Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioner requested explanations from the State regarding accounts of IDF fire on ambulances and injuries caused to the medical teams traveling in them. Petitioners requested that respondents be ordered to cease such activities. The State responded that these incidents were the result of the Palestinian’s use of ambulances for the transport of explosives. Even so, the State held firm in its obligation to fulfill its duties under international law. The State asserted that combat forces had been instructed to act in accordance with the rules of international law. Held: The Supreme Court held that international law provides protection for medical stations and personnel against attack by combat forces. Article 19 of the First Geneva Convention forbids, under all circumstances, attack of stations and mobile medical units of the “Medical Service,” that is to say, hospitals, medical warehouses, evacuation points for the wounded and sick, and ambulances. However, the “Medical Service” has the right to full protection only when it is exclusively engaged in the search, collection, transport and treatment of the wounded or sick. Moreover, Article 21 of the First Geneva Convention provides that the protection of medical establishments shall cease if they are being “used to commit, outside their humanitarian duties, acts harmful to the enemy”, on condition that “a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.

State of Israel v. Tnuva Co-Op Ltd

Facts: The respondents were indicted on charges relating to the making of a restrictive arrangement under the Restrictive Trade Practices Law, in which the first and third respondents, through their respective directors, the second and fourth respondents, agreed to divide the imported meat market between them and fix minimum prices for the meat products that they sold. To further this venture they formed a company, Tnuva – Meir Ezra Imports and Marketing Ltd (TME). The respondents argued in the trial that the arrangements that they made did not constitute restrictive arrangements for the reason that they were made within the context of TME within which the respondents were not competitors. The District Court rejected this argument and held that the arrangement was a restrictive one. Notwithstanding this finding, the District Court went on to acquit the respondents after the Court had been satisfied that the respondents had made the restrictive arrangement as a result of a mistake of law. The trial court accepted the respondents’ claim that they had relied on the advice of their lawyers, according to which the arrangement that they made within the context of TME was not prohibited by the law. Under s. 34S of the Penal Law, a mistake of law constitutes a defence in criminal cases, if the mistake is ‘reasonably unavoidable.’ The District Court held that the respondents’ reliance on their lawyers’ advice made their mistake ‘reasonably unavoidable,’ and it therefore acquitted them. The state appealed. Held: The defence of a ‘mistake of law’ contains two elements: a subjective element, that the defendant did indeed make a mistake of law, and an objective element, that the mistake was ‘reasonably unavoidable.’ The defence is an exception to the fundamental rule that ignorance of the law is no defence, and it is therefore a narrow one. It should be interpreted narrowly because of the dangers that it presents to the public interest. The mistake does not need to be absolutely unavoidable, but only ‘reasonably unavoidable.’ The defendant needs to take reasonable measures to avoid the mistake, but not every possible measure. The defence need not rely on the opinion of a competent authority, but may be based on the advice of a private lawyer. However, not every advice of a private lawyer will give rise to a defence of a mistake of law. Where a defence of a mistake of law relies on the advice of a lawyer, the reliance claim should itself satisfy the test of reasonableness. This test is applied with reference to the specific defendant, the possibilities available to him for ascertaining the legal position and the legal questions in the case. Where the legal question is complex and the law unclear, it is more reasonable to rely on professional advice. By contrast, where the question is less complex and the conduct under scrutiny lies closer to the heart of the relevant offence, it will be less reasonable to rely on legal advice as a justification for that conduct. The reasonableness of the reliance also depends on the status and professional experience of the defendant. A person holding a senior office is expected to be more familiar with the laws relevant to his job. In such circumstances, blind reliance on legal advice is less reasonable. The court laid down four criteria for determining whether a mistake of law based on legal advice is ‘reasonably unavoidable.’ First, the legal advice should be based on all the relevant facts. Second, the lawyer consulted should have expertise in the relevant field. Third, the legal advice should be a serious legal opinion, and it should therefore usually be in writing. Fourth, the advice of a private lawyer is only significant if there is no possibility of obtaining a prior opinion of a competent authority as to the interpretation of the relevant law. In this case, the restrictive arrangement made by the respondents concerned the very essence of the prohibition of restrictive arrangements, namely the fixing of prices and a division of the market. The respondents had prior experience in the field of restrictive arrangements. Therefore, reliance on an oral and unreasoned legal opinion, which did not consider the distinctions between the present case and previous cases and did not address concerns raised by the director-general of the Antitrust Authority, did not constitute a ‘reasonably unavoidable’ mistake. Moreover, as senior directors, the second and fourth respondents should have been personally aware of the problematic nature of the TME venture from the viewpoint of restrictive trade practices law. Even if their mistake of law was a sincere mistake, as the District Court held, their reliance on the legal advice given to them, which did not examine the matter in depth or state the reasons for its conclusions, was unreasonable. In the circumstances, the respondents’ legal mistake, even if made in good faith, was not ‘reasonably unavoidable.’ Appeal allowed

