2017-07-02

Gaza

Gaza

The Honorable Head and Members of the High Judicial Council,

Subject: the violation of judicial and administrative rules of conduct

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their greetings to you, noting that on 21/06/2017 MUSAWA received a complaint in writing from a citizen named Ramez Khaled Ismail Dabbour, stating that he was at the magistrate’s court in Deir Al-Balah concerning case file no. 625/2011, generated by a partnership contract between the complainant and his partner in business affairs. The complainant paid the fees of the aforementioned case, which approximately equals 7,000 JOD.

The complainant added that he has been requesting a copy of the case files from the said court since 2016 to date. However, his attempts failed. The relevant employee gave him a different answer each time he asked them to photocopy the file: the file is in the storage area, the file was damaged, and eventually the file is missing!!

The complaint also states, if true, that he filed the case no. 4747/2016 before the magistrate’s court of Deir Al-Balah against his partner. The case was presented before judge ……….. for a final judgment issued by the court. However, the hearing is postponed each time, in addition to issuing a decision to stop the proceedings until the files of case 625/2011 are photocopied, and considering the clearing request submitted by his partner.
As a non-governmental and independent watchdog organization, and with all due respect to all the honorable judges, MUSAWA believes that the citizen’s complaint, if true, addresses a violation of the citizens’ right to litigation and prejudices the rights they are entitled-to by judicial decisions. We also believe that it entails an infringement of the administrative rules of conduct by the administrative employees of the court, manifested in the delay and procrastination of service delivery to the public and the realization of their right to check their files which are archived in the court’s storage area, which may impede the litigation proceedings and delay the litigants’ access to justice.

According to Article (30) of the Basic Law, “litigation procedures shall be organized by law to guarantee prompt settlement of cases”. Paragraph 3 of the same Article also states that “judicial error shall result in a remedy by the National Authority. Conditions and methods of such remedy shall be regulated by law”. Moreover, Article (106) of the Basic Law and Article (82) of the Judicial Authority Law stipulate that “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”.

Pursuant to Article (109) of the Code of Civil and Commercial Procedure, the respondent is entitled to present an application to the judge who issued the decision moving that it be cancelled or amended, which is what the complainant did as duly evident in the official application to proceed with the proceedings of case no. 4747/2016.

In reference to Article (10) of the Law on the Formation of Regular Courts, the High Judicial Council organizes the work of the magistrate’s court and divides it into departments if necessary. Paragraph E of Article (5) of the Law of Execution, which regulates execution procedures in execution cases, states that the judgment may be adjourned for any of the reasons that necessitate the appeal of a judgment issued by the Judge of Execution. Article (8) of the same law distinguishes the writs of execution, stating that compulsory execution may not take place except by a writ of execution, including judgments, decisions and orders. Furthermore, Article (22) of the Law of Execution states that the expedited execution without a bail shall be obligatory by the force of the Law in regard of the judgments issued forth on the commercial materials on the condition of the submission of a bail.

The Honorable Gentlemen,

We point out that the decision to suspend execution at hand is inconsistent with Article (32) of the Law of Execution, which states that “in the event the debt, which is under objection, is established by a writ that has been certified by the notary public or by a commercial paper that is subject to endorsement, the objection shall not affect the execution”, considering that the executive writ is a final judgment issued in relation to commercial materials between the complainant and the respondent in the aforementioned application.

Accordingly, we ask your Excellency to study our memo thoroughly, and to take the proper legal action regarding the matter so as to ensure the proper application of justice, to guarantee the people’s right to litigation, and to stress the prompt delivery of services to the litigants, which enhances the rule of law and prevents the abuse of power.

With all due respect,

Issued on 02/07/2017

Chairman of MUSAWA’s Board of Directors
Adv. Yasser Jabr

Copy to:
-    The Head of the Department of Judicial Inspection.
-    The President of the magistrate’s court at Deir Al-Balah.

Attachments:
-    A copy of Ramez Dabbour’s complaint.