מארכיון בית המשפטבקשת רשות ערעור, אזרחי

הרשקו חיים ו- 108 אח' נ' הרשות המוסמכת לפי חוק נכי רדיפות הנ

פסק הדין ברע"א 5512/09 ניתן ביום 24 בנובמבר 2009.

ההכרעה, במילותיו של בית המשפט.

Deputy Chief Justice Justice Justice

פסק הדין ניתן ביום 24 בנובמבר 2009.

בית המשפט: בית המשפט העליון
מקרה: רע"א 5512/09
נפתח: 2009
ניתן: 24 בנובמבר 2009
משך: 23 עמודים

כך מצטטים את פסק הדין.

רע"א 5512/09 הרשקו חיים ו- 108 אח' נ' הרשות המוסמכת לפי חוק נכי רדיפות הנ (24.11.2009)

הנוסח המלא של פסק הדין.

פסק-דין

The Supreme Court

Leave for Civil Appeal 5512/09

Before:

The honorable D eputy Chief Justice E. Rivlin

The honorable Justice E. Arbel

The honorable Justice H. Melcer

Petitioners:

Hershko Chaim, et al.

Respondent:

The Competent Authority under the Invalids (Nazi Persecution) Law

Motion for leave to appeal from the judgment of the Tel Aviv – Jaffa District Court of July 1, 2009 in Civil Appeal 1828/08 rendered by the honorable Judges Y. Schneller, K. Vardi and R. Lebhar-Sharon

Date of hearing:

22 Heshvan 5770

(November 9, 2009)

On behalf of the petitioners:

Ilan Yacobovitch, attorney at law

On behalf of the respondent:

Aviyah Goldin-Tishel, attorney at law

Judgment

Deputy Chief Justice E. Rivlin

Introduction

1.The Invalids (Nazi Persecution) Law, 5717-1957 (hereinafter: the Invalids (Nazi Persecution) Law or the Law), was enacted in the wake of the reparations agreement signed between the State of Israel and the Federal Republic of Germany in 1952. It formalizes the benefits granted to Holocaust survivors for disabilities and/or invalidity they suffered due to Nazi persecution during the Holocaust. On the issue of eligibility to benefits, Section 1 of the Invalids (Nazi Persecution) Law refers to German law - the German Federal Law for the Compensation of the Victims of National Socialist Persecution of 1956 (hereinafter: the German Compensation Law). The German Compensation Law distinguishes between a restriction of liberty, which confers eligibility to those persecuted within the boundaries of the Third Reich, and a deprivation of liberty, which confers eligibility to those persecuted outside the boundaries of the Third Reich (Section 43 of the German Compensation Law). At times, this distinction has been appli ed to claims filed under the Invalids (Nazi Persecution) Law, and therefore it raises the question of what abuse suffered by Jews during the Holocaust amounted to a deprivation of liberty, and what abuse remains merely within the realm of restriction of liberty. This determination is invariably fraught because the legal concepts fail to capture even the slightest trace of the suffering experienced by th ose persecuted. In fact, distinguishing between those persecuted for the purpose s of applying the Law only serves to further complicate our task. In this light, the words of the appeals committee under the Invalids (Nazi Persecution) Law (hereinafter the Committee or the Appeals Committee) in its decision on in this issue are particularly resonant:

We must admit: our long-standing attempts sitting as an Appeals Committee under the Law has led us to the conclusion that it would be proper to recognize as a persecuted person under the Law any Jew who was in Europe or North Africa during the period of the war and experienced the horror of the Holocaust.

For further discussion on resisting “ hair-line legal distinctions” in this context, and on the dilemma posed by such formalized classifications which exclude Holocaust survivors who experienced “indescribable hardships and traumas,” from eligibility, see: Leave to Appeal 217/83 The Competent Authority v. Shoham, IsrSC 40(1) 789 (1986).

