On 12.3.2014, along with the College of Law and Business and Physicians for Human Rights - Israel, ACRI filed a petition to the High Court on the issue of overcrowding in prisons and detention centers in Israel. The allotted living area for most prisoners and detainees in Israel is less than 3 meters per person (including the bed area, bathrooms, and shower). As a result, a prisoner is often forced to spend the majority of the day in bed, including meal times, with almost no ability to walk about the cell and no option for more than one prisoner to stand at any point in time in the space remaining in the cell. The overcrowding creates suffocation in the cells, harming the health of prisoners, and escalating friction among them. These conditions hurt the chances of the prisoners to rehabilitate and reintegrate into society upon their release.
In the petition, we highlighted that this situation is far from the traditional standards in other democratic countries, and the standards set by international organizations for ensuring proper living conditions. It is even lower by half than the official professional stance of the Israel Prison Service (IPS) itself, which states that proper supervision requires a living quarter of 6 meters per prisoner. Beyond the legal violation to the rights of prisoners, the state of overcrowding is also violating the duty to refrain from cruel, inhumane, or humiliating punishment, which is a principle of Customary International Law. Despite this being an extremely serious phenomenon known to the authorities for many years, there has been nearly no change in the allotted quarters for prisoners in the last three decades, and the authorities have no plan for solving the problem - not even in the long run.
In the petition, we demanded to solve the issue of overcrowding in prisons by establishing a plan for fulfilling the appropriate quarter allotment per prisoner within a reasonable timeframe. Additionally, considering the critical violation of the rights of prisoners held under cruel and inhumane conditions of punishment, we demanded an immediate response to take whatever necessary action in order to guarantee every prisoner a living quarter of 4 meters (not including the bathroom and shower).
Petition Hearing
On 25.1.2016, following a second hearing of the petition, and upon none of the responders providing a plan or any concrete steps for improving the situation, the judges issued a conditional order, as requested in the petition. Following this, the responders prepared a strategic multi-year plan in the IPS for the construction of new prisons, and declared their intention to adopt part of the Dorner Committee’s recommendations (expanding community service labor; establishing four additional community courthouses; adding 75 electronic handcuffs), however they did not commit to expanding the living quarters of prisoners.
The Verdict
On 13.6.20, the Court decided that the State must ensure each prisoner and detainee a living quarter of three meters (not including bathroom and shower) within nine months, and within 18 months it must allot each prisoner and detainee a living quarter of 4.5 meters, including the bathroom and shower, or four meters not including the bathroom and shower.
The Proceedings Following the Verdict’s Issue
On 5.3.2018, a week before the first part of the verdict was due, the State submitted a request for the Court to push the application for the verdict by 10 years, to 2027. The State argued that following the timeline determined by the court would mandate the “mass release” of prisoners, which would endanger public safety. The petitioners rejected the request for extension, and emphasized that the State has taken no action towards applying the verdict during the nine months allotted to it by the High Court, and that the argument regarding a “mass release” which would “endanger public safety” is a baseless threat meant to intimidate the Court.
Following the harsh criticism of the State’s conduct by the justices, on 29.3.2018 the State submitted a plan for applying the first part of the verdict via: building five permanent wings for 800 security prisoners, establishing seven temporary wings for 600 security prisoners, and an extended administrative release that would free up about 1,000 imprisonment spots. As such, in June 2018, the State updated that it intends to utilize the Saharonim Prison to hold prisoners convicted of illegal stay offenses in order to fulfill the first part of the verdict. As for the second part of the verdict - ensuring a minimum living quarter of 4.5 meters for every prisoner and detainee by December 2018 - as of August 2018, the State still had not begun coordinating the necessary space that would make it possible to fulfill this part of the verdict within a reasonable timeframe, and asked to continue and update the Court regarding the “headquarters work” being done on this subject. The petitioners objected to this conduct, and demanded that the Court instruct the Stateto fulfill the verdict as is.
In November 2018, the Knesset passed the Law of Amendment of Prison Ordinance (No. 54 and Temporary Order), which expands the usage of the administrative release mechanism (increasing the release periods).
Update on the fulfillment of the verdict on IPS facilities: in March 2018, the State notified the court that the plan to fulfill the verdict as presented to the Court has not taken place in wings holding prisoners being investigated by the Israeli Security Agency (ISA). The petitioners strongly opposed this position, and emphasized that the verdict was determined universally, applying to all prisoners and detainees. On 29.7.2018, the State updated the Court of its intention to establish new investigation facilities, so that by 2026, ISA detainees will be allotted the minimal standard living quarter as determined in the verdict (4.5 meters); and that in the meanwhile, it intends to pass an amendment to the law that would exclude the detainee population from the guaranteed minimal living quarter, so that “the legal situation determined following the Court’s verdict will change”. In a response we submitted on 5.8.2018, we detailed the horrific conditions of detainees in ISA facilities (two meters or less per person). We argued that it is especially this population that should be receiving priority treatment from the State’s effort to fulfill the High Court’s verdict, and that delaying the fulfillment of the verdict by at least eight years is unreasonable.
