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Israel: Increase in Prisoners’ Living Space Mandated

(June 30, 2017) On June 13, 2017, Israel’s Supreme Court, sitting as a High Court of Justice, accepted petitions submitted by several associations and ordered the state to increase the personal living space allotted to every prisoner in the country within the next nine months to a minimum of three square meters (SM; approx. 32.3 square feet); this standard is to be increased to four or four and a half SM, including space for a toilet and a shower, within 18 months from the day of the judgment. Justice Elyakim Rubinstein, with Justices Hanan Melcer and Uri Shoham concurring, rendered the main decision. (HJC 1892/14 Association of Civil Rights in Israel v. Minister of Internal Security (June 13, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).)

The Issue

Evidence submitted to the Court indicated that the average living space allotted to each prisoner in Israel for the last 25 years was about three SM. (Id., Rubinstein ¶ 2.)  According to section 11(b) of the Prisons Ordinance and section 9(a) of the Criminal Procedure (Enforcement-Detentions) (CPED) Law 5756-1996, prisoners and detainees should be held “under proper conditions that will not be harmful to their health and dignity.”  (Prisons Ordinance (Amendment No. 42), 5772-2012, SEFER HAHUKIM [SH, BOOK OF LAWS, the official gazette] No. 2355 p. 377; Criminal Procedure (Enforcement-Detentions) Law, SH 5756 No. 1592 p. 338.)  Rule 2(h) of the Prisons (Conditions of Imprisonment) Regulations and similarly Rule 3(e)(3) of the CPED Regulations require that the average living space allotted to a prisoner, including a shower, sink, and toilet, should be at least four and a half SM.  (HJC 1892/14 Rubinstein ¶ 3; (Prisons (Conditions of Imprisonment) Regulations 5770-2010, KOVETZ HATAKANOT (KT, COLLECTION OF REGULATIONS) 5770 No. 6892 p. 1125; CPED Regulations, KT 5757 No. 5729 p. 664 (both in Hebrew).)

The petitioners argued that the living space provided to most prisoners and detainees violated their constitutional rights under Israeli law in that it harmed their right to protection of dignity, liberty, privacy, and well-being to a degree beyond what was necessary and without express lawful authorization. The small average space currently allotted to prisoners also violated rules of international law on this issue, the petitioners contended.  (Id. ¶¶ 6-16.)

Factors Considered in the Decision

  1. Prisoner’s Basic Right to Dignity

Rubinstein determined that except for restrictions deriving from imprisonment, prisoners retain their human rights. In determining the scope of protection of these rights, he opined, considerations related to “the imprisonment, to the duties imposed on the Prisons Authority, to the need to guard and protect the rights of all prisoners while maintaining prison order and discipline, … and to the protection of prison staff’s well-being and rights” must be taken into account.  (Id. ¶ 35.)

The right to dignity is protected under Basic Law: Human Dignity and Liberty, 5752-1992. (SH 5752 No. 1391 p. 50.) Under section 8, violation of the rights protected under the Basic Law is prohibited “save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by virtue of an explicit authorization therein.” (Id.; Basic Law: Human Dignity and Liberty (5752 – 1992), Knesset website (unofficial English translation.)  The Court has previously recognized that the right to dignity includes the right to “basic living with dignity.”  (HJC 1892/14, Rubinstein ¶ 37.)  According to Rubinstein, the prisoner’s right to living space is connected to the essence of the right to dignity.  (Id. ¶ 39.)  Rubinstein noted that prison overcrowding has broad implications for prisoners’ lives, including the possibilities of increasing the spread of disease and making it difficult to maintain proper hygiene.  Research findings indicate that prison overcrowding also leads to increased conflict among prisoners resulting in violence and discipline violations.  Overcrowding also harms the physical and mental well-being of prisoners and affects the accessibility to various services available to them in prison, Rubinstein stated.  (Id. ¶ 40.)

Although Rubinstein acknowledged that efforts had been made in recent years to improve the situation by renovating existing prisons and building new ones, he opined that these efforts were insufficient. He recognized that implementation of appropriate living space for prisoners requires funding and is therefore tied to the government’s economic priorities.  However, basic rights, Rubinstein held, should not retreat based on budget considerations, and a society that respects human rights, he argued, must be ready to bear the financial burden required for their protection. (Id. ¶ 47.)

2. International and Comparative Legal Practices

Rubinstein noted that the duty to treat prisoners with dignity was recognized in several international agreements, including the International Covenant on Civil and Political Rights (Dec. 16, 1966, in force on Mar. 23, 1976) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dec. 10, 1984, entered into force on June 26, 1987) (both Office of the High Commissioner for Human Rights website.)

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently adopted a minimum standard space of 4 SM for every prisoner, excluding space for a toilet and a shower, but that requirement by itself, Rubenstein pointed out, does not guarantee appropriate living conditions. (HJC 1892/14, Rubinstein ¶¶ 49-53.)

Having reviewed relevant court decisions from a number of jurisdictions, Rubinstein concluded that prison overcrowding existed in many countries and has increased, for a number of reasons, including the reduced number of executions resulting in increased number of prisoners. Although the differences between the general conditions in Israel and in other countries make it impossible to apply the same rules, Rubinstein said it should be noted that there is an increased willingness on the part of international organizations and judicial authorities in different countries to actively work to correct the problem of overcrowding. (Id. ¶ 68.)

3. Jewish Law

Rubinstein stated that Jewish law recognizes a balance between the dignity of the prisoner and the punitive objectives of the imprisonment; Jewish law specifically “wishes to protect the dignity of the prisoner, who is weak and in in need of rehabilitation.” (Id. ¶ 86.)

The Verdict

Rubinstein determined that the living space provided to a prisoner does not depend on the severity or the type of offenses of which he/she was convicted. The objective of section 11(b) of the Prisons Ordinance was to provide the prisoner “proper conditions” of imprisonment, including living space, Rubinstein noted, and a minimal space is necessary for protecting the prisoner’s right to dignity.  A situation in which the majority of prisoners stay in conditions that do not meet minimal living conditions, according to Israeli constitutional principles, the “heritage of Israel,” and comparative and international law, does not meet the criteria of “proper conditions under §11(b) of the Prisons Ordinance, the justice emphasized. (Id. ¶ 115.)

Considering the overcrowding situation in prisons and the violation of basic principles of the Israeli legal system and the constitutional right to dignity, and in view of Jewish law and comparative and international law approaches to the problem, Rubinstein ordered the state to increase the personal living space allotted to every prisoner, as noted above. (Id. ¶ 123.)

Among options that might be considered for implementation of the decision, Rubinstein recognized the expansion of prison facilities, the increase in granting probation periods, an increase of monetary fines for commercial offenses, and where appropriate, the expansion of opportunities for early release while creating proper supervision outside of prison. Other options, he suggested, might include emphasizing imprisonment as a measure of last resort and using less expensive but efficient and appropriate penalties for offenders who do not pose a high level of danger to society.  (Id. ¶ 126.)