פסק-דיןעליוןבית המשפט העליון21 עמודיםנכלל בחיפוש

בג"ץ 148/79 Sa'ar v. Minister of the Interior

ניתן ביום
הרכב
לא צוין

בקצרה

תוצאה: התקבל
משפט חוקתי · זכות ההפגנה והתהלוכה ומתן היתרבג"ץ על החלטת מפקד מחוז המשטרה לדחות בקשה להיתר לצעדה בירושלים

בית המשפט העליון בשבתו כבג"ץ דן בסירוב המשטרה להתיר תהלוכה בירושלים בשל חשש להפרת הסדר ועומס תנועה. הוחלט להתיר את התהלוכה במסלול שנקבע, מאחר שהמשטרה לא הרימה נטל להוכיח סכנה ממשית, ושיקולי תנועה ועומס אינם מצדיקים שלילה מוחלטת. הנימוק המרכזי הוא שזכויות ההתקהלות והתהלוכה הן יחסיות, ויש לאזנן מול הסדר הציבורי באופן מידתי.

העובדות

המבקשים, ארגון למען זוגות צעירים ללא דיור, ביקשו היתר לתהלוכה בירושלים לקראת הקונגרס. המפקד סירב בשל חשש להפרת הסדר לאור תהלוכה קודמת בתל אביב שבה ניסו משתתפים להיכנס למשרד הממשלה. הוצעו מסלולים חלופיים שנדחו על ידי המבקשים.

השאלות המשפטיות

  1. 1.האם רשאי מפקד מחוז המשטרה לסרב למתן היתר לתהלוכה בשל חשש להפרת הסדר הציבורי
  2. 2.האם שיקולי תנועה ועומס על המשטרה מצדיקים דחיית בקשה להיתר לתהלוכה

הלכות

  1. 1

    זכויות ההתקהלות והתהלוכה הן זכויות יסוד, אך הן יחסיות ואינן מוחלטות, ויש לאזן אותן מול זכויות הפרט והסדר הציבורי.

    ״They are relative, and not absolute, liberties.״

התקציר, ההלכות והסיווג נוצרו אוטומטית. לכל הלכה מצורף ציטוט מהמסמך. יש לבדוק את הדברים מול המקור באתר בית המשפט, שהוא הנוסח המחייב.

הטקסט המלא

4.

DEMONSTRATION

©

*

Co

H.C. a.

IVI

SHAR et

148/79

al.

Vi.

MINISTER OF THE INTERIOR AND THE FOLICE et al.

In the Supreme Court Sitting as a High Court of Justice Landau D.P., Shamgar J., Barak J. Lo Saar for the petitioners

M. Shaked, Senior Deputy State Attorney, for the respondents |

JUDGMENT Barak J,

:

i. The petitioners are representatives of "The National ~~

Combative Committee for Homeless Young Couples". On 26 February 1979, they applied to Respondent No. 2 in a request to hold a

procession of homeless young couples in Jerusalem. The said procession was supposed to take Place on 20 March 1979 and the

requested route proceeded from the Menorah Square via Bezalel Street, Ren Zvi Avenue and Fupin Avenue to the Enesset Frecincts.

At the Knesset Precincta a "gathering" was to take place and

thereatter dispersal.

The subject of the procession is “the

shortage of housing for young couples and citizens in general throughout the state." Respondent No. 2 refused the application j

.

an 4 March 1979. The petition to this Court was filed as against

that refusal. On 15 March 1979 a hearing was held on the motion to grant an order nisi, to which a representative of the Attorney Ra

Transl ation copyright, 198%, by Carmel Shalev

410

General was summoned.

Before that hearing a notice was submitted

on behalf of the respondents. In that notice we were informed that the refusal

of Respondent No.

:

2 was founded in a fear

entertained by the respondents that the requested procession would

"result in breach of the public order, violence, breach of the peace and unlawful

action, in

light of experience drawn from a

similar demonstration that took place approximately a month

previously.

Nevertheless it was noted that the respondents were

willing "to come to terms with the petitioners and, s0 as not to circumscribe their wish to give their position public expression, to allow them to hold an assembly, without a procession, and not

:

in the Knesset Frecincts.” proposal.

This Court

The petitioners did not accept this

issued on that occasion an order nisi

directing the respondents to come and show cause why they would

BE

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not. grant the petitioners a permit to hold the procession as requested.

