2022-04-21

GAZA

Gaza / Announcement / Core Program / position paper

Honorable President and Members of the High Judicial Council / Gaza

Subject: The formation of a grand criminal court against the law, and holding magistrates’ court sessions in a place other than that stipulated by the law.

MUSAWA, the Palestinian Center for the independence of the legal profession and the Judiciary, extends its greetings and states that, in its capacity as a civil monitoring body, it has come to its knowledge that your esteemed council issued a decision to form a grand criminal court without legal grounds or a legal text that permits such action. This is a direct contradiction with the provisions of Article (1) of the law of the formation of regular courts No.5 of 2001 in force in Gaza, which states that “Courts of all levels shall be established pursuant to the provisions of the Judicial Authority Law and this law”.

There has not been any issuance of a new law or a legitimate legislation to form a grand criminal court and especially that both the law of the formation of regular courts and the judicial authority law did not grant your council any jurisdiction for the formation of courts, such as the grand criminal court. Accordingly, this makes your decision invalid and nonexistent as its a usurpation of the legislative authority’s powers and an overstepping of your jurisdiction.

The courts of first instance are the competent courts to adjudicate all cases, except those excluded by a legal text, regardless of its name or subject as per the two aforementioned laws, including murder crimes and all other criminal offenses regardless of its name.

It is impermissible to use the seriousness of the charge as an excuse to issue this decision to form a grand criminal court, especially that your point on the hearing and adjudication of criminal offenses on which your decision was based does not lack a previous legislation that already granted this jurisdiction to the court of first instance. Therefore, and with all due respect, your decision interferes with the judicial authority, which is prohibited by law, as no one, whether it is a natural person, official or civil body can interfere with it or overstep the legal texts regulating the formation of judicial bodies. The judges of first-instance courts are supposed to be competent and able to hear and adjudicate all the criminal cases that are referred to them in accordance with the law, so there is no need to select specific judges for certain cases or to name it as the grand criminal court which is prohibited by the law that constitutes that it cannot be formed by an administrative decision.

We would like to point out that the authority in the northern governorates have rescinded the Decree-law that it issued regarding the formation of a grand criminal court, after realizing that this formation is unnecessary, considering that all the cases assigned to the grand criminal court as per the repealed decree-law, are already done by judges of first instance court who are competent to hear and adjudicate these cases. In addition to all of the flaws and shortcomings of the implementation of this decree-law, which infringed on the judicial impartiality, it also constituted an overturning of the legislative philosophy of the Penal Code, and a violation of the principles of freedom and the presumption of innocence, as it disregarded the principle that one is considered innocent until proven guilty. This Decree-law also comprised of grave dangers to human rights, such as increasing the imposition of punishments and preventing the release of the accused on bail, as they are kept in detention until the end of the trial procedures. Therefore, this infringes on their rights in a manner that goes against the law and justice, especially in proving their innocence of the charges laid on them.

MUSAWA monitored these dangers in the performance of the grand criminal court that is formed by an administrative decision of your council. It issued death sentences and adopted the policy of preventing the release on bail of the accused referred to it, not to mention the formation’s possible infringements on the principle of equality in dealing with the judges, especially the bias in the selection of the grand criminal court’s judges, even if these risks did not result in huge financial burdens to the public treasury as a result of the formation of a grand criminal court in the northern governorates, as per the repealed decree-law. 

Thus, we ask that you closely examine our memo, take legal measures, and keep us duly informed of the actions taken by you.

Change of the Court's Original Venue

MUSAWA also learned that the judge of the ...... Magistrates Court, Mr.... with respect to his capacity as a municipal judge, and after he finished hearing and adjudicating municipal claims and disputes at the municipality’s headquarters, he turned to hear other cases outside the scope of municipal claims at the same headquarters, which goes against the provisions of territorial jurisdiction and violates the provisions of the second paragraph of Article (13) of the Judicial Authority Law no. 1 of 2002 in force in the Gaza Strip, which stipulates that “Magistrate Courts may convene anywhere within their jurisdiction, as necessary, upon the decision of the president of the Court of First Instance.” However, this condition of necessity was not met in the above case, as the magistrates' court convened and was formed by the aforementioned judge, without any necessity, and upon his own decision, as the presiding judge of the court of first instance did not issue any decision to authorize this, for he has the legal authority to do so.

The judicial authority laws are peremptory rules, that are considered null if breached, as the judges’ act of overstepping their jurisdiction and infringing on the authority of other judges who are granted these jurisdictions by the law, is considered a legal violation that requires legal accountability. It is also impermissible to use the personal reasoning or motive of the judge as an excuse to violate the rules of the judicial authority. Moreover, changing the court's original venue has some requirements that are not related to the judge himself, but rather to speeding the adjudication of claims and guaranteeing a fair trial.

Thus, we ask that you closely examine our memo, take legal measures, and keep us duly informed of the actions taken by you.

With respect,

21/04/2022

                                                                       MUSAWA