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As we reached the plaza in front of it, we saw Israeli policemen in great numbers before us. The Court is the constitutional gatekeeper, while the legislature dictates the rules of gatekeeping. On the question of Prostitutes Sederot, however, the burden of production is on the party claiming that the infringement is not proportional, Prostitutes Sederot it must bring evidence showing the existence of alternatives that effect a more moderate infringement on the right.

What, then, is the correct evaluation? This Court has yet to rule on that question. Migdal Prostitutes Sederot Cooperative [6] hereinafter: Bank Mizrachi [6]in which the Court Prostitutes Sederot that Prostitutes Sederot has the authority to invalidate a new statute that violates the Basic Law: Human Dignity and Liberty.

There, the issue was the constitutionality of a statute amending another statute passed prior to the Basic Law. The court rejected that argument:.

In terms of its purpose, at the present stage, the Basic Law seeks to preserve Prostitutes Sederot status quo; it does not, however, spread its protective wing over what is to come, because to do so would empty the Basic Law of its content and purpose.

If we accepted the rule that the new statute is to be evaluated as Prostitutes Sederot section 10 applied to it, as is Prostitutes Sederot case for statutes enacted prior to the passage of the Basic Law, one would simply have to dress every new statute in the garb of an amendment to an existing law in order to exempt it from the application of the Basic Law …. Finally, an amendment to a statute, like any statutory provision, Prostitutes Sederot a separate and new law, to which the non-applicability provision of section 10 of the Basic Law does not apply.

Practically, too, we should draw clear dividing lines, rather than allow ourselves to Prostitutes Sederot dragged into foggy distinctions. Attempting to determine the extent to which a statutory amendment innovates and its innovative implications on legislation as a whole would create an endless system of debate and interpretation. Instead, we should draw a simple line, clear and unambiguous, based on the time at which the amendment was passed.

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The watershed event is the date at which the Basic Law came into force. In Bank Mizrachi Prostitutes Sederot, the Court considered the legality of an Prostitutes Sederot statute that was not a beneficial statute: the amending statute aggravated the infringement on the right to property. When the legislature enacted the amending statute, it was aware of the obligation imposed on it by the Basic Law: Human Dignity and Liberty, namely not to infringe on a basic right in contradiction of the Basic Law.

The job of the Court is to evaluate whether the amending statute fulfils that obligation. In other words, the Prostitutes Sederot must evaluate the amending statute in light of the Basic Law. Furthermore, the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw.

Sometimes, an amending statute combines beneficial Prostitutes Sederot with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do Prostitutes Sederot may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits.

The question arises as to whether to establish more lenient requirements — with respect to the clause on proportionality — in reviewing new legislation that amends an old statute. Indeed, if we apply the ordinary requirements of the limitation clause, the new legislation — which advances human rights, compared to Prostitutes Sederot old law — may be constitutionally infirm. The result would then be to return to the old law, whose infringement on Prostitutes Sederot rights is sevenfold worse.

What, then, is the point of the amendment? On this line of thought, there should be a special limitation Prostitutes Sederot for a new statute which amends an old law. It contains just one limitation clause. Finally — and this is the most important point, in my opinion — the limitation clause should not be diluted.

Invalidating new legislation that amends an old law, because the new provisions do not fulfill the requirements of the limitation clause, is not a green light Prostitutes Sederot legislative omissions.

It should serve Prostitutes Sederot a catalyst for deeper change, consistent with the conditions set forth in the limitation clause. See also A. It should be noted that even the respondents, in their briefs, do not challenge the authority of the Court to review the legality of an amending statute, even a beneficial statute, in light of the Basic Law: Human Dignity and Liberty.

However, they argue that the Court should use Prostitutes Sederot in exercising such authority, limiting it to the most extreme cases in which the beneficial law still infringes on a basic Prostitutes Sederot to an intolerable degree.

I am prepared to agree that the Court, Prostitutes Sederot reviewing the legality of a statute in light of the Basic Law: Human Dignity and Liberty, should, where appropriate, accord significance to the Prostitutes Sederot that we are talking about a beneficial law. However, the fact that the statute benefits does not render it immune from judicial review under the Basic Law.

Having said that, we must now evaluate whether the amending statute, under which a soldier can be Prostitutes Sederot under arrest for up to 96 hours, infringes on personal liberty in a way that contradicts the Basic Law: Human Dignity and Liberty. Section 5 of the Basic Law: Human Dignity and Liberty constitutionalizes the right to personal liberty. Furthermore, personal liberty is a constitutional right of the utmost importance, and as a practical matter, it is a condition for exercising other basic rights.

Violating personal liberty, like throwing a stone into a lake, creates expanding circles of infringements of additional basic rights: not just freedom of movement, but Prostitutes Sederot freedom of expression, the right to privacy, property rights, and others. Prison Services, IsrSC 50 4 [7] at And personal liberty, more than any other right, Prostitutes Sederot what makes a person free.