After the issue of that order, and before a hearing

was held on it,

the petitioners received permission from the

empowered Knesset officer to demonstrate opposite the Knesset building.

A further proposal by Respondent No.

2, to the effect

that the petitioners submit a new application for a procession along "a short and reasonable route” was rejected by the petitioners.

At the time of the hearing before us the respondents

repeated their principled position —— the reasons of which will

become apparent below —-- against granting the requested permit.

Motwithstanding they repeated their proposals that the petitioners he

satisfied

procession,

with a

rally at the Menorah Square and without a

or with a procession proceeding from Ben Zvi

via Rupin Avenue to the Knesset Precincts,

that

is,

Avenue

without a

~

IN

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:

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’

411

Se

rally at Menorah Square and without a procession through Bezalel

|

Street.

These latter proposals were not agreed to by the

petitioners,

who insisted on their original

in the date of 2.

It

is

request,

with a change

the procession and assembly. well-known

recognizes fundamental enlightened states.

that

civil

the

law

liberties,

of

the

State

of

Israel

as is customary in

These liberties include the liberties of

assembly and procession.

Whether we regard these as independent

liberties or as aspects of the freedom of expression —-- and there is no need for us to decide that question -- a high degree of

importance attaches to them in fashioning the character of our democratic regime.

The holding of an assembly and procession is

one of the means at the disposal of members of the public to

.

express their opinions on affairs of state, a means that is at times more effective and concrete than other means of expression

(see Douglas J.

at 385).

in Alderley v.

State of Florida I85% US 39

(1966),

In the words of Lord Denning M.R. in Hubbard v. Fitt

(1975) 3 WLR 201, at 212), in relation to the right of assembly and demonstration: ©

"These are rights which it is in the public interest that individuals should possess; and, indeed, that they should

exercise without impediment so long as no wrongful act is done. It ie often the only means by which grievances can be brought to the knowledge of those in authority —— at any rate with such impact as to gain a remedy.... Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern.”

Nevertheless, —

not unlimited.

:

the liberties of assembly and procession are

They are relative,

and not absolute,

liberties.

:

412

:

My right to hold an assembly and procession does not imply that I am entitled to encroach upon my neighbor ‘s property

without his

consent, or that I may cause violence and breach of the public peace.

As is the case with respect to other liberties, here too

the wish of the individual -- and of individuals -~ to express their opinions by means of assembly and procession must be

balanced against the wish of the individual to protect his

wellbeing and property and the wish of the public to maintain

public order and security.

Without order there can be no liberty.

The freedom of assembly does not imply the disavowal of all public order, and the freedom of procession does not imply the freedom of

riot.

In a landmark decision on this issue in the USA, Haque v.

Committee for Industrial Organization (307 US 4946 (1939)) Justice Roberts held

(at 515)

that:

— |

"The privilege of a citizen of the United

States to use the streets and parks for communication

of

views on

questions may be regulated

national

in the interest

of ally

it is not absolute, but relative,

and must

be exercised

in subordination to

the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be :

3. }

:

abridged or denied.”

The restrictions imposed upon the liberties of assembly

and procession derive from the spheres of both private and public law.

They are designed to protect recognized liberties of the

individual with respect to use of his property and his bodily integrity, on the one hand, and to protect the public order and security, on the other.

Thus, for example, my right to hold an

assembly or procession does not entitle me to trespass on my neighbor's property (see Harrison v. Duke of Ruthland [18931 1

oN |

413

i

Q.B.

142).

The freedoms of

assembly and procession cannot be

invoked to justify perpetration of a nuisance on an individual, that

is,

a substantial

reasonable use of

.

interference with another person's

land

(see Lowdens v.

Restrictions on the freedom of

Keareney [19021 2 I.R.

82).

assembly and procession do not

ensue only from the perspective of one or another individual who has suffered public

injury.

interest which

provisions of

public

(see,

They ensue also from the perspective of is reflected

the criminal

e.q.,

inter alia in several

law that are designed to protect the

sections 151,

152 of the Penal Law,

Among the restrictions that are recognized matter

is

received

from

the

the

time

of

the

in

Israel

Mandate

--

1977).

