A new Supreme Court ruling, in which the justices were divided, raises a human issue and the excessive place of criminal law in our lives. According to the principle of extinction, criminal law is the last means. Because it is a drastic measure, which inflicts and permits deprivation of liberty in imprisonment and detention, it must be used little.

Even when there is an undesirable social phenomenon, other means must be satisfied - some outside the law, such as education and publicity, and some within the law, such as a charge of tort compensation. Only when other means are insufficient and when the phenomenon is significantly harmful can the legislator consider a criminal ban.

Originally, criminal law was intended to prohibit significant violations of the core protected social values, especially life, body integrity and liberty, as well as property, freedom of choice and privacy. Initially, individual acts were banned in the various companies, such as murder, rape, robbery and theft. Later, more and more bans were added. In recent decades, due to a distorted conception of the role of criminal law and a lack of understanding of the enormous damages that the plurality of incarcerations inflict on society, we have reached criminal restraints.

Eliezer and Shimon were seized from handouts on the Western Wall plaza, warned not to do so, and signed commitments. When they returned to the group, charges were filed against them and they were convicted and fined thousands of shekels, and if not paid - days of imprisonment for them. The Kibbutz Hanavavot offense at the Western Wall was not determined by the Knesset, but by regulation, by virtue of the Holy Places Law. Justice Elron wrote a beautiful judgment, explaining that the defendants should be acquitted, both because the regulation did not criticize a Knesset committee, as required by the Penal Code, and because "it is highly doubtful that the Holy Places Conservation Law is sufficiently empowered for the sub-legislature to state that The act of bankruptcy itself in those places is a criminal offense. "

Beyond the importance of the principle of law that "there is no offense and no punishment unless it is prescribed or enforced by law," Judge Elron reveals an understanding of the limited role that drastic measures should be given as criminal justice, and the plight of beggars. As Judge Barak-Erez quoted from the writer Anatol France in "The Red Lily," "the trial prohibits both rich and poor to stay under bridges, begging and steal bread." Elron does not fall into captivity of "equality" and writes sensitively: "The exclusion of poor and hard-working populations from the holy places but due to the fact that they seek to collect them for their living limits the freedom of access to those places and raises significant moral concerns ... light and material that stated that Bankruptcy in these places is a criminal offense is not at all simple, and I do not accept it. "

Unfortunately, Elron remained in the minority and the beggars were convicted. Barak-Erez wrote a detailed judgment that presents legal and historical aspects. Although she concluded that the ban was legally valid, she was also sensitive to the beggars' difficult situation (although her sensitivity did not change the result).

Justice Solberg's verdict is different: "The sensitivity of hand-holding - beautiful and important and necessary; but unspoken. We well knew - and this is a matter of judicial knowledge - about the" begging industry ", about those who misuse good intentions of innocent bystanders, sometimes It is precisely in the holy places, in many ways, different and varied, not often with real harassment. "

First, it does not appear to be "judicial knowledge" but a private knowledge of the judge. Second, we have a misconception of criminal law. Even if the beggars do not want to be harassed and do not want to bother, the harshest means the state has against the individual - criminal law, conviction, infamy and even the possibility of imprisonment if the thousands of shekels that were fined as a result of a commitment are not paid. In criminal law, the very prohibition is contrary to the principle of concealment, and the punishment is disproportionate. In the language of the Supreme Court in almost every other context, this is disproportionate legislation.

It is a pity that in the area of ​​criminal law, they never used the basic laws to pass such legislation.

Prof. Boaz Sanjero teaches at the Law and Business Academic Center and at Sapir Academic College