2.The Petitioners filed a claim under the Invalids (Nazi Persecution) Law. They claim that the partial curfew enforced in many cities in Bulgaria and Romania during the holocaust - in countries not formally part of the Third Reich but that were under the aegis of the Nazi government - was tantamount to a deprivation of liberty and therefore rendered them eligible to benefits under the Law. The Appeals Committee (the honorable Judge M. Landman, attorney D. Ya’ari, attorney Y. Arbel) determined that restricting liberty of movement by means of a curfew may be regarded as a “deprivation of liberty,” provided that the following five cumulative indicia exist: F irst, the existence of a government order; S econd, the application of the curfew to Jews and not to the general population; T hird, the actual enforcement of the curfew in such a way so that anyone contravening it was at risk of bodily harm; F ourth, the scope of the curfew - the requirement that it apply restrictively to a limited place, such as confining a person to his house; and F ifth, the duration of the curfew – that it must last for hours each day, over a significant period of time.

3.The Respondent filed an appeal of the judgment. The District Court (the honorable Judges Y. Schneller, K. Vardi, R. Lebhar-Sharon) concurred with the Appeals Committee, but saw fit to “expand” the indic ia it had established. The court determined that, in addition to the above five variables, it was also required that during the hours when the curfew was not in force, an additional element existed that continuously deprived a person of his liberty and freedom of movement. For example, if permission to leave (when the curfew was not in force) was also limited to certain places or solely granted for specific purposes.

The Petitioners object to the “expansion” and request that the indicia first outlined by the Appeals Committee suffice.

The background in greater detail

4.As stated, the question before the Committee is whether a partial curfew, akin to the ones enforced in various cities in Bulgaria and Romania, may be regarded as a “deprivation of liberty” in order to confer eligibility to benefits under the Law. Notably, this question arose in the wake of a judgment that was rendered by this court in Further Civil Hearing 1196/03 Granot v. the Competent Authority, IsrSC 60(3) 88 (2005) (hereinafter the Granot Case). In that case, the Supreme Court examined the interpretative principles applicable to the Law and considered the terms “deprivation of liberty” and “restriction of liberty”. This decision is highly relevant to this case, e ven though it involved a different set of facts and issues, namely: whether deportation enacted without an armed escort constituted a “deprivation of liberty”.

The Appeals Committee noted that in recent years, there is a consistent trend to broaden the interpretation of the causes of persecution, considering they involve socially significant laws that impact Holocaust survivors. On the issue of the curfew, the Committee noted that in many Bulgarian and Romanian cities, a curfew was in force only during some hours of each day, pursuant to orders and decisions made by the government. With regard to Bulgaria, the Committee emphasized - in general and without going into specifics - that the curfew applied in certain areas to all hours of the day and night, except for two hours each day and in other areas it applied only at night. In Romania, the curfew was in force mainly at night. The Committee noted that the curfew directly and substantively impaired a person’s freedom of movement and that a restriction of movement becomes a deprivation of liberty when it confines a person’s movement to a limited area over an extended period of time. In light of the above, and coupled with the Granot ruling, it was held that a curfew may be considered “living under conditions similar to detention” - as one of the alternatives to a “deprivation of liberty” as defined under Section 43 of the German Compensation Law. As stated, the Appeals Committee applied five cumulative indicia, on which basis it could be said that the curfew substantively and significantly restricted the movement of a person, and therefore deprived him of his liberty:

· The existence of a government order regarding the curfew;

· The curfew applied to Jews and not to the general population;

· The curfew was actually enforced in such manner that anyone contravening it was at risk of bodily harm;

· The curfew dictated presence in a limited area (such as the person’s house);

· The curfew lasted for hours each day, over a significant period of time

5.The Appeals Committee gave the Respondent 120 days to examine each one of the appellants’ claims which came before it (the present Petitioners), and consider whether the above indicia could be established. The Committee further held that a person whose claim for benefits had been previously denied could reapply to the Respondent in order to prove his entitlement under the established indicia. However, the Committee saw fit to restrict the period of eligibility accordingly: with regard to pending claims and pending appeals, the benefit would be paid from the month of October 2005 - the time at which the judgment in the Granot Case was given - or from the date on which the claim regarding the curfew was first made, whichever was the later of those two dates; with regard to renewed claims on behalf of those whose claim was based on a curfew and denied in the past, the benefits would be paid from the date on which the decision of the Appeals Committee was made; and with regard to new claims (including previous claims which did not include the curfew claim), the benefit would be paid from the date of application to the Re spondent.