For that reason, denying someone personal Prostitutes Sederot is a particularly serious infringement. Indeed, denying personal liberty through imprisonment is the harshest punishment that a well-ordered state imposes on criminals. Detention by an administrative agent, like a police officer, is the most serious infringement on personal liberty.

In contrast Prostitutes Sederot imprisonment, such detention is not imposed by a court as the result of a judicial proceeding, as punishment for a crime. It is imposed by an administrative agency, based on suspicion alone, on a person who still enjoys the presumption of innocence.

Joanna shrugged, looked at the floor.

State of Israel [8] at In principle, the level of protection accorded to a basic right must be directly proportional Prostitutes Sederot the importance of the right and the degree to which it is Prostitutes Sederot upon.

Therefore, there may, for example, be a difference between the level of protection accorded to personal liberty and that accorded to the right to property, just as there may be a difference in the Prostitutes Sederot accorded in cases Prostitutes Sederot complete denial of personal liberty, versus those involving a limited infringement on Prostitutes Sederot.

The conclusion: because personal liberty is a constitutional right of special importance, it deserves special protection against infringement via detention at the hands of an administrative agency. This is the kind of infringement that Prostitutes Sederot when a military police officer arrests a soldier for 96 hours, under section A of the Military Adjudication Law. Of course, not every infringement on personal liberty violates the Basic Law: Human Dignity and Liberty.

Like all basic rights, the right to personal liberty is not absolute. Personal liberty may, and in some cases must, be restricted, in order to protect other rights or to protect the public. The Basic Law recognizes this need and sets conditions for fulfilling it.

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The limitation clause of the Basic Law establishes these conditions. In any case involving infringement on personal liberty, the question is therefore whether the Prostitutes Sederot meets the conditions established in the limitation clause, which Prostitutes Sederot as the line of defense for basic rights, including the right to personal liberty.

The Court comes to protect personal liberty from a statute that infringes on it, only when the statute breaks Prostitutes Sederot the line of defense drawn by the limitation clause. The general limitation clause of section 8 of the Basic Law: Human Dignity and Liberty reads as follows:. There shall be no violation of Prostitutes Sederot under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

However, immediately after the general limitation clause, the law adds a special limitation clause for security forces. There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defense Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by law, or by regulation enacted by Prostitutes Sederot of a law, and to an extent no greater than is required by the nature and character of the service.

Because section A of the Military Adjudication Law restricts the personal liberty of soldiers, clearly it is also subject to the security limitation Prostitutes Sederot of section Prostitutes Sederot of the Basic Law: Human Dignity and Liberty.

How does the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty differ from the general limitation Prostitutes Sederot of section 8 of the Basic Law? The security limitation clause was not, by itself, designed to restrict the basic rights of those Prostitutes Sederot in the security forces.

There is no question that the human rights protected in the Basic Law are also the rights of the soldier. The uniform does not divide the soldier from his or her constitutional human Prostitutes Sederot.

Human rights are part of the rights that a soldier enjoys as a human being …. If so, what is the special purpose of the security limitation clause? On its face, the security limitation clause sets special conditions for infringing on the basic rights of those serving in the security forces. These conditions differ from those established by the general limitation clause for infringing on the basic rights of others.

What are these special conditions? First, under Prostitutes Sederot security limitation clause, the basic rights of those serving in security forces may be infringed through enacting regulations such as military orders.

See section 9 of the Interpretation Law, See also, Y. The Court has not yet ruled on this question. Nor is there a need to do so in this case, because the statute itself, and not implementing regulations, authorizes the infringement on personal liberty by arresting a soldier. There are additional semantic differences between section 8 and section 9 of the Basic Law.

The language of the statute must be interpreted according to the purpose of the statute. If we take the purpose of the statute into consideration, we must Prostitutes Sederot this interpretation, because it Prostitutes Sederot likely to frustrate the purpose of the Basic Prostitutes Sederot, namely, that basic rights are the constitutional rights of every person, including, of course, a person serving in the security forces.

The same is true, a fortiori, Prostitutes Sederot administrative regulations. See A. The question therefore arises as to whether section A of the Military Adjudication Law, which Prostitutes Sederot a military police officer Prostitutes Sederot arrest a soldier for a period of 96 hours before bringing him before a military judge, meets the requirements of consistency with the Prostitutes Sederot of the State of Israel and designation for a proper purpose.

The answer is that the arrest of Prostitutes Sederot soldier who has committed Prostitutes Sederot offense is recognized and accepted, in certain instances, as an essential means of protecting public safety. Public safety is one of the basic values of the state, and its protection is a proper purpose.

That principle holds true when a civilian police officer arrests a person who is not serving in the security forces as well as when a military police officer arrests a soldier. Arresting a soldier may serve the additional purpose of maintaining Prostitutes Sederot necessary discipline in the military, which is also a proper purpose.

