ًWest Bank and Gaza
MUSAWA’s Statement – How Does the Decree-law Amending the Code of Penal Procedure Affect the Rights of Citizens?
The provisions contained in the Decree-law and their violation of litigants' rights
The Decree-law violates the principle of the rule of law and the constitutional value of equality among individuals before the law and the judiciary by stipulating that public officials and members of the security services may not be prosecuted for crimes they commit during the performance of their job or because of it, except with the written authorization of the Public Prosecutor or one of his/her assistants, without specifying any criteria for issuing such authorization, the thing that also contributes to these officials' impunity for attacks on human rights and fundamental freedoms and for any other crimes they commit.
The Decree-law confiscates the right of the seizures’ owners in a certain crime, even if they are bona fide, in restoring their possessions, by stipulating that the devolution of such seizures to the Public Treasury without the need for a judgment, if their owners do not request them within three years from the date on which the judgement pertaining thereto is definitively made public, regardless of any real excuses that might have prevented them from requesting such seizures, such as being abroad.
The Decree-law violates the defendant’s fundamental right to physical integrity and be free from torture by stipulating that the defendant may be arrested in his/her absence, if the court is satisfied that there is force majeure to prevent him/her from appearing before it. The violation of the defendant’s right to be physically brought before a judge does not allow the judge to examine the body and psychological condition of the arrested defendant to ensure that s/he is not subjected to torture and ill-treatment. Nothing shall prevent bringing the defendant before the court in order to be arrested except the medical condition established by a medical report. Force majeure however, is a broad term that can be further interpreted and misused.
The Decree-law violates the double-hearing principle by excluding the court’s decision to re-arrest the defendant or issuing a subpoena when s/he breaches the conditions of bail or pledge; from appeal before the competent court. The court may be mistaken in considering the defendant as having had breached the conditions of bail or pledge and decided to arrest him/her at the same time, this judicial decision by virtue of the Decree-law is deemed final and not subject to appeal even if invalid.
The Decree-law violates the presumption of innocence “every person accused of any crime is considered innocent until proven guilty” by stipulating that a defendant can be convicted based on the words of another defendant if a presumption supporting his words was found, whereas that was impermissible according to the original law unless there is evidence to support such words and not merely a presumption. A human is originally innocent and that does not go away but by legal and convincing evidence, and the defendants’ words about one another shall not be relied upon, unless supported by legal and productive evidence.
The Decree-law violates again the presumption of innocence and the principle of the equality between litigants by establishing the authenticity of all the contents of the records organized by the law enforcement officer in the misdemeanors and irregularities they are charged to prove under the provisions of the laws, whereas the original law does not give such authenticity to the records unless for the facts established therein. Accordingly, the granting of such authenticity to the records in all their contents, including facts and analyses of those facts by the law enforcement officer, weakens the defendant’s status and strengthens the status of public authority, and opens the way for the disappearance of the presumption of innocence on the basis of unreliable evidence.
The Decree-law violates the principle of confrontation between litigants and the principle of oral hearing by requiring the Public Prosecution and the Court to use modern techniques and technological means in the field of voice and image when hearing the words of the victim of crimes presented, and when hearing the witness under 15 years of age. Whereas in other cases, the Decree-law grants the court the power to use or not use such techniques. The existence of these techniques does not allow the defendant and his defence lawyer to effectively discuss with the victim or the witnesses of the conviction, the thing that affects the presumption of innocence and the defendant’s right to defence, nor does it allow the judge to ascertain the witness' condition, including his body language. This danger increases if the court decides to resort to these techniques in other cases (other than hearing the victim of the offences of presentation and the minor witness), especially that it has the power to do so by the Decree-law. It is true that there is privacy for the victim of offences of presentation, but this privacy can be addressed by other justified legal means, including the court's power to hold a private hearing.
The Decree-law violates the principle of confrontation between litigants and the defendant’s right to be physically brought before a court, by stipulating the possibility of a trial in absentia in criminal cases. The court in absentia in criminal cases (other than in the case of the defendant fleeing justice) violates the right to a fair trial, especially since the public authority has the means of redress and coercion to bring the defendant to court, so that the criminal proceedings are conducted to confront him/her and in order for the defendant to be aware thereof.
The Decree-law violates the right to defence by prohibiting the accused from using a defence witness s/he is unable to bring to court her/himself. Originally, to summon witness or bring them to court is carried out by an order from the court and it is not the defendant who is charged to bring them, because it is unfair to leave the defendant facing years of imprisonment simply because s/he is unable to bring in a witness to be proven innocent!! This text also violates the principle of equality between litigants, as the accused is charged with bringing witnesses to his defence, while the court orders to summon or bring the witnesses of the other litigant in the criminal proceedings (The Public Prosecution).
Article 30, 33
The Decree-law violates the principle of public hearing, by stipulating that the authority of the appeal courts to decide on hearing the appeals addressed thereto, in terms of scrutiny rather than pleading, the thing that also deprives the defendant from the double-hearing principle, that constitutes an important guarantee of fair trail guarantees, furthermore, this text violates the principle of public hearing and the principle of confrontation between litigants, besides its contradiction with the judicial work, since dealing with the cases with scrutiny is closer to administrative rather than judicial work. Furthermore, the Decree-law allows the courts of appeals not to hear the evidence again when the courts are decided to be carried out in pleading.
The Decree-law unjustifiably annulled the possibility of appeal in cassation against judgements issued by the courts of first instance in their capacity as appeals, thereby the defendant loses the opportunity to legally review the judgement before the highest court in the country.
Published on 03.08.2022