6.Both the Petitioners and the Respondent criticized the decision of the Appeals Committee before the District Court. The District Court, (following the Appeals Committee), reasoned that on the issue of the curfew, the parties were precluded from citing German case law, and therefore the Israeli court was not bound to extra-territorial interpretation. The District Court added that the Supreme Court had not to date ruled that a curfew could not decisively be characterized as a “deprivation of liberty.” The District Court also noted the social significance of the Invalids (Nazi Persecution) Law and the value in affording it a broad interpretation. The court reiterated the Appeals Committee’s inclination based on case law to adopt a broad interpretation on all matters pertaining to the eligibility of Holocaust survivors to benefits under the law, in view of the number of the survivors alive and their age (among other factors). This tendency did not diminish however, the need to still establish the basis of eligibility arising from a person’s “deprivation of liberty” - as emphasized by the District Court. Such was the case, for example, in recognizing life in hiding as a “deprivation of liberty” in certain circumstances as well as recognising its application to deportation. Indeed, on the issue of deportation, the Court altered the ruling in the Granot Case, and held that organized deportation even without an armed escort was liable to constitute a “deprivation of liberty.” After reviewing recent case law, the District Court concluded that “the main emphasis of what a ‘deprivation of liberty’ means is on an infringement of liberty that includes inhibiting the movement of the persecuted as a direct result of a significant and continuous restriction on their freedom of movement.”

Based on the above, the District Court ruled that a partial curfew is indeed liable to constitute a “deprivation of liberty” in certain circumstances. On this question, the Court adopted the indicia established by the Appeals Committee and “expanded” the criteria in order to ascertain whether even during hours in which there was no curfew, a person’s freedom of movement continued to be denied. The court formulated the additional requirement as follows: “That during the hours of the day in which a curfew was not in force, an additional element existed to deny a person’s liberty, in a continuous and ongoing manner, namely, he was unable to do as he wished or to move about as he wanted, save for permission to leave to specified and restricted places or for a particular purpose.” The District Court ruled that the question of whether or not the additional requirement applied must be examined in each case on its merits.

The District Court did not see fit to intervene in the Appeals Committee’s decision on anything pertaining to the date on which the entitlement to pay benefits falls due. On this question, the Court held that the Committee’s position reflects a proper balancing between the interests of those persecuted in obtaining benefits and the interests of the state treasury in not being over-burdened.

7.The honorable Judge Schneller, who concurred in the main judgment written by the honorable Judge Vardi, commented as follows:

I believe that when we saw fit to adopt the committee’s rulings, by “expanding” the indicia the appellant was expected to examine the circumstances based on a broad and lenient interpretation.

As echoed by my colleagues, the time has come to apply a broad interpretative tendency to a person’s eligibility, in accordance with the proper policy of the appellant. We have reached a moment in time when there are, unfortunately, relatively few survivors left who are able to obtain, and/or claim entitlement to such benefits. That recognition, for those of an age that need not be specified, even if it is late recognition is crucially significant to claimants.

Needless to say, the Appellant ought to immediately implement what was decided and there is no room for delay, based on any other reasons.

The claims of the parties

8.The Petitioners claim that in the appeal to the District Court, the Respondent was granted a remedy it did not request, namely, the “expanding” of the indicia as determined by the Committee. In fact, the Respondent’s claims were focused on persuading the Court that a curfew could not constitute a “deprivation of liberty”, and that the Granot ruling did not alter this interpretation. The Petitioners emphasize that, in their view, the Granot ruling led to a shift in understanding the causes of a “deprivation of liberty” in that the emphasis was no longer on the supervisory measures through which a person’s freedom of movement was restricted, but rather on the severity of the restriction. According to the Petitioners, the additional requirement articulated by the District Court, is more stringent conceptually, and runs contrary to the logic of the Granot ruling by creating a significant practical hurdle for claimants. The Petitioners emphasize that substantive external restrictions were almost always imposed on the movement of Jews because they were Jews. Accordingly, the need to address this question in each and every case is liable to create great difficulty for elderly survivors and to delay - if not prevent - the provision of benefits under the Law.