The decision on the States’ request for extension: On 1.11.2018, the State was given an extension, of only a year and a half, to fulfill the verdict. According to the new dates determined in the decision, each prisoner and detainee must be guaranteed a minimum of three meters in a cell by April 2019, and four meters by May 2020. As for the ISA investigation facilities, the decision determined that the verdict’s rule on these will be fulfilled no later than May 2021, and subject to the steps for construction and legislation set forth by the State. The decision further stated that “failure to meet the new date extensions may bring about various remedies and solutions, subject to the protection of rights - for the petitioners and anyone who is found to be injured and mutual claims to all parties in future litigations, should there be any.”
In February 2019, the State updated the court that it intends to fulfill the first part of the verdict by the date determined by the court - April 2019, and detailed the steps taken to do so:
Increase of administrative release - 926 prisoners have been released on 20.12.2018 in accordance with the amendment to the law expanding the administrative release mechanism. Between 21.12.2018 and 13.2.2019, 1,450 more prisoners were released;
Establishment of a unit for the release of short sentences in accordance with the Law of Conditional Release from Imprisonment (Correction No. 17 - Temporary Order) and in the period between 15.11.2018 and until 15.2.2019, it discussed the matter of 730 prisoners sentenced to periods of up to 12 months - and 33.7% of these requests were approved;
Extension of the community service work period from six months to nine months - completion of the headquarters work necessary for the application of the law amendment, set to become effective 1.4.2019;
Completion of the construction of 12 wings (seven tent structures for security prisoners and five made of cement).
As for the fulfilment of the second part of the verdict, the State updated that the work in the headquarters is currently taking place.
In May 2019, the State notified that the first part of the verdict was fulfilled in its entirety, and that all prisoners and detainees are allotted a minimal living quarter of three meters.
The original date for the implementation of the second aspect of the ruling (4.5 meters per prisoner and detainee) was in December 2018. As stated above, at the request of the state, the court extended the deadline for implementation of the ruling by a year and a half, until May 2020. The state claimed that due to the government stalemate it was prevented from advancing legislation and decisions that were necessary to implement the ruling. On April 30, 2020, the Court ruled that the state must submit an updated notice regarding the new date it requests for the implementation of the ruling, and that in the meantime, the date set previously would be postponed.
On August 12, 2020, the state submitted an updated notice requesting a 3-year extension for the implementation of the ruling, until December 2023. The new plan for the implementation of the ruling is based on Government decision No. 291 from August 2, 2020 – “increasing the supply of imprisonment places and the living space in prisons, promoting alternatives to incarceration, and rehabilitating prisoners and amending the government’s decision.” This decision includes, first and foremost, an accelerated construction outline for the addition of 1,281 incarceration spaces by the end of 2023. In addition, the decision includes an update to the administrative release mechanism (the Minister of Public Security undertook to publish a memorandum to amend the administrative release mechanism within 60 days of the government decision); extension of electronically supervised sentences by 500 (to a total of 1,250); the continuation of promoting and developing incarceration alternatives; and the implementation of the prosecution’s recommendations for reviewing the report of the Public Commission on Punishment Policy and Treatment of Criminals (Dorner Commission); the implementation of which should result in at least 50% of the cases in which the defendant was expected to receive a sentence less than two years’ actual imprisonment being transferred to alternative route of punishment that does not include imprisonment.
On February 14, 2021, the Court decided to extend the implementation of 4.5 meters per prisoner to December 31, 2022. The Court noted that should the State fail to meet the construction targets by this postponed date, it will have to prepare in advance for the completion of this phase of implementation by other means.
On November 3, 2022, the state submitted a request to the High Court of Justice to postpone the implementation date of the ruling for another five years, until the end of 2027. The state argued that there is a new situation that was not anticipated: a dramatic increase in the number of detainees as a result of the fight against crime in Arab society, terrorism, and the reduction in administrative releases.
On December 21, 2022, we submitted a response to the request, in which we clarified that the state is actually asking the court to accept the existence of a prison system in which living conditions are unconstitutional and violate the core right to dignity of thousands of detainees and prisoners for an additional five years, in addition to the five years that have already passed since the date of the ruling. We wrote that the request should be opposed because a similar request had already been filed in 2018 (to postpone the date until 2027) and was rejected by the court. In addition, we clarified that this is an expected increase in the number of detainees and the state had to prepare for it.
On December 29, 2022, the court accepted the state's request and extended the date for implementing the ruling until December 31, 2027.
In accordance with the court's decision, on December 18, 2023, the State updated on the progress of the implementation of the second phase of the ruling. The update indicates that as a result of the war, the situation deteriorated severely, and the living space per prisoner was reduced to an average of 2.1-2.2 square meters. In a response, on January 28, 2024 we submitted a petition arguing that even before the war, the state of detention in Israel should have been defined as an emergency, and that thousands of detainees were placed on the floor in waiting cells at police stations with no space in the detention facilities. We further argued that if before the war it was appropriate to take urgent and significant steps to expand the number of places of detention or reduce the number of detainees, now much more drastic measures are needed, and unfortunately the state is not doing enough.
HCJ 1892/14
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