Israel, The Supreme Court of Israel sitting as High Court of Justice, 2 December 2021, HCJ 8196/21
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Constitutional Court
- State Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Private and family life
- Health law, detention and prison law
- Freedom of movement of people
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
General Summary
Due to the worldwide pandemic, the Israeli government decided to use technological tracking means to help in epidemiological examinations to locate persons who had tested positive for the novel coronavirus, as well as persons who came into close contact with them. This petition is connected to two previous decisions on contact tracing: HCJ 2109/20 Ben Meir v. Prime Minister (April 26, 2020) and HCJ 6732/20 Association for Civil Rights in Israel v. Knesset (March 1, 2021). The petition was filed by four rights groups (nongovernmental organizations) seeking to repeal the government's decision to temporarily reuse the phone tracking measure by the ISA to locate confirmed or suspected carriers of the new (and potentially more contagious) Omicron variant and stop its transmission.
The petitioners claim that according to previous judicial decisions on ISA coronavirus location tracing (the previous petitions mentioned above), the government cannot authorize the ISA tracking measures through emergency regulations. Instead, they must do so through a parliamentary review procedure—either by limited review by the secret services subcommittee of a government resolution or by a full deliberative parliamentary statutory legislative process.
The court rejected the petition. They decided that the government decision about the temporary Omicron emergency regulations (which were limited to five days), did not violate the two previous judicial decisions and is not a disproportionate infringement on the right to privacy.
Facts of the case
Since March 2020 (and during the first and the second waves of the coronavirus in Israel) this controversial "tracking tool" has been used, authorized by government emergency regulations. The ISA was allowed to collect and process “technological information” regarding persons who have tested positive to the Omicron variant during the 14 days prior to their diagnosis, for the purpose of identifying that person’s route of movement and identifying the people who were in that person’s close proximity during that period, so that the Ministry of Health could instruct them to self-isolate at home. In late November 2021 a fifth coronavirus wave has started in Israel, hence the government reinstated contact-tracing activities by the ISA to track carriers of the Omicron variant of the coronavirus.
Type of measure challenged
Measures, actions, remedies claimed
- Petition for a conditional order and an interim order
- Annulment of the government decision to temporarily reuse the phone tracking measure to locate confirmed or suspected carriers of the Omicron variant.
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court ruled that the new government decision did not violate the two previous judicial decisions. Additionally, the court explained thet in the current circumstances of a short expiration term (the regulations were enacted as a limited temporary five-day directive that was set to expire the day after the judicial decision) and narrow scope of the regulations, and given the uncertainty surrounding the threat of the new variant Omicron - emergency regulations can be in effect for a five-day period. That's while statutory legislation is promoted (as the government claimed). In response to arguments made by the petitioners regarding the limited efficacy of the ISA Tool for location tracking, the court relied on classified data presented to it ex parte. Given this data, as well as the limited temporal and personal scope of the emergency regulations, the Court determined that the Omicron emergency regulations are proportional to the invasion of the right to privacy.
Conclusions of the deciding body
The court rejected the petition.
Implementation of the ruling
A few hours after this judicial decision, the government stated that this measure will not be renewed after it lapses that night.
Fundamental Right(s) involved
- Right to data protection
- Right to privacy
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to privacy and to intimacy, stability of law, sec. 7,7(d), 8, 12, Basic Law: Human Dignity and Liberty
- Emergency regulations by the government during a state of emergency, sec. 39, 39(a), 39(c), 39(f), Basic Law
- Extension of validity of enactments, sec. 38, Basic Law: the Knesset
- Mission and functions of the Service, 5762-2002, sec. 7(b)(6), General Security Service Law
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. data protection
- Health v. right to privacy (private and family life)
- Health v. private life
General principle applied
- Rule of law
- Proportionality
- State of emergency or necessity
- Precautionary
Impact on Legislation/Policy
A few hours after this judicial decision the government decided not to extend the emergency regulations any further (and meanwhile not to continue with the statutory legislation process of authorizing the ISA to engage in location tracking of carriers of the omicron variant).
Impact on national case law
This decision is a following petition of HCJ 2109/20 Ben Meir v. Prime Minister and HCJ 6732/20 Association for Civil Rights in Israel v. Knesset, which are the two more substantive decisions by the Israeli Supreme Court about contact tracing.
Other notes
Instance: 1st Instance, Appellate on fact and law, Supreme court - Cassation (Review), Constitutional Review