9.The Respondent believes that the Petition should be denied. In its view, the established approach remains that a curfew does not constitute a “deprivation of liberty”, notwithstanding the decision of the Appeals Committee. According to the Respondent, the five indicia determined by the Committee in its decision, do not create the “critical mass” needed to establish a person’s “deprivation of liberty” and do not reflect the spirit of the Granot ruling. In the Respondent’s opinion, the additional criterion articulated by the District Court is the bare minimum required to satisfy the extra element needed to establish a restriction on the freedom of movement, even during the hours in which no curfew was in force. The Respondent refutes the premise that the Granot ruling does not ascribe importance to the supervisory measures through which a person’s freedom of movement was restricted. In any case, the Respondent claims that the need for “expanding” the indicia remains crucial in any potential test. The Respondent further claims that the practical difficulties raised by the Petitioners should not lead to abandoning the additional criterion, which is justified in and of itself. In the meantime, the Respondent emphasizes that, it has formulated the conditions for imposing the additional criterion: first, the restrictions on movement exist in such a way as to only permit movement for a number of hours a day or solely in limited areas or solely for limited purposes (such as shopping, going to work, and so forth); second, the restrictions extend to most of time in which there is no curfew in force; and third, the presence of the first, second and third indicia as determined by the Appeals Committee to restrictions of movement which existed during the hours when no curfew is in force.

10.We have decided to consider the Petition as though leave to appeal was granted and as though an appeal has been filed pursuant to the leave that was granted. We have also decided to accept the appeal in the sense that the decision of the Appeals Committee will remain in force. It is worth noting that the hearing before us was held on November 9, 2009 and that we have acted expeditiously to ensure that a judgment is rendered within a few days in order to resolve this legal saga and enable those entitled to receive benefits to do so as soon as possible.

Partial curfew as “deprivation of liberty”

11.As stated, the basis for our deliberations is a distinction between a “restriction of liberty” and a “deprivation of liberty”. This is because under the German Compensation Law - according to which eligibility to benefits is assessed by domestic law - the restriction of liberty grants entitlement to a person who was persecuted solely within the boundaries of the Third Reich, whereas a deprivation of liberty also grants entitlement to a person who was persecuted outside the boundaries of the Third Reich (see Civil Appeal 51/73 Kalmar v. the Competent Authority, IsrSC 29(1) 253, 256; Leave for Civil Appeal 954/99 the Competent Authority v. Steinfeld, IsrSC 55(1) 617, 620). As stated earlier, a “deprivation of liberty” exists, among other things, when the living conditions were “similar to imprisonment” (under Section 43 of the German Compensation Law).

12.In this case, the material issue concerns the curfew imposed in various cities in Bulgaria and Romania, which was a partial one because it was not in force during every hour of the day and night. As noted by the Appeals Committee:

…In many of the cities of Bulgaria and Romania a curfew was in force during some hours of the day, pursuant to government orders and decisions.

According to a great deal of testimony that we heard over the years and according to the historical documentation, it can be said, in general and without going into specifics, that the curfew in Bulgaria was imposed in certain areas throughout most hours of the day and night, except for two hours each day, and in other areas it applied only at night;

The historical knowledge and the testimony that was heard by the Appeals Committee show that the curfew in Romania was in force mainly during the nighttime.

Because in the question under deliberation, the litigants could not present German case law, or in any event, cite German case law that reflects “a uniform, definite and agreed-upon opinion which could be seen as part of the law itself” (Leave for Appeal 815/77 Leibenson-Stein v. the Competent Authority, IsrSC 32(3) 269, 275-276 (1978)) - both the Appeals Committee and the District Court were required to interpret the law according to established interpretative principles from our legal system, and according to the case law that addressed various aspects of the law in the past. We shall do the same.