-—- and this

there

is

one

that derives from the requirement to obtain a permit to convene an

u

assembly or hold & procession prior to the event. licensing is found in section 24(3)

of

|

This duty of

the Police Ordinance,

1926,

which provided that the Commander of the District Police: "may also,

on being satisfied that

it

is

intended by any person or class of persons to

form a procession which will,

in the

judgment of the district commissioner, if uncontrolled, be likely to cause a breach of the peace, require, by a general or special notice, that the person convening or collecting such procession shall apply for a license

to

the

District

Commissioner."

This provision was amended in 1934, and it subsequently provided (in

section

34¢1))

that

the

Commander

of

the

District

Police: i

©

"may if in his opinion it is necessary so to do for the maintenance of public security or public order require by general or special public notice that any person desiring to convene, organise or hold within his district any meeting or procession shall apply in writing

not

—

less than three days...before the day of the

proposed meeting or procession to the District

414

a

Commissioner for a license to hold such meeting or procession.”

The terms "meeting" and "procession" were also defined in that amendment.

This regulation has not undergone substantive

change to this very day.

In place of the District Commissioner

we now read the Commander of the District Police (see Transfer of Fowers (District Commissioners and District Officers) Law,

1964

and Notice of Appointment of District Commanders to Bear the

Fowers of the District Commissioner, 1090 Y.F. (1964) 1311.

General notices have been issued on behalf of the District Commanders, and published in Yalkut HaPirsumim, according to

which any person who wishes to organise or hold an assembly out of doors must receive a permit:

see, e.g.,

"Notice as to

Licensing of Processions & Qut-of-Door Assemblies in the Southern District”

4.

164% Y.P.

(1970)

.

2548.

It follows that the statutory law in the State of Israel

is that together with recognition of the freedoms of assembly and procession as fundamental civil liberties various restrictions

are imposed on these liberties, including the requirement to obtain a permit before holding an "assembly" or "procession", in accord with the definition of these terms in section 83 af the

Folice Ordinance [New Versionl.

Regulation of this sort can be

found in a large number of states.

In the well-known words of

Chief Justice Hughes in Cox v. State of New Hampshire 312 us 569 at

S574:

"Civil liberties, as guaranteed by the constitution, imply the existence of an

organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.

The

authority of a municipality to impose regulations

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415

in order to assure the safety and convenience of the people in the use of public highways has :

never

been regarded

liberties

but

rather

as as

inconsistent with civil one of

the means of

safeguarding the good order upon which they ultimately depend.

It follows from the aforesaid that the main guestion to be

answered is:

which considerations must be weighed by the

.

District Police Commander —— who is the authority empowered to

grant or deny a permit -- and, was the decision in the present

instance made in accord with considerations that ought properly to have been weighed?

There is no need to discuss in this case

the discretion of the Knesset Speaker to grant permission to hold an assembly or procession in the Knesset, since, as aforementioned,

such permission was granted

knesset Building and Frecincts Law,

J.

(mection 7(b)

of the

1948).

The authority to issue a permit for holding an

"assembly" or “procession”, or to refuse to do so, is found in

section B85 of the Folice Ordinance (New Version] which provides: 85. The District Commissioner, upon the application of any person for a licence made in consequence of any notice published under the provisions of section 84, may

-—-—

(1)

grant such licence, or

(2) grant such licence subject to the giving of

bonds or to such conditions or other

restrictions as he may think fit to impose, such conditions or restrictions being endorsed on the licence, (7%)

or

refuse to grant such licence.

This provision does not determine which considerations must

be taken into account by the Commissioner -- that is, the

Commander of the District Police -- with respect to granting or refusing the license.

This has been criticized (see Libai, The

Right to Assemble and to Demonstrate in Israel, 2 Iyunei Mishpat

|

416

.

|

54, 58).

-

Despite the absence of statutory guidelines in section

95 of the Folice Ordinance,

it is clear that the Commissioner may

not take into account any and all considerations that occur to

him.

The exercise of discretion in the present instance is |

subject to the substantive and procedural rules that apply to the exercise of administrative discretion.

In ow matter this means

|

that the discretion must be exercised within the limits of

purpose for which the same discretion was granted

Company Registrar v. kardosh 16 P.D. (2) 1209). be learned from section

)

84 of

the

(see DN 16/61

That purpose can

the Folice Ordinance

[New Version)

—— previously section 34(1) of the Folice Ordinance as amended in

1934 and section 35 of the Folice Ordinance as amended in 1937, as cited above ~-- which determines the considerations that must

—-

guide the District Police Commander when publishing a general or special notice as to the need to obtain a license before holding an assembly or procession.