Furthermore, we can also say that the amendments made to section A after the passage of the Basic Law: Human Dignity and Liberty meet the requirements of values and purpose because they were passed in order to Prostitutes Sederot the period of detention, and thus to limit the infringement on personal liberty. We may therefore conclude that, in terms of values and purpose, section A of Prostitutes Sederot Military Adjudication Law passes constitutional muster. Indeed, the petitioners do not object to the very authority of a military police officer to arrest a soldier, but rather to the period Prostitutes Sederot detention which can be ordered by a military police officer.

The petitioners claim that an arrest warrant authorizing 96 hours of detention, before a soldier must be released or brought before a judge to extend the detention, is disproportionately long.

Therefore, they claim, it infringes on the right to personal liberty to an extent greater than is required under section 9 of the Basic Law: Human Dignity and Liberty. Semantically, there is a Prostitutes Sederot between the proportionality test established in section Prostitutes Sederot of the Basic Law: Human Dignity and Liberty security limitation clause and the proportionality test established in section 8 of the Basic Law general limitation clause.

The proportionality test is flexible. This is true, for example, of prisoners. The principle holds true for a person of another status. It is therefore clear that the proportionality of the harm to a person serving in the security forces is influenced by the nature and character of the service. This means that Prostitutes Sederot the general proportionality test of section 8 of the Basic Law to those serving in the security forces would have to take into consideration the nature and character of the service, even if section 9 of the Basic Law did not explicitly say so.

Thus, section 9 of the Basic Law simply states the obvious. It also, however, serves to clarify and remove any doubt: The proportionality of infringing on Prostitutes Sederot rights of those serving in the security forces depends on the nature and character of the service, Prostitutes Sederot it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces. Furthermore, the proportionality is likely to vary among types of service even within the security forces.

For example, the proportionality of infringing on the rights of a person serving in the military is likely to be different from the proportionality of infringing on the rights of a person in the Prison Prostitutes Sederot. The military context is unique in its own right. This uniqueness justifies recognizing the possibility of a more widespread Prostitutes Sederot of the human rights of a soldier, relative to what would be permitted for a non-soldier.

Comparative law from systems which have addressed similar problems will be useful. The primary question raised by these petitions, therefore, is whether the authority to arrest a soldier under the Military Adjudication Law withstands the proportionality test, taking into consideration the nature and character of the military service. Is it possible to reduce the period of arrest, without undermining its purpose? The answer to the question of proportionality depends, in large part, on the Prostitutes Sederot.

Has lawful evidence proven to the Court that it is possible to reduce the period of detention, thus limiting the infringement on personal liberty, without undermining the purpose of the arrest? In order to answer that question, we must first clarify who bears the burden of proof in demonstrating proportionality: the Prostitutes Sederot or the respondents.

The Court has yet to rule on the question of burden of proof in demonstrating proportionality, although it has arisen in prior cases. The justices have been divided on the issue. They expressed their disagreement in Bank Mizrachi [6]. Prostitutes Sederot para. In the judgment, the justices distinguished between two burdens Prostitutes Sederot the burden of proof: the primary burden, which is the burden of persuasion, and the secondary burden, which Prostitutes Sederot the burden of production.

On these burdens, see 3 Y. Kedmi, Al Harayot [On Evidence] [22] beginning on pp. One opinion expressed in Bank Mizrachi [6] is that the burden of persuasion passes from party to party, depending on the stage of argument. At the first stage of argument, the question is whether the statute being reviewed infringes on a Prostitutes Sederot right.

At this stage, the statute enjoys a presumption of constitutionality. The burden of persuasion, therefore, is on the party contending that the statute infringes on a right, meaning it is generally on Prostitutes Sederot person or body who is harmed by the statute. At the second stage, the question is whether the infringement on a constitutional right is legal, meaning, in accordance with the limitation clause: by law or by virtue of a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.

At this stage, the burden of persuasion that the infringement is legal falls on the party arguing for the constitutionality of the infringement, meaning it is generally on the administrative agency acting by force of the statute.

Levin, Id. An opposing opinion is that at Prostitutes Sederot stage of the argument, every statute enjoys a presumption of constitutionality, and therefore, at both stages, the burden of persuasion is on the party claiming otherwise. Prostitutes Sederot opinion, taking a middle course, divides the burden of proof at the second stage. In other words, the burden of persuasion at the second stage is on the party arguing for the constitutionality of the statute, generally the administrative agency acting by force of the statute.

On the question of proportionality, however, the burden of production is on the party claiming that the infringement is not proportional, meaning it must bring evidence showing the existence of alternatives that effect a more moderate infringement on the right. See Justice Prostitutes Sederot, Id. See also a similar opinion by Justice M.

Cheshin, Id. At the end of the Prostitutes Sederot, however, the disagreement between the justices in Bank Mizrachi [6] remained unresolved. Parenthetically, I will note my doubt that case law on the burdens of proof in criminal and civil law has the same application in public law. It is true that in public law, like civil law, the applicable rule is that he who would take from his friend bears the burden of proof. Therefore, at the first Prostitutes Sederot of argument in public law, the burden of raising a substantial doubt over Prostitutes Sederot is on the petitioner claiming the unconstitutionality of a statute, regulation, or administrative decision.

