2022-08-01

West Bank and Gaza

West Bank / position paper

The most prominent violations of the litigants’ rights contained in the decree-law amending the law of civil and commercial procedures, which disproves the false claims that describe the lawyers’ movement as a struggle for their rights when in fact it is a struggle against the blatant violations of human rights.

Article (3)

The decree-law canceled the requirement of issuing two duplicates of the summons, one for the court and the other to the subject of the summons. Removing this requirement breaches the confrontation principle between the litigants, which violates the right to a defense, because it allows to try people by default, without ensuring that were actually or properly notified according to the law. Therefore, copying the summons is a way for the court and the subject of the summons to verify if the summons has been served according to the law or not.

Article (6)

The decree-law canceled the period in which the court has to give the summons officer the summons that is to be served (Originally two days in the Basic law). It also set aside the period in which the summons officer should serve the summons (A week from the date of receiving it, as per the Basic Law). Accordingly, failure to specify a period to serve a summons may lead to a delay in litigation procedures due to the negligence of the court or the summons officer.

Artice (8/B)

The decree-law considers that the summons is properly served, by attaching a copy of the summons to the door of the place of the person in question, which is in the case where the summons officer does not find the subject of the summons, and despite the court’s failure to check if this is the correct address or not.

Leniency in serving the summons breaches the right to a defense and ultimately causes you to miss the chance to present your objection and defense that prove your claim in the court, and might lead to the issuance of a judgment against you, all without knowing there is a even a case against you to begin with.

Article (15)

The decree-law canceled the notification of judicial papers by posting them on the court notice board. Accordingly, limiting the means of notification that were stated in the Basic Law infringes on the right to a defense.

Article (20)

The decision by law absolutely prohibits the plaintiff from presenting any evidence that was not previously included upon filing the lawsuit. This matter is not fair, because it ignores the additional or new evidence that the plaintiff was not aware of when filing his claim, even though such evidence may be legitimate and could even be what the case depends on or what decides the case.  This shows the injustice of this text, as it completely shuts the door to any legitimate reasons that might have prevented the defendant from submitting this evidence when filing the claim.

Article (22)

The decision restricts the right of the defendant to present his defenses and evidence, because it forfeits the right of the defendant to present any evidence that was not submitted when responding to the plaintiff in the beginning, especially considering the short time given to the defendant to prepare his defense, unlike the plaintiff who is given sufficient time to prepare his case.  You might have a piece of important evidence that proves the illegitimacy of the plaintiff’s claim, but you are not allowed to submit it, simply because  you failed to mention it in your statement of defense regardless of the reasons why, which could be for reasons out of your control.

Article (23)

The decree-law used this Article to prevent the defendant from submitting a statement of defense, despite attending the first trial session. This represents a revocation of a right that is guaranteed by the Basic Law for the defendant who attends the first trial session to be allowed to submit a statement of defense that shows his response to the statement of claim.

Article (36)

The decree-law infringes on the independence of the legal profession, as it constitutes that a lawyer may not withdraw from representing a client, and any prejudice to the independence of the lawyer will negatively affect his performance in defense of his client. This text also contradicts the nature of the representation agreement by treating it as a personal contract, where the personality of the lawyer is taken under consideration, and it is impermissible to force him to perform a work that he does not wish to perform, especially in cases where the client fails to provide the lawyer with the evidence and facts of the case. Also, this text contradicts what was stated in Articles (24) and (39) of the Law in force regulating the Legal Profession

Article (43)

The decision by law deprives litigants of two-level litigation, by stipulating that the Court of Appeal has the jurisdiction to hear the urgent requests submitted to it in regards to the case before it, but failed to address the possibility of appealing its decisions in urgent matters to a higher court. The text in original law granted this jurisdiction to the judge of urgent matters alone, whose decisions are appealed to the Court of Appeal.

Articles (44, 57, 62)

The decision by law violates the principle of open justice and its legal principles that provide important guarantees for a fair trial, such as (The right to an oral hearing, and the principle of confrontation between litigants). It stipulates that the general principle in examining (urgent requests, appeals submitted to the court of first Instance in its appellate capacity, and appeals submitted to the appellate court if the value of the case does not exceed thirty thousand JOD) is by a review without a hearing. Thus, this cancels the open justice principle, which is an important guarantee for a fair trial.

Article (52)

The decree-law increased the bail amount, from 200 JOD in the Basic Law to 1000 JOD as per the decree-law, that is to be deposited into the court treasury when filing a complaint of judicial misconduct or disability against a judge or a member of the public prosecution. This would prevent the citizens from filing such complaints due to financial reasons relating to the bail amount, even though the conditions are met.

Article (54)

The decree-law vilolates the right to a defence by stipulating that the court has jurisdiction to charge the accused with a fine double the amount of the paid fees, if the accused is proven to be obstinate during trial proceedings. Obstinacy is the unswerving insistence on ones claim, and criminalizing it is an unjustified violation of the right to a defense.

Articles (58, 65, 74)

The decree-law allows room for discrimination between litigants, by not specifying the criteria for granting permission to cassation nor setting the criteria for the presiding judge’s decision considering that the claim is not subject to exchange of pleadings. The reasons for the permission to cassation shall be laid out, in addtion to specifiying, in a clear and unequivocal manner, which cases are not subject to exchange of pleadings, or else it will lead to discrimination between litigants.

01/08/2022