of realizing the role that is designated for it as aforesaid, the government is given powers and authorities that involve a violation of liberty. One of the core sovereign powers given to the state in order to enforce the law and protect the security of its citizens and the public order is the power to imprison anyone who has been found guilty in a trial and who has been given a custodial sentence, together with all the invasive ancillary powers that go with it. Indeed, the imprisonment of someone who has been convicted in a criminal proceeding is the last link in the sequence of actions that comprise the criminal proceeding for which the state has responsibility throughout. This link, which concerns the realization and enforcement of the sentence, is admittedly the last stage in the aforesaid sequence of actions that comprise the criminal proceeding, but it is by no means the least important. On the contrary, to a large extent it is capable of being an indication of the effectiveness of the whole criminal proceeding. In view of the importance of the powers of imprisonment as a major link in the sequence of actions that are required to enforce the law and according to the view that the Social Contract creates a relationship of trust between the government as trustee and the citizens as beneficiaries, the divestment by the state of its powers of imprisonment that it was given by the Social Contract violates the terms of that contract and the fundamental principles on which the whole system of government is based and on which law-abiding citizens and victims of crimes rely, since, as we have said, in the Social Contract they waived the right that they themselves may bring offenders to justice (for another outlook, which some regard as a basis for a totalitarian system of government and which holds that the Social Contract can be undermined only by the individual and not by the sovereign, see Klein, ‘On the Social Contract Before the High Court of Justice,’ supra, at p. 199).

3.    I concur with the President that it is difficult to locate a constitutional basis in s. 1 of the Basic Law: the Government for determining that the power of imprisonment is a core government power that cannot be transferred to private hands. Therefore, the question is whether the transfer of this power to a private enterprise — with all that this means from the viewpoint of the public in general – violates the basic principles of the system of government in a way that makes it is possible to strike down Amendment 28 even though these principles are not enshrined in the Basic Laws. Such a constitutional move raises problems that this court has addressed in its decisions over the years (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at p. 551; HCJ 410/90 Bloom v. Knesset Speaker [45], at p. 205; HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [46], at pp. 801-802; see also A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol. 1, sixth edition, 2005), at pp. 61-62, 67-69; Y. Dotan, ‘A Constitution for the State of Israel? Constitutional Dialogue after the “Constitutional Revolution”,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 149 (1997), at pp. 177-179). It can be said that the approach  of  this court in this regard is that the examination of questions of the constitutionality of a law on the basis of fundamental principles ‘that are not enshrined in a Basic Law’ is possible, if at all, only in very exceptional and extreme cases, when the law undermines the foundations of the system of government on which the whole constitution is based. President Barak discussed the great caution that should be adopted in this regard in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], where he said:

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

And President Barak goes on to say there that even if there is a narrow margin that allows the constitutionality of a law to be examined outside the framework of the Basic Laws, this will happen only in special and extraordinary cases where the law in question undermines ‘the essence of democracy and negates the most basic characteristics required for a democratic system of government,’ such as ‘a law or Basic Law that denies the character of the State of Israel as a Jewish and democratic state’ (ibid. [19], at para. 74; see also HCJ 4676/94 Meatreal Ltd v. Knesset [47], at p. 28; A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 99). Thus, even according to the approach that it is not impossible for this court, in an appropriate case, to strike down a law that violates fundamental principles of the system that are not enshrined in the Basic Laws, this will only happen in very exceptional cases, when the law in question shakes the basic foundations of the whole constitutional and democratic system and threatens to destroy it.

4.    The phenomenon of privatization that is becoming more wide-spread in Israel has many aspects (see D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005)). But not everything can be privatized and no one would appear to dispute that certain powers and authorities that are given to government agencies may not be privatized, even by the legislative branch (see Barak-Erez, op. cit., at pp. 493-496; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 329-330). As stated above, the divestment by the state of the powers of imprisonment given to it as the sovereign authority and as the body responsible for public safety and security and for maintaining public order, and the transfer of those powers to a private profit-making corporation, violate the basic principles of the system of government in Israel. Notwithstanding, it cannot be said that the statutory arrangement in Amendment 28 threatens to shake the foundations on which the whole constitution is based, especially since the model of privatization adopted in that amendment requires the state to closely supervise the private concessionaire's activities (see ss. 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). It can therefore be said that in Amendment 28 the state admittedly divested itself of its powers of imprisonment and transferred them to private hands, but it should not be regarded as having entirely abandoned and shirked its responsibility for carrying out these actions, at least as a supervisory body.

To sum up, I agree with the President’s opinion that Amendment 28 should be struck down as it is disproportionately violates the human rights of prison inmates to personal liberty and dignity.

 

 

Justice S. Joubran

I agree with the comprehensive opinion and reasoning of my colleague the president.

The imprisonment of someone convicted in a criminal trial as the main sanction prescribed by the Penal Law does not constitute merely a marginal aspect of the criminal process, and there are even those who claim it is the main element in the modern penal process. As my colleague the president said, a prison inmate will be deprived of his liberty regardless of whether he is imprisoned in a privately managed prison or not; the walls of the privately managed prison are no higher than those of their state managed counterpart. But the essence of the prison cannot be summarized by the actual loss of liberty; despite its centrality, this characteristic cannot express the manner in which prisons serve as an institution that is sanction – an institution the entrance into and very existence of constitute the response of the state to offences against its laws.

This phenomenon of the prison and the development of its nature as a sanction carried out by the modern state are aptly described by the French philosopher Michel Foucault in his book about the ‘birth’ of prisons. Because of their great relevance to our case, his remarks are worthy of consideration:

‘In several respects, the prison must be an exhaustive disciplinary apparatus: it must assume responsibility for all aspects of the individual. His physical training, his aptitude to work, his everyday conduct, his moral attitude, his state of mind; the prison, much more than the school, the workshop or the army, which always involved a certain specialization, is “omni-disciplinary”... Lastly, it gives almost total power over the prisoners; it has its internal mechanisms of repression and punishment: a despotic discipline. It carries to their greatest intensity all the procedures to be found in the other disciplinary mechanisms. It must be the most powerful machinery for imposing a new form on the perverted individual; its mode of action is the constraint of a total education:

“In prison the government may dispose of the liberty of the person and of the time of the prisoner; from then on, one can imagine the power of the education which, not only in a day, but in a succession of days and even years, may regulate for man the time of waking and sleeping, of activity and rest, the number and duration of meals, the quality and ration of food, the nature and product of labour, the time of prayer, the use of speech and even, so to speak, that of thought, that education which, in the short, simple journeys from refectory to workshop, from workshop to the cell, regulates the movements of the body, and even in moments of rest, determines the use of time, the time-table, this education, which, in short, takes possession of man as a whole, of all the physical and moral faculties that are in him and of the time in which he is himself” (Charles Lucas, De la Réforme des Prisons (1836), at pp. 123-124)’

(Michel Foucault, Discipline & Punish: The Birth of the Prison (trans. Alan Sheridan, 1977), at pp. 235-36).

Indeed, the prison is not merely the walls that separates the inmate from the rest of society. Therefore, if one asks - what difference it makes whether the walls are owned privately or by the state? We should answer that by sending the convicted offender behind the prison walls the state has not ended its role in the sanctioning process, and in many ways the imprisonment is only the beginning and the heart of the process. Even if we say that the loss of liberty alone constitutes the offender’s punishment, it cannot be denied that the entrance into the prisons caries with is myriad effects on the inmate’s life,- whether it is restrictions laid on his way of life and on his body that are required in order to prevent his escapes and protect public safety; determining regulations that are required to maintain public order; or by controlling the inmate’s daily schedule by other arrangements required by  because the prison is a “total” institution that requires the address of every aspect of the lives of its inmates. All these are accompanied by internal sanctioning mechanisms, for the establishment and enforcement of discipline inside the prisons. Even if we do not see in all of these ‘punishment’ in the traditional sense, we cannot disregard the fact that the nature of the prison as a sanctioning institution revolves around these characteristics, when each and every moment in the lives of the inmates is dictated and formed by them. Thus, it is possible to claim that all of these actions carried out against the prison inmate in practice constitute the very heart of the exercise of sovereign force against the individual, far beyond the mere decision to send him behind bars.

It follows that the transfer of the management of a prison to private hands does not merely constitute a privatization of powers that are ancillary or supplementary to the punishment, but the divestment by the state of a central layer in its sovereign authority to punish its citizens. Even if it is possible to accept this decision as a matter of policy, from the perspective of the prison inmates it is an unacceptable step. As stated, all of their lives inside the prison walls, beyond the actual decision to imprison them, are replete with the exercise of sovereign force, which regulates and disciplines their lives and their bodies. The transfer of these powers over the inmates to private hands effectively makes ‘pseudo-subjects’ of the private enterprise. Even though the powers of that enterprise over the inmates do not go down to the very root of punishment in its traditional sense and do not include the actual decision to deprive them of their liberty, and even if the powers given to them to impose disciplinary sanctions are limited in scope (although they should not be treated lightly even within that scope), this does not negate the fact that the private enterprise has overwhelming control over their lives, through the accumulation of all these minute regulations of these lives — from the use of force against the inmates, placing them in isolation, examining their naked bodies, forcing them to give urine samples, confiscating their possessions, searching their bodies, through maintaining order, discipline and security in the prison, ending in making arrangements for the welfare, health, rehabilitation, training and education of the inmates. Giving this control to a private enterprise, which, despite the supervisory restraints retained by the state, is still motivated in its actions by commercial considerations, constitutes a violation of the dignity of the inmates as human beings that cannot be accepted.

Therefore, I agree as aforesaid with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice M. Naor

I agree with the finding of my colleague the president that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’) unconstitutionally violates two constitutional rights that are enshrined in the Basic Law: Human Dignity and Liberty. I agree with her approach that the right to personal liberty (s. 5 of the Basic Law) and the right to human dignity (s. 2 of the Basic Law) of those inmates who are supposed to serve their sentences in the private prison is violated by the ‘actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise’ (para. 18 of the president’s opinion). In view of the importance of the constitutional question that has arisen in this case and the existence of certain differences in approach, I would like to set out my position.

The violation of the constitutional rights enshrined in the Basic Law: Human Dignity and Liberty

The violation of liberty

2.    Even though imprisonment ipso facto violates liberty, when it is implemented by the state, the violation is proportionate (see and cf. CrimA 4424/98 Silgado v. State of Israel [12], at p. 550). The question before us is simply whether the identity of the party that implements the imprisonment (a private profit-making enterprise) is likely to cause an independent violation of the right to liberty that is additional to the violation that arises from the actual imprisonment. My colleague the president answers this question in the positive, and I agree with her position. Imprisonment that is carried out by a private profit-making enterprise causes a separate violation of the right to liberty. This violation may vary in its degree: it may be a minor violation, such as when the private enterprise exercises ‘technical-administrative’ sovereign powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15]), and it may be a serious violation, such as when the private enterprise exercises the main and invasive powers of the state that involve broad discretion.

3.    The doctrine of the delegation of administrative powers allows the state to avail itself of the ‘assistance’ of a private enterprise (Philipovitz v. Registrar of Companies [15], at p. 429; CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). This doctrine applies mainly in administrative law (see: Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 308-311; D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008)). By analogy to this doctrine, were the concessionaire to exercise merely a ‘technical’ or ‘administrative’ power, it could be said that even if a separate violation of the right to liberty were proved, it would only affect the periphery of the right, or alternatively it would be an insignificant violation. Such a determination would probably justify judicial restraint (for the requirement that a violation is a ‘real’ one, see HCJ 10203/03 National Census Ltd v. Attorney-General [48], at para. 17 of my opinion).

In our case, however, the concessionaire is acting as an extension of the state in order to exercise one of its main and most invasive powers — the power to enforce the criminal law and to maintain public order. We are not speaking merely of a ‘technical’ or ‘administrative’ power. The concessionaire is wielding, on behalf of the state, real sovereign authority that involves the exercise of discretion (on discretion as ‘the most important part of authority,’ see I. Zamir, Administrative Authority (vol. 2, 1996), at p. 546). Inter alia, the concessionaire has been given powers to maintain order and discipline in the prison and to prevent the escape of inmates (as explained in para. 31 of the opinion of my colleague the president). The power given to manage the prison — the exercise of authority, power and discipline — is clearly recognized as one of state sovereignty and requires discretion when exercising it (see and cf. HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [49], at p. 693; see also: A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008), at p. 117).

Therefore the law does not merely enshrine a ‘policy of privatization’ (see for example HCJ 5167/00 Weiss v. Prime Minister [50], at p. 471, but it changes the distribution of the state’s sovereign powers. I agree with the president that powers that are characterized by the exercise of sovereign authority in order to enforce the criminal law and maintain public order, when they are exercised by a private profit-making enterprise, inflict a separate and real violation of the constitutional right to liberty. Therefore the judicial scrutiny required lies in the field of constitutional law.

4.    My colleague bases her determination regarding a violation of liberty on the approach that the legal system in Israel has a basic principle that the state has a monopoly on the use of organized force, and this basic principle is a part of the constitutional right to personal liberty (para. 26 of her opinion). In my opinion, it is possible to determine that our case involves a violation of the constitutional right to liberty even without resorting to a fundamental principle regarding the system of government. My approach is that in view of the nature of the criminal proceeding and the fact that imprisonment is a part of the criminal trial and criminal law, the transfer of responsibility for it to private hands in itself violates liberty as a constitutional right in Israel.

5.    According to my approach, the distinction between the handing down of a custodial sentence and its de facto implementation is an artificial one; we are speaking of one process of administering criminal justice that involves various levels of discretion (see and cf. P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations” 11 Current Issues in Crim. Just. 153 (1999), at pp. 157, 159, 170). According to my approach, both the sanction (imposing the custodial sentence) and its actual enforcement (in the prison) are a part of the ‘process of administering criminal justice’ and both involve the exercise of discretion. The tasks imposed on the inmates in the prison, as a part of ‘prison management,’ are also an integral part of the sentence imposed on them. This is obvious when dealing with matters of inmate discipline (see and cf. R. Harding, ‘Private Prisons,’ 28 Crime and Justice 265 (2001), at pp. 273-278, which is cited in the ‘Knesset’s Position’ in paras. 244-248). It should be recalled that the law may also affect to some degree the duration of the term of imprisonment (see para. 27 of the opinion of my colleague the president; s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001). Indeed, imprisonment is a part of criminal law and procedure (see and cf. L. Sebba, ‘Human Rights and the Sentencing System,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 183 (1996), at p. 188). Against this background, an opinion has been expressed that the question of privatizing prisons should be considered within the framework of criminal law rather than within the framework of the law concerning privatizations in general:

‘… prison privatization could be reviewed in conjunction with criminal justice policy and not just as part of the question of privatization more generally’ (C.M. Donnelly, Delegation of Governmental Power to Private Parties: A Comparative Perspective (2007), at p. 76.

See also S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L. J. 437 (2005), at pp. 544-545; Donnelly, op. cit., at p. 256.