However, once the petitioner has raised this doubt whether or Prostitutes Sederot an order-nisi has been issuedthe Court need not make do with the evidence brought by the petitioner. For example, if the petitioner succeeded in raising a substantial doubt over the Prostitutes Sederot of an administrative decision or the legality of the considerations that went into it but did not produce enough evidence for the Court to definitely determine the legality of the decision, the Court need not reject the petition for lack of evidence.

It may, sua sponte, require the agency to answer certain questions or present additional specified evidence, such as affidavits, documents, and the like. This is one of the differences between an administrative proceeding and a criminal or civil proceeding. First, the difference stems from the Prostitutes Sederot of an administrative proceeding: it deals with a Prostitutes Sederot taken by an agency acting in the name of the public and for the sake of the public. Prostitutes Sederot principle, therefore, the public has a right to know the facts and reasons at the basis of the decision.

Second, the difference stems from the principle of rule of law; in an administrative proceeding, the Court is not just supposed to adjudicate a Prostitutes Sederot between two parties but also to preserve the principle of rule of law. This Prostitutes Sederot requires that, if substantial doubt has been raised over the legality of an administrative decision, Prostitutes Sederot doubt should be clarified, to avoid leaving an illegal decision in effect.

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This is also the source of the difference in the burden of proof in an administrative proceeding versus a criminal or civil proceeding.

In an administrative proceeding, more than in a criminal or civil proceeding, the Court is likely to initiate actions that may Prostitutes Sederot necessary to strengthen the body of evidence so that it can decide the legality of the administrative decision on the merits. Therefore, once a doubt has Prostitutes Sederot raised about the legality of an administrative decision at the start of an administrative proceeding, the question of burden of proof does not arise again in the proceeding.

That is not always the case. Sometimes, even at the end of the proceeding, the body of evidence vacillates such that the Court cannot use it to make the findings necessary to decide the legality of the administrative decision. In this situation, rather than decide the legality of the administrative decision on the merits, the Court Prostitutes Sederot be forced to do so by ruling on the issue of the burden of proof.

However, even a decision on that issue will likely be influenced by the special nature of administrative proceedings. It is likely to be influenced by considerations of rule of law, the presumption of the constitutionality of statutes and legality of administrative decisions, the importance of the right infringed and the severity of the infringement, administrative efficiency, and other public interests.

The relative weight given to these considerations may determine whether the petitioner, who seeks something from the agency, bears the burden of proof, or Prostitutes Sederot it passes to the agency. This may explain, if only partially, the differences of opinion among the justices in Bank Mizrachi [6] over the question of Prostitutes Sederot burden of proof.

In any event, in this case, as in Bank Mizrachi [6], we need Prostitutes Sederot resolve the dispute over burden of proof. I will therefore leave it to be examined at another time. The evidence produced before the Court is sufficient to allow it to rule on the proportionality of the statutory provision authorizing a military police officer to arrest a soldier for up to 96 hours, without having to rule on the issue of burden of proof.

In Prostitutes Sederot of the evidence, does the statutory provision authorizing a military police officer to arrest Prostitutes Sederot soldier for a period of Prostitutes Sederot hours withstand the proportionality test? As a preliminary question, we must ask: what determines the proportionality test.

In a few decisions in recent years, the Court has answered the question of what determines the proportionality test. Finance Minister [11], in which the Court Prostitutes Sederot a certain provision in a new statute because it disproportionally infringed on the right to freedom of occupation.

In order to reach its decision, the Court presented the proportionality test. This Prostitutes Sederot, as the Court held, is divided into three secondary tests, as President Barak held:.

The Prostitutes Sederot secondary test is the test of suitability Prostitutes Sederot rational connection. A legislative means that infringes on a constitutional human right — Prostitutes Sederot our case, the right to freedom of occupation — is proper if it is suited to achieving the objective.

There must be Prostitutes Sederot suitable connection between the ends and the means. The legislative means must rationally lead to achieving the legislative objective … Prostitutes Sederot second secondary test is the test of the least violative means. A Prostitutes Sederot means that infringes on a constitutionally protected human right — in our case, the right to freedom of occupation — is proper only if the legislative objective cannot be achieved by another means whose infringement on the human right is less severe … The legislative means is like a ladder on which the legislature climbs in order to achieve the legislative purpose.

The legislature must stop at the rung of the ladder which achieves the legislative purpose through a means least violative of the human right. Prostitutes Sederot if the means chosen is rationally suited to achieving the objective, and even if there is no means more moderate, there must be a proper relationship between the benefit it will create and the scope of the infringement on a constitutionally-protected Prostitutes Sederot right … this is Prostitutes Sederot test that evaluates the result of the legislation, and the effect it has on the constitutional human right.

If using a legislative means causes a severe infringement on a human right, and the benefit it is expected to give the public is minimal, the legislation may exceed the extent necessary in the narrow sense.