Abu Safiyeh v. Minister of Defense

Facts: This is a petition to allow free movement of Palestinian vehicles and pedestrians along Road 443 and on the Beituniya Road. In 2002, Road 443, which served as the main traffic artery for the Palestinian residents of the area between the villages in the area and Ramallah, was closed to all Palestinian traffic. This closure was ordered following the numerous terrorist attacks that were perpetrated along the Road. The arguments related to the question of the authority of the military commander to order the restriction of traffic on the Road in general, and closure of the Road to Palestinians in particular; they also related to the mode of exercise of the military commander’s authority and his discretion, based on the relevant Israeli and international law dealing with belligerent occupation. Held: The High Court of Justice granted the petition (by majority opinion) in relation to Road 443. It held that it is not sufficient to anchor a decision on the closure of the Road in a security order and in travel provisions. The authority of the military commander is derived from the laws of belligerent occupancy, which pertain in the Area of Judaea and Samaria. Article 43 of the Regulations Respecting the Laws and Customs of War on Land of 1907, appended to the Fourth Hague Convention of obligates the occupying state “to ensure, as far as possible, public security and safety…”. Road 443 was designed to safeguard the needs of the local population. According to the rules of public international law, the military government’s authority to expropriate is exercised for the benefit of the local population, i.e. the “protected persons” in terms of the Convention. It was assumed that the Road would also serve Israeli residents, and traffic needs between the Judaea and Samaria and Israel. However, closure of the Road to Palestinian vehicles results in the Road serving primarily for purposes of “internal” vehicular traffic in Israel between the center of the country and Jerusalem: in accordance with the case law of this Court, the military commander would not have been authorized to order construction of the Road from the outset, had this been its main purpose. The arrangement resulting from the closure of the Road, whereby it no longer serves the interests of the local population, but is rendered a “service road” of the occupying state, exceeds the authority of the military commander and does not comport with the international law dealing with belligerent occupation. Consequently, the travel restrictions imposed by the military commander cannot stand in their present format, and must be set aside. In exercising his authority, the military commander must balance three considerations: the security-military consideration, including the security of Israelis travelling on the Road; safeguarding the rights of the Palestinian residents, who are ‘protected persons’; and preserving the rights of Israelis who live in Israeli settlements in the Area.” A main criteria in the framework of this balancing act is proportionality. The Court held that there is no basis to intervene in the position of the respondents whereby there is a rational connection between the measures that were adopted and between ensuring order and security. The situation prevailing on the Road, in practice, since the security measures were adopted, supports this position. As required by the limitation clause in Basic Law: Human Dignity and Liberty, the Court examined whether there exists an alternative measure to that adopted, one that is less prejudicial to the rights of the petitioners, that will achieve the security purpose. While acknowledging the impact of the closure of the Road on security, the Court was not convinced that due consideration was given to possible alternative measures for protection of travelers on the Road which would be less prejudicial to the rights of the local residents. The constitutional test of proportionality examines the relationship between the measures and the benefit from their adoption. The Court found that the travel restrictions had indeed been substantially detrimental to the fabric of life of the residents of the villages. It held that in the said circumstances, the sweeping prohibition on travel imposed on the Palestinian residents of the Area does not meet the test of proportionality, since due weight was not ascribed to safeguarding their rights as “protected residents”. The said prohibition, therefore, cannot stand. The authority of the military commander to order the closure of a road without a written document should be exercised only where there is an immediate need to close the road due to safety concerns. When the closure is not for a short and limited time, the order should eventually be committed to writing. The Court held that there is no cause to intervene in the decision of the military commander concerning the operation of the Beituniya crossing. JUSTICE