6.    The constitutional right to personal liberty has been interpreted broadly, and it has been held that imprisoning a person ipso facto violates his constitutional right to liberty (see HCJ 6055/95 Tzemah v. Minister of Defence [5], at p. 261 {656}). When we say that the imposition of the custodial sentence and its actual implementation in the prison are a part of the criminal trial and criminal law, it follows that the manner in which the imprisonment is implemented — including the identity of the party implementing the imprisonment — is also ‘covered’ by the constitutional right to personal liberty. The whole process of criminal justice, including the element of implementing the actual imprisonment, is subject to the constitutional restrictions: ‘Most of the government activity in the field of criminal law — whether legislative, administrative or judicial — is now subject to the Basic Laws. Criminal law and its enforcement need to be constitutional’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ 13 Mehkarei Mishpat (Bar Ilan Law Studies) 5 (1996), at p. 13). As President Barak said, the administration of criminal justice ‘is naturally closely connected to human rights. It protects the right of every human man to dignity, physical integrity and property’ (CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 654; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [52], at p. 81 {512}).

7.    One might ask how it is possible to deduce from the right to ‘liberty’ that the state has a duty to exercise its powers in a certain way, i.e., by itself. The answer to this is twofold.

In the constitutional sphere, the violation of liberty as a constitutional right should satisfy the conditions of the limitations clause. The limitations clause is likely to require the state to exercise its powers in a manner that legitimizes the violation of the constitutional right. The centre of gravity therefore focuses on whether the violation is constitutional within the context of the limitations clause, which has great weight in determining the constitutional balance in the criminal sphere (Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ supra, at pp. 13-14).

In the administrative sphere, the value of liberty is also likely to require the state to exercise its powers in a certain way. Thus, for example, this court has held that the power of a prison employee in carrying out his duties does not give him the authority to compel the inmates to carry out the work of cleaning the prison cells themselves: ‘We find ourselves here in the area of the liberty of the citizen, and the rule is that in such a case great care should be taken only to deprive him of liberty to the degree and in the manner that are clearly dictated by the law’ (per Justice Agranat in CrimA 40/58 Attorney-General v. Ziad [53], at p. 1364, and therefore ‘it should be concluded, in the absence of any conflicting evidence, that it is practically possible that [the cleaning of the cells] will be done by persons whose job it is and who will be appointed specially for this task’ (Attorney-General v. Ziad [53], at p. 1635). Thus the state was de facto required to carry out the cleaning of the prison cells itself or through another party, but not through the prison inmates themselves (as long as there is no contrary stipulation in legislation).

Moreover, in the theoretical sphere, constitutional interpretation is carried out with a ‘broad perspective’ (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 24 of the opinion of President Barak). Thus, with regard to the word liberty the court should also give an interpretation that reflects values that are enshrined in the social consensus and in the ethical principles that are shared by society (see the remarks of my colleague the president at para. 53 of her opinion). This is the place to consider the interpretation of the word liberty in greater detail.

8.    Montesquieu says in The Spirit of Laws:

‘Il n’y a point de mot qui ait reçu plus de différentes significations, et qui ait frappé les esprits de tant de manières, que celui de liberté’ (Montesquieu, De L’Esprit des Loix (The Spirit of Laws) (1748), XI, 2).

‘There is no word that has been given more different meanings, and that has influenced the human spirit in more ways, than the word liberty’ (tr. by the editor).

The word liberty has a strong relationship with political philosophy (for a survey, see Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ supra, at pp. 117-122; see also J.P. Day, Liberty and Justice (1987), at p. 101). Liberty is a central element in humanistic thinking (for the importance of liberty in Rawls’ theory of justice, see J. Rawls, A Theory of Justice (1971), at pp. 201-205; J. Rawls, Political Liberalism (1993), at p. 181; see also Y. Dahan, ‘On Democracy of Property Owners and Liberal Socialism: Economy and Welfare in Rawls’ Theory of Justice,’ in The Philosophy of John Rawls (D. Hyed and D. Attas eds., 2007) 126). Liberty is a central element in every definition of democracy (for the influence of various definitions of democracy and liberty on the legitimacy of privatizing prisons, see in detail Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 84-96).

We can use this theoretical basis to interpret the right to ‘liberty.’ It should be remembered that the question is not how ‘liberty’ is understood in the political philosophy of one person or in the moral beliefs of another. The question is how the right to ‘liberty’ is conceived as one of the values of the State of Israel (see and cf. A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 318). The court is supposed ‘to reflect the outlooks of society… [and to give] expression to the values of the constitution as they are understood by the culture and tradition of the people, as it moves across the face of history’ (per President Barak in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 425). These are values that reflect ‘deeply held beliefs of modern society’ (ibid. [8], at p. 424; see also R. Dworkin, Taking Rights Seriously (1977), at pp. 116-117; cf. also the outlook of John Rawls regarding the overlapping consensus (Rawls, Political Liberalism, supra, at pp. 144-150), and the moral role of the Supreme Court in determining constitutional values (Rawls, op. cit., at pp. 227-240).

9.    My colleague the president cited in her opinion the remarks of two of the classical political philosophers of the seventeenth century, Thomas Hobbes and John Locke. This classical approach that is reflected in her opinion is still valid today. A clear expression of the approach accepted in the modern state, according to which it is part of the responsibility of the state to ensure public order and enforce the criminal law within its territory by itself, appears in the writings of Max Weber on sovereign authority:

‘Today the relation between the state and violence is an especially intimate one… a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’ (Max Weber, ‘Politics as a Vocation,’ in H.H. Gerth and C. Wright Mills (eds.), From Max Weber: Articles in Sociology 77 (1946), at p. 78).

It would appear that even those who espouse the ‘night watchman state’ philosophy, in which the role of the state is limited solely to protecting the lives and property of citizens, recognize the duty of the state to enforce public order:

‘In the nineteenth century, the philosophy of the laissez faire state was widespread. According to this approach, the state has a very limited role, mainly in the field of security… It is obliged to maintain an army, a police force, courts and prisons… It is not supposed to involve itself in other fields of social and economic life beyond what is essential for maintaining public order’ (Zamir, Administrative Authority (vol. 1), at p. 31).

Even those who espouse capitalism as a necessary condition for freedom (M. Friedman, Capitalism and Freedom (1962)) are of the opinion that the state has two ‘clear and self-evident’ duties:

‘[the first duty is] the protection of individuals in the society from coercion whether it comes from outside or from their fellow citizens. Unless there is such protection, we are not really free to choose… [the] second duty goes beyond the narrow police function of protecting people from physical coercion; it includes “an exact administration of justice”’ (Milton and Rose Friedman, Free to Choose (1980), at p. 29).

Milton and Rose Friedman base themselves in their book on Adam Smith, the author of the ‘invisible hand’ theory, who defined the basic role of the state as follows:

‘According to the system of natural liberty, the sovereign has only three duties to attend to; … first, the duty of protecting the society from the violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society (Adam Smith, Wealth of Nations (1776, Book IV, Chap. IX)’ (Friedman and Friedman, Free to Choose, at pp. 28-29).

It would appear that on this basis it can be said that an accepted approach is that ‘by virtue of the basic principles of liberal democracy, certain products need to be included in the public sphere in such a way that privatizing them is not legitimate’ (Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-330; see also B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583, at pp. 588, 654-655, 660), where he discusses the role of the state in ‘protecting the public and maintaining public order’; also cf. E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at pp. 92-93, and the references cited there).

10. In my opinion, on the basis of the classical political philosophers that were discussed by my colleague the president in her opinion, and on the basis of the aforesaid and the values of the State of Israel as a Jewish and democratic state, it is possible to interpret the word liberty in the Basic Law: Human Dignity and Liberty as having two aspects: a ‘negative’ aspect (‘The freedom that is guaranteed to every human being by the law, i.e., to conduct himself and act, think and speak however he wishes, unless the law imposes on him a duty to act in a certain way, is what we have called the “supremacy of the law”’ — see H.H. Cohn, The Law (1996), at p. 138; also see Day, Liberty and Justice, supra, at p. 103); and a ‘positive’ aspect, that may require the state, in certain circumstances and in a narrow range of basic roles, to exercise its powers itself. This was discussed by Isaiah Berlin:

‘The first of these political senses of… liberty…, which… I shall call the “negative” sense, is involved in the answer to the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?” The second, which I shall call the “positive” sense, is involved in the answer to the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”’(Isaiah Berlin, ‘Two Concepts of Liberty’ (1958), in Isaiah Berlin, Four Essays on Liberty (Oxford, 1969)).

This approach also finds expression in the context before us. Thus, for example, the ‘Right to liberty and security’ in art. 5 of the European Convention for the Protection of Fundamental Rights and Freedoms, which has also been adopted in the United Kingdom in the Human Rights Act 1998, has been interpreted as having a ‘positive’ aspect that in certain circumstances prevents imprisonment by private enterprises:

‘… the positive obligations recognized under Article 5 have been relatively limited. It has been accepted that Article 5 imposes an obligation to protect vulnerable individuals from deprivation of liberty by private actors’ (J. Wadham, H. Mountfield, C. Gallagher, E. Prochaska, Blackstone’s Guide to The Human Rights Act 1998 (fifth edition, 2009), at p. 168).

(For further discussion of the various meanings of liberty, see in general P. Pettit, ‘Law, Liberty and Reason,’ in Reasonableness and Law (G. Bongiovanni, G. Sartor, C. Valentini eds., 2009) 109).

11. One might ask whether the aforesaid interpretation of the word liberty overly limits the power of the state to transfer to private enterprises the responsibility for carrying out certain tasks. The answer to this is also twofold.

First, we are dealing in this case with privatization in the context of criminal law. Establishing and managing a prison is part of law enforcement and the administration of criminal justice:

‘The construction and operation of a prison has traditionally been a government responsibility and an indispensable part of the administration of the criminal law. Corrections is not separate from the criminal law; rather, it is a component of an integrated criminal justice system. Just as the state is responsible for promulgating the criminal code, it also has a responsibility to see that the laws are enforced and its offenders are punished. Transferring the provision of corrections to the private sector is tantamount to transferring an important element of government responsibility’ (J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987), at p. 669).

In this context, in the field of criminal law enforcement, the law violates the right to liberty in its most basic sense — personal liberty:

‘The danger of self-interested decision-making can be even more strikingly illustrated in the involvement of private actors in the administration of the criminal justice system, where a very fundamental right, the right to liberty, is at stake’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

The power that was transferred from the state to a private profit-making enterprise in our case — the power to manage and carry out sentences imposed by the criminal law — is a complex and very sensitive power. This is not an ‘ordinary’ administrative power, since is includes a predominant element of discretion in the exercise of authority. This was discussed by Field:

‘Not only is corrections one of the government’s most basic responsibilities, it is probably the most sobering. The ability to deprive citizens of their freedom, force them to live behind bars and totally regulate their lives, is unlike any other power the government has’ (‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

Similarly, Justice Zamir said:

‘The management of a prison is a very complex task. Just as it requires great power, it also requires great sensitivity… The power of the Israel Prison Service is not similar, from the viewpoint of its nature and scope, to an ordinary administrative power… Because of the great dependence of inmates on prison officers, and because of the concern that the power wielded by prison officers may be abused, since it is a power that is exercised behind tall walls, there is a very great need for judicial scrutiny of the Israel Prison Service. Admittedly, it is the court that sent the inmates to prison; but now, when they are behind the prison walls, the court is the protector of prison inmates’ (PPA 7440/97 State of Israel v. Golan [54], at pp. 7-8).

Judicial scrutiny of an administrative power of this kind is exercised not only in the field of administrative law, but also in the field of constitutional law. As I have shown, a transfer of power to ‘manage a prison’ from the state to a private profit-making enterprise is a provision from the field of criminal law that amounts to a violation of the constitutional right to personal liberty. As such, it should satisfy the tests of the limitations clause (see Y. Karp, ‘Criminal Law Legislation in Light of the Basic Laws,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 175 (1996), at p. 276).

It should be noted that even with regard to an ‘ordinary’ administrative power there may be matters that will usually be managed by the state itself. Thus, for example, it has been held with regard to the power of the attorney-general to appoint a prosecutor in criminal trials that ‘it should be held that for certain types of offences — including the main offences of criminal law — the prosecution should be conducted by the District Attorneys’ offices’ (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 657) and that ‘The rule is that where a power has been given to appoint a person as an organ of a competent authority or to delegate a sovereign power to him, that person should be a part of the sovereign authority’ (ibid. [18], at p. 655).

12. Second, it is possible to say that the law before us is an extreme expression of the ‘“age of privatization” in which we find ourselves today’ (per my colleague the president in CrimFH 10987/07 State of Israel v. Cohen [22], at para. 14 of her opinion, and see also paras. 7-13 of the opinion of Justice Rubinstein). It was with good reason that Justice Cheshin pointed out in Multimedia Co. Ltd v. Israel Police [49] that ‘We have not yet arrived at the privatization of the police. It is also to be hoped that we will never do so’ (ibid. [49], at p. 689). But it would appear in a certain sense that we have.

Our judgment, however, does not determine any hard and fast rules regarding the broad range of products and services that may be privatized. The ‘age of privatization,’ which seeks to reduce government involvement in economic and social life, includes a broad range of matters that may fall within its scope: the sale of publicly owned companies; carrying out government activity or building public infrastructures through private contractors (‘outsourcing,’ as in our case); changing over from the supply of publicly funded products and services to their supply in return for payment (‘commercialization’), etc. (see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 467-478). Every type and case of privatization should be considered on its merits (for an all-inclusive model proposed in the field of administrative law, on the basis of the principle of constitutionality, see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-333; for an all-inclusive model proposed in the field of constitutional law, see Barak-Erez, op. cit., at pp. 492-498; for another model, which is based on the principle of ‘publicization,’ see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, who takes for granted the actual legitimacy of privatization (ibid., at p. 37), but raises constitutional questions while discussing theoretical justifications for ‘publicization’ (ibid., at pp. 77-78)). Public law is one entity, but its application may change from one type of privatization to another and according to the circumstances of the case.

13. I should emphasize that we are dealing with a privatization of a power that is integral to criminal law. The interpretation give above to the right to ‘liberty’ was given in this context. The aforesaid interpretation does not lay down any hard and fast rules with regard to other senses of the right that may be derived from it with regard to the privatization of government services in the civil sphere (for privatization in the field of health care, see HCJ 4253/02 Kariti v. Attorney-General [55]; for privatization in the field of welfare, see A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). Therefore, the interpretation given to the right to ‘liberty’ in our case does not shed any light on the nature of the ‘economic constitution’ in Israel or enshrine the values of the State of Israel as a ‘welfare state’ (see A. Barak, ‘The Economic Constitution of Israel,’ 4 Law and Government (Mishpat uMimshal) 357 (1998), at p. 378). The identification of an ‘economic constitution’ is a complex matter that is not required in this case (see Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at pp. 588, 654-655, 669; for further discussion of the difficulties involved in the identification of the economic constitution in the institutional sphere, see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 493-494, and Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 341-343; on the range of ideological approaches to this matter with regard to public products, see Dotan and Medina, op. cit., at pp. 301-303; see also different approaches that have been expressed on this matter in case law, such as in CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [56], at p. 446; CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [57], at p. 782; for further discussion of these and other judgments, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 48-51; see also HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650).

Consequently, our judgment does not depart, in my opinion, from the premise of ‘constitutional neutrality’ in the context of political economics (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386). All that has been said in this case, in brief, is that in the field of criminal law a transfer of power to enforce the criminal law and to maintain public order at the imprisonment stage, when we are dealing with a power that has a predominant element of discretion for exercising authority, from the state to a private profit-making enterprise, violates the constitutional right to liberty. It therefore needs to satisfy the conditions of the limitations clause.