The arguments in this petition focused on the second secondary test: the choice of the least violative means. They argue that such detention infringes on personal liberty beyond what is necessary, because it is possible and appropriate to reduce the period of detention without undermining Prostitutes Sederot purpose of the arrest. What, then, is a proportional period for which a military police officer may detain a soldier?

The petitioners claim that Prostitutes Sederot proportional period for a military police officer to detain a soldier is the same period as that for which a civilian police officer may detain any person, regardless of whether he or she is a soldier. At the relevant time, the Criminal Procedure Ordinance Arrest and Search [new version], hereinafter — Arrest and Search Ordinance established the period for which a civilian police officer may Prostitutes Sederot someone.

Section 16 of the Prostitutes Sederot ordinance imparted a civilian police officer with the authority to arrest a person for no longer than 48 hours, after which the person must be released from detention or brought before a judge with a request to extend the detention.

Such authority had existed for many years, including at the time these petitions were brought before the Court. The petitioners claimed that there was no justification for distinguishing between the arrest authority of a civilian police officer and that of a military police officer, for purposes of determining the maximum period of detention. The nature and character of military service does not justify detention by a military police officer for a longer period of time.

When a military police officer arrests a soldier Prostitutes Sederot 48 hours, he or she infringes on the personal liberty Prostitutes Sederot the soldier, but no more than is necessary; detention for a longer period of time infringes Prostitutes Sederot personal liberty to an extent beyond what is necessary.

Hence, because it infringes on personal liberty beyond what is necessary, the statute authorizing a military Prostitutes Sederot officer to detain a soldier for longer than 48 hours is null and void. The Criminal Procedure Prostitutes Sederot Enforcement Authority — Arrestshereinafter — Enforcement Authority Law rescinded in section 42 section 16 of the Arrest and Search Ordinance and reduced the period of detention by a civilian Prostitutes Sederot officer.

Under section 1 c of the Enforcement Authority Law, the provisions of the law apply to detention under any law, unless otherwise provided for Prostitutes Sederot law. To remove any doubt, section 44 of the Enforcement Authority Prostitutes Sederot adds a provision to the Military Adjudication Law section Cunder which the provision limiting detention by a civilian police officer to 24 hours does not apply to detention by a military police officer under the Military Adjudication Law.

After the Enforcement Authority Law was passed, the petitioner submitted an amended petition on June 26, taking the position that the proper period for detaining soldiers, in accordance with the Basic Law: Human Dignity and Liberty, is 48 hours.

Subsequently on March 11,the petitioner even notified the court that he was not seeking to reduce the period of detention to less than 48 hours. The suggestion is that either the petitioner believed that the nature and character of military service justify arresting a soldier for 48 hours, even though a civilian police officer is not authorized to detain a person for longer than 24 hours, or he believed that the military Prostitutes Sederot require a period of adjustment to prepare for a maximum detention of 24 hours, and he was therefore prepared to make do with a maximum period of 48 hours.

Even if the honored Court decides that the minimal constitutional standard is 48 hours, the principle of equal application of basic rights requires limiting the period of detention to 24 hours.

On this issue, however, the petitioners made a mistake.

The principle of equal application of basic rights applies to equal situations. This court gave expression to that principle in a few cases. See e. Therefore, the Prostitutes Sederot that Prostitutes Sederot decide these petitions is not the question of equality in the periods of detention for soldiers and non-soldiers, but rather whether detaining a soldier Prostitutes Sederot 96 hours infringes on personal liberty to an extent greater than is required by the nature and character of military service.

The question of proportionality Prostitutes Sederot the kind of question which has no precise answer. Proportionality cannot be measured. Indeed, how could we measure, in quantitative data, the level of harm caused to a soldier by detention or another infringement on personal liberty? We have no machine or formula that Prostitutes Sederot measure the force or weight of the harm caused by denying personal liberty, via arrest, for one hour or one day. Nor do we have a machine or formula that can measure the Prostitutes Sederot or benefit of reducing the infringement on personal liberty by reducing the detention by an hour or a day.

Similarly, there is generally no precise way to measure the cost, be it economic or social, of reducing the infringement on the right. For example, what is the social and economic cost of shortening detention by a civilian police officer from 48 hours to 24 hours?

There would seem to be no way to quote a price, even in terms of money or human resources. There is certainly no way to quote a price in terms of public order and crime prevention. Indeed, human rights and public interests are not potatoes which can be weighed on a scale, one against the other, to see which side tips the scale.

Because we cannot weigh, we must estimate. We must make an effort, in every situation, to Prostitutes Sederot estimate the relative weight Prostitutes Sederot human rights, on the one hand, and public interests, on the other. The proper balance between them is what determines proportionality. The greater the importance of the right infringed, and the more Prostitutes Sederot the infringement, the stronger the public interest must be, in order to justify the infringement.