13.In the proceedings before us, there is no longer any real dispute regarding the ruling that a partial curfew, as the one which existed in the various cities of Bulgaria and Romania, will (in the presence of certain conditions), be inclined to be regarded as a “deprivation of liberty” within the meaning of Section 43 of the German Compensation Law. The Petitioners certainly support this ruling, and even the Respondent, in effect, no longer disputes this. The dispute today is narrower. It concerns whether there is any scope for determining that, in addition to the five indicia established by the Appeals Committee, there should also be a requirement that a person’s freedom of movement was restricted during the hours of the day in which no curfew was in force. In other words, while the Petitioners believe that the indicia determined by the Appeals Committee are sufficient, the Respondent claims that the minimum required in order to satisfy the requirements of a “deprivation of liberty” is the “expanded” criteria outlined by the District Court.

In view of these parameters of the dispute, I see no reason to prolong the discussion regarding the determination that a curfew is inclined to be regarded as a “deprivation of liberty” within the meaning of the Law. This determination is acceptable to me. In my opinion, it is one that is mandated both by developments that arose from interpreting the various bases of eligibility to benefits under the Law - as well as by developments described in detail by the Appeals Committee and in the judgment of the District Court - and particularly in the Granot ruling which clarified the criteria for examining such questions. Indeed, if a person was subjected to a curfew for many hours and for a prolonged period of time - it can be said that his life is similar to that of a person’s who is under detention. Although a person subjected to a curfew does not live in an incarceration facility, he is “imprisoned” in his home or within delineated geographical boundaries and his freedom of movement is significantly hampered. “The kernel of the concept of a ‘deprivation of liberty’ is the limitation of a person’s movement to a delineated and restricted place” (the Granot Case, para. 26 the judgment). That is precisely the object of the curfew, which strives to restrict the movement of a person to a delineated and restricted place.

14.In the Granot Case, Justice Heshin emphasized that Section 43 of the German Compensation Law is not limited to a “deprivation of liberty” in the narrow sense but also applies to cases in which a “quasi deprivation of liberty” or “conditions similar to” deprivation of liberty can be found (ibid.). He added: “In determining the interpretive scope of the ‘quasi deprivation of liberty’ one might consider not merely the physical space of the deprivation of liberty but also the quality of life of those claiming a ‘quasi deprivation of liberty.’ Indeed, it might be analogized to the quality of life of a disabled person suffering from a deprivation of freedom” (ibid.). From this standpoint, Justice Heshin sketched out a spectrum of the varying degrees of an infringement of liberty applicable to the German Compensation Law:

And thus, in placing the concepts side by side, we can describe the framework of the German law as a spectrum at one end of which stands a free person and at the other, stands a person deprived of his freedom in the narrow sense of the concept (detention, imprisonment and so forth). Let us now move across the spectrum from the free person to the other end, and at some point the “critical mass” of a “restriction of liberty” will be located. We will continue to move across until we reach the area of “a quasi deprivation of liberty,” and further on, until we find a deprivation of liberty. This issue at hand lies somewhere between the areas of a “restriction of liberty” and a “quasi deprivation of liberty,” and the question is: if we move across from the direction of a “restriction of liberty” to the direction of “deprivation of liberty,” at what point will we reach the area of the “quasi deprivation of liberty?” In other words at what point will we reach the area at which “restriction of liberty” becomes so severe, so grave, so pressing that it can be said that our issue at hand does not relate only to a “restriction of liberty” but rather can qualify as a “quasi deprivation of liberty?” (ibid., para 28 of the judgment)

That is the spectrum, created by law, upon which we may premise our analysis, notwithstanding the great difficulty in creating categories for issues of this nature (see also Civil Appeal 660/76 Klinosky v. the Competent Authority, IsrSC 31(1) 500 (1976)). However, we should avoid ‘hair line’ distinctions, and it is appropriate for us to take into account the social dimension of the law in our interpretive approach. A curfew imposed for an extended duration is certainly inclined to be regarded as at least a “quasi deprivation of liberty”. This of course depends on the extent of the curfew’s severity and the difficulties it causes to the living conditions of those subjected to it. The indicia determined by the Appeals Committee are designed to identify a curfew that includes a severe and grave restriction on the freedom of movement:

· The existence of a government order regarding the curfew;

· The curfew applied to Jews and not to the general population;

· The curfew was actually enforced in such manner that anyone contravening it was at risk of bodily harm;

· The curfew confined a person’s presence to a limited area (such as the person’s house);

· The curfew lasted for hours each day, over a significant period of time.