A v. State of Israel

[This abstract is not part of the Court\u27s opinion and is provided for the reader\u27s convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result of the end of the military rule there in September 2005, the Chief of the General Staff issued the appellants’ arrest warrants under the Act. The Appeals raise general issues as to the interpretation of the Act and its compliance with humanitarian international law and as to the legality of its arrangements. The Supreme Court (in a decision by President Beinisch and joined by Justices Procaccia and Levi) rejected the appeals and held that: The Act authorizes State authorities to arrest “Unlawful Combatants” – whoever take part in warfare or are part of a force executing warfare activity against the State of Israel, and who do not meet the conditions to be given the status of war prisoners. The objective of the Act is to prevent such persons’ return to combating Israel; it does not apply to innocent civilians and it must be interpreted, as much as possible, according to international law. The Act’s arrest provisions must be examined with the attempt to realize the provisions of Basic Law: Human Dignity and Liberty as much as possible. The Act’s arrest authorities severely and extensively infringe an arrested person’s personal liberty, which is justified under the appropriate circumstances to protect the State’s security. However, in light of the extent of the infringement and the extremity of the arrest tool, the infringement upon liberty rights must be interpreted as narrowly as possible, so that it is proportional to achieving only the security purposes. The Act must be interpreted in a manner that complies as much as possible with the international law norms to which Israel is obligated, but according to the changing reality as result of terror. The Act includes a mechanism of administrative arrest that is carried out under a warrant by the Chief of General Staff. Administrative arrest is contingent upon the existence of a cause for arrest that is a result of the arrested person’s individual dangerousness to the security of the State, and its purpose is preventative. The State must demonstrate through sufficient administrative evidence that that arrested person is an “unlawful combatant” insofar that he took significant part, directly or indirectly, in contributing to warfare, or that the arrested person was a member of an organization that carries out warfare activity and then to consider his link and contribution to the organization’s warfare activity, in a broad sense. Only after proving meeting the definition above may the State make use of the presumption in section 7 of the Act whereby releasing the arrested person would harm the security of the State, so long as it is not proven otherwise. The right to personal liberty is a constitutional right. However, it is not absolute and infringing it may be required in order to protect other public essential interests. The Court must consider whether the infringement upon the right to personal liberty is consistent with the conditions of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, when it should be remembered that the Court does not easily strike down legal provisions. Under the circumstances, the extent of the infringement of the constitutional right to personal liberty is significant and severe. But the purpose of the Act, in light of a reality of daily terrorism is worthy, and therefore the legislature should be granted a relatively wide range of maneuvering in electing the appropriate means to realize the legislative intent. Considering this and additional factors, the Act meets the proportionality tests. Therefore the Act’s infringement upon the constitutional right to personal liberty is not to an extent beyond necessary, so that the Act meets the conditions of the Limitations Clause and there is no constitutional cause to intervene in it. Israel should not have released the appellants, being residents of a liberated occupied territory, when the military rule in the Strip ended because the personal danger they pose continued in light of the ongoing warfare against the State of Israel. As for the individual incarceration warrants lawfully issued against the appellants, then the evidence reveals their tight connection with Hezbollah, their individual dangerousness was proven even without relying on the presumption in section 7 of the Act. There is no place to revoke the incarceration warrants

