2017-08-15

Ramallah

West Bank

His Excellency the Legal Adviser to Mr. President

Minister Hasan Al-Ouri,

Subject: the draft decree-law on the High Criminal Court for 2017, submitted for issuance by the Council of Ministers to Mr. President 

The Civic Coalition for Monitoring the Legislative Process extend their warmest greetings to you. Kindly find attached a legal memo on the draft decree-law on the High Criminal Court for 2017, referred to the President for issuance, recalling that a previous version of the said draft had been submitted by the Council of Ministers to the President on 13/12/2016 (the draft decree-law on the High Criminal Court for 2016) pursuant to a decision by the Council of Ministers, issued in its weekly session no. 130/17. Following the said submission, the Coalition sent a memo in writing to the President, dated 02/02/2017, elaborating how the draft is inconsistent with the Basic Law and the Judicial Authority Law and fair trial guarantees, and it breaches the obligations of the Palestinian State by virtue of its accession to international treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), in addition to violating the Universal Declaration of Human Rights, which is considered a customary international law. At the time, this had led to not issuing the first version and returning it to the government for observation. The government then adopted a new draft decree-law for the year 2017 concerning the High Criminal Court and referred it to the President for issuance.

The Coalition hopes that your Excellency would consider our memo to the President, dated 02/02/2017, as an integral part of this memo, and that both memos would be examined carefully for the purpose of preventing the issuance of the said draft decree-law as it involves risks and legal irregularities, and it represents a direct violation of the Basic Law, the Judicial Authority Law, fair trial guarantees and the relevant international treaties and covenants.

Having studied the new version of the draft decree-law for 2017, which was approved by the government in its session held on 01/08/2017, we believe that the new version still has not addressed the gaps and violations found in the first version. Accordingly, the said draft decree-law needs to be put aside for a variety of reasons and considerations:

1- The draft decree-law in its new form did not differ from the draft in its first form, except in very limited areas, such as not dealing with travel bans or pre-arrival screening; reducing the detention period for the Public Prosecution from one week to four days; removing the provisions related to the prohibition of leaving the country and to pre-arrival screening; and removing the text on the applicability of the Judicial Authority Law to judges and prosecutors in the said court, contained in Article (3) of the first version of the draft decree-law. This is in addition to the amendments made to Article (19) of the first version, as observed in Article (20) of the new version, which is a more administrative rather than content-based change; the removal of Articles (20) and (22) of the previous version from the new one; and the introduction of new provisions and texts, as in the eleventh, twelfth and thirteenth articles of the draft, in its new form.

2- Article (2) of the new version of the draft decree-law remained the same. We believe that it is not clear what aspects the approved procedures and provisions of the Penal Procedure Law apply to; are they the procedures of investigation, referral, providing evidence or proceedings? Therefore, this Article is marked by a drafting error. 

3- Article (3), which deals with speedy adjudication, was drafted loosely and might be misused to offend human rights and fair trial guarantees, as it talked about speeding-up the adjudication of cases rather than shortening the period of postponement of trials. The text is merely a repetition of Article (5) of the same draft, if it addresses proceedings.

4- The text of Article (4), concerning the establishment of the court, should fall under the Law on the Formation of Regular Courts.

5- The text that deals with the place where the court sits, contained in Article (5), which is the same as the one mentioned in Article (6) of the first version of the said draft decree-law, deviates from the rules of the courts’ territorial jurisdiction, as stipulated in the Judicial Authority Law and the Law on the Formation of Regular Courts. Moreover, it is gravely ill-drafted as it states that a court convenes outside its temporary jurisdiction upon the request of the Attorney General, as if such a request was an enforceable decision. However, the place where the court sits does not in any way fall within the Public Prosecution’s sphere of competence, for the Public Prosecution is a litigant rather than an adjudicator.  According to the constitution and the rules that govern such situations, a court meets outside its jurisdiction by and only by a judicial ruling. The president of the court or the competent judge may or may not accept the Public Prosecution’s request. Nonetheless, the proposed drafting not only adversely affects the powers of the judiciary but also allows the Public Prosecution to encroach the competencies of the judiciary even further. 

6- Article (6) in the new version, compared to Article (7) in the first draft, indicates that the bench might include in its membership or presidency judges from the Court of Appeal or the Supreme Court, as it states that the bench shall consist of three judges not below the level of the Court of First Instance, which is inconsistent with the two-level litigation process and the hierarchy of the judicial structure. It is implausible that the Court of Appeal, for instance, to examine an appeal against a judgment issued by its own members or by members of a superior court such as the Supreme Court.