As stated, there is no longer any dispute that these indicia are required in order to characterize a partial curfew as a “deprivation of liberty” (or as “a quasi deprivation of liberty”). The question is whether these indicia are sufficient, or whether the additional criterion must be applied, in order to consider the existence of a restriction on freedom of movement outside the hours of the curfew (a restriction which, in the understanding of the Respondent, must be anchored in a government order and restrict the places to which, or the purposes for which, Jews were permitted to depart outside the curfew hours - see above, the end of para. 9).

15.On this question, my position is the same as that of the Petitioners who rely on the decision of the Appeals Committee. In the Granot Case, Justice Heshin, by way of example, addressed the situation of “house arrest”, i.e., curfew. He wrote as follows (ibid., para. 31 of his judgment):

Thus, for example, for a person who is under ‘house arrest’, in the context of the issue at hand, his life is ‘similar to detention’ even if he is permitted to go to work in the morning, to stay at his work place - and only at his work place - as in detention, and to return home directly from work without stopping at any other place.

It appears to me that this example informed the District Court’s application of the additional criterion in this case by considering the time in which the persecuted person is not under curfew within the confines of his home. This is the way of examples which, ordinarily, have no binding normative status, but sometimes inform the formulation of rulings in subsequent judgments (see also, in close connection, the manner in which the example of an armed guard, which was included in the Klinosky case, informed the ruling’s formulation regarding a deprivation of liberty by way of deportation, until the Granot Case abolished this requirement). In any case, I do not believe that we should infer either from the above example or from the interpretation criteria outlined in the Granot Case, the conclusion that a curfew’s characterization as “living under conditions similar to detention” is necessarily contingent on the fact that in the hours in which the curfew is not in force, there is a government order setting restrictions on movement.

16.When the government imposed a curfew, which restricted the movement of Jews to the four walls of their homes for a significant period of time and in such a way so that anyone who violated the curfew took life into his own hands, it cannot be said that the lifting of the curfew for a limited time removed Jews from the experience of conditions that were similar to detention as defined by the law. As stated, eligibility under Section 43 of the German Compensation Law is not limited to a deprivation of liberty in the narrow sense but also applies to someone who lived in a situation similar to a deprivation of liberty. This is someone whose living conditions were regulated by the government, and whose freedom of movement was severely and significantly restricted. Let us take the persecuted person who lived under a curfew in Bulgaria and who was only permitted to go out for two hours a day. This was the scenario which existed over an extended period of time. What could he do during those two hours? He would certainly go to procure essential goods for himself and his family or he would carry out other necessary activities for survival. He was not a free person. I see no relevant distinction between such a person and someone who, under a government order, is permitted to go out solely for a certain purpose, such as purchasing food. The curfew restricts freedom of movement even during the hours of respite. There is no need for a government order for that purpose since these things stem from the nature of life under a curfew, particularly during dark times lived under the shadow of death, in which freedom of movement - the freedom to live - was restricted in any case. We cannot simply count the hours of the curfew or merely consider the nature of the route along which Jews, exclusively, were permitted to move, during the limited time they were permitted to leave their homes. The reality in which the Jews of Bulgaria and Romania lived, and actually, Jews in other parts of the continent as well, clouded their lives at every moment. They were vulnerable to vicious attacks at any time and they were hunted both during the curfew hours and non-curfew hours. They were also deprived of their freedom of movement beyond their homes.

