2016-07-11

Ramallah

West Bank

As an organization with an oversight role on the justice system, MUSAWA sent a legal memo on 11/07/2016 to the esteemed Chairman and members of the High Judicial Council in response to a complaint submitted by lawyer Ahmad Yaseen regarding obstructing the implementation of a court decision. Following is the legal memo:

Esteemed members and Chairman of the High Judicial Council,

Subject:
1-    Obstructing the implementation of a court decision
2-    Interference in the work of judges
3-    Deprivation of a citizen's liberty, contrary to the rule of law
4-    Violating the judicial rules of conduct

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its best greetings, expressing that a written complaint was submitted by lawyer Ahmad Sameeh Yaseen stating that, as a representative of detainees: H.S. and A.S. criminal cases 1609/2016 and 1611/2016, he had requested the release of his two clients on 03/07/2016 as per the common legal procedures, and that the competent court issued a decision on 04/07/2016 in approval of his request to release detainee H.S. on a 5000 JD bail (personal), and a 1000 JD bail (through a Notary Public) for detainee A.S.

The complaint also stated that after the completion of the release orders of both clients by the court’s Registry and referring them to the judge for signing, in preparation for completing the release procedures prior to Eid Al-Fitr holidays, the complainant was surprised by the fact that the President of the court prevented the competent judge from signing the release orders without any legal basis or justification, which constitutes an interference at the heart of the authority granted to the competent judge.

According to the complaint, due to the delay in signing the release orders the complainant addressed the judge who issued the decision following the common procedures to inquire about the reason behind hindering the signing, but he did not receive any answers and stalling was the only answer he got. In his complaint, the lawyer said that he became aware of the fact that the court’s President went to the Public Prosecution demanding that a reconsideration request be submitted regarding the release. Following this intervention, the reconsideration request was submitted by the Public Prosecution at one o’clock in the afternoon of that day. The complainant also stated that he learnt that the court accepted the submitted request and cancelled the decision issued by the competent judge of the Magistrate Court, and kept both clients in custody despite the fact that both criminal cases were referred to the specialized court, knowing that according to the complaint both clients were charged with assault; a charge that does not prejudice security or public order.

We, at MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, believe that the facts of the complaint, if true, address a number of violations, most notably the interference in the work of and absolute power granted to the competent judge by the President of court, the violation of common means for appealing judicial decisions, wresting power from the Court of First Instance as an appellate court, and influencing a court for the purpose of cancelling a court decision by hierarchal means, contrary to the law.

Additionally, the facts of the complaint, if true, represent an obstruction to the implementation of a court ruling since a decision issued by the competent judge is considered enforceable once issued, and signing the release order has nothing to do with the enforceable court decision. Any obstruction, stall, or delay in that regard is considered a violation of the provisions of the Basic Law and the Judiciary Law and is a crime that requires accountability and remedy. Not to mention that delaying the implementation of a decision to release the detainees and keeping them in custody while their release was approved as it meets all necessary conditions (according to written documents, attached to the complaint) is in reality a deprivation of their liberty, which again requires accountability and remedy.

Furthermore, the facts of the complaint, if correct, represent a grave breach of the judicial code of conduct and entail an arbitrary use of administrative power contrary to the law and for a purpose that contradicts the provisions of the rule of law, especially that the lawyer who submitted the complaint informed MUSAWA by telephone that the justification provided by the court’s President for his actions is based on a claim that the detained clients have an unfriendly relationship with other accused individuals who are held in custody for other complaints submitted by other complainants, and that the situation in the region requires that the two clients remain in detention as long as the other accused individuals are still detained. This is an unrealistic claim that is not supported by any law, and it does not justify the interference in the work of judges, the obstruction of the implementation of court decisions, or encroaching the powers of two competent courts, the Magistrate Court and the Court of First Instance as an appellate court, through a verbal administrative decision. All of the previously mentioned points require that the esteemed Judicial Inspection Department duly take the necessary legal action regarding the complaint as soon as possible to avoid any negative consequences to the facts of the complaint.

With all due respect,

Chairman of MUSAWA’s Board of Directors   
                Lawyer Yasser Jaber

Attachments: copy of the lawyer’s complaint to MUSAWA.