The High Court of Justice ordered the state on Monday to close the Holot detention facility for asylum seekers within 90 days, a dramatic decision that marked the first time the court has ever struck down two versions of the same law.
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As part of its ruling, the High Court also overturned another provision of the same law that allowed asylum seekers who entered Israel illegally to be incarcerated without trial in a closed facility for up to a year.
From now on, Israeli authorities will be permitted to detain illegal migrants for up to 60 days, as stipulated by the Entry into Israel Law.
An estimated 2,200 asylum seekers from Eritrea and Sudan are now being held at Holot. The detention center is designated an open facility because detainees are allowed to leave during the day, but they must be present three times a day for a head count and are not allowed to work.
Under the court’s ruling, the requirement to show up for the noon roll call will be canceled starting tomorrow, a decision that will remain in effect until the facility closes. Instead, detainees will have to be present only for the morning and evening counts.
They will continue to be required to remain at the facility from 10 P.M. to 6 A.M.
The nine-justice bench decided to close Holot by a vote of 7-2 and to overturn the provision allowing asylum seekers to be jailed for up to a year by a vote of 6-3.
The panel, headed by Supreme Court President Asher Grunis, is the same bench that struck down the previous version of the law, which allowed asylum seekers to be jailed for three years without trial. That ruling was handed down about a year ago, and the new version of the law was enacted three months later.
Justice Uzi Vogelman, who wrote the majority ruling, termed conditions at Holot “wretched” and said the court was justified in overturning a law enacted by the Knesset for the second time because the legislation “violates human rights in an essential, deep and fundamental way.”
“We didn’t do this voluntarily,” he wrote in the ruling. “We did it because it’s our obligation.”
The fact that asylum seekers must report for roll call three times a day and remain at the facility overnight violates their dignity and freedom, the court said in its ruling, as does the fact that Holot is located far from any town, making it likely that inmates “will choose — insofar as it’s possible to call this a ‘choice’ — to remain within the center’s gates all day long.”
“Let us not allow the name — ‘open facility’ — to lead us astray,” the court said. “The requirement to show up for three daily head counts, combined with the center’s great distance from the area’s towns, eliminate almost any possibility of regularly leaving the detention center.” Taken together, the court said, these facts “turn the center, in practice, into a facility similar in essence to a closed facility. It thereby, in my view, violates part of the minimum dignified life to which every person is entitled.”
Grunis and Justice Neal Hendel were in the minority in both parts of the ruling, with Justice Isaac Amit joining them in the 6-3 decision.
The majority justices were Vogelman, Miriam Naor, Edna Arbel, Yoram Danziger, Salim Joubran, Esther Hayut and (for half the decision) Amit.
At Holot, Vogelman wrote in the majority ruling, the asylum seeker “doesn’t control his agenda; his daily routine is dictated by wardens, who have been granted powers of search and discipline; the infiltrator is vulnerable to being transferred into custody at the decision of an administrative body that isn’t subject to judicial oversight to the requisite extent; his days are spent doing nothing, because he has no real possibility of leaving the center during the day; and his stay at the center has a beginning, but no foreseeable end,” the ruling states. “All these cumulatively amount to an unbearable violation of his basic rights, first and foremost the right to freedom and the right to dignity.”
The majority ruling also said the court had not ignored the distress of residents of south Tel Aviv, where the majority of the asylum seekers live, but that violating asylum seekers’ rights could not be the solution to this problem.
Noting that the number of asylum seekers entering Israel has plummeted since the original law was passed, Vogelman wrote: “A change in circumstances requires a rethinking. It offers an opportunity to devise a comprehensive solution.”
“Many legal solutions can be considered — but they must be constitutional,” he continued. “A constitutional solution must reflect the balance between the general welfare and the individual’s welfare. It must minimize the harm to residents of central cities on one hand and to the infiltrators on the other. The legislator must choose a means whose violation of human rights is proportionate. The heart understands the difficulties, but the head cannot tolerate the solution that was chosen.”
A major difficulty the court had with Holot is that asylum seekers can be held there indefinitely, and the law provides no grounds for their release. The law itself is a temporary one due to expire in three years if not extended.
But even if it is allowed to expire, the court said, “Someone who enters the detention center and is released from it at the end of three whole years won’t leave the way he was before ... This is a stretch of his life that won’t return.”
“A democratic society cannot deprive people of freedom for such a length of time when they don’t pose any danger and aren’t serving a sentence for a crime they committed, even if this deprivation of freedom has benefits,” it added in the majority ruling.
Nor does their illegal entry justify incarcerating asylum seekers for a year, the court said. “Infiltrators don’t lose their right to dignity, in the full sense of the term, just because they arrived in the country improperly,” wrote Vogelman. Thus, jailing them for a year when they have done nothing wrong, “without their having the ability to do anything to advance their release, constitutes a severe violation of their rights.”
“Being held in custody exacts a heavy price from the detainee. There is virtually no right that isn’t violated as a result,” Vogelman said, citing freedom, dignity, privacy, the ability to enjoy family life and personal autonomy as among these violated rights. “Thus deprivation of physical freedom leads in turn to violations of other constitutional rights and affects every aspect of the individual’s life. Keeping a person in custody for an entire year derails his life. It ‘freezes’ — for a decidedly non-negligible period of time — his ability to lead his life and exercise his autonomy.”