2022-04-12

Gaza

Gaza / Core Program / position paper

His Excellency Chief Justice in Gaza and the respected members of the High Judicial Council,

Subject: A court decides twenty shekels for attorney’s fees  

The Palestinian Center for the Independence of the Judiciary and the Legal Profession-Musawa, expresses its greetings, and begins with stressing on its adherence to the principle of the independence of judges and the independence of the judiciary, and that judges are independent in their judicial work and are subject to no authority but Law and conscience, and that judges should not be influenced and no party or person whatsoever their capacity is, including the judicial administration itself, should interfere in their work.

The appeal of a judicial decision was set out and directed by law, and it may not affect the person of the judge or the court that issued the contested decision, that even if it constitutes a line of truth, it does not necessarily constitute truth.

Some provisions indicate a defect or a shortcoming in the legislation that requires intervention and treatment, or indicates a contradiction in the relevant judicial principles as a result of the absence or weakness of established judicial principles, the thing that requires the judicial administration or the competent authority to take the necessary legislative and administrative measures to address the shortcomings or unify the jurisprudence, without interfering with the judge's work or jurisprudence.

This matter is what prompted us to address you with reference to the issuance of a judicial decision by the Magistrate Court in Khan Yunis regarding the human rights case No. 989/2021, dated 17.01.2022, including a decision of twenty shekels’ attorney fees. In our opinion, the mentioned decision is a jurisprudence that indicates a condescension of the legal profession, and a departure from the rule that attorney's fees are estimated according to the effort expended in the case, and it is the right of the litigant who wins his/her case and not the right of the attorney acting on his behalf. And that the significance of the aforementioned decision gives a negative indication of the need to enhance the confidence of litigants in the lawyers, and that wasting its value to this level (twenty shekels) undermines the personal and professional dignity of the lawyer, especially since there is a legal opportunity not to decide on attorney fees if the reasons for such decision are provided, especially in the event that the plaintiff did not win all of his claims and lost part of them, or this decision may reflect a personal appreciation of the lawyer’s person. The decision has negative effects on the reputation of the lawyer and the society's perception of lawyers, their role, and status, especially if the decision was circulated on social media, notably that court sessions, particularly the decision pronouncement session, are normally public by force of law, pointing out that another decision was issued by the same court in Civil Case No. 1507/2021 dated 20.02.2022 and decided fifty shekels as attorney fees.

The issuance of such decisions requires a specialized professional pause that puts its hand on the legislative or application defect, knowledge of its nature and causes, and treatment of its causes by the competent authority as soon as possible, since its repetition has a very dangerous impact on the legal profession and the confidence of citizens in it, and this is what we demand from you hoping to be provided with measures taken in this regard, whether at the level of the judicial administration or other competent authorities.

With respect,

Issued on 12.04.2022

Musawa