The violation of human dignity

14. As I have said, I agree that there is also a violation of the constitutional right to human dignity. I would like to explain this violation from an additional perspective.

15. It is well established in case law that the principle of equality is a part of the constitutional right to human dignity, according to the ‘intermediate model’ adopted in the case law of this court with regard to the interpretation of the right to human dignity:

‘It is also possible to include within the scope of human dignity discrimination that does not involve degradation, provided that it is closely connected with human dignity as expressing the autonomy of the private will, the freedom of choice and the freedom of action, and similar aspects of human dignity as a constitutional right’ (Movement for Quality Government in Israel v. Knesset [19], at para. 38 of the opinion of President Barak).

In my opinion, the law violates the principle of equality between inmates. The violation of equality is reflected in the fact that the law creates a distinction between two groups of prison inmate: one group will be imprisoned in a private prison that is managed by a profit-making concessionaire, and the other group will be imprisoned in a state prison (see appendix H of the concession agreement, which gives details of the categories for selecting inmates for the private prison). The first group, which will be imprisoned in a private prison, is discriminated against relative to the second group, since the private profit-making enterprise is not subject to the same ‘civil service ethos in the broad sense of this term’ (per my colleague the president, at para. 26 of her opinion); in particular, it is tainted by an inherent conflict of interests in exercising sovereign authority, because it is an entity that is motivated by considerations of profit, which are improper considerations when exercising a sovereign power regarding the imposition of imprisonment and the manner in which it is imposed. This is an a priori conflict of interests that does not require any specific factual proof (see and cf. HCJFH 5361/00 Falk v. Attorney-General [59], at paras. 16 and 18 of the majority view in the opinion of Vice-President Mazza). This inherent conflict of interests creates a distinction that contains a relevant difference for the purpose of the discretion in exercising the power. The conclusion is that the first group that is imprisoned in the private prison are victims of discrimination. This discrimination is closely connected to human dignity according to the ‘intermediate model’ (see and cf. the requirement of equality in the possibility of consuming products and services in a privatization of the commercialization type, in Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 299-300, 330).

16. In her opinion, my colleague the president discussed the inherent conflict of interests. I agree with her remarks and will add two perspectives: first, the modus operandi of commercial confidentiality that typifies the concessionaire conflicts with the modus operandi of transparency and openness that typifies the civil service as a part of the concept of accountability (on this idea, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 68-69); second, and following from this, the disparities in knowledge between the concessionaire and the state, despite its supervisory role, may be abused for the self-interest of the concessionaire and to the detriment of the inmates in its custody (R. Mandelkern and A. Sherman, ‘The Privatization of Social Services Implementation in Israel,’ (State Responsibility and the Limits of Privatization Research Project, The Centre for Social Justice and Democracy in Memory of Yaakov Chazan at the Van Leer Jerusalem Institute), at para. 2.3). This conflict of interests can also be understood from an economic perspective, as Prof. Chaim Fershtman says:

‘Private ownership changes the inducements according to which the service is managed. It affects the accountability of the service providers to the recipients of the service and to the public. Considerations of maximizing profit — even if they are restrained by regulation — will change the product itself… Even if the payment for a certain prison will be based on the existing number of prison places, it is clear that if the prison is full an additional prison will be needed to make additional profits. The opposition to private ownership is based on the desire that industry, which operates on a profit-making basis, will not influence or encourage imprisonment’ (C. Fershtman, The Limits of Privatization (2007), at p. 25).

And as Donnelly says:

‘… the private interest of maximizing profit may conflict with the public interest in sound correctional policies: private managers in prisons may choose to lower costs by minimizing staff numbers, hiring under-qualified guards, or providing minimally adequate but substandard care’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 91-92).

Against this background, I agree with my colleague the president that the supervisory mechanisms in the law (including s. 128AE of the law) do not allay the concern that the discretion in exercising a power will reflect the business or other interests of the private enterprise in such a way that violates the rights of the inmates (see also Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 136). The concern is built into the discretion of a private entity. This was discussed by Walzer, who said that a private prison —

‘… exposes the prisoners to private or corporate purposes, and it sets them at some distance from the protection of the law’ (M. Walzer, ‘Hold the Justice,’ New Republic (April 1985), at p. 12).

As Donnelly says:

‘Private prison operators make decisions affecting the liberty interests of prisoners on a daily basis — even though they are incapable of removing their own profit interest from these decisions’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

17. Section 76 of the Prisons Ordinance [New Version], 5732-1971, provides that the Israel Prison Service will engage ‘in the management of the prisons, the guarding of inmates and everything involved therein.’ As a rule, a power ‘to manage a prison’ is inherently ripe for abuse. A clear example of this concern relates to prison inmates’ work. When the state, through the Israel Prison Service, is responsible for the inmates’ work, the concern that the sovereign power to manage the prison will be abused is weaker, since the state regards the purpose of the inmates’ work as mainly rehabilitative, whereas ‘the economic interests involved in the inmates’ work, although they exist, are only marginal’ (per Justice Zamir in HCJ 1163/98 Sadot v. Israel Prison Service [21], at p. 836; see also the remarks of Justice Beinisch at p. 864: ‘The work of a prison inmate… from the outset involves restrictions and is not for making profit’). By contrast, when the private enterprise is responsible for inmates’ work, a problem of an inherent conflict of interests clearly arises. Does the private concessionaire also share the outlook that ‘the work of inmates serves important purposes from the viewpoint of the inmates, the Israel Prison Service and the general public’ (Sadot v. Israel Prison Service [21], at p. 837, per Justice Zamir)? I think that the answer to this is no, as Peleg says:

‘The privatized enterprise tends to regard itself as a private concern that is accountable to itself and its owners. Its purpose is to maximize its profits. It seeks to be efficient and to reduce costs; it seeks to be profitable. Therefore the welfare of the individual is not one of its priorities… A private prison is capable of violating the dignity and liberty of the inmate on a daily basis, in view of the existence of an inherent interest in keeping as many inmates as possible in the prison’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 38).

In this situation, there is a concern that the sovereign authority given with regard to inmates’ work will be abused (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997), at p. 381, which was cited in the Knesset’s Position in paras. 227-276). This concern becomes greater when we are speaking of a weak population, like the one in our case, which concerns a population of prison inmates who have lost their liberty (see Peleg, op. cit., at p. 63). The aforesaid concern, in view of the character and nature of the power under discussion, is an inherent concern that is real and immediate (cf., in the context of administrative law, HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at pp. 212-213; Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at p. 310).

18. In my opinion, the inmate’s work for the private concessionaire turns him into a ‘means of making profits’ in a way that violates  dignity. The ‘intermediate model’ for a violation of human dignity is also sufficient for reaching this conclusion, and there is no need for the ‘degradation’ model.

‘When a person is treated not as an “end in himself” but as a “means only,” the value of human dignity is violated’ (A. Parush, ‘Moral Responsibility, Criminal Liability and the Value of Human Dignity — On Some Recent Developments in Israeli Criminal Law,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 87 (1996), at p. 95). Recognizing a human being as an end and not as a means is ‘closely and objectively’ related to human dignity as a part of the ‘intermediate model’ in the interpretation of the constitutional right to human dignity (see Barak, Constitutional Interpretation, at pp. 406-407, 416). According to the ‘intermediate model,’ which was adopted as aforesaid in the judgment in Movement for Quality Government in Israel v. Knesset [19], ‘human dignity regards a human being as an end and not as a means of achieving the ends of others’ (Barak, Constitutional Interpretation, at p. 421). Admittedly, inmates’ work is only a part of the activity in the prison, and according to law the concessionaire is also responsible for the activity of ‘work training and providing education’ (s. 128L(a)(3) of the law), but this fact does not negate the actual violation of the constitutional right but merely concerns the question of the proportionality of the violation.

19. In summary, the violation of the principle of equality between inmates is built into the manner in which the private enterprise exercises its discretion when it exercises the power to ‘manage the prison.’ This violation of the principle of equality violates the constitutional right to human dignity — a violation that is separate from the violation of human dignity as a result of the actual imprisonment. It falls within the scope of the ‘intermediate model’ of the constitutional right to human dignity. It should be recalled that the law violates equality with respect to a very weak and vulnerable sector of society, which is a minority group of prison inmates who have lost their liberty (see M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State: Criminal Law Issues,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 27 (1996), at pp. 68-69). This violation should also satisfy the conditions of the limitations clause.

The constitutionality of the violation of rights — the limitations clause

20. The determination that the constitutional rights to personal liberty and human dignity have been violated in this case does not rule out any kind of cooperation between the public sector and the private sector in managing a prison. The limitations clause makes it possible to ‘legitimize’ a violation that satisfies its conditions. I agree with my colleague the president that in our case the constitutional scrutiny focuses on the test of proportionality (with its three subtests).

I do not rule out the possibility of cooperation in the management of a prison if it is proportionate and constitutional. Administrative law allows cooperation as aforesaid on the level of the state availing itself of ‘assistance’ even without an express provision in primary legislation (‘the law is presumed to have granted the power, since its purpose is to allow the person having the authority to receive assistance from others in exercising his authority,’ and the scope of the assistance ‘varies from one case to another and from one function to another,’ (Philipovitz v. Registrar of Companies [15], at p. 429)). In my opinion, the fact that in our case the cooperation was expressly enshrined in primary legislation gives the executive authority a broader margin of appreciation than mere ‘assistance’ (for the legislature’s margin of appreciation in primary legislation, see Israel Investment Managers Association v. Minister of Finance [7], at p. 386). But in view of the violation of constitutional rights, this margin of appreciation, which derives from enshrining the privatization in primary legislation, needs to satisfy the tests of the limitations clause, including the constitutional proportionality test:

‘The separation of powers gives the role of formulating a position as to the proper arrangement to the legislature, but the legislature’s freedom of choice is subject to constitutional restrictions. These are not ideological restrictions of a political nature… The constitutional restriction imposed on the legislature is the one provided in the limitations clause’ (HCJ 2334/02 Stanger v. Knesset Speaker [60], at pp. 794-795).

 I shall therefore focus on the proportionality test.

The proportionality test

21. ‘The violation of the rights of the prison inmate is subject to the general test of proportionality’ (Tzemah v. Minister of Defence [5], at p. 266 {662}). The proportionality test should be examined against the background of the purpose of the law. I agree with the position of my colleague the president that the purpose of the law is an economic purpose combined with an attempt to improve prison conditions, and that this is a proper purpose (see para. 45 of her opinion; on the urgent need to improve prison conditions in Israel see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at paras. 12-14 of the opinion of Justice Procaccia). The question is whether the measure chosen in the law — a massive privatization of the power of managing the prison, including a predominant element of discretion when exercising authority — is a proportionate measure for the purpose of realizing the aforesaid purpose. In my opinion, the key to answering this question lies in the second subtest and the third subtest of proportionality and how they interrelate. I should point out here that I agree with the determination of my colleague the president that the supervisory measures set out in the law are incapable on their own of achieving a proportionate balance with regard to the law before us (para. 43 of her opinion).

22. The second subtest of proportionality (the least harmful measure test) stipulates that of the possible measures that realize the purpose of the legislation, the measure that violates the constitutional right to the smallest degree is chosen: ‘The legislative measure is compared to a ladder, which the legislature climbs in order to achieve the legislative purpose’ (Israel Investment Managers Association v. Minister of Finance [7], at p. 385).

As we have said, we are dealing with a law in the field of Israeli criminal law. Within the context of the question of proportionality, we need to examine ‘the question of whether there are alternative less harmful measures that achieve the purpose which the provision of criminal law is intended to promote’ (M. Gur-Arye, ‘The Effect of the “Constitutional Revolution” on Substantive Criminal Law Following the Silgardo Judgment,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 325, at p. 330). From the state’s position it can be seen that in the course of preparing the law, a ‘softer’ option that the model that was finally adopted in the legislation was considered. This ‘softer’ option is based on the ‘French model’ of privatization (in the sense of ‘outsourcing’), in which the concessionaire is given powers to build and operate the prison on a regular basis (maintenance, food, laundry, providing medical services), whereas the powers of management, security and discipline enforcement in the prison are retained by the state (hereafter: ‘the French model’; details of the French model appear in the ‘Knesset’s position’ that was filed in this court, in paras. 118 and 121-123). Section 2 of the French law concerning services in a state prison (Loi n°87-432 du 22 juin 1987 relative au service public pénitentiaire) provides that the state may authorize a private enterprise to build and operate a private prison, provided that it is not given powers relating to management, record-keeping and surveillance of inmates.

The French model is one of a partial privatization rather than a complete one (see U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 102-103). This model may extend the scope of the ‘assistance’ that may be received from a private enterprise to include fields that are not technical, provided that these do not include the power to ‘manage the prison.’ It should be noted that the constitutionality of a law with a similar model of a ‘partial privatization’ was upheld by a majority in the Supreme Court of Justice of Costa Rica (see Sala Constitucional de la Corte Suprema de Costa Rica, Sentencia N. 2004-10492 de fecha 28 de septiembre de 2004), which is discussed in J. Troen and L. Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions (Knesset Research and Information Centre (10 August 2006)), at pp. 21-25; see also the Knesset’s Position, at paras. 258-268).

The main reason given in the state’s pleadings for rejecting a model similar to ‘partial privatization’ is that on the basis of the experience accumulated around the world, it may be expected that there will be difficulties in operational collaboration and problems in the division of responsibility between the Israel Prison Service and the concessionaire (see para. 18 of the respondents’ response, as discussed in para. 48 of the opinion of my colleague the president). Against the background of this position, my colleague the president holds that the law satisfies the second subtest, since it is not possible to say whether the ‘French model’ will satisfy the purpose of the law to the same degree or to a similar degree as the model that was ultimately adopted by the law (para. 49 of her opinion). It will be recalled that the second subtest requires the less harmful measure to realize the purpose of the legislation ‘to the same degree or to a similar degree’ as the measure chosen by the legislature (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak).

23. In my opinion, the state’s argument for rejecting the ‘French model’ on the basis of ‘experience accumulated around the world’ is unconvincing. In Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], the state presented what constituted in my opinion weighty arguments for rejecting the alternative measure proposed in that case, and it proved that the proposed alternative was totally impractical in view of the security position (Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 20 of my opinion). In our case, the state did not present any such weighty considerations. The ‘partial privatization’ model, like the ‘French model’ has not been tried and tested in Israel ‘in the field.’ Comparative research shows that ‘softer’ models of partial privatization have been operating for years in European countries such as France and Germany (see Troen and Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions, supra, at p. 5; Harding, ‘Private Prisons,’ supra, at p. 274). Therefore, in my opinion, the state did not succeed in showing that the ‘French model’ cannot be implemented in Israel. Consequently, it is possible that it could already have been determined at this stage that the law is unconstitutional because it does not satisfy the second subtest. Notwithstanding, it would not be right, in my opinion, to decide the question of the second subtest on the basis of burdens of proof. The fundamental question of who bears the burden of proof at the proportionality stage has not yet been determined in this court, and there are different approaches on this subject (see Movement for Quality Government in Israel v. Knesset [19], at paras. 21-22 of the opinion of President Barak; although in that case the court reached the conclusion that the burden of proof regarding the second subtest rests with the state, see para. 69 of the opinion of President Barak). It should be recalled that ‘frequently there are several models that satisfy the requirements of the limitations clause. All of these fall within the “margin of limitations.” The choice between them rests with the legislature’ (Stanger v. Knesset Speaker [60], at p. 795). In view of the margin of appreciation of the legislature in enacting primary legislation, the state ‘passes’ the second subtest.