.

"As already mentioned that

consideration consists in the District Police Commander being of the opinion that "it is necessary to do so for the maintenance of public security or public order."

:

The Commissioner must

similarly consider within the limits of this purpose whether a license should be granted in a concrete instance.

(with or without conditions) In other

words:

or refused

the Commissioner

must

consider whether or not the granting of a permit —— with or without conditions —— would be detrimental

or public order.

to the public security

It should be noted that this sxercise of power

by the Commissioner is not an act of grace towards the permit a

applicant.

The citizen has a fundamental right to hold an

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417 |

assembly or demonstration, but that right may be restricted, and in the present matter it may be denied if the Commissioner is of

:

the opinion that holding the assembly would be detrimental to public security or order.

The Commissioner must therefore

consider the special circumstances of this case, and determine

whether or not in his opinion the holding of an assembly and procession as requested by its organisers would indeed violate the public security or public order.

If the Commissioner is of

the opinion that such violation will occur ~— he shall refuse to grant the license;

if he is of the opinion that such violation

will not occur -—- he shall grant the license; if he is of the opinion that the public security and public order can be

maintained by granting a license subject to certain conditions —he shall grant the permit subject to the relevant conditions.

Ce

With this purpose in mind we can review the considerations that guided Respondent No. 2 -- that is, the Commissioner —— in refusing the petitioners’

:

application in the case before us.

Three reasons were given as central in his deliberations, and we shall examine each separately. 6.

The principle consideration that affected the decision

of Respondent No.

2 was the fear that the demonstration would

Cause a breach of the public order, breach of the peace and

unlawful actions. This fear is based on the experience of a similar procession that the petitioners organised and held in Tel Aviv on 20 February 1979, the events of which were specified in the respondents’ affidavit-in-reply.

It appears that the

atmosphere became heated at the Tel Aviv procession and a number —

of demonstrators tried to enter the Ministry of Housing but were

418

prevented from doing so by a chain of policemen who were posted at the place.

In the course of the procession, public statement

was made to the effect that this was just the beginning of

activity and that the organisers intended to go to Jerusalem and

lay siege to the Knesset.

The petitioners repeated similar

statements in a notice that they published in preparation for the procession in Jerusalem. It appears to me that had Respondent No.

2 refused to grant

a permit for holding the procession on a route that passes

through the area of the government buildings, on the ground that such procession in Jerusalem would cause a breach of the public

peace —— as did the attempt to enter the Ministry of Housing in Tel

Aviv only one month previously —— that consideration would

have been

well-founded

grant a permit.

and

would

have

justified

a refusal

to

The right of procession does not encompass a

right of unlawful entry into a government office. But that was not the case,

for Respondent No.2 in fact agreed to grant a

permit for a procession from Bern Zvi

Avenue via Rupin Avenue and

the area of the government buildings to the Knesset Precincts. As already mentioned,

the Speaker of the Knesset agreed to the

holding of an assembly at the Knesset Precincts.

Likewise

Respondent No. 2 agreed to the holding of an assembly at the Menorah Square.

It follows that the matter remaining in dispute

related to the holding of a procession on Bezalel Street (without

an assembly at the Menorah Square).

No argument was made to us

that the holding of a procession at precisely this segment of the

route might cause violence, or that violence would occur there, |

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or that it would aggravate the violence. This argument could -

have been made if, for example, it had been claimed that there

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were government offices on Bezalel Street which would have become a target for the marchers’ violence.

As aforesaid, these

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were thenot petitioners made to us. proceed To thetowards contrary:the Knesset Respondentvia No.a 2arguments agrees that

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route that passes specifically in the vicinity of the government buildings.

We have already stressed that neither the grant of a

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permit nor the refusal to grant a permit is an act of grace.

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Since Respondent No. 2 agreed to grant a permit for holding the

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procession Ben Zvi Avenuehis togeneral the Knesset Precincts,forthatpublic implies thatfrom in considering responsibility security and public order he reached the conclusion that there

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er

was no fear that they would be violated by an anticipated act of violence on the part of the demonstrators on this route. In these circumstances I cannot see any logical reason to refuse to allow the procession to be held specifically on Bezalel Street.