A Prostitutes Sederot infringement on an important right, designed to protect but a weak public interest, is likely to be considered an infringement beyond the extent required. We Prostitutes Sederot imagine the relationship between the right and the public interest on one hand, and the proportionality on Prostitutes Sederot other, as an equation. In contrast to a mathematical equation, however, the value of each term of the equation is not precise, and in any event, it cannot be measured.

We determine the value by estimating, and an estimate is subject to dispute. Someone may disagree. However, even when the estimation is in dispute, a decision is still necessary. The Court must make a decision. Such is the role and authority of the Court. Such is also its skill. The Court is accustomed to evaluating the relative weight of competing rights and interests in a variety of contexts, based on the body of data and considerations presented, in Prostitutes Sederot to arrive at the proper balance.

The Court does this generally, and proportionality is no exception. Making an evaluation based on the relevant data and considerations is the only way to determine whether a particular infringement on a particular right exceeds what is necessary. This is the right way Prostitutes Sederot determine whether the detention of a soldier by a military police officer for 96 hours infringes Prostitutes Sederot personal liberty beyond the extent required by the nature Prostitutes Sederot character of military service.

The respondents of course recognize the special importance of the personal liberty of a soldier, like that of any person, and they do not dispute the appropriateness of limiting the infringement on such liberty as much as possible, taking into consideration the nature and character of military service. In that spirit, they point to the impressive reduction Prostitutes Sederot the detention Prostitutes Sederot that has taken place gradually, since the original version of the Military Adjudication Law permitted two months of detention by a Prostitutes Sederot police officer.

Just a few years ago, when these petitions were submitted to the Court, the amended law still allowed detention by a military police officer for up to 25 days. The respondents viewed even that period as longer than is proportional. Thus, even before the petitions Prostitutes Sederot submitted, the military, on its own initiative, began to examine the possibility of a further reduction in the period of Prostitutes Sederot.

Furthermore, even today, when the maximum period of detention by Prostitutes Sederot military police officer is 96 hours, the respondents believe that it is appropriate and Prostitutes Sederot to continue to reduce Prostitutes Sederot period. In the concluding paragraph of their written briefs submitted to the Court, the respondents said that:. The military authorities are aware of the need to continue trying to Prostitutes Sederot the maximum period for which soldiers may be detained prior to being brought before a military judge.

The respondents have worked to amend the law gradually, on an experiential basis, as part of a trend toward harmonizing the detention period, as much as possible, Prostitutes Sederot that customary for the Prostitutes Sederot of civilians. This trend was expressed during a debate in the Knesset over a proposed amendment to the Military Adjudication Law that would set the maximum period Prostitutes Sederot detention by a military police officer at eight days, to be reduced to four days within two years.

In civilian life, when we are dealing with the civilian Prostitutes Sederot, the police are equipped with a station and authorized people and agreed-upon agencies scattered throughout the country. Currently, there is no possibility of immediate communication, as there is among civilian agencies. In other words, before we reach the final step of total equalization between the military agency and the civilian agency, we continue to march forward significantly, but still have not reached absolute equalization ….

I believe they will do it. If this is the case, why do the respondents oppose the petitions? The respondents offer a few reasons to support their position. We will discuss each of them, one by one, beginning with the lightest and moving to the heaviest. One reason offered by the respondents is that the current situation is essentially better than the situation set forth by the law.

The military tries not to hold soldiers in custody for the maximum period Prostitutes Sederot, 96 hours, unless there is a need to hold them in custody for the entire period. Such is indeed the case. But there is nothing remarkable about that. The period Prostitutes Sederot detention Prostitutes Sederot in the statute is the maximum period designed for a particular purpose, primarily to conduct investigatory activities, before releasing the soldier or bringing him or her before a military judge in order to extend the detention.

These activities, like any exercise of administrative power, must be done with the proper speed. See section 11 of the Interpretation Law. Once these activities have been completed, and there is no longer any purpose to the detention, the soldier must be released, Prostitutes Sederot if the maximum period of detention has not yet elapsed.

And even if there is justification for continuing to detain the soldier, the law requires that he or she be brought before a military judge as soon as possible, in order to extend the detention. Compare section 29 a of the Enforcement Authority Law. This obligation, however, even if Prostitutes Sederot fulfilled in practice, still does not justify a statutory provision that establishes a maximum period of detention which is longer than is necessary.

Furthermore: we have no data to show how many of the soldiers arrested are held in custody for the maximum allowed period, meaning 96 hours, and whether they are held in custody when Prostitutes Sederot or when not necessary. Prostitutes Sederot petitioners assume that it is common practice for soldiers who are arrested to be held in custody until the end of the maximum period.

In any event, the answers to these Prostitutes Sederot have no bearing on the result of the case. Even if we were presented with data showing that relatively very few soldiers are held in custody for the entire maximum period, it would not sufficiently answer the claim that the maximum period of detention is longer than is necessary. Such an Prostitutes Sederot could not justify a maximum detention period of two months or eight days.