According to my approach, however, this does not mean that the state can simply ignore the ‘partial privatization’ model. The ‘partial privatization’ model may serve as a comparative basis when implementing the third subtest of proportionality. Neither the concessionaire nor the state denies the constitutionality of this model. According to the concessionaire, ‘for the purpose of adopting the French model, there was no need to make any legislative amendments, and it was possible to rely on existing legislation’ (para. 30.5.3 of the third respondent’s response to the petition); in a similar vein, counsel for the state said during the hearing before us, in reply to the court’s question why the state did not choose legislation along the lines of the ‘French model,’ that ‘this did not constitute a privatization at all, nor did it involve a transfer of powers… For this, not even the most prosaic delegation of power was needed; it is merely the purchase of services.’ The petitioners, for their part, argue that the ‘partial privatization’ model is the proper alternative:

‘There are other less harmful measures that realize the purpose underlying the passage [of the law]…. A partial privatization of powers that does not contain a predominant element of exercising sovereign power would achieve a similar purpose to the one achieved within the framework of a complete privatization as determined [in the law]… Therefore, this possibility should constitute an additional option within the framework of this constitutional test’ (para. 143 of the petition).

24. The third subtest is the test of proportionality in the narrow sense. This test focuses not only on the measure, but also on the violation of the human right (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). This is an ethical test that requires the benefit arising from the realization of the purpose to be commensurate with the damage that is likely to be caused as a result to the constitutional right. As we have said, the petitioners, the state and the concessionaire do not deny the constitutionality of the ‘partial privatization’ model, and de facto it is not the subject of dispute (the ‘partial privatization’ model will be referred to below as: ‘the alternative’). In these circumstances, the question is whether the law is proportionate (in the narrow sense) in comparison to the alternative. This question is limited in scope since the balance is examined in comparison to the alternative. This was discussed by President Barak:

‘The test of proportionality “in the narrow sense” is usually applied with “absolute values,” i.e., by directly comparing the benefit of the executive act with the damage that results from it. But it is also possible to apply the test of proportionality in the narrow sense “relatively.” According to this approach, the administrative act is considered in comparison to a possible alternative to it, whose benefit is somewhat less than that of the original executive act. The original administrative act will be disproportionate, according to the proportionality test “in the narrow sense,” if a small reduction in the benefit obtained from the original act, for example by adopting the possible alternative, ensures a significant reduction in the harm caused by the original act’ (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [61], at p. 840 {297}; see also A. Barak, ‘The Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 39, at pp. 60-64).

Against this background, we should apply the third subtest in our case as follows: the question is whether the additional benefit in prison conditions and financial savings obtained by adopting the model ultimately chosen in the law rather than the alternative is commensurate with the additional violation of the personal liberty and human dignity of the inmates in a private prison.

From general principles to the specific case — is the enactment of the law rather than the alternative proportionate (in the narrow sense)?

25. Quantifying the ‘realization of the purpose’ side of the equation, namely the additional benefit in prison conditions and financial savings obtained by enacting the law as it stands rather than the alternative is a complex matter, and the tools available to the court for quantifying this are limited (see and cf. Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 328-329). The quantification should take into account, inter alia, the standard of the prison, the reduction in prison overcrowding, the cost of making the transaction with the concessionaire, the cost of supervision and regulation, the cost of unforeseen developments, etc. (see Mandelkern and Sherman, ‘The Privatization of Social Services Implementation in Israel,’ supra, at para. 2.4). There are opinions that we should also take into account in this context the cost of the harm to ‘social preferences,’ i.e., the fact that there are people who are ‘concerned’ that the service should be provided exclusively by the state:

‘There may be a basis for regarding the Israel Prison Service as a product that the whole public consumes, and by means of this product the public enforces the rule of law… The very fact that the Israel Prison Service is universal is a value in itself, for which we are prepared to pay. It is important to us that the government will have a monopoly on bodies that have permission to employ coercive measures on behalf of the state (such as an army, a police force, a prison service, etc.). These preferences are no less important than our preferences regarding consumer products that we actually consume… Social preferences should not be dismissed as being of less value’ (Fershtman, The Limits of Privatization, supra, at pp. 23-24).

It would appear that in the circumstances of the case before us, and in the absence of a sufficient factual basis for a decision, the quantification of the ‘realization of the purpose’ side of the equation does not lead to an unequivocal result. It cannot be determined that the enactment of the law as it stands rather than the alternative leads to a critical additional benefit in achieving the purpose.

26. By contrast, the quantification of the ‘violation of the right’ side of the equation leads to an unequivocal result. The enactment of the law as it stands rather than the alternative results in an additional violation of the personal liberty and human dignity of the inmates in a private prison that is clear and has ‘critical mass.’ Enacting the law as it stands rather than the alternative gives the private concessionaire sovereign authority to enforce the criminal law and to maintain public order, and it gives it invasive sovereign powers that involve the exercise of a large degree of discretion. Indeed, the scope of the (partial or complete) privatization is of decisive important for quantifying the violation of the constitutional right (see and cf. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 497). The aforesaid additional violation constitutes the main violation of the constitutional rights to personal liberty and human dignity. The extent of the violation of constitutional rights will be very greatly reduced by adopting the alternative to the law.

27. Therefore, in the balance between the realization of the purpose side of the equation and the violation of the constitutional right side of the equation when comparing the law as it stands to the alternative, the additional realization of the purpose of the law (in so far as there is any) is not commensurate with the additional violation of the constitutional rights of the inmates in a private prison. The conclusion is that the third subtest of proportionality is not satisfied, and it should therefore be held that the law is unconstitutional.

The constitutional relief

28. I agree with the conclusion of my colleague the president that there is no alternative to setting the law aside (para. 65 of her opinion). Nonetheless, I should point out that the finding that the enactment of the law as it stands rather than the alternative is not proportionate (in the narrow sense), such that it requires the law to be set aside, is a relatively moderate finding, since it leaves the legislature with a choice:

‘Despite the unconstitutionality of the law, in this situation the legislature is not left with no resort. It does not need to return to the situation that prevailed before the law was enacted. It is able to limit the “damage” of the unconstitutionality. It will do so if it enacts the alternative… [thereby] the whole benefit will not be realized and the entire damage will not be undone. But the partial realization may satisfy the legislature’s policy’ (Barak, ‘Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ supra, at p. 63).

Regarding additional tools for constitutional judicial scrutiny

29. In view of the president’s reasoning, with which I agree, there is no basis in my opinion for resorting to additional tools for constitutional judicial scrutiny and relying — as proposed by some of my colleagues in this case — on the basic principles of the legal system (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554) or on the social contract (see Movement for Quality Government in Israel v. Knesset [19], at para. 6 of Vice-President Emeritus Cheshin). In my opinion, these tools are a ‘last resort’ that should be used with care and great restraint, especially when the constitutional paradigm accepted in our legal system, which is built on the Basic Law: Human Dignity and Liberty and its limitations clause, leads to an identical result. The content of the social contract in Israel — as an idea that gives expression to society’s common denominator — is susceptible to various interpretations and there is no need for us to make a decision on this matter in the case before us (see and cf. the different opinions of President Barak and Justices Cheshin and Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13]). These tools require profound consideration with regard to the constitutional remedy that results from applying them. At the present time, it is sufficient in my opinion to use the social contract as a tool for the interpretation of the constitutional rights enshrined in the Basic Laws.

Summary

30. For the above reasons, I agree with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance unconstitutionally violates the constitutional human rights of personal liberty and human dignity, and should therefore be set aside.

 

 

Justice E.E. Levy

1.    I regret that at this time I am unable to agree with the main conclusions that my colleagues have reached, or even with the result of their decision. I am of the opinion that this complex issue, with the question of its effect on basic human rights and other protected values, ought to be put to the test before we reach in this matter even those conclusions that the legal tools in our possession allow us to reach. If I have decided to speak further on the subject, it is because I am of the opinion that the judicial course that is the subject of this petition is extremely complex, and it ought to be properly clarified.

 The rights argument

2.    One of the main issues relating to the question of the privatization of prisons, in which I am in complete agreement with my colleagues’ position, is the need to guarantee the basic rights of the inmates. Admittedly, the act of imprisonment implies, almost as a purpose, a violation of the right to liberty, but this should not exceed the proper degree. And as for human dignity, this is given to every human being, prison inmates as much as anyone else. ‘When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison’ (per Justice Cheshin in PPA 4463/94 Golan v. Prisons Service [11], at p. 172 {529}). From this pair of rights one can derive a further right, which is the right to proper prison conditions, which has aspects of a social right that addresses the position of a prison inmate in society both before he is convicted and after he has served his sentence. As such, the state has a central role in realizing it: ‘Social rights have huge importance from the viewpoint of the weaker echelons of society, who particularly require help and protection from the public administration. Social rights require considerable involvement on the part of the public administration’ (I. Zamir, ‘Public Supervision of Private Activity,’ 2 Law and Business (Mishpat veAsakim) 67 (2005), at p. 85).

3.    It cannot be denied, however, that at the present, because of budgetary and other crises, the subject of imprisonment finds itself frequently relegated to a low place in the order of the government’s priorities.

‘It has become clear that the public administration is incapable of providing certain services at the required time and in the proper manner, including services that were until recently regarded as proper, and even almost essential, ones for direct administration. One reason for this is the budgetary crisis and national priorities’ (ibid., at p. 80).

In such circumstances, basic rights of persons under arrest and prison inmates are violated on a daily basis as a matter of course.

The heart of the problem is, in general, hidden from the public eye, and for many people it is a matter of no importance. But applications that are made to the courts shed light on it and portray quite a chilling picture of what happens in the prisons, despite the efforts of the Israel Prison Service to improve the situation. In one case my colleague Justice A. Procaccia described —

‘a serious picture of blatant departures from the minimum requirements for holding persons under arrest as determined in the law and regulations, especially with regard to the problem of overcrowding and overpopulation and the lack of sufficient living space for each person, sleeping on the floor without a bed, the lack of cleanliness and sanitary rules and the lack of sufficient ventilation’ (CrimA 7053/01 A v. State of Israel [62], at p. 511).

In another case it was found that ‘The Israel Prison service was compelled to have inmates sleep on mattresses on the floor, because of a serious shortage of prison places that currently exists in Israel’ (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 5). Regarding this practice it was said in another case that ‘It is obvious that sleeping on the floor is not necessary, and it involves a serious violation of human dignity’ (per Justice Dorner in LHCJA 818/03 Zarka v. Israel Prison Service [63]). These are merely several examples; see also HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security [64]; HCJ 1319/03 Israel Bar Association v. Minister of Public Security [65]; and HCJ 572/04 Barry v. Minister of Justice [66].

Year after year, reports of the Public Defender’s Office also reflect a very serious picture of the prison conditions of inmates in some of the prisons. Thus, inter alia, in a review that was carried out in 2008 of fifteen prison facilities of the Israel Prison Service, serious findings were discovered, which were summarized as follows:

‘At the facilities that were inspected, the staff of the Public Defender’s Officer noticed several serious violations of inmates’ rights. The picture that was obtained at some of the prisons is, inter alia, one of physical neglect and very difficult living conditions, major overcrowding and suffocating cells, and of buildings that do not satisfy the basic criteria required by law’ (The Public Defender’s Office, Arrest and Prison conditions in the Prison Facilities of the Israel Police and the Israel Prison Service in 2008, at p. 7 (Ministry of Justice Web Site).[1]

Not only in the field of infrastructure — a critical issue that lies at the heart of the question of privatization — have problems been discovered. In some prisons the persons making the inspection encountered —

‘complaints of violence of prison staff against inmates; extreme and collective disciplinary punishment; a shortage of basic equipment that exposes the inmates to the vicissitudes of the weather; problems in providing medical treatment for inmates; and problems in realizing the right to contact with family members, the right to meet with a lawyer and the right of free access to the courts… There is a serious shortage of therapy and educational groups for security inmates and preventative therapy groups for sex offenders [and] a shortage of positions for social workers’ (ibid.).

More tangibly —

‘In the isolation wing, the inmates are allowed out of the cell once a day for a short time only, and the rest of the time they are shut up in their cell. Instead of a wash basin and toilets, the inmates receive one bottle of water per day and also another bottle and a bag for relieving themselves’ (ibid., at p. 30). ‘In the solitary confinement wing, there was a persistent and nauseating stench’ (at p. 26); ‘during the visit the staff of the Public Defenders’ Office saw many cockroaches running around the cells (ibid.); ‘in most of the prison facilities inmates are compelled to shower in the same place where they or their cell mates have recently relieved themselves’ (at p. 29); ‘lunch is dirty with a poor selection’ (at p. 42); ‘the walls of the room were all smeared with blood stains and splattered insects, which resulted from attempts to deal with the abundance of fleas that plagued the cell’ (at p. 46).

And in several recent cases we have addressed the well-known problem of protecting the life of the inmate, even when he is determined to take it himself. Can there be anything more important than this?

Indeed, even those who have concerns about the consequences of privatization will be compelled to admit that in the current situation the basic rights of inmates are being seriously violated:

‘Israel still has a number of prisons in unsuitable buildings and in a terrible physical state, completely unsuitable for holding prisoners and caring for them. In addition, there is severe crowding in Israeli prisons, that among other things results in hundreds of prisoners sleeping on mattresses on the floors of their cells. In these conditions, on the face of it, it is difficult to provide prisoners with the rights to which they are legally entitled’ (U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at p. 100).

Justice H.H. Cohn also addressed this matter:

‘Most of the moral problems that I have mentioned derive from the very nature of imprisonment. I do not ignore the many important improvements that have been made and that are being made to prison conditions; and I am aware of the fact that in practice modern penology focuses on finding new ways of making further improvements to prison living conditions. But de facto the nature of imprisonment has not changed, and is not changing; while there are important improvements and amendments that give hope, there are also frequent deteriorations of greater or less seriousness, whether because of the ever increasing number of inmates and the terrible overcrowding in the prisons, or because of the lack of trained staff with sufficient and proper motivation in the Israel Prison Service, or because of the decline in moral and disciplinary standards among the general public. The lack of resources is exacerbated by the tendency (which is not only found amongst jurists) to cling to established practices and to be suspicious of innovations…’ (H.H. Cohn, ‘“Just” Sentencing — Thoughts After Judicial Service’ 1 Plilim — Isr. J. Crim. Just. 9 (1990), at p. 11).

4.    Amendment 28 of the Prisons Ordinance is an innovation. The arrangement proposed in it sought to contend with the problems that currently characterize the imprisonment of inmates. This arrangement is based on two foundations, which from time to time are associated with the idea of outsourcing executive activity and entrusting it to private enterprises: an improvement in professionalism, which is based on the assumption that private enterprises will succeed in doing what needs to be done better than government authorities, and economic efficiency, which is encapsulated in the ability to carry out the same tasks at a lower cost. Prof. Zamir explained:

‘In certain spheres, the service that the public administration provides to the public is not cost-effective, it is inefficient or it is simply not good. The reason is sometimes a lack of financial resources and manpower, but there are additional reasons. One possible reason is bad procedures or bad management. Another common reason is the employment of employees who are not of sufficient calibre, either because of low salaries or because of political considerations, or difficulties in dismissing careless employees’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 81).

