Failure to Implement Court Rulings and Decisions, and Arbitrary Detention

2016-07-28

Gaza

Gaza

MUSAWA sent a legal memo on 28/07/2016 to the Public Prosecutor/Gaza and the Head of the Military Justice Commission/Gaza in response to a complaint submitted by lawyer Tha’er Abu-Safiyyeh regarding the failure to implement court rulings and decisions and arbitrary detention. Following is the legal memo:

 

Public Prosecutor, Dr. Ismaeel Jaber / Gaza
Head of Military Justice Commission, Mr. Nasser Suleiman Abu-Nader / Gaza


Subject: Failure to Implement Court Rulings and Decisions, and Arbitrary Detention


MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a legal complaint from lawyer Tha’er Abu Safiyyeh from Gaza, as the representative of detainee Mohammad Fouad Mohammad Balah from Jabalia. The complaint stated that the client has been detained since 29/05/2016 at the General Directorate of Military Police while he was not charged of anything to justify his detention, and that his lawyer (the complainant) has obtained a decision by the competent administrative court on 23/06/2016 to release the detainee as per application no. 2016/97. However, the General Directorate of Military Police did not abide by the court’s decision and kept the detainee under custody, contrary to the rule of law.


In the complaint, he added that he has submitted another release request to the Military Justice Commission and obtained a release decision, issued on 30/06/2016 by the competent Military Prosecution. However, the General Directorate of Military Police once more did not implement the decision issued by the Military Prosecution and continued to refrain from implementing the competent administrative court’s decision, let alone the fact that it denied the lawyer (the complainant) access to his client, who is still being held to date. 


We, at MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, believe that the facts of the complaint which was submitted by the aforementioned lawyer, if true, indicate a grave violation of the law by the General Directorate of Military Police, which is represented in violating the provisions of the Basic Law and the Judicial Authority Law; infringing a constitutional rights guaranteed by the Basic Law, the Judicial Authority Law, and the Penal Procedure Law. Moreover, the aforementioned violation represents an infringement of fair trial guarantees as well as the principle that the accused is innocent until proven guilty as the basic principle is that the accused is innocent and may not be detained or deprived of his liberty without a legitimate legal basis or justification. In addition, this violation represents a prejudice to the prestige of the judiciary and an infringement of international conventions guaranteeing human rights.


We, at MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, believe that the facts of this complaint, if true, require legal accountability in realization of the explicit provisions of Article 106 of the Basic Law, which clearly and indisputably states 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”. This Article matches the provisions of Article 82 of the Judicial Authority Law.


Accordingly, we hope from you to look carefully into this complaint; to take the necessary legal action in order to enable detainee Mohammad Fouad Mohammad Balah of contacting his lawyer immediately and ensure his release instantly, in respect and implementation of judicial decisions and rulings; to stop detention that contradicts the rule of law immediately; and to refrain from arbitrary detention of citizens as a legal offense, for a citizen shall not be detained in any manner whatsoever without a legitimate legal basis or justification. Also, it is not allowed to keep a citizen in custody after his release was pronounced by the competent judicial authorities. All of this should be done without prejudice to the detainee’s rights to compensation for damages that may follow by the failure to implement judicial decisions and rulings providing his release.

 

With all due respect,

 

Chairman of MUSAWA's Board of Directors

Lawyer Yasser Jaber                

 

                                       

Copy to:
-    Esteemed Vice-Chairman and members of the Bar Association / Gaza.
-    Esteemed Chairman and members of the High Judicial Council / Gaza.
 

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