Moreover:

even if the holding of the procession precisely

on Bezalel Street would have created a fear: of

public

disturbance, such fear would not have been sufficient in itself

to deny the right of procession on Bezalel Street.

It seems to

me that the police must raise the burden of showing that the

:

danger of such disturbance is a substantial one. The police can raise that burden by relying on recent experience or information |

as to the present.

In the case before us, the police do not have

any indications as to

such substantial danger.

As we have seen,

except for the attempt to enter the Ministry of Housing in Tel Aviv, the procession in Tel Aviv passed peacefully, and its

420

organisers indeed tried to calm 7.

(a)

the heated tempers.

Another consideration that Respondent No.

2 took

into account when he refused to grant the petitioners’ application was that:

"under present conditions any assembly of people in

©

:

Israel

requires protection from

terrorist acts. It is particularly difficult to protect participants and

onlookers in Jerusalem, which is a focus of terrorist acts and attempts because of its special

:

circumstances.

It is even more

difficult to protect a procession. the Jerusalem residents have been

Moreover,

Co

disturbed

:

time and time again in their everyday lives and their freedom of movement because of important events

and

V.I.P.

visits.

The requested demonstration, require the closing of

central

if approved,

would

streets and

.

.

significant changes in traffic arrangements over a

:

large area that includes part of the city center.

These would have imposed a heavy burden on the

—.

police, who would have to allocate a large force for that purpose which, in turn, would require special preparations, as well as on a large part of the Jerusalem public, including both owners of private cars and persons who use public transportation." .

There are two elements in this consideration:

the one, the

undue disruption of the traffic arrangements in Jerusalem, and the disturbance to private car owners and persons who use public transporation;y

the other,

regards both the control

the need for police reinforcements as

of orderly traffic and the security

needs of the event itself.

We shall discuss these elements

separately.

(b)

The "traffic" consideration —— that is, disruption of

traffic arrangements —-- is a consideration that ought properly be

taken into account by Respondent No. 2 before forming his position as to the granting of a permit to hold an assembly or

;

421 :

procession or its refusal.

or

:

This consideration certainly falls

within the scope of "the public order" that Respondent No. 2 may and must take into account

(see Blasi, Prior Restraint of

Demonstrations, 68 Michigan L.R. 1481

(1970) and Note, Regulation

of Demonstrations, 80 H.L.R, 1773, 1779 (1966)).

In the words of

Justice Goldberg in Cox v. State of Louisiana 379 US 536, 554 (1965) 3

:

"The rights of free speech and assembly, while fundamental in our democratic society, still do rot mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The

constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the

Eo .

streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, desigried to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot bedisregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled

i

to protection.”

In applying the "traffic" consideration, the interests of the citizens who wish to hold an assembly or procession must always

be balanced against the interests of the citizens whose right of passage is violated by an assembly or procession.

Just as my

right to demonstrate on a city street is limited by my neighbor's right to pass freely on that street, so too is my neighbor's right to walk on a city street limited by my right to hold an

.

assembly or procession.

The roads and streets were designed for

walking and driving, but that is not their sole purpose.

They

were also intended for processions, marches, funerals and similar

422

BEN

such events.

The argument that

disturbed time and time again

"the Jerusalem residents have been

in their everyday lives and their |

freedom of movement because of

important events and V.I.P.

visits" is not sufficient to deny the right of procession on a city street. a capital

The residents of

a city -— and especially those of

-- must assume the inconvenience that is caused by

public and official

events,

the citizen to demonstrate.

and these cannot limit the right of

An organized society cannot

accommodate a rule of ia1l or nothing".

It is based on "give and

take" and the balancing of varied interests.

Co

We are, therefore,

faced with a factual situation that requires a balance between different uses of public wayfares.

:

The fact that an assembly or

:

procession causes a degree of disturbance to the road traffic is not cause to disallow entirely an assembly or procession.

oo

Respondent No. 2 may exercise his discretion and impose restrictions and limitations to minimize as much as possible the

inconvenience caused to the general public. Thus, for instance, it is reasonable to restrict the hours of the assembly or

procession so that they are not held at a busy time of the day.

:

Similarly, it is reasonable to determine restrictions as to the

course of the procession and the manner in which it proceeds. 8.

Respondent No.

2 has been charged by the legislature

with the balancing of the various interests,

and we shall

not

intervene so long as he has taken into account proper considerations and given them proper weight.

deliberations of faith, shall

Respondent No.

arbitrariness, not

hesitate

to

But

if the

2 are touched with lack of good

discrimination or unreasonableness -— we intervene.