Such an answer could not, at the relevant time, have prevented the reduction in the maximum period of detention by a civilian police officer from 48 to 24 hours. The proportionality test for the detention period also relates to the maximum period of detention, meaning the period established by the statute, and not just the period of detention in practice for this or that soldier.

If the maximum period infringes on personal liberty beyond what is necessary, that is the case even if it infringes on the liberty of just a few people.

Even the personal liberty of a single individual is worthy of protection as though it were the liberty of the entire world. In any event, this claim raised by the respondents appears to have failed to convince even the respondents themselves, because they concede the appropriateness of reducing the period of detention from what is it today. The respondents raise an additional claim, Prostitutes Sederot a similar vein, that, de facto, the infringement on personal liberty of a soldier arrested by a military police officer is not so severe.

First, under section aa soldier who has been arrested may submit an appeal to a military attorney. Second, under sections A b and A dProstitutes Sederot if the soldier does not submit an appeal, the arrest Prostitutes Sederot be brought before a military attorney for approval within 48 hours of the arrest, and if the arrest is not brought for such approval, the soldier is released.

Third, under section A ca military attorney may order a reduction in the period of detention or the release of the soldier. If Prostitutes Sederot military attorney decides not to grant the request or appeal under section ahe or she must bring the matter to the decision of the Chief Military Attorney or Prostitutes Sederot or her deputy.

And, under sectionthe Chief Military Attorney may rescind any warrant issued by an adjudication officer. However, according to the petitioners, this complicated and impressive system of internal review of the arrest of soldiers does not sufficiently address the Prostitutes Sederot of a disproportional infringement on the personal liberty of the soldier arrested. First, the general rule is that Prostitutes Sederot by virtue of an arrest warrant issued by a police officer, whether civilian or military, must be reviewed by a Prostitutes Sederot as soon as possible.

True, a military attorney is a senior officer at the rank of lieutenant colonel, with legal training and legal experience, holding a respected position and even enjoying professional independence within the chain of command. However, he or she is not a judge. Review by a military attorney is internal review; review by a judge is external review.

Internal review takes place in the office of the military attorney, based on documentary evidence; external review takes place in a courtroom, in the presence of the detainee. There is a substantial difference between the two. Because the arrest severely infringes on the right to liberty, it Prostitutes Sederot be reviewed externally. Second, the large number of arrests, coupled with the tight Prostitutes Sederot of each arrest, creates practical difficulties for a military attorney seeking to exercise review, as the statistics demonstrate.

It would seem, then, that internal review by a military Prostitutes Sederot, important as it is, and as much as it affects the question of proportionality, is not an adequate substitute for external review by Prostitutes Sederot military judge. We thus return Prostitutes Sederot the original question: Does a period of detention of no more than 96 hours infringe on the personal liberty of a soldier, as the respondents claim, to an extent no greater than is required by the nature and character of the military service?

Both the respondents as well as the petitioners seek to bolster their claims with examples from legal systems in other countries. The parties presented the Court with numerous sources from English, U. If truth Prostitutes Sederot told, however, it is difficult to glean any clear message or make effective use of examples from foreign legal systems.

Indeed, in each of these systems, commanders have the power to arrest soldiers Prostitutes Sederot certain circumstances, subject to review of the arrest within a short period of time. The review conducted, however, is generally internal, by commanders who do not necessarily have legal training, rather than by judges. The respondents apparently correctly point out that in none of the countries they investigated does the law require review by a military judge within 24 or even 48 hours.

In contrast, the German Military Discipline Law of requires in section 17 the release of a soldier arrested for Prostitutes Sederot disciplinary violation no later than the end of the day of his or her arrest, unless a judge issues an arrest warrant, and for a criminal violation, there is no difference between the period of detention authorized for soldiers and non-soldiers.

In any event, the law in Israel requires us to evaluate the proportionality of the period of detention in light of the nature and character of military service in Israel. The nature and character of military Prostitutes Sederot in Israel differ from those of military service in other countries. Therefore, and particularly because the law regarding review of the arrest of soldiers differs from country to country, comparative law would not appear to be terribly useful to the issue at hand.

In that case, do the nature and character Prostitutes Sederot military service in Israel require or justify authorizing a military police officer to detain a soldier for 96 hours before bringing him or her before a military judge? Prostitutes Sederot the course of oral arguments in July ofthe Court asked the respondents if they would agree to draft an amendment to the Military Adjudication Prostitutes Sederot that would, byreduce the maximum period of detention of a soldier by a military police officer to 48 hours.

The respondents notified the Court on September 30, that, after holding consultations on that question at the highest levels of Prostitutes Sederot military and with the State Prosecutor and Attorney General, they reached the following conclusion:.

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The military authorities in charge of the issue concluded that it would be almost impossible to reduce the initial period of arrest to 48 hours, beginning in July of … first, the military needs to learn its lessons from the transition to the current legal situation of bringing soldiers before a judge within 96 hours ….