Therefore, a requirement for the existence of official restrictions on movement during the hours between the curfews - (between one curfew and the next) - does not to us appear to be a necessary pre-condition for determining whether the life of a persecuted person under a curfew was similar to that of a person living in conditions of detention. It may be that in cases in which the curfew was imposed for merely a few hours a day or over a short period of time, the existence of restrictions on movement in the non-curfew hours would be determinative in transforming what might otherwise be regarded as a restriction of liberty into a “quasi deprivation of liberty.” However, in a case involving an ominous government curfew imposed over a long and continuous period of time for many hours each day, those persecuted did not have real freedom of movement, even during the hours of respite. That is the working assumption under which eligibility to benefits must be determined, and I do not believe that there is any place to obligate those submitting claims based on the curfew to prove individually that their movements were, indeed, restricted, even outside the curfew hours. It should be clarified that to my way of thinking, in such terrible conditions, the use of working assumptions stemming from historical knowledge and from logic are justified and consistent with the social purpose of the law. These working assumptions are inclined to alleviate the need to impose additional demands on the handful of survivors who still remain alive to testify to the horrors of that time.

Therefore, I propose accepting the appeal, vacating the judgment of the District Court and reinstating the decision of the Appeals Committee. The comment by Judge Schneller (para. 7 above) will be deemed as though it were said by us as well, except for the words “by “expanding” the indicia.” The Respondents will bear the court costs of the Petitioners and their attorney’s fees in the amount of NIS 20,000.

The Deputy Chief Justice

Justice E. Arbel:

I concur with the judgment of my colleague, Deputy Chief Justice E. Rivlin, and with his reasoning in its entirety.

In my opinion, and as stated by my colleague, the social purpose of the Invalids (Nazi Persecution) Law, 5717-1957 and the grave historical background are the foundation for these issues. Particularly important, in my opinion, is the recognition of the fact that a life under curfew is one of deprivation of a person’s liberty to the point of a “quasi deprivation of liberty.” I will briefly note that not only was a person under curfew deprived of liberty in the “simple” sense, since he was restricted to the curfew hours and limited throughout the hours of the day as a result, many other rights were denied to him because of his need to adapt himself to the curfew régime and its accompanying atmosphere. Thus, he was also required to restrict his movements during the non-curfew hours, and to refrain from going far from his residence, so as to comply with the restrictions that were in force; thus, his choice of how to spend the non-curfew hours was also dictated in any case by the need to obtain the basic necessities of life during those few hours. The persecuted who were subjected to the curfew decree were forced into conduct which, naturally, narrowed itself to the confines of the curfew and the severe restrictions on contacts with the outside world, in both the immediate and remote circles. This reality, against the backdrop of a time of war, fear, anxiety and uncertainty was an impairment of liberty which, in my opinion, amounts to a “quasi deprivation of liberty.”

I do not see [the need] to go into further detail regarding the broad meaning which, in my opinion, should be given to the term “deprivation of liberty.” Like my colleagues, I, too, believe that a decision in this case should be rendered without delay. The survivors deserve a normal life; they deserve not to have their old age consumed by awaiting a judgment, nor by a painful re-opening of old wounds.

I, too, believe that there is no need for additional indices besides those determined by the Committee. Therefore, I agree that the appeal should be accepted and the Appeals Committee's decision should be reinstated alongside the comment of Judge Schneller, with the qualification noted by the Deputy Chief Justice.

Justice

Justice H. Melcer

1.I concur with the exhaustive and sensitive judgment of my colleague, Deputy Chief Justice Justice E. Rivlin and the comments of my colleague, Justice E. Arbel, which were written in the same spirit.

2.I would like to add that the approach guiding the judgment of my colleague, Justice E. Rivlin, is also consistent with the now-widespread trend in comparative law with regard to the violation of human rights. In this framework, the term “restriction of liberty” is broadened to the point that, in the appropriate cases, it approaches “deprivation of liberty.” See: Blackstone’s Guide to the Human Rights Act 1998, 155-157 (5 th ed. 2009). Considering the fact that there is a pressing need to end the deliberation on the Petitioners’ matter - I do not see fit to expand further on said issue at this time. Therefore - beyond my comment here - I leave this matter, like the question of its connection to the provisions of Sections 5 and 10 of the Basic Law: Human Dignity and Liberty - for detailed clarification at another time.

Justice

Decided as stated in the judgment of the Deputy Chief Justice E. Rivlin.

Given this day, 7 Heshvan 5770 (November 24, 2009).

Deputy Chief Justice Justice Justice

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