In

the case before us

the

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controversy is focused entirely on the holding of the procession on Bezalel Street. On the one hand it is clear that the holding

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of the procession on this street will cause a certain disturbance to motor vehicle traffic at the time the procession takes place

and will disrupt the traffic for some time.

On the other hand,

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to disallow the procession precisely on this street frustrates

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one of the main components of the procession —- calling the attention of passers-by to the subject of the demonstration.

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proposed alternative —-- a march through Ben Zvi and Rupin Avenues == is not a proper substitute from the demonstrators’ point of

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view, because it amounts to marching through an unbuilt area.

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The

Where the respondents must balance the temporary inconvenience to the traffic in this short segment of Bezalel Street and the

Nr

substantive impact on a fundamental component of the procession, it appears to us that the proper balance must be found in

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- granting a permit for the procession while taking all necessary measures to minimize the extent of the impact on the traffic.

Thus, for example, it could be determined that the procession be

held during hours when the traffic is not busy and in only one lane, leaving the other open to cars.

(c)

A secondary consideration taken into account by

Respondent No. 2 was that the holding of an assembly and procession along the route requested by the petitioners "would impose a heavy burden on the police, who would have to allocate a

large force for that purpose which, in turn, would require

special preparations”.

Indeed the force at the disposal of the

police is limited, and must be allocated according to an order of

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424

preferences determined by the responsible officers

in accord with |

their general responsibility under the Police Ordinance (cf. HC 222/68 Hugim Le umiyim v. Minister of Police 24 P.D.(2) 68).

Notwithstanding,

the determination of

preferences may not be arbitrary,

141,

166~

such order of

discriminatory or unreasonable.

In determining it room must be made for the right of demonstration.

Furthermore:

:

:

it is not proper that one

demonstration be given the necessary police force while another be not, for no other reason than the ideologically different subjects of the demonstrations.

ideolagy.

The police has no authority over

It must allocate its forces according to need and not

opinion. The argument that the holding of the procession along the requested route "would impose a heavy burden on the police, or

who would have to allocate a large force for that purpose,

which,

in turn, would require special preparations" is not a proper :

argument.

The duty of

the police is to allocate the manpower

necessary for maintaining daily order,

processions and demonstrations.

which also includes various

The duty of the police is to

allocate manpower for maintaining the democratic order, which

includes the right to demonstrate, and it is the duty of the police to make special

preparations in such respect and the

"heavy burden® is no reason not to do so.

The question that the

police must ask itself is whether it can handle all the demands of a given moment.

We did not hear any argument, nor was any

‘evidence produced to show that the police are not able to do so.

Before concluding, it seems necessary to emphasise that we are dealing with a police discretion that must balance between public and individual

needs,

between public order and public

42s

security, on the one hand, and the civil right of demonstration,

on the other.

Such balance must take into account the full scope

|

of the diverse considerations and may not be partial. Such balance

|

is not a static matter but must always be made in accord with the

|

real

conditions pertaining at the time of the decision. |

-

The consequence is that we make absolute the order nisi in

the sense that we order Respondent No. 2 to grant the petitioners |

a permit, under conditions that shall be determined, to hold a |

procession that will convene at the Menor ah Square and proceed from there via Bezalel Street, Ben Zvi Avenue and Rupin Avenue to

the Knesset Precincts.

The respondents will bear petitioners’

expenses to the total sum of IL 1,500.

Landau D.F.:

I concur.

o

© My esteemed colleague, Justice Barak, has explained clearly the principles that must guide the Commander of the District

Folice in his deliberations as to granting a license to hold a procession

(without conditions or subject to conditions or other

restrictions) or refusing to do so. As to the implementation of those principles in the present circumstances, I wish to add some comments:

I too am of the opinion that the "traffic" consideration

cannot outweigh the petitioners’ right to hold a procession so as to bring their grievances to the knowledge of the public.

They

chose from the very start a route that does not pass through the

main streets of the city.

Even the short route that they propose

~-= from the Menorah Square via Bezalel Street, Ben Zvi Avenue and

:

426

)

nS

Rupin Avenue to the Knesset Precincts -—-— will surely entail disturbances to public transportation and private vehicle traffic.