7- Article (7) of the new version, as opposed to Article (8) of the first draft decree-law, contradicts with the Penal Procedure Law; the representative of the Public Prosecution before the Court of Appeal is a deputy prosecutor while the representative of the Prosecution before a lower court, such as the court in question, is a chief prosecutor.

8- Article (8) of the new version of the draft decree-law, in comparison with Article (9) of the previous version, vested the court with extremely broad jurisdictions. The first paragraph states that the court’s jurisdiction in examining homicide cases is separated from other cases, except for manslaughter. The acts that match the definition of homicide/killing are very variant, including beating to death, death caused by abortion, burning to death and so forth. In its second paragraph, defilement crimes are also listed. The third paragraph included crimes against the internal or external State security, which is a vague and loosely-formulated statement according to which a mere expression of opinion on social media channels (such as Facebook) may be considered a crime against State security. Also, there is a number of crimes against State security, internal and external, that are punishable as “misdemeanors” and not felonies; therefore, they should not fall within the court’s jurisdiction. The fifth paragraph addressed the cases of attempted crimes, knowing that according to the Palestinian Penal Code attempts of misdemeanor are considered an offence only if the law clearly and straightforwardly states so for each misdemeanor aside. Originally, an attempted misdemeanor is not a crime.

9- Article (9) of the draft decree-law grants the Public Prosecution authority to take any precautionary measure it sees appropriate, which is a loose and unspecified statement that is subject to the personal judgment of the person responsible for the investigation. This deviates from the binding legal rules stating that any measure taken should be explicitly explained in terms of definition and type. In that context, a decision of travel-ban might be dealt with as a precautionary measure!

10- In Article (10), which is a modified version of Article (12) of the first version of the draft decree-law, the period of detention granted to the deputy prosecutor is reduced from one week to four days. This is considered an amendment to the Penal Procedure Law, which gives the Prosecution the period of two days only, for the same reasons addressed in the text. This period of two days is originally granted only due to any potential irregularity in the work of the judiciary, such as the weekends and holidays. A human being shall remain free and the exception is to have him/her detained by a judicial decision. Accordingly, the text continues to violate the human rights and contributes to the expansion of the powers of the Public Prosecution without any legal obligation, knowing that the Prosecution may resort to the judiciary to demand an extension of the detention period of the accused as per the provisions of the Penal Procedure Law in effect. Furthermore, a serious error in the text is that it says that detention after the said period of four days, referred-to in the introduction, shall occur as per the provisions of Article (8) of the draft, while it would have been more efficient to say, “Procedures shall be applied as per the provisions of the Penal Procedure Law”. Moreover, the text addresses the cases where a deputy prosecutor may detain an accused person for four days after interrogating him/her in a general and loosely-formulated manner, such as the fear of the escape of the accused person, the prevention of serious breaches of security or public order, or the lack of a permanent residence for the accused. Instead, reference may have been made to the rules and procedures of the Penal Procedure Law regulating detention procedures, which makes the adding of the aforementioned text unnecessary and irrelevant. This is in addition to granting the deputy prosecutor powers that wash the accused person’s right to freedom and prevent the court from observing the detention. It also entails an amendment to the Penal Procedure Law, and oversteps the authority line of the judges of the magistrate court and the court of first instance in that it assigns the adjudication and examination of the decisions to extend detention periods to the Public Prosecution and the suggested High Criminal Court, which is a flagrant contradiction to the Penal Procedure Law.

11- The contents of Article (11) of the draft decree-law, in its new form, is a newly-created text that was not included in the first draft. It posits a substantial amendment to the periods of detention in the Penal Procedure Law; not only did it change the period for which a court is allowed to detain an accused person while under investigation from 45 days to three months, but it also allowed an extension of the period for another three months while the accused still has not been brought to trial and the indictment has not yet been referred to the court (as per paragraph 2). Furthermore, paragraph 3 states that the detention period may be extended for another three months, increasing the detention period during investigation to a total of six months, followed by a request to detain the accused person until the completion of the proceedings. This clearly violates the rule that the accused is innocent until proved guilty, undermining the Penal Procedure Law and the punitive philosophy stipulated in the substantive laws as a whole, and putting at risk the basic rights of citizens as stated in Part Two of the Basic Law and in the binding international treaties and conventions the State of Palestine has acceded-to. 

12- Article (12) of the draft decree-law, in its new form, is a recently-formulated text that was not mentioned in the draft in its first form, dealing with the presence of the accused person’s attorney in the investigation, except for the case of flagrante delicto, and when speeding-up the procedure of collecting evidence due to the fear of loss of evidence. This is a loose and vague statement that is interpreted based on the deputy prosecutor’s judgment, which gives a great chance for the misuse of power and strips the text of its original purpose.