Without resorting to unjustified generalizations, I would say these circumstances that are described by the learned Prof. Zamir are true of many of public services in the State of Israel. One does not need to study the matter in depth in order to understand that dealing with complex management tasks is often beyond the capabilities of government officials, and they do not have the same degree of success as persons in the private sector, who acquire — literally in both senses of the word — expertise in carrying out these tasks.

It is possible that scholars who called for a change in the situation were not thinking of an amendment of the kind that has been examined in this case. It is possible that the arrangement enacted with regard to the private prison is unsuited for the desired improvement. It is possible, as my colleague Justice Procaccia emphasizes in her comprehensive opinion, that granting the concession will exacerbate the present situation. It is possible that government officials that sometimes have difficulty in carrying out the task themselves, will have no less difficulty in properly supervising the activity of the private operator. It is possible that the state will not properly understand the dimension of accountability that remains its lot even after the concession is given to the private enterprise. Prof. Zamir also wrote this: ‘There are already signs of an awakening to the fact that privatization is not a magic solution to the problem of efficiency in public administration’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Moreover, research around the world shows there is a concern that privatization and its incentives will undermine motivation to rehabilitate inmates and will thereby contribute to an increase, rather than a decrease, in the number of offenders (Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ supra, at p. 83). There is an ongoing debate regarding the effectiveness (including in the economic sphere) of privatizing prisons (ibid, at p. 85). It has been argued that the existence of a private prison will increase the concern of an improper relationship between ‘big money’ and government (ibid., at p. 91). See also Y. Peled, ‘Crime Pays: What Can be Learned from the American Experience in Privatizing Prisons,’ 82 HaSanegor (The Defence Attorney) 5 (2004); N. Carmi and E. Gal, Crime and Punishment — the Privatization of Prisons: Position Paper (Report of Physicians for Human Rights, 2005). On the other hand, it is possible that these serious consequences will not materialize, as can be seen from other opinions and research, which, as my colleague the president has already noted, often rely on conflicting findings.

5.    It is fundamental in my opinion that my colleagues, who sought not to consider at this time the future state of the aforesaid rights, did not address all of the above. I am in full agreement with this approach. In my opinion, prospective constitutional scrutiny is possible only when there is a high probability — perhaps I should say a very high probability — that the assumptions underlying it will be realized. A concern of a future violation of a protected right can be used to prevent that violation ab initio — and it is better to prevent evil before it occurs (HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [67], at p. 572) — provided that there is a sufficiently strong basis for this in current data. This is the reason why I have difficulty in reconciling myself to a position that is based on a potential violation of rights, when the chances that it will occur are not currently known.

6.    Indeed, the deliberations in this petition should focus on the current, rather than the future, violation inherent in delivering sovereign powers, and particularly the most fundamental ones, into private hands. I am prepared to agree that the privatization of prison services inherently exacerbates the violation of the dignity of the prison inmate. There is an element of humiliation in a person knowing that another, who is no different from him, is responsible for his imprisonment and exercises force to deprive him of what only the state usually has the power to deny, while that other is deriving a personal profit, which some say is considerable, from that imprisonment. I am also prepared to assume — and this requires further study of the conceptual basis of the idea of liberty that is comprehensively discussed in the opinion of my colleague Justice M. Naor — that imprisonment at the hands of a private concessionaire also exacerbates the violation of this important right. The essence of the matter lies in the idea connecting the power of the state to deny someone his liberty and the protection that he seeks against its being denied by another (a private individual), and in the words of the English philosopher John Lo>‘Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community…’ (John Locke, The Second Treatise of Government, chap. 8, para. 95).

7.    Two interrelated elements are subject to the scrutiny of the law that seeks to protect these rights: entrusting the power to private hands and the financial benefit involved therein. But before I discuss these, I will say that in my opinion it is a mistake — and in this I am in full agreement with my colleague Justice Procaccia — to think that the privatization naturally focuses on the economic interest of the concessionaire or on the savings in the state’s expenditure relating to the prisons. Not merely from the public perspective, although this is of paramount relevance, the privatization seeks first and foremost to realize the public interest in having a proper and efficient prison system. This can be seen from the introductory remarks of the draft law that ultimately became amendment 28 of the Prisons Ordinance:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that this has on the conditions in which prison inmates and persons under arrest are  held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996. The proposed law was drafted and formulated with a view to the main purpose — ensuring that giving the power to obtain assistance from the private sector will not harm the proper management and operation of the prison and the rights of the inmates, and that during the period of the contract with the private enterprise, the Israel Prison Service will carry out close supervision and control over it to ensure that it fulfils in every particular its undertakings under the agreement that will be signed with it and under the provisions of the proposed law’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Law 73, 5764, at p. 270).

The economic incentive is merely a tool in the service of the public interest. The financial profit is merely a means of achieving the purpose of the amendment, which is an improvement in prison conditions and making the prison system more efficient. The degree to which it is possible to further this purpose depends, inter alia, on the incentive mechanisms stipulated in the arrangements with the concessionaire and on their proper functioning. There is therefore a similarity between the economic incentive given to the private concessionaire and incentives that influence the activity of government officials — promotion in salary and rank, recognition and decorations, professional training or the accumulation of pension rights. Even if I assume that the private concessionaire will always place his economic benefit first, the supervision of the activity of the private prison, which the public administration retains under its control, is solely a matter of the public interest. ‘Public supervision of private activity is intended to serve the public interest’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 72). This, in my opinion, is capable of mitigating the extent of the aforesaid violation of rights, but not eliminating it in its entirety.

8.    Let us return to what is the heart of the question under consideration, namely the judicial scrutiny of the constitutionality of the violation of human rights. This focuses on the question of a balance of benefits that requires us to compare the extent of the violation of inmates’ rights that is inherent in the actual privatization with the potential better protection of these rights as a result of that very same privatization. But what is the proper ‘geographic’ place (to use the term of Justice Y. Sussman in CA 404/61 Skivinskaya v. Uroshitz [68], at p. 363) for making this comparison of the benefits? It may be claimed that the proper place for making this comparison is at the stage of considering the violation of the right, when approaching the limitations clause but before entering into its conditions. Thus, if an executive act detracted from the protected right to a certain degree but at the same time added to it (or it is reasonable that it will add to it in the future), does this not mean that the right is not violated at all? And in the absence of a violation, there is no need to consider the conditions for legitimizing it, namely the limitations clause.

I cannot accept this approach.

Like my colleague the president, my approach also relies on the recognition that amendment 28 of the Prisons Ordinance should be examined by considering its effect on protected basic rights in the light of the provisions of the limitations clause. The balance of the benefit usually finds its main place within the scope of the last part of this clause — the test of proportionality in the narrow sense — which makes it possible to consider all the aspects of the violation of the right, not merely from within, i.e., the balance of the benefit and the damage that are directly related to the right, but also from without, i.e., those that encompass principles and interests that are external to it.

9.    Unlike my colleagues, however, I am of the opinion that there may be no need to make a comparison of the benefits that is naturally required for an ethical decision on whose outcome not everyone will agree. If it is found that the amendment of the Prisons Ordinance is incapable of achieving the purpose for which it was intended (the first test of proportionality), or, alternatively, if it is possible to point to an executive act that will violate the protected right to a lesser degree (the second test of proportionality), then it is possible to reject the executive act that causes the violation, irrespective of the complex question of whether ultimately it is a force for good or not. Judicial scrutiny ought to act in this way, especially where it concerns a law of the Knesset, which reflects decisions of the greatest importance, which in our case are decisions of economic and social policy that the legislature addressed in depth. Indeed, if it is possible (although this is not always the case) to base the judicial scrutiny of laws on clear reasons, which are not vague or the subject of dispute, it is best to do so. This is the case with regard to the type of test that is applied by constitutional scrutiny, and it is also the case with regard to the content of the test that is used in each individual case.

However this may be, the main point in my opinion is that the limitations clause does not provide a firm foothold when we are dealing with theoretical assumptions. As I have said, it requires a high probability that each of the elements that need to be considered exist. It is only natural that it should prefer an examination that can be placed in perspective. But for my colleagues this is unimportant, since it would appear that according to their approach the violation of rights resulting from the privatization is so serious that nothing can mitigate it. By way of analogy, even if the private prison were to promise a seven-day feast for everyone in it, this would not mitigate the degradation and loss of liberty that is the lot of those imprisoned in it, because they are at the mercy of a private concessionaire.

On this point also I cannot follow in my colleagues’ footsteps. Personally, I am of the opinion that another outcome of the comparison of benefits is possible, depending upon the manner in which the arrangement is implemented in the future. According to my approach, it is therefore not right to make the comparison at this time, but since we are dealing with a question that is basically an ethical one, I would like to make two comments in this regard.

First, whatever the attitude to privatization may be, it is not possible to ignore the fact — and this should be placed on the scales to counter the factors that oppose the privatization — that there are other cases where the privatization of core powers has already become firmly rooted in our legal system and it is clear that we have become reconciled to them (but see and cf. CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). One example actually comes from the field of sentencing. I am referring to the serving of a custodial sentence by way of unpaid work, which is enshrined in article B1 of the Penal Law, 5737-1977, and which is not necessarily served in state institutions but also in institutions that, although they do not operate on a profit-making basis, are defined as private. Another example is provided in the Treatment of Mentally Ill Patients Law, 5751-1991, which authorizes a district psychiatrist to hospitalize mental patients forcibly even in private hospitals (s. 9 of the law). An additional prominent example is that of administrative collection under the Taxes (Collection) Ordinance, in which various authorities are given a possibility of resorting to the assistance of private collection companies, and nothing need be said about the coercive force that they employ. We have also for many years reconciled ourselves to the de facto privatization of security services at public sites, especially in the last decade. And is not the reliance on defence counsel from the private sector, within the framework of the praiseworthy activity of the Public Defender’s Office, not a de facto privatization of a task that the state sought to take upon itself? The same is true of the implementation by private enterprises, in a manner that some claim also involves the use of coercive force, of the ‘Wisconsin plan’ for increasing employment (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at p. 473). It is possible to discuss the similarities and differences of each of the examples brought, but it is hard to ignore the weight that has already been acquired in our society by the privatization of sovereign powers, some of which are quite close to the core activity of the state.

Second, we should set against the concern of a disproportionate violation of protected rights the supervisory mechanisms that have not been omitted from the normative arrangements surrounding the operation of the private prison. Those provided in the amendment to the Prisons Ordinance can be divided into two main classes: internal supervisory mechanisms, namely the restrictions that apply to the activities of the concessionaire and its officers, and external supervisory mechanisms, namely the control exercised by bodies that are not a part of the prison management. The internal supervisory mechanisms are made up of several layers, where each layer adds a new element to the one before it, and all of them make up the complete system of control reserved for the state. The outermost layer gives the commissioner of the Israel Prison Service, with the approval of the responsible minister, the power to cancel the permit to operate the prison that was given to the concessionaire, when the concessionaire does not comply with the conditions laid down for it (s. 128I of the Ordinance). An additional layer concerns the identity and functioning of the prison governor, whose appointment requires approval and is subject to both continuous and periodic review (s. 128AJ of the Ordinance). At the same time, the governor is required to report to the chief supervisor on behalf of the Israel Prison Service of the use of various coercive powers against inmates, and of a concern of a breach of the duties that are imposed on the concessionaire’s employees (ss. 128O and 128S of the Ordinance). The third layer of control mechanisms imposes similar restrictions on the other employees of the concessionaire (ss. 128V-128X of the Ordinance). The external supervisory mechanisms deal with the duty to appoint supervisors for the prison, whose function is to ascertain that the concessionaire and its employees are in compliance with the terms of the agreement and the law, and they are obliged to make investigations in any case where a complaint is received from an inmate with regard to his prison conditions (ss. 128AF-128AG of the Ordinance). An additional supervisory mechanism lies in the definition of the privately managed prison as an audited body within the meaning of s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958 (s. 128AO of the Ordinance). Finally the law provides, in article 10, a broad supervisory mechanism in the form of an advisory committee for prison inmates’ rights, rehabilitation, welfare and health, which has six members, including a retired justice of the District Court, a representative of the Public Defender’s Office, a representative of the Criminology Council, a social worker and a representative of the Prison Inmates Rehabilitation Authority. This committee may speak with prison inmates and receive from the concessionaire any information that it needs (ss. 128AS-128BA).

10. Alongside all of these, the agreement deals extensively with the services that the concessionaire is liable to provide, including therapy and rehabilitation, education, food, and religious and health services; the rights of inmates to furloughs, visits and the filing of claims and petitions regarding their prison conditions (appendix F of the agreement). An additional element in the agreement (appendix M, whose exact content was not brought before us, but which is discussed by the respondents in their response) provides criteria for examining the extent to which the concessionaire satisfies all the requirements. In this regard the agreement provides financial sanctions that will be imposed should the concessionaire not comply with targets or should an inmate die of unnatural causes (clauses 97-99 of the agreement). The agreement goes on to provide that if the prison is found to be unsuitable for inmates to live in, according to specified minimum conditions, the concessionaire will lose the payment for it. The respondents also claim there is a positive incentive mechanism, namely a payment to the concessionaire for strict observance of his duties, but I found no evidence of this in the text of the agreement submitted for our inspection. Finally, the agreement requires the concessionaire to permit Israel Prison Service authorities to conduct a professional inspection of the prison at any time (clause 91 of the agreement), and to establish a commission of inquiry for events that have major ramifications on its operation (chap. B5). In any case of an act, omission or breach of the agreement, the concessionaire is liable to the state and its representatives (clause 111 of the agreement).

In addition to the mechanisms that are addressed in detail in the amended law and the concession agreement, it is clear that the operation of an institution such as a privately managed prison — which is, at the very least, a dual-nature body and in my opinion is closer in status to an actual public body — is required to comply with the rules of administrative law. To these should be added the special rules for inmates’ appeals against interim decisions; the rules of private law, including the application of constitutional public law norms; and the provisions of the criminal law; all of these are additional forms of protection that are prima facie capable of filling the void created by the lack of the disciplinary provisions and the rules of ethics that apply to civil servants (see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001), at p. 214; D. Spivak, ‘The Rights of Prison Inmates and Arrestees in the Privatization Age,’ 95 HaSanegor (The Defence Attorney) 40 (2005), at p. 43; HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [69], at p. 460; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34]).