The traffic disturbance at the Menorah Square and

Bezalel Street, including the need to close neighboring streets temporarily, could be reduced by conditions determining that the

procession be held at hours when the traffic is not heavy and

that the time for convening the procession at the Menorah Square be shortened, together with other conditions for maintaining the order of the procession such as were imposed on a similar

procession that the petitioners held in Tel Aviv under license. It appears to me that if we had approved the traffic

|

consideration as a legitimate factor in the circumstances of the

.

present case, we would have, in effect, put an end to the right oo

to demonstrate in the streets of Jerusalem,

since every

procession involves a traffic disturbance and in any event the

streets of the city are becoming congested with private vehicles that, unfortunately, increase in number month by month. The respondents suggest that the petitioners limit the

procession to Ben Zvi and Rupin Avenues.

But this is an unbuilt

area in which there is no point to demonstrate if the objective

is to arouse public attention.

By the way I shall remark that

the holding of the procession along Ben Zvi and Rupin Avenues

might itself cause a disturbance to the flow of fast-moving vehicles there, and also endanger the marchers themselves.

At

the hearing of the petition I suggested an alternative route —-—-— from Beralel Street via the tunnel that crosses beneath Ben Zvi

Avenue to Sacher Fark and from there straight up to the Knesset Frecincts, but my suggestion was not heeded.

CS

427

The respondents stressed in their reply the fear of breach »

of the public peace if the petitioners’ procession were allowed. They say that even if the organisers do their best to maintain

order, events might get out of their control if they are joined by others whose hearts rejoice at any street commotion.

This

i

fear should not be made light of, and I consider it to be the

central issue in this petition.

But after much deliberation I have

not found in it sufficient cause to reject the petitioner's

application.

:

:

As regards the events of the procession that they

organised in Tel Aviv, my esteemed colleague has already mentioned that Fetitioner No. 1, who was the main speaker there,

did his best throughout the demonstration and procession (despite his fiery public speech) to comply with police instructions and

-

to calm the tempers, as recorded in the police report that was submi tted to us. The incident in front of the Ministry of

to enter the

Housing consisted in a number of people attempting

building and being prevented from doing so by a chain of

pelicemen who were posted in front of the building. did not say that the incident became violent. -

The report

According to a

flier that was distributed among the demonstrators there, the

purpose of the demonstration in Jerusalem was to "lay siege to the Knesset and theGovernment Offices in the city".

But my

esteemed colleague has already noted that the police are in fact

willing to allow the demonstrators to march in the vicinity of the

government buildings, and they received a permit from the knesset Speaker to demonstrate opposite the Knesset Building. 1t appears to me too that on the evidence submitted to us the danger of

.

428

breach of the public peace at the Menorah Square and on Bezalel

Street is not sufficiently substantial to deny the petitioners “their request.

In this respect too the practical meaning of the

stringent attitude taken by the police in this petition would be

to lay down a rule

that prohibits henceforth any demonstration on

a social problem that occupies the public in any place within the

built-up area of the city of Jerusalem. ’

As regards the argument that the police will have to make special

preparations for this demonstration and to allocate a |

large force of manpower, my esteemed colleague has already

:

|

explained that despite the entailed difficulty and even though

the police are more than fully occupied with maintaining order at various state events }

(and I might add:

at demonstrations held

these very days with and without licenses), such is the hard duty of the police and the petitioners will not be deprived of their civil right to demonstrate because of the many state events and ceremonies.

Nevertheless I wish to add a warning: the petitioners are undertaking a heavy responsibility to maintain the order of their

demonstration and not to incite the crowds. esteemed colleague,

As remarked by my

the matter before wus is not

static and the

question can always be reexamined in view of experience gained

from past happenings.

If, heaven forbid, the fear of the police

will be, indeed, vindicated in this case, that might affect future attitudes towards the licensing of demonstrations and their

prohibition in times of social tension.

429

Shamgar Jd:

I

concur.

Decided as aforesaid in the opinion of Barak J. Judgment given on 31 May 1979.

המסמך מוצג כפי שבית המשפט פרסם אותו; אין באמור ייעוץ משפטי. בקשת הסרה · דיווח על טעות

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הלכות

  1. 1זכויות ההתקהלות והתהלוכה הן זכויות יסוד, אך הן יחסיות ואינן מוחלטות, ויש לאזן אותן מול זכויות הפרט והסדר הציבורי.