2017-10-23

Gaza

Gaza

His Excellency the Attorney General Diaa Al-Din Al-Madhoun/ Gaza

Subject: Obstructing the implementation of judicial rulings and usurping judicial powers

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their warmest greetings, noting that we received a written complaint on 17/10/2017 from a citizen named: …………………………., residing in the city of Gaza, stating that he pursued proceedings against his ex-wife: ……………………., based on a document showing a debt of ten thousand US Dollars ($10,000). The proceedings were suspended after his ex-wife appealed before the competent court claiming that the said document was forged. However, the Court of First Instance and the Court of Appeal confirmed its validity.

The complainant added that he resorted to the Department of Execution in the court of Gaza to request that they proceed with the proceedings from the point where they left off, and he was able to issue a detention order, but the police station of …………………. abstained from implementing the order under the pretext that the Tribal Affairs Advisor to the Ministry of Interior, ……………………….., sent an official letter ordering the suspension of the implementation because attempts were being made to reconcile both parties, contrary to reality.

As an independent non-governmental watchdog organization, MUSAWA believes that the complaint, if true, entails a law violation and an unjust and unlawful obstruction of official orders, decisions, and judgments. This contradicts the Basic Law, the Judicial Authority Law, and the Execution Law. Moreover, the powers of the judiciary are being overstepped and encroached and judicial rulings are being obstructed without having a judicial decision by a competent authority. In the same context, we refer to Article (106) of the Basic Law, which clearly states, “Judicial rulings shall be implemented. Refraining from or obstructing the implementation of a judicial ruling in any manner whatsoever shall be considered a crime carrying a penalty of imprisonment or dismissal from position if the accused individual is a public official or assigned to public service. The aggrieved party may file a case directly to the competent court and the National Authority shall guarantee a fair remedy for him”. The same exact text was also mentioned in Article (82) of the Judicial Authority Law. Furthermore, Article (172) of the Execution Law states, “All competent authorities – each one within its sphere of jurisdiction – shall implement the provisions of this Law”.

Accordingly, the abstention of ……………’s police station from implementing the detention order based on a letter from the Tribal Affairs Advisor to the Ministry of Interior, who is not a judge or a court representative, as mentioned in the complaint -if true-, usurps the powers of the judiciary, oversteps its jurisdiction, and represents a prohibited interference in its work; an unlawful interference which was presented to a non-competent party, and which contains a claim that is explicitly denied by the complainant in his complaint. The sentenced person (the wife) should have filed a request to the execution judge validating her claim, who shall duly decide on the matter in his capacity as the competent authority in such matters. It is prohibited to obstruct the implementation of a judicial ruling unless by a decision from a competent authority in the judiciary.

We ask your Excellency to look thoroughly into our memo and to act upon it as appropriate, ensuring that the complainant is enabled to proceed duly with the legal proceedings, and that no more unlawful interferences in the work of the judiciary be allowed. The employee who obstructed the implementation of the judicial ruling at hand should be held accountable, and the complainant should be guaranteed a fair remedy as appropriate.

With all due respect,

Issued on 23/10/2017

MUSAWA

Attachments:

• A copy of the complaint.