The issue is not just the financial significance of expanding human resources to handle the anticipated yearly increase of thousands of arrest procedures and arrest appeals. It is Prostitutes Sederot a question of Prostitutes Sederot working rules for the different players within the military system who need to make sure that soldiers who are supposed to remain in custody are not released simply because the system has not yet taken steps to implement the new legislation.

The military system has a real fear that a Prostitutes Sederot, within a year, Prostitutes Sederot a requirement that the arrest be extended within 48 hours, before the system has taken steps to properly prepare, will result Prostitutes Sederot a variety of undesirable situations.

These include not having enough time to complete essential investigations and collect evidence in cases involving soldiers who desert or go absent without leave. It may become impossible to summon the commanders of these soldiers to adjudicate their cases through disciplinary hearings, and investigatory activities will have to cede to increased attention to procedures involving extensions of arrest.

If this happens, more soldiers are likely to absent themselves from military service, undermining military discipline, obstructing investigations, and causing other kinds of damage. The position of Prostitutes Sederot IDF should be noted: bringing a soldier for extension of arrest within 48 hours is a desirable goal. However, achieving that goal requires the military to evaluate the practical aspects and the arrangements necessary to implement it.

The military has therefore decided to take a year to evaluate the new hour requirement, beginning when the amendment to that effect enters into force in July, At the end of that year of evaluation, as draws near, the military will propose another amendment which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, Prostitutes Sederot long as circumstances do not require an additional, brief delay of the amendment.

They said that it would need to reinforce the means of transporting detainees, assign more people to guard detainees being transported, bolster human resources in the legal system judges, prosecutors, defense lawyers, etc. They estimate needing another 40 professional soldiers and another 40 drafted soldiers, as well as another 40 vehicles for transporting prisoners, eight buses, communications devices, computer systems, construction, and the like.

The respondents did not provide data or explanations to serve as a basis for their estimate. These resources would be necessary to reduce the period of arrest primarily because of the current system in place for arresting soldiers, interrogating detainees, extending arrest, and trying soldiers in a disciplinary hearing or criminal procedure.

However, it may be possible to change the current procedures if necessary, via legislation and improve the current practices in such a way as to reduce substantially the amount of financial and human resources necessary while simultaneously conducting proceedings more quickly.

For example, a primary reason for the difficulty in extending the arrest of soldiers is the practice of bringing the soldier to the military tribunal in the judicial district of the unit in Prostitutes Sederot he or she serves. For example, a soldier Prostitutes Sederot in the Northern Command who commits an offense such as desertion and is arrested by a military police officer in southern Prostitutes Sederot, will be taken to the Northern Command tribunal which sits in Haifa, rather than to a tribunal close to the place of arrest.

We might question whether Prostitutes Sederot is the optimal practice, considering the resources it requires. Perhaps if this practice is changed, and the military improves Prostitutes Sederot means of electronic communication Prostitutes Sederot to legal officials to facilitate the transfer of legal materials relating to detainees, it will be possible to conserve the Prostitutes Sederot which, according to Prostitutes Sederot respondents, would currently be necessary to reduce the period of detention.

Or, perhaps it could bring them to two or three centers, each of which would house the necessary number of military attorneys and judges who could quickly review requests to extend the period of arrest? However, as long as the practices of arrest Prostitutes Sederot extension of arrest do not infringe on the rights of soldiers, they are the concern of the military, and it is for the military to evaluate them and decide what to do.

The petitioners claim that the nature and character of military service poses no special considerations that require a detention period of Prostitutes Sederot hours.

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They further claim that there is nothing in a shorter period to undermine the nature and character of military service. This claim of the petitioners gives an unduly narrow interpretation to the nature and character of military service. The nature and character of military service include maintaining Prostitutes Sederot discipline, cracking down on absenteeism, and the like.

This is the very claim of the respondents, that reducing the period of detention, at this stage, is likely to undermine military discipline, exacerbate the phenomenon of absenteeism, and lead to other consequences destructive Prostitutes Sederot the nature and character of military service. However, the respondents do not present these negative consequences as inevitable. They acknowledge that they can be prevented. In order to prevent these consequences, they say, they Prostitutes Sederot two things: time and resources.

The question is therefore whether at this time, these needs justify not reducing the period of detention. First, we will evaluate the need for resources. Can the need for resources obstruct a reduction in the period of detention? In principle, it is possible that the scope of the resources required can, as a practical matter, prevent a reduction in the period.

Prostitutes Sederot, as the saying goes [under the system of assigning a numerical value to the letters in Hebrew words — trans. The respondents submitted to the Court an itemization of the resources necessary to reduce the period of detention. These resources, while in no way negligible, are not beyond the means of the military. Each year, military police officers arrest approximately 10, soldiers mostly for the offense of desertion.

What tips the scales? The answer primarily depends on the relative weight of the liberty and the resources. What, then, is that relative weight? That question puts Israeli society to the test: society is judged, among Prostitutes Sederot things, according to the relative weight it accords to personal liberty. That weight should be expressed not just in lofty declarations and not just in law books, but also in the budget ledger.

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