13- Article (13) of the new version of the draft decree-law is new as well. It gives the Attorney General the power to re-detain an accused person who has been released on bail in the case that new evidence is found, regardless of whether the criminal description of the act under investigation has changed or not. This reflects a transformation in the philosophy of the Penal Procedure Law, according to which the person should originally be released and that his/her detention is the exception. In addition, the fact that the accused person is still at large does not preclude his/her trial. The text addresses evidence that does not necessarily require the re-detention. Accordingly, the said text serves as a threat to human rights, and it violates the Basic Law which guarantees the citizens’ right to freedom of movement and considers that the original state for the accused person is freedom. Again, the text is irrelevant in addition to the fact that it offends the basic rights citizens are entitled-to and the procedures and guarantees of fair trial.

14- Article (16) of the draft decree-law, in its new form, which is similar to Article (15) of the previous draft, introduces a new concept: in the case that the accused person missed his/her trial session for any reason, it is inadmissible to reconsider the decision issued following the accused person’s trial as if he were present, unless there is a force majeure that convinces the court, even if this means that the accused person will be denied the right to defend himself/herself. This, of course, disturbs the rules of fair trial, and it deviates from the provisions of the Basic Law and the international agreement.

15- Article (17) of the new version of the draft decree-law, the same as Article (16) in the first draft decree-law, included a substantive text that should be under the Penal Code instead. It states that penalties are reduced by one-third if the accused person confesses, which deviates from the public legislative prescriptions.

16- Article (18) of the new draft, the same as Article (17) of the previous draft, warns of an extremely dangerous phenomenon. It grants power to the Attorney General to request the transfer of a case from one bench to a different one, knowing that the latter consists of judges of the same level. This is inconsistent with the rules of governance, as adversaries shall not choose their judges. Furthermore, this represents an interference in the work of judges and unjustifiably influences their independence based on vague standards like the aforementioned disturbance of public security. Moreover, the text went too far in that it gives the Attorney General the right to refer a case from one bench to another one consisting of judges from the same court throughout all of the stages of the proceedings, including the stage of investigation. This implies that “judges are hand-picked”, which is an extremely serious postulation that puts the rule of law at risk.

17- Article (19) of the amended draft decree-law, the same as Article (18) of the first draft, states in its third paragraph that an accused person shall not be released under any circumstance even if an appeal was submitted against the verdict.  This violates the provisions of the Penal Procedure Law.

18- Article (21) of the new version, the same as Article (21) of the first one, challenges the two-level litigation principle in that it changes the Court of Appeal from a court that examines the dispute itself into a court that deals with court proceedings. It is stated that appeals may be examined in terms of whether or not the court’s judgment is in line with the law but not regarding the dispute itself, except in cases of the death penalty and life imprisonment with hard labour. The text undermines the judiciary in its entirety, and it deprives the litigants of an entire stage of the litigation process. Furthermore, the said text refers to the penalty using the term "hard labor for life" sometimes and "life imprisonment" at other times, and the latter is not described as a felony in the Penal Code in force.

19- Article (22) of the new draft decree-law is an amendment of Article (23) of the previous draft. The statement “As per the provisions of this law, all cases which have become within the court’s jurisdiction shall be referred to the court, unless the case has been closed” deviates from the judicial rule that has been agreed-upon among the judges of the Court of Cessation, which states that when a case is being examined by a competent court of a certain jurisdiction, and a new law is then passed stating that the subject of this case shall be transferred to a court of a different jurisdiction, this law shall not prejudice the jurisdiction of the first court which was in the process of deciding on the case. Needless to say, this would lead to piles of unresolved cases, which prejudices the rights and security of the public as a whole without any justification or reason, particularly that the new version of the draft decree-law, as evident in Article (23), grants power to the court in question to proceed with the examination of the cases referred to it from the point at which they were left, making Article (22) unnecessary and irrelevant, not to mention that it infringes the rules and guarantees of fair trial.

His Excellency the Legal Adviser to Mr. President, Minister Hasa Al-Ouri,

In light of these observations and those contained in the Coalition’s memo referred-to in the introduction of this memo, addressed to the President on 02/02/2017, we at the Coalition believe that the new draft still violates the provisions of the Basic Law, the Judicial Authority Law and the relevant international treaties. Accordingly, it is required that it be put aside in confirmation of the fact that there is no substantive need for such a decree-law, especially that the Palestinian judiciary includes eight courts of first instance distributed among eight governorates and consisting of judges that they themselves may become part of the High Criminal Court at hand, which again makes its establishment unnecessary, hence the absence of an urgent need that cannot be delayed for issuing the decree-law.

With all due respect,

Issued on 15/08/2017

The Civic Coalition for Monitoring the Legislative Process