If the question of financial incentives was discussed above, I should point out that I doubt whether the opponents of the law have taken into account in their decision an additional factor, which is that, in general, unlike the public administration in most respects, a private enterprise has no immunity against actions in tort. There is no basis, however, for deciding at this stage the question whether the umbrella of protection given to the state and its agents in the Torts (State Liability) Law, 5712-1952, can apply to the private concessionaire or not. In this matter s. 128K of the Ordinance, which states that ‘The provisions under this Ordinance or under any other law, which apply to a prison, prison employee or inmate shall apply to a privately managed prison, a prison employee who has a position therein or an inmate held in custody therein,’ may be relevant. On the other hand, see s. 128M of the Ordinance, which saw the need for an express provision that applies the provisions of the Penal Law, 5737-1977, to the concessionaire and its agents in the same way as it applies to civil servants. See also what is stated in the appendix to the concession agreement, namely that ‘The concessionaire knows that an inmate is entitled to file claims [in addition to inmates’ petitions] in the competent courts, on any matter and subject whatsoever (chap. 7, chap. C4: Inmates’ claims and petitions, clause 1.1, p. 769 of vol. 2 entitled ‘Appendix of Operating Services, part 1 (appendix F of the concession agreement — emphasis added)). However this may be, it is clear that the law of torts, whether its scope is the same as that applicable to a public authority or broader, has a significant effect when we are dealing with a private concessionaire that is motivated by economic considerations. Prof. Zamir wrote:

‘Even in the absence of public supervision there are legal arrangements that are intended to prevent a violation of rights and to compensate for such a violation. These are, inter alia, the law of contracts, the law of torts and the law of unjust enrichment. These laws make private supervision possible in a certain sense. The concern of a business enterprise that it may be sued in tort is likely, in certain circumstances, to be no less effective that a whole department of supervisors’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 91).

If I have seen fit to describe at length the supervision and control measures, it is because in my opinion a significant effort has been invested in these aspects from the outset, and this should be given weight when examining the amended law. Adding these to the range of tools in the law creates the complete final picture that is designed to ensure that the state has not divested itself of its powers but merely exchanged them for powers with a new content, namely that of supervision. These mechanisms of indirect government (ibid., at p. 89) should be examined on their merits. Their action needs to prove that it is effective. Their weight, in an age of privatization, is of paramount importance, since ‘the change that has recently taken place in the character of the state, the spirit of the free market, increases the importance of supervision’ (HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650). But not only is it too early to determine whether there is any basis for a concern that the limitations upon the operations of the prison at the moment will be transferred, possibly even with greater effect, to the field of supervision, but — and this is the main point — it is possible to increase the investment in their implementation before it is determined that the amendment to the Prisons Ordinance cannot stand.

11. My position, in brief, is therefore this: time will tell. It is possible that had this petition been brought before us several months after the arrangement began to be implemented, I would find that my colleagues, the majority justices, are right, and I would not hesitate to add my opinion to theirs. But it is possible that an improvement would take place in the miserable state of prison conditions in Israel, and then the law would satisfy the limitations clause and emerge from it crowned with a constitutional seal of approval. Moreover, it is possible that we would see, if only in part, a realization of the hope that the objects of the privatization, the concessionaires, will have the wisdom to not discharge their obligation to protect the rights of the individual (E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 17), and the conflict between a policy of privatization and the protection of basic rights would no longer appear to be predestined. As I have already said, since judicial scrutiny cannot rely on vague assessments, my position is that it should be left to the proper time rather than the point in time in which we find ourselves today. We are therefore dealing with an egg that has not yet been laid. We do not yet know if the day on which it will come into the world will be a good one or not, nor do we know if it will be edible (Mishnah, Moed, Betzah ch. A).

I think that the rights argument is not only premature, but also does not properly reflect the nature of the main difficulty in the privatization of prisons. This difficulty lies in the intuition of many of the persons who consider this issue, and not so much in the discussion of rights. Prof. Dafna Barak-Erez wrote:

‘The question of the limits of privatization in constitutional law arises in two spheres. In the institutional sphere, the question is whether there are actions that cannot be privatized at all, since they are an integral part of the character of the state. In the field of rights the question is whether privatizations violate basic rights in a way that does not comply with the constitutional tests’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

Taking the bull by the horns — which is an essential element in any decision made by the court — therefore requires us to consider the institutional question, both from a fundamental viewpoint and also with regard to what it tells us about the areas where judicial scrutiny should be exercised in relation to Knesset legislation. Some of my colleagues discussed this question within the context of the issue of rights, since in their opinion the breach of the institutional principles in itself is capable of exacerbating the violation of inmates’ rights. But some of the reasons that were given in my colleagues’ opinion relied, as I see it, on the impropriety of the state divesting itself of its powers and its departure as a result from the basis on which a state is based, namely the idea of the social contract, which I shall consider now.

The political philosophy argument

12. According to Prof. Barak-Erez —

‘First, there is no consensus with regard to the definition of the minimum core activity of every state. The variety of opinions in this field is large. Some people give the state a monopoly on the use of coercive force; others give it a monopoly on acts that have elements of sovereignty; still others give it a monopoly on the role of supplying public commodities’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

The question that lies at the heart of defining the powers of the executive branch in particular and of the state in general is a hard and complex one. Any discussion of it gives rise to many difficult and profound questions. Any decision on this issue involves ethical and moral outlooks. Its ramifications touch upon all walks of life, not merely legal ones. In general, it is best to leave it, inter alia, to philosophers and scholars of political science. But in view of the position that the privatization involves a violation that ‘lies in the field of the social contract on which the existence of the state is based’ (per my colleague Vice-President E. Rivlin, supra), it would appear that there is no alternative but to address this matter in brief.

The heart of the matter is the principle of state sovereignty. An accepted outlook is that the sovereign state contributes to the combined happiness of its subjects by guaranteeing their safety and welfare. It is also possible to say that each member of the community has ‘a civil genetic code,’ which leads him to define himself not only as an independent and separate entity but also as a part of a larger social-human fabric, of which the prime expression today is the sovereign state. An important theoretical basis for the principle of sovereignty lies in the concept of the social contract, which is a cornerstone in the life of modern civil society.

The theories of the social contract, which were developed during the seventeenth and eighteenth centuries, give an answer to the question why people chose to abandon the natural state and change over to the civil state, i.e., to membership of communities, and later a state. They describe a process in which, supposedly, human beings had the sense to realize that if they formed a society, they could protect their natural rights in the optimal fashion. Therefore they agreed to assign coercive power and the power to make decisions and adjudicate issues that they had as individuals to one entity — the state, which is called sovereign — and to look to it to act in accordance with their combined will.

Although it is quite old, the idea of the social contract has not lost its appeal, and it is also used with reference to political issues in the modern age. Notwithstanding, like most philosophical theories, its practical application is not at all simple. It admittedly equips someone who is seeking a broad conceptual outline, which is of unparalleled importance, to understand and analyze issues, but it does not provide a specific solution to them. It has been said in our case law that ‘the social contract is not a historical fact whose content can be determined, nor even a legal document, whose meaning can be debated. The social contract is merely an idea that gives expression to the ideal image of society’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 340 {62}). In the case before us, the theory of the social contract makes it possible to hold a general discussion of the question of the state’s powers, including its most central ones, but it does not provide us, in my opinion, with a clear answer to the question of the privatization of prisons.

The primary explanation for this determination can be found in the supreme importance that some of the social contract approaches attribute to the legislature or to the actual acts of legislation. These are regarded by those approaches as the acme of the political entity, since they express the sovereign outlook and the combined will — a synopsis of the essence of the whole theory (Locke, The Second Treatise of Government, supra; Jean-Jacque Rousseau, Du contrat social, ou Principes du droit politique, 1762). And if this is the case, the idea of the social contract will not easily support the setting aside of a law of the Knesset.

Another aspect concerns the relationship between the sovereignty of the state and the manner in which it makes use of its powers. If the sovereign has a course of action which, if implemented, will further the safety and welfare of the citizens, not by leaving the stage but by replacing direct action with control and supervision, is it impossible that this method will be consistent with the concept on which the political framework is based? As I have already shown, supervisory tools that are properly exercised may be very powerful. Correct use of them, which is planned in the case before us, will not necessarily result in a reduction of the state’s sovereign power. This use will allow the state to keep in its possession a significant part of the sovereign discretion, the ability to make decisions and exercise discretion in important matters, and the supreme and ongoing duty to ensure that human rights, personal security and public order are preserved. Thus the state can go on to realize the purposes of its existence and carry out its duties faithfully. ‘A privatized state,’ in the words of Prof. Zamir, is not necessarily ‘any less of a state’:

‘The policy of privatization, which has the status of a conceptual approach or a social ideology, has left its mark on the way in which the proper relationship between the state and the citizen is conceived… According to this approach, the public administration does not need to provide services that the private economy is capable of providing efficiently and properly. Therefore, the main role of the public administration, alongside the provision of essential services that the private economy is unsuited to providing or is not capable of providing, is to supervise the provision of the other services by the private economy. In other words, according to this approach, direct administration should be limited, in so far as possible without undermining the quality of the service to the public, and should be replaced by indirect administration, which will ensure that the private activity does not harm the public interest. An accepted analogy in this context speaks of the ship of state; the ship contains both public administration officials and private individuals. According to this analogy, the public administration does not need to pull the oars, but should leave the rowing to private individuals, while it stands at the helm and navigates the ship in the correct direction… It is perhaps possible to call a state that is run in accordance with this approach a “privatized state”’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 82).

The modern state is a developing and changing entity, and the arrangements in force in it also reflect the changes in the times, without this implying that the state has lost its sovereignty. Prof. Zamir goes on to say:

‘The pendulum of services, which has for years moved from the private sphere to the public sphere, recently changed direction, and is beginning to move from the public sphere to the private sphere. There are those who say that the state is currently at a stage where it is changing into a new kind of state — a contract state. Notwithstanding, the state is not expected to lose its status as a main player in social and economic affairs in the near future’ (I. Zamir, Administrative Authority (vol. 1, 1996), at p. 34).

This is the place to consider the idea — which sometimes appears to be merely a wish, but this does not mean that we should not seek to realize it — according to which a proper pattern of privatization is one in which the private concessionaires are regarded as active partners of the organs of government (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 469), in such a way that adds weight to the duty of public trust. It adds but does not detract. Thus, the constitutional and administrative duties that apply to these concessionaires beyond their obligations in the private sphere will also become a part of the broad and extensive structure of the state (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra; G.E. Metzger, ‘Privatization as Delegation,’ 103 Colum. L. Rev. 1367 (2003)).

13. The ambivalence in applying the idea of the social contract to a concrete issue such as the one before us can also be seen from the writings of the main philosophers of the theory, inter alia in those passages that address the sovereign power to punish. The position of the English philosopher Thomas Hobbes, who was the first to lay the foundations of the theory of the social contract, is perhaps the closest to the position of the petitioners. In his work Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil, 1651, Hobbes listed what he called the rights given exclusively to the sovereign, including the right to punish, ‘which make the Essence of Soveraignty’ and therefore cannot be forfeited without an express renunciation of the sovereign power (Hobbes, Leviathan, chap. XVIII, para. 12). The task of administering punishment, which also includes the apprehension and imprisonment of offenders, was seen by Hobbes as the sole prerogative of public officials (ibid., at chap. XXIII), and he clarifies that he is speaking of agents of the sovereign — ‘Ministers, in that they doe it not by their own Authority, but by anothers; and Publique, because they doe it (or should doe it) by no Authority, but that of the Soveraign’ (ibid.). But in Leviathan there is another statement, according to which —

‘and whosoever has right to the End, has right to the Means; it belongeth of Right, to whatsoever Man, or Assembly that hath the Soveraignty, to be Judge both of the meanes of Peace and Defence; and also of the hindrances, and disturbances of the same; and to do whatsoever he shall think necessary to be done…’ (ibid., at chap. XVIII, para. 6).

Thus Hobbes apparently left in the possession of the sovereign the choice of the means to be used in realizing his goal. In any case, we should remember that Hobbes’s theories, in addition to the fact that they were written in the seventeenth century and were influenced by the historical circumstances of the time, also include outlooks that are not consistent with — and are even the complete opposite of — those of the modern democratic state.

I shall return to the philosophy of John Locke, the author of the Two Treatises of Government (1690). With regard to the power to administer punishment, he held that every individual who is a partner to the social contract should forfeit his power to punish others ‘to be exercised by such alone, as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on’ (Locke, Second Treatise of Government, at para. 127). Locke went on to say:

‘Of other ministerial and subordinate powers in a commonwealth, we need not speak, they being so multiplied with infinite variety, in the different customs and constitutions of distinct commonwealths, that it is impossible to give a particular account of them all. Only thus much… we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the common-wealth’ (ibid., at para. 152).

It follows that there is no fundamental impropriety in the idea of assigning sovereign powers under certain conditions, and each community has different ways of realizing the social contract on which it is based.

I shall conclude this short and inexhaustive discussion by referring once again to the teachings of the Swiss-French philosopher Jean-Jacques Rousseau. In his aforementioned work, Du contrat social, ou Principes du droit politique (1762), he described the state as a combination of the strength, rights and wills of the individuals, and gave it the power to lead society to a life of peace and welfare, according to the general will. But even Rousseau did not explain the content of this general will, and it may be assumed that this was for the reason that it may change from time to time and from one society to another.

To the aforesaid I would add that although the importance of the social contract theory is not disputed, the many ideas relating to it are merely a part of a broad spectrum of ideas regarding political philosophy, and it has not infrequently been the subject of criticism. The Scottish philosopher David Hume, for example, argued in his work Of the Original Contract, 1748, that the social contract is nothing more than a conceptual development that was intended to justify the outlooks of its authors or to explain the prevailing political situation, but it lacks universal application. Hume thought that the basis for the existence of states is not a valid agreement between their inhabitants, which was never actually made, but the pragmatic realization of human beings that compliance with sovereign power is preferable to a state of anarchy. Therefore, civil societies continue to exist even when the sovereign who stands at their head does not meet the needs of the public in the optimal manner, and even when they are conquered by a foreign ruler (David Hume, ‘Of the Original Contract,’ in Three Essays, Moral and Political, 1748). Approaches of this kind can also be found in modern-day philosophers, who hold that the idea of the social contract does not correctly define the existence of the political society, which is not based on a real contract between its citizens (F. D’Agostino, ‘Contemporary Approaches to the Social Contract,’ in Stanford Encyclopedia of Philosophy (1996, revised 2008)). Much more could be written about the variety of outlooks concerning the proper image of the state, in which we could mention the approaches of socialist philosophy, according to which many activities of the state should not be abandoned to market forces, and by contrast libertarian philosophies that seek to reduce the scope of state intervention in the lives of individuals to a minimum. Thus there are different outlooks on both sides of the political spectrum.

The main point is that an attempt to rely on a general reference to the ‘social contract’ as support for an approach concerning the process of privatization will, in my opinion, have difficulty in succeeding. It is admittedly possible to speak of an ‘Israeli social contract’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 85), but then it will be necessary to give this idea content and outline its boundaries, so that it will be clear to what extent this or any other outlook is incorporated in the concept of privatization.

Even then, even if a strong basis is found for the position that the basic principles of political philosophy support the principle of leaving sovereign power — and especially its most fundamental elements — in the hands of the executive authorities, we shall still need a connecting link that explains in what way that a breach of this principle justifies judicial intervention in an act of legislation. This link may take the form of an express or an implied constitutional provision — possibilities that I shall now consider.

Arguments concerning constitutional values

14. The tools that are used for constitutional scrutiny are limited, and the reason for this is the restraint that this court has imposed on itself with regard to intervention in the acts of the legislative branch. The far-reaching consequences of judicial intervention in a legislative act — the result of the democratic decision of the members of parliament, who are the representatives of the sovereign, i.e., the people — are what dictate this restraint. Unlike administrative scrutiny, which is exercised with regard to appointed government officials that are required to limit their actions to the narrow confines of the law and are not entitled to overstep the authority given therein, constitutional scrutiny focuses on the actual source of the law, either with regard to the manner in which it was enacted, or — which is more complex — with regard to its content.

