2022-02-14

West Bank

West Bank / Core Program / position paper

Against the background of the refusal of the defendants in the case of the murder of the activist Nizar Banat to appear before the court: So that the law of the jungle does not prevail and citizens resort to taking their rights into their own hands

For the first time, defendants refuse to appear before the court, which has the authority to consider and adjudicate the criminal charge attributed to them, in which the citizen and social activist Nizar Banat was victimized. Moreover, for the first time, the boast and announcement of such refusal challenging the competences and powers of the court happens on social media pages, and with the support of the families and supporters of the defendants. Even more, for the first time, the military prosecution becomes helpless when it comes to fulfilling the requirements of its function, and those in charge of the place of detention of the defendants are subject to the will of the latters and their decision that clearly and obviously contradicts the provisions of the law and the authority of the court.

In front of that, the court decided, according to what was documented by the Monitoring Team at MUSAWA, to postpone the trial to 27.2.2022 and assigned the Military Prosecution and the authority supervising the arrest of defendants to bring them by force if necessary.

We believe, according to the law, that what the defendants have committed indicates a grave breach of the duty to appear before the court on one hand, and a failure to perform the duties of the job and a complacency in performing it by those responsible for the place of arrest of the defendants and by the military prosecution on the other hand, the thing that requires, according to the law, holding them all –defendants, officials responsible for the place of arrest, and military prosecution- accountable. In this regard, we point out that the law considered the failure to perform the duties of the job a crime of corruption that requires administrative and criminal accountability, including dismissal from public office, and the law has also considered the intentional non-appearance before the court a crime referred to as the crime of non-implementation of court’s decisions, which in turn constitutes a criminal and a corruption crime, besides being a criminal contempt of court requiring the criminal accountability of the defendant including the imposition of financial fines on the defendants in accordance with the proper Procedure Law, and forcing them to appear before court, since the failure to appear before the court entails many violations of the rule of law, in a manner that negatively affects the powers, authorities, and prestige of the judiciary, and undermines its impartiality and independence, infringes upon its competence and authority, and causes the public to lose confidence in.

With respect to the court and without infringing its authority to conduct the case in the manner it deems appropriate, “MUSAWA” believes that the court should have issued an order to bring the defendants to appear before it and adjourned the session for hours until they were brought, and not adjourn it for two weeks, as this postponement entails a violation of the rights of the victim and of the principle of access to justice in the shortest time. Since the alternative is to proceed with the proceedings of court until it can be conducted in the presence of the defendants. Access to justice is a right for everyone, the victim and his family in his capacity as a citizen who lost his life, and the defendants, in pursuance to the legal base that stipulates that the defendant is presumed innocent until proven guilty, and the available road to such is represented by the competent court saying its word in the shortest time regarding what is attributed to the defendants.

Therefore, so that the law of the jungle does not prevail and citizens resort to taking their right into their own hands, which represents entering the tunnel of insecurity and legal chaos, and which affects the unity and security of society, and in order not to tamper with the rule of equality before the law and the judiciary for all without exception or discrimination, whether governors or governed, in a state of law nobody, regardless of their position or capacity, can refrain from or rebel on the duty to appear before the competent court, as tis entails a tampering with the principle of independence of the judiciary, separation of powers, and the rule of law, and in order for preventing the spread of the culture of boasting about disrespecting the law based on power, dominance and authority, it should have been guaranteed that the defendants were brought to the court and that the court had duly proceeded with its procedures.

MUSAWA

Issued on 14.02.2022