Yekutieli v. Minister of Religious Affairs

Facts: Section 3(4) The Income Support Law, 5752-1982 provides that students in institutions of higher education or in other post-secondary institutions, including students in religious institutions, are not entitled to the income support benefits that are paid in accordance with that law. Nevertheless, each annual budget law since 1982 has included a budget item pursuant to which kollel students are paid minimum income support benefits. The petitioners challenged the support benefits paid pursuant to the budget item, arguing that the payment of these benefits constitutes 2 Israel Law Reports [2010] IsrLR 1 discrimination against all other students who are excluded from eligibility for payment of support benefits pursuant to the Income Support Law. Held: Majority opinion (President D. Beinisch, with the concurrences of Justices M. Naor, S. Joubran, A. Procaccia, E. Hayut and A. Grunis): The budget item creates an arrangement in which kollel students [married students in institutions of advanced Talmudic studies] receive payments that the other students, who are excluded from the payment of such benefits according to the Income Support Law, 5741-1980, do not. This differential treatment violates the principle according to which state funds are to be distributed on the basis of equality, in accordance with uniform tests – a principle embodied both in the case law and in s. 3A of the Budget Principles Law, 5745-1985. The budget item, as part of an annual budget law, is subordinate to the provisions of the Budget Principles law, although the court must act with restraint when reviewing economic policy matters. Budgetary matters may be overturned by the court only when they involve a severe violation of a basic right. Given that the criteria for determining eligibility for the benefits pursuant to the budget item relate to the economic situation of such students, the distinction that this arrangement creates between the kollel students and the other students constitutes discrimination in that it is not based on a relevant distinction between the two groups of students. This discrimination is in fact a violation of a basic right – the right to equality. Nevertheless, the differential treatment would be permissible if the discriminatory act is covered by the limitations clause of the Basic Law: Human Dignity and Respect. But the payments do not qualify under the third of the conditions set out in that clause. The payments made pursuant to the budget item are based on a statutory provision and, according to the state’s position, the objective of these payments is the legitimate purpose of supporting Torah study. However, the payments do not meet the third condition, requiring that the measure not be an excessive one. With respect to the income support payments, there are other possible arrangements that would support the stated objective, but without violating the right to equality to the same degree. The budget item must therefore be repealed and may not be included in future budget laws; however the repeal will not be immediate, so as not to violate the reliance interest of those who have been receiving the payments pursuant to an item that has been a part of all budget laws over the course of many years. Concurring opinion (Justice A. Procaccia): The government has a legitimate interest in supporting groups within society who wish to maintain their unique lifestyles. However, this interest may not be furthered by an act which violates the principle of equality, a principle which assumes that all citizens who are able to do so will bear the burden of providing for their own subsistence. Minority opinion (Justice E.E. Levy): The decision to support kollel students was made in the context of the policy making power properly exercised by the Government and the Knesset, and cannot be overturned by the court. Although the government may not take discriminatory action, this action does not fall within that category, as it is based on a legitimate distinction between kollel students who study Torah as a full time occupation and other students who are pursuing their studies for a limited period of time. Petition granted

Boaron v. National Labour Court

Facts: Four widows who had each been receiving either a dependents allowance or a survivors allowance in accordance with the provisions of the National Insurance Law [Consolidated Version], 5755-1995, received notices from the National Insurance Institute indicating that their allowances had been discontinued — as of the time that the Institute had determined that each had begun living together with a new partner in a common-law marriage. After the relevant regional labour courts ruled in favor of the petitioners, the National Labour Court upheld the discontinuation of the allowances for all of them. Held: The National Labour Court’s decision involved no substantive legal error requiring the intervention of the High Court of Justice. Sections 255 and 262 of the National Insurance Law refer to the discontinuation of a survivor’s allowance to a widow who has remarried; s. 135 refers to the discontinuation of a dependents allowance to a widow who has remarried. Neither section refers specifically to remarriage in the context of a common-law relationship. However, the statute’s definitional section specifically defines a wife as including a common-law wife, and it is this definition that entitles a woman whose common-law husband has died in either a work accident or of natural causes to receive the relevant type of allowance on the same ground that an “official” widow receives such an allowance. The question to be decided, therefore, is whether the provisions relating to the discontinuation of the allowance upon remarriage, as outlined in the above-mentioned sections, apply to widows or widowers who have entered into common-law relationships as well as to those who have officially remarried. The statute must be interpreted in light of its purpose and in light of its specific language. The purpose of both allowances is to provide financial support to a person after the death of his or her partner whose income had provided support; this support is discontinued at the time of a remarriage under the assumption that the new couple will be pooling income and sharing expenses and that the support from the National Insurance Institute is no longer necessary. This is also why the allowance is generally renewed if the second marriage ends within a certain period of time. This purpose supports the cancellation of benefits to widows and widowers who have entered into common-law relationships, as they too are benefiting from the financial aspects of a shared household, given that the existence of such a shared household is a prerequisite for a determination that a relationship reaches the level of a common-law marriage. The petitioners had argued that common-law relationships and official marriages should not be deemed comparable in terms of the level of support provided, due to the relative instability of a common-law relationship which has not been formalized through a wedding ceremony. This argument fails because the statutory provisions regarding the renewal of allowances upon the conclusion of a remarriage would also apply to the termination of a common-law relationship, so that the supposed relative instability of the latter form of relationship is not a relevant consideration. The statutory language also supports the determination that a common-law wife should lose her entitlement to a survivors or dependents allowance. The definition of a wife in the definitional section expressly refers to a common-law wife, and nothing else in the text of the statute contradicts the inclusion of a common-law relationship within the definition of remarriage. The fact that the provisions pertaining to the cancellation of a right to an allowance refer to specific dates such as the date of a marriage or of the dissolution of a marriage does not conflict with this interpretation; the National Insurance Institute is able to make determinations regarding the beginning and ending of a common-law relationship as well, albeit not as easily as in the case of an official marriage. Petitions denied

Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel

Facts: The government adopted a decision to establish ‘national priority areas’ in outlying parts of the country. These areas were defined in a map that was attached to the government decision. The towns and residents of these areas were given benefits, including in the field of education. The petitioners attacked the legality of the government decision on the ground of discrimination, since hardly any Arab towns were included in the national priority areas. The respondent argued that the criterion for determining the national priority areas was purely geographic, that there was no intention to discriminate against Arab towns and that there were simply very few Arab towns in the most outlying parts of the country in the north and south. The respondent also argued that other measures had been adopted to improve education in Arab towns. Held: (President Barak) The government decision should be set aside because it was discriminatory in its result. Discrimination may occur without any discriminatory intention or motive on the part of the persons creating the discriminatory norm. The discriminatory outcome is sufficient to set aside the government decision. (Vice-President M. Cheshin) The decision to create ‘national priority areas’ is in essence a primary arrangement. Primary arrangements can only be made by the legislative branch, the Knesset, and not by the executive branch, the government. Therefore the creation of the ‘national priority areas’ was ultra vires. Petition granted

State of Israel v. Beer-Sheba District Court

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule. Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope is no longer suited to present conditions and legal realities. It today constitutes an obstacle to conducting effective criminal trials. The time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule, and the rule as it is interpreted today can no longer stand. All the Justices agreed that the Kinsey rule should generally no longer be applied and that it should not be applied in this case; they differed on how sweepingly it should be rejected. Justice Levy (with whom Justice Grunis agreed) concluded that the Kinsey rule should be rejected outright. While the court should exercise great caution when considering the credibility of the testimony of a witness-accomplice, whose separate trial has not ended, against the defendant, the right to a fair trial, which was protected by the Kinsey rule, should be protected instead by other means. The two most important such protections in this setting are the requirement of supporting evidence for the testimony of a witness-accomplice in s. 54A of the Evidence Ordinance, and the privilege against self-incrimination in s. 47(b) of the Evidence Ordinance. These should be interpreted broadly so that any incriminating statement made during the testimony of the witness-accomplice in the trial of the defendant may not be used directly or indirectly against the witness-accomplice in his subsequent trial. Justice Procaccia argued that the proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended. President Beinisch, whose views were endorsed by President Emeritus Barak, Vice-President Rivlin, and Justice Naor, staked out an intermediate position. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state. Petition granted

Association for Civil Rights v. Minister of Public Security

Facts: The petitioner challenged the respondents’ recruitment policies, which restrict the age of job applicants to a maximum of thirty-five or forty. The petitioner argued that these policies were discriminatory on the basis of age and therefore unlawful. The respondents argued that the policies were required by the demanding nature of the work. Held: In the absence of evidence justifying their policies, the Supreme Court held that the recruitment policies of the respondent were indeed discriminatory on the basis of age and therefore void. Petition granted

Commitment to Peace and Social Justice Society v. Minister of Finance

Facts: The government decided to reduce the amount of income supplement benefit paid to individuals and families, and to cancel several subsidies given to persons receiving income supplement benefit. The reduction in the amount of income supplement benefit and the cancellation of the subsidies were incorporated into the Income Supplement Law by means of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002. The petitioners attacked the reduction in the benefit and the cancellation of the subsidies, on the ground that they violated the human right to live with dignity included in the right to dignity in the Basic Law: Human Dignity and Liberty. The petitioners claimed that the reduced amount of the benefit did not allow its recipients to live with dignity, since it fell below the minimum required to allow the recipient to pay for his subsistence requirements. Held: (Majority opinion — President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis) The petitioners did not prove a proper factual basis for their claim that the reduction in the income supplement benefit violated their human right to live with dignity. Therefore the petitions should be denied. (Minority opinion — Justice Levy) The petitioners succeeded in discharging the initial burden of proof showing that their right to live with dignity had been violated. Therefore the burden passed to the state to show that the violation was constitutional. The respondents failed in this regard, because it was clear (even from the respondents’ own submissions) that they had not taken into account the human right of the recipients of income supplement benefit to live with dignity when making the changes to the Income Supplement Law. Consequently, the reduction in the amount of the benefit and the cancellation of the subsidies should be declared void