Much ink has been spilled on the sources of constitutional scrutiny. At various points during its history — and not merely in the age of protected basic rights, as is sometimes thought — it has been a subject that has engrossed Israeli law. Contrary to what some people think, the courts, and especially this court, have acted with considerable restraint and with great caution in applying it. There are those who try to portray this involvement in constitutional scrutiny as a struggle of titans over the sources of influence and power. In reality, it is more similar to walking on eggshells. The great importance of legislative activity and of the activity of its source, the Knesset, runs like a golden thread through the case law of this court.

The constitutional idea was not invented by the Supreme Court. It was the Knesset that laid down the principles of the legal system in Israel. The mechanisms of entrenchment, both in form and in substance, were introduced into the Basic Laws by parliament. This court followed the instructions of the Knesset when it held that the Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969, violated the entrenchment provision in the Basic Law: the Knesset (HCJ 98/69 Bergman v. Minister of Finance [70]). It followed the instructions of the Knesset when it held that a list whose principles conflicted with what is provided in s. 7A of the Basic Law: the Knesset could not stand for election (EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [71]). The court followed the instructions of the Knesset when it determined that holding someone under military arrest for a protracted period (HCJ 6055/95 Tzemah v. Minister of Defence [5]) or that prejudicial transition provisions for regulating the occupation of investment management (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7]) were inconsistent with the limitations clause laid down by the Knesset in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation — Basic Laws that were deliberately drafted by members of the Knesset and that were enacted after comprehensive deliberations in the plenum of the Knesset and in committees.

15. There are different opinions regarding the theory underlying the restriction that the Knesset imposed on its power of legislation (CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8]; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28]). A case law rule that has been formulated, and which has been affirmed in a host of cases that have come before the courts in almost a decade and a half since, is that the Knesset has the power to restrict itself not merely with regard to the majority that is required to enact legislation or with regard to other aspects of the legislative process, but also with regard to the substance of the legislation.

Thus, if the decision in Bergman v. Minister of Finance [70] reflected what may be called the first constitutional age, i.e., restricting the legislature to its own instructions regarding formal entrenchment (and see also HCJ 410/91 Bloom v. Knesset Speaker [72]), following the human rights Basic Laws, and in accordance with the express instructions of the Knesset, the second constitutional age began, which is characterized by a recognition of the Knesset’s power to restrict itself with regard to matters of substance, for which the criteria are provided in the limitations clauses (s. 4 of the Basic Law: Freedom of Occupation and s. 8 of the Basic Law: Human Dignity and Liberty). This automatically led to the question of the status of the provisions laid down in the other Basic Laws in relation to ‘ordinary’ legislation of the Knesset. Justice I. Zamir addressed this for the first time in HCJ 3434/96 Hoffnung v. Knesset Speaker [3] with regard to the substantive restriction imposed by the principle of equality in the Basic Law: the Knesset. This is what he said:

‘Does one law apply to a violation of a basic right and another law to a violation of the principle of equality in elections to the Knesset? I tend to think that despite the difference in the language of the laws, in this respect there should not be a difference in the meaning of the laws. Indeed, equality in the elections is a central value, and it deserves maximum protection, like that of the most important constitutional values, like that of basic human rights, like that of human liberty and human dignity. But I do not think that equality requires absolute protection, beyond the protection given to basic human rights, since equality, like basic human rights, is not an absolute right… It may therefore be possible that there is a basis for saying that a violation of substantive equality, in the context of the elections to the Knesset, is a violation of the equality of opportunities that does not satisfy the threefold test: the values of the state, a proper purpose and proportionality. Such an interpretation will lead to a proper harmony between the laws that lay down the constitutional values, which the interpreter seeks to achieve’ (ibid. [3], at p. 70).

16. This idea has been adopted in recent decisions of this court and has become established case law. It has been held that by means of an analogy it is possible to import into the provisions of Basic Laws that do not relate to rights of the individual a ‘judicial limitations clause’ by means of which legislation will be examined in accordance with core values on which the Basic Law is based:

‘The threefold test of the limitations clause has been regarded by our judicial consciousness as a proper tool for examining the constitutionality of legislation. Now that it is one of the basic principles of our constitutional system, the court is entitled to apply it even when there is no limitations clause in the Basic Law in relation to which the legislation under scrutiny is being examined’ (per Justice E. Mazza in EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [73], at p. 811).

See also the interim decision in HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [74], at p. 106 {170}; HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [75], at p. 755; HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [76], at p. 539; HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6 of the opinion of President A. Barak; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 53 of the opinion of President Barak.

This development led to a new chapter — a third age — in the constitutional law of the State of Israel (see A. Bendor, ‘Four Constitutional Revolutions?’ 6 Law and Government (Mishpat uMimshal) 305 (2003), at p. 306). In this, not only has it transpired that the Knesset, as the author of the Basic Laws, has the power to protect basic provisions by means of the tool of formal entrenchment, and not only does it have the power to protect basic rights against executive acts that violate them, but additional constitutional values enjoy substantive protection, the limits of which still remain to be ascertained. With regard to the constitutional protection of these additional values, it has been argued that the idea of a case law limitations clause, which derives its form from the limitations tool mandated by the Knesset in the human rights Basic Laws, has been raised until now in the context of values, which even if they are not enshrined in the Basic Law: Freedom of Occupation or the Basic Law: Human Dignity and Liberty, are conceptually related to the idea of the protection of rights. The following was said by Prof. A. Barak several years ago:

‘Indeed, the elevation of all the Basic Laws — and not merely those relating to human rights — to a super-legislative constitutional status requires a recognition of judicial limitations clauses in all those cases where these Basic Laws determine human rights… When the constitutional arrangement does not concern human rights at all, there is no reason to assume ab initio the existence of a judicial limitations clause and each case should be examined on its merits’ (A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 352).

This qualification needs to be reconciled with the finding that constitutional scrutiny applies also to ‘government arrangements provided in a Basic Law (such as the Basic Law: the Government)’ (per President Barak in United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6), and also to ‘a finding that is implied by the Basic Laws (such as a violation of the principle of the separation of powers and the independence of the judicial branch)’ (per President Barak in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion). Personally, since I am of the opinion that the principle of the Knesset having the ability to restrict itself applies to all those values that the Knesset thinks should to be protected against the passing majority, on the one hand, and that no value is absolute but only relative, on the other, I see no basis for making a distinction between values relating to human rights and other important values. I am prepared to assume that a limitations clause, in the form accepted by our constitutional law, will apply in determining the limits of the protection of all those constitutional values, i.e., even those constitutional values that express an important public interest that does not involve rights. I will even say the following: I see no reason for concern that this will lead to basic rights losing their special status in our law (cf. the remarks of Justice Dorner in CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 645). Obviously, not every public interest should be recognized as a constitutional value, and those that should can find their proper place relative to constitutional rights in so far as a conflict between the two will arise. In A v. Haifa Civil Servants Disciplinary Tribunal [76] the court did indeed consider, albeit in obiter, the difficulty that arises prima facie when an act of legislation is required to satisfy the tests of two limitations clauses in two Basic Laws that enshrine values that conflict with one another (see the remarks of Justice Dorner, ibid. [76], at p. 541). Notwithstanding, I am of the opinion that a solution to this problem can be found in the principle of constitutional harmony, which is presumed to lead to uniformity in the result of scrutiny of the law in relation to each of the limiting principles (and see the position of President Barak in that case [76], at p. 539).

17. I have only discussed all of the above for the reason that the basic principle on which the opposition to the privatization of prisons is based — that the sovereign authorities should have a monopoly on sovereign power — may be regarded as a basic constitutional principle even though it does not directly relate to human rights. The same is true with regard to the idea that undermining the symbols of sovereignty — for example by allowing prisons to be run by employees of a private concessionaire who will not wear state uniforms or don its symbols — may obscure the representative character of the state authorities, its image and its status as the source of the power to impose sanctions, thereby leading to a contempt for the law, enforcement and sentencing (D. Shichor, ‘Private Prisons in Perspective: Some Conceptual Issues,’ 37 Howard Journal of Criminal Justice 82 (1998), at p. 93; J.J. Dilulio, ‘The Duty to Govern: A Critical Perspective in the Private Management of Prisons and Jails,’ in Private Prisons and the Public Interest 155 (D.C. McDonald, ed., 1990), at p. 174).

However, within the framework of the construction that I have just discussed, the condition for this is that these and similar principles will find a foothold in one of the provisions of the Basic Laws (other than the Basic Law: Human Dignity and Liberty and Human Dignity: Freedom of Occupation). It might be argued that these principles are based on the provision at the beginning of the Basic Law: the Government, which states:

‘Nature

1. The government is the executive branch of the state.’

However, I think that some of my colleagues rightly pointed out that ‘there is a difficulty in finding a constitutional basis in s. 1 of the Basic Law: the Government for the power of imprisonment as a core government power that cannot be transferred’ (para. 3 of the opinion of my colleague Justice Hayut, supra), since it is ‘essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system’ (para. 63 of the opinion of my colleague the president). I also think that it is going too far to introduce into this provision far-reaching institutional arrangements, which provide a basis for the existence of the political society and reflect protected constitutional values.

This conclusion can be seen, first, from the legislative history of the Basic Law. The discussion of the nature of the first section was brief and inexhaustive, and as can be seen from the Knesset debates before the Basic Law was enacted, s. 1 was intended to be a ‘declarative section that does not intend to exhaust all of the functions of the government’ (minutes of the subcommittee of the Constitutional, Law and Justice Committee of the Knesset of 29 Shevat 5728 (28 February 1968)). From the drafting of the other clauses of the Basic Law, which sometimes are phrased in no uncertain terms, it can be seen that when the Knesset wished to do so, it knew how to define the powers of the government precisely and specifically.

Second, and more importantly, the meaning of the section may be seen from the way in which our law works in practice, which is not consistent with the explanation give by the petitioners. Prof. Zamir said:

‘The impressive declaration [in the aforesaid s. 1] is imprecise. If it intends to say that the government has the role of implementing laws, as opposed to legislative and judicial functions, it is imprecise, since the government often carries out legislative and judicial functions also. If it intends to say that only the government implements the laws, this too is imprecise, since additional bodies are involved in the implementation of the laws… and if it intends to say merely that the government is the third branch of state, which completes the full complement of the branches of the state, this too is a description that leaves something to be desired, since the government is only a part, albeit a central part, of the third branch’ (Zamir, Administrative Authority, supra, at p. 328).

Even if I read the provision of s. 1 literally, in a parliamentary democracy the executive branch is the branch responsible for the implementation of the norms that are determined by the legislative branch (see Locke and Rousseau, supra; E. Rubinstein, Paths of Government and Law (2003), at p. 92; M. Cohen, General Powers of the Executive Branch (2008), at p. 8). If the Knesset determined, therefore, that the government would transfer a part of the power of imprisonment to private enterprises, and that instead it would focus its activity, as the executive branch, on the control and supervision of those enterprises, without losing its power to cancel the privatization process at any time, I find it hard to understand how this conflicts with the constitutional role of the government. This does not mean that the Basic Law: the Government, including s. 1 thereof, does not enshrine constitutional values, but merely that ascertaining what those values are goes beyond the scope of this case, and should be left to the proper time. In this regard, the remarks of Prof, Barak-Erez are apt:

‘Of course, the Basic Law enterprise has not yet been completed, and those Basic Laws that exist do not address the question of what are the issues that the state and its organs must administer and what may be entrusted to the responsibility or the implementation of private enterprises. In practice, it is hard to expect there to be detailed arrangements in this sphere, even if the work of the Basic Laws were completed. The constitutions of other countries do not contain concrete provisions regarding the spheres of activity of the public administration. Accordingly, decisions [concerning privatization] are usually regarded as policy decisions’ (Barak-Erez, ‘Human Rights in an Age of Privatization,’ at p. 211).

But even were we to follow the petitioners’ approach, then, in my opinion, we should put the proposed principle to the test of the judicial limitations clause, and this would lead to the conclusion that in the absence of data that we could scrutinize with the aid of this legal tool, the scrutiny is premature. If it were found, for example, that the proposed arrangement allows the government to retain in its possession a sufficient degree of control over the imprisonment of the inmates in the private prison, would it be possible to determine with certainty that this constitutional principle, according to the petitioners, has been violated? For these reasons, I am of the opinion that, even in a written constitutional provision in the same vein as the provisions that protect human rights, there would currently be no basis for setting aside the amendment to the Prisons Ordinance at this time.

The argument concerning the basic values of the legal system

18. A discussion of the fundamental problem that lies, in the opinion of many, in the delegation of the power of imprisonment to a private concessionaire, creates a basis for the belief that even in the absence of a written constitutional source the necessary outcome would be that the law should be set aside. It is therefore impossible to escape the conclusion that according to those who hold this opinion, an alternative proposition, that would serve to develop judicial tools of a kind that has not yet been accepted in case law, would allow judicial intervention to eradicate that fundamental problem.

An idea of this kind is not unrealistic. It is also not new. It has a clear and express foothold in remarks uttered in the past by justices of this court, in minority opinions or in obiter. The misgivings of Justice Barak in this regard in Laor Movement v. Knesset Speaker [44] are well known:

‘What is the validity of a law that conflicts with basic principles, such as the principle of equality? The question is relatively “simple” if the basic principles are enshrined in a rigid constitution or in an entrenched Basic Law. But what is the law if there is no rigid constitution, and there are no entrenched Basic Laws: is an “ordinary” law capable of determining an arrangement that conflicts with the basic principles of the system? … In principle and in theory, there is a possibility that a court in a democracy will set aside a law that conflicts with basic principles of the legal system… [but] according to the social and legal outlook that is accepted in Israel, the court does not assume this power to set aside a law that conflicts with basic principles of our legal system. It is not desirable that we should depart from our approach… at this stage of our national life’ (HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554, and see also the references cited there).

A similar conclusion was reached by President Barak in the yeshivah students case (Movement for Quality Government in Israel v. Knesset [19]), in which he said, as my colleague Justice Hayut has already mentioned above, that —

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

But if at this time our ‘national life’ implies a different approach, an expression of this can be found in the position of Vice-President M. Cheshin, who considered in Movement for Quality Government in Israel v. Knesset [19] the constitutionality of the Deferral of Service of Full-Time Yeshivah Students, 5762-2002. In his remarks, which are consistent with his position in United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 545, he said:

‘The legal pyramid is built on the fundamental values of society and the state. These values nourish at the roots the norms prevailing in the state, without which the state could not exist. Even the Knesset, which itself exists by virtue of those values, will bow its head before them. [We should recognize] a possibility — admittedly, an exceptional possibility — that the basic principles as such will decide a legal dispute that undermines basic values of the state’ (ibid. [8], at para. 11 of his opinion).

Vice-President Cheshin went on to consider the relationship between those fundamental values and the Basic Laws that had already been enacted:

‘The Basic Laws are the most exalted laws in the legislative and legal fabric of the state, both in their essence and partially also in their formal strength. This is the case, even according to those who think — and I am one of them — that the Knesset does not have constituent power. But even the Basic Laws are not at the summit of the pyramid, or perhaps we should say, at its lowest foundations. They are surpassed by basic principles in our lives — principles from which even the Basic Laws derive their life-force. These principles are principles of natural law and principles of the theory of Jewish democracy. These are what watch over us from the highest heights’ (ibid. [8]).

A similar expression of this idea served as the basis for the decision of this court four years earlier to the Bergman case in EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [78]). There, admittedly, no law of the Knesset was set aside, but basic principles of the legal system resulted in the prospective frustration — in the sense of a ‘future voidance’ — of future laws ‘that undermine the existence or integrity of the state’ (ibid. [78], at p. 378).

19. It could be argued that recognizing the existence of basic values of the legal system as a tool for quasi-constitutional scrutiny is inconsistent with the positive constitutional arrangement, according to which what has not yet been included in the Basic Laws amounts to an expression that there is no constitutional protection for those missing values. Those who support constitutional theories that do not place the emphasis on the formal status of the norm, i.e., on the fact that it is written, but only on its content, would argue that this position should be rejected. This idea of a material constitution focuses on the identification of norms that inherently seek to realize the constitutional purpose, and for this reason alone they become a part of the constitution (see, for example, B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583; S. Weintal, ‘Eternal Clauses’ in the Constitution: The Strict Normative Standard in Establishing a New Constitutional Order (Doctoral thesis, The Hebrew University in Jerusalem, E. Benvenisti (supervisor), 2005)). Thus, for example, theories will be proposed that regard the constitution as a means of expressing the economic and political theory on which a community is based, or a means of enshrining the narrative on which it is based, since anything that is a part of the constituent elements of that community will be considered a super-legislative norm, whether it is expressly listed in the constitutional provisions or not.

But it seems to me that resorting to these constitutional or quasi-constitutional tools has not yet found a firm foothold in our law. Adopting an approach of this kind amounts to the beginning of a new constitutional era, a fourth age, whose boundaries have not yet been sufficiently outlined, and the same is true of the criteria on which it is based and on the operative consequences of a decision within that framework (see Prof. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at p. 666). In the yeshiva students case (Movement for Quality Government in Israel v. Knesset [19]), President Barak did indeed say that:

‘Even if there is a narrow field in which it is possible to examine the constitutionality of a law other than within the framework of the Basic Laws, this restriction on the power of the legislature applies in special and exceptional cases where the constitutional change undermines the essence of democracy and denies the minimum characteristics necessary for a democratic system of government’ (Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion).

But the characteristics of a scrutiny of this kind have not yet been discussed, and a limitations clause is not merely designed to limit the legislature, but also the scope of the constitutional scrutiny exercised by the judicial branch. We are therefore entering a legal field that has not yet been fully ploughed, and if it has been ploughed, it has not been fully sown, and if it has been sown, the time of harvest has not yet arrived, since this issue has only been addressed in a limited number of cases and has not become established case law. It is possible that it is also for this reason that my colleagues decided to focus their consideration of this case on rights, a very fertile soil which has been well cultivated in our legal system.

20. But if there is a difficulty in adopting at this time a constitutional position that examines the privatization of a prison from the perspective of the basic values of the legal system, it too is subject to a premature decision. The basic principles of the legal system, the constituent values, if you will, are not subject to perpetual immutability. Even if they are not exposed to the whims of passing trends, they develop and change just as a new page is written from time to time in the story of the nation. It is difficult, in my opinion, to accept the finding that an innovative idea of privatization, which only recently hatched in the nest of the law, is doomed by the basic principles of the legal system even before it has spread its wings. Were this idea given sufficient time, and especially if it were regarded as a success, who can say that it would not be welcomed and become an integral part of the accepted principles of our legal system, just as other expressions of the idea of privatization have been incorporated in it? It is also for this reason that, in my opinion, the issue at the heart of this petition should be left to be examined from a satisfactory perspective, which is not yet possible.

Moreover, if we are dealing with fundamental outlooks, is there no basis for the question of what the constituent values of our legal system would tell us with regard to the proper scope of judicial scrutiny? Is the approach that ‘Such an important and fundamental decision should be made — at this stage of our national life — by the people and its elected representatives’ (Laor Movement v. Knesset Speaker [44], at pp. 554) still valid for deciding this petition? This issue should be considered carefully before it is decided one way or the other.

The question of privatization as a policy issue and public debate thereon

21. I do not want my remarks to be understood as support for the idea of privatization, nor as expressing any reservation with regard thereto. One can conceive of arguments against this idea, such as the argument that the first to be harmed by it, as well as the first to be used by it as social ‘guinea pigs,’ will be the weaker elements of society (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Like every case of privatization, it is possible to examine the issue from the perspective of the concern of a negative effect on work relations in the economy. And naturally, the question of its influence on the image of the state lies at the heart of the matter. But these claims, contrary to those that I discussed in the previous part of my remarks, basically amount to policy and outlook (see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at p. 330). As such, these arguments cannot be used — and, in my opinion, have not been used — by this court in its decision. This is not for the reason that the court does not make value-based decisions. We make these when we determine the proper model for defining a protected right (Prof. Medina in ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ at p. 648). We sometimes make these when we examine a violation of a protected right by means of the test of proportionality ‘in the narrow sense,’ or when striking a balance between it and the values of the State of Israel as a Jewish and democratic state. We make value-based decisions in additional contexts. But case law has always sought to keep away from decisions in which the weight of political policy is predominant:

‘The basic premise is that the role of legislation has been given to the legislature. It is the faithful representative of the sovereign — the people. The question is not whether the law is beneficial, effective or justified. The question is whether it is constitutional’ (per President Barak in Israel Investment Managers Association v. Minister of Finance [7], at p. 386).

Indeed —

‘The proper scope of the phenomenon of privatization [is] generally a function of an extra-legal worldview. Consequently, the decision concerning it should be made in the public arena, and in general it should not be removed from the political sphere to the legal one. It is important to maintain the distinction between presenting a civil outlook with regard to actions that should not be privatized and presenting a legal position with regard to actions that may not be privatized. Establishing legal restrictions of a constitutional character should not be the typical way of dealing with all privatization initiatives’ (Prof. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ at p. 466).

In this regard it should be emphasized that there has been great debate in recent years on the subject of privatization. The literature, both legal and otherwise, is considerable and it would seem that the public is not apathetic to what is happening. The subject has been discussed in the Knesset in proceedings that led to the enactment of the amendment to the Prisons Ordinance. The committee responsible for the law — the Internal Affairs and Environment Committee — considered the idea of privatization at length, together with representatives of a wide variety of bodies, including the Israel Prison Service, the Ministry of Finance, the Ministry of Public Security, the Ministry of Justice, the Attorney-General’s Office, the Association for Civil Rights in Israel, academics and even a representative of the petitioners. The deliberations focused not merely on the proposed amendment, but on a variety of subjects relating to the question of privatization in general and privatization of prisons in particular, including overcrowding in Israeli prisons, the likelihood of the idea of privatization succeeding and its economic efficiency, the supervisory mechanisms provided in the law and the question of how effective they will be, economic incentives in the agreement with the concessionaire and the degree of protection for inmates’ rights, as well as the nature and scope of the powers given to the holders of various positions in the private prison. Positions were heard from both camps, and one of the sessions was even devoted to a guest lecture of an expert opposed to the privatization (see the minutes of the meetings of the Internal Affairs and Environment Committee of the Knesset, between the months of December 2003 and March 2004).

In such circumstances as these, when, as I have said, the constitutional scrutiny is premature, my reply to the petitioners is that the ‘conceptual and mental process,’ to use the expression of Prof. Zamir (‘Public Supervision of Private Activity,’ supra, at p. 84), which is inherent in the decision to privatize a prison, should be left to the various fora of public debate. Whether ‘the needs of society and the ways of the leadership of the modern state should limit themselves to the legal frameworks of the past’ (per Justice M. Cheshin in HCJ 1074/93 Attorney-General v. National Labour Court [79], at p. 505), or whether they should find new tools should be left at this stage to the democratic dialogue. It is true that ‘Where the sovereign finds that social and economic conditions justify changes in economic policy by means of a privatization of public services, the sovereign’s right to implement such a policy should be recognized’ (per Justice D. Levin, ibid. [79], at p. 504), but only — I would add — when constitutional conditions so permit.

Finally, regarding the legislative proceedings

22. Rejecting the substantive constitutional argument, with its various aspects, makes it necessary to return to arguments raised by the petitioners in another sphere, with regard to the propriety of the legislative proceedings, and I shall do this briefly. No one denies that the court also has power to exercise judicial scrutiny over proceedings in the Knesset, where a fundamental flaw has occurred (HCJ 761/86 Miari v. Knesset Speaker [80], at p. 873); HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [81], at p. 157). But when it does this, the court acts with caution and restraint, and it will not lightly set aside a law, which is as it should be, in view of the principle of the separation of powers and the exalted status of the legislative assembly (HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [82], at p. 40 {408}).

The petitioners ended their petition with a claim that in the course of enacting the amendment to the Prisons Ordinance major defects occurred, and these go to the heart of the democratic parliamentary process. It was claimed that the sessions of the Internal Affairs and Environment Committee of the Knesset took place very frequently and with undue haste, which prevented the participants from assimilating the material and considering their position in depth. The holding of a tender by the respondents, in which they undertook to compensate the winners if ultimately the privatization process was unsuccessful, before the law was passed, tied the hands of the members of the Knesset, who no longer regarded themselves as free to consider rejecting the idea of the privatization in its entirety. The respondents even refrained, so it is claimed, from presenting to the Knesset the draft tender and the names of the companies that won it, and thereby they undermined the transparency of the legislative proceedings. Finally, in the vote on the approval of the law in the committee, members of the Knesset took part without participating in the deliberations, and one of the opponents of the law was even replaced by another representative of his party, who supported the law.

These claims do not give rise to a ground for our intervention in the content of the law that was passed. First, an examination of the minutes of the deliberations of the Internal Affairs Committee and the comprehensive proceeding that took place as set out above undermine the claim that the members of the Knesset did not succeed in understanding the nature of their decision. Second, even if taking steps to realize the draft law when it was still under consideration was inappropriate, there is no basis for the conclusion that advertising the tender prematurely tied the hands of the members of Knesset or affected their discretion in any other way. Third, this petition focused on the constitutionality of the law, as opposed to the legality of the tender proceedings, an issue that was the basis for another proceeding that took place in the District Court, and in that too the opponents’ claims were rejected. The failure to disclose the tender documents is therefore not a substantive matter, and I fail to see how the lack of disclosure led to a fundamental defect in the legislative proceedings that justifies judicial intervention. Finally, and most important of all, this court has held in the past — per my colleague President Beinisch — that the role of judicial scrutiny ‘is not to ensure that the Knesset carries out the optimal legislative process… [and] also not to ensure that the Knesset carries out a responsible and balanced process for each draft law’ (Israel Poultry Farmers Association v. Government of Israel [82], at p. 54 {426}). Judicial scrutiny limits itself to the elimination of a concern of a serious and blatant violation of the basic principles of the parliamentary system — a departure from the principles of majority decision, free voting, equality between voters and the publicity of the proceeding (ibid. [82]), and I have found no such violation in the case before us. In view of all this, the claims concerning defects in the legislative proceeding cannot stand, and should be dismissed.

Summary

23. ‘Before the court sets aside a law’ — Justice Zamir wrote — ‘it needs to take time to consider the matter, to examine thoroughly the language and purpose of the law and to ensure that it is absolutely convinced that it contains a problem that cannot be remedied’ (Hoffnung v. Knesset Speaker [3], at p. 67). I have not been persuaded, at this time, that the legislature passed a law that contains a problem that cannot be remedied.

It seems to me that this is a case in which it would have been better to have first exercised judicial restraint and allowed the Knesset, public debate and experience to have their say.

Therefore, if my opinion were accepted, we would deny the petition.

 

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

2 Kislev 5770.

19 November 2009.

 

 

[1]    See http://www.justice.gov.il/MOJHeb/SanegoriaZiborit/DohotRishmi for the reports for the years 2001-2008.

HCJ 2245/06

1.            MK Neta Dobrin

2.            MK Ronen Tzur

v.

1.            Israel Prison Service

2.            Yigal Amir

3.            Dr Larissa Trimbobler

 

 

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

 

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

 

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

 

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

 

Israeli Supreme Court cases cited:

[1]          LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2]          LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

[3]          HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[4]          LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5]          HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6]          CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[7]          CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[8]          LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[9]          CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[10]        LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12]        LHCJA 3713/04 A v. State of Israel (not yet reported).

[13]        LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14]        LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

[15]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[16]        PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17]        PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18]        PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19]        HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20]        LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21]        HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22]        HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23]        HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24]        LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25]        LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

[26]        HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[27]        CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[28]        HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[29]        HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30]        HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32]        HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

[33]        HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

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

[35]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[36]        HCJ 217/80 Segal v. Minister of Interior [1980] IsrSC 34(4) 429.

[37]        HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[39]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

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

[41]        BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42]        HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[43]        HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[44]        HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45]        HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

 

American cases cited:

[46]        Turner v. Safley, 482 U.S. 78 (1987).

[47]        Overton v. Bazzetta, 539 U.S. 126 (2003).

[48]        Hudson v. Palmer, 468 U.S. 517 (1984).

[49]        Pell v. Procunier, 417 U.S. 817 (1974).

[50]        Washington v. Harper, 494 U.S. 210 (1990).

[51]        Skinner v. Oklahoma, 316 U.S. 535 (1942).

[52]        Eisenstadt v. Baird, 405 U.S. 438 (1972).

[53]        Carey v. Population Services International, 431 U.S. 678 (1977).

[54]        Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55]        Stanley v. Illinois, 405 U.S. 645 (1972).

[56]        Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57]        Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58]        Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59]        Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60]        Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61]        Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

 

English cases cited:

[62]        R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63]        R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

 

European Commission of Human Rights cases cited:

[64]        X v. UK (1975) 2 D&R 105.

[65]        X v. Switzerland (1978) 13 D&R 241.

[66]        Hamer v. UK (1979) 4 EHRR 139.

[67]        Draper v. UK (1980) 24 D&R 72.

[68]        ELH and PBH v. UK (1997) 91A D&R 61.

 

European Court of Human Rights cases cited:

[69]        Dickson v. United Kingdom, no. 22362/04 [2006].

[70]        Hirst v. United Kingdom, no. 74025/01 [2005].

[71]        Aliev v. Ukraine, no. 41220/98 [2003].

[72]        Evans v. United Kingdom, no. 6339/05 [2006].

 

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

 

 

JUDGMENT

 

 

Justice A. Procaccia

1.            Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2.            The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3.            The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4.            Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5.            In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6.            On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1.           After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2.            The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3.            Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4.            It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5.            If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7.            The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8.            The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9.            The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed.  By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘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. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3.           … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5.           Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.            There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

                ‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

                ‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

                ‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

                ‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

                ‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

                ‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89).  In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

                ‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

                ‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

                ‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

                ‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

                ‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

                ‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

                ‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

                ‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

 

 

Justice E. Hayut

1.            I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2.            With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3.            In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

 

 

Justice S. Joubran

1.            I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2.            From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3.            According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4.            It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5.            The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6.            Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7.            It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8.            But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9.            Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

 

 

Petition denied.

17 Sivan 5766.

13 June 2006.