2016-12-01

Ramallah

West Bank

On 06/12/2016, MUSAWA received an official letter from the Acting Chief Justice confirming that MUSAWA's memo, sent to him on 01/12/2016 regarding a complaint about violating a lawyer's dignity and prejudicing fair trial guarantees, was referred to the Department of Judicial Inspection so that the proper legal action would be duly taken. MUSAWA hopes that law violations stop and never be committed again in the future. 

Following is MUSAWA's memo:

His Excellency Acting Head of the High Judicial Council/ Chief Justice
Judge Imad Saleem,

Subject: violating the dignity of a lawyer and prejudicing fair trial guarantees

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a written complaint on 30/11/2016 from lawyer Waseem Bassam Rida Shamlawy from Salfeet, stating that on 28/11/2016 as he was fulfilling his duties and defending the rights of his clients he was surprised by the rude attitude of Magistrate Judge …, which reached the extent of prejudicing his personal and professional dignity. In his written complaint, he also pointed out that he had filed a complaint in this regard on 29/11/2016 to your Excellency, the Judicial Inspection Department and the Bar Council.

According to the complaint, when the court hearing in criminal case no. 94/2016 was declared open he addressed the judge respectfully saying, “Some of the indictees mentioned in the file are juveniles”. Judge … interrupted him and gave him a warning. This was documented in the court’s official report.

He added that during the same session when it was his turn to examine a witness, Judge … refused to record what he stated. He was surprised by the judge’s response: “I am free to do and to record whatever I want, and I don’t want to record what you said”! She refused his request four times in a row, which forced him to ask for his withdrawal to be recorded; a request that was also rejected. He was given a second warning in the public hearing which was attended by a number of lawyers, three names of whom are mentioned in the complaint, in addition to the indictees and their parents.

In his complaint, the complainant stated that on the same day, after the break, he headed to the court room to represent a client of his in case file no. 1467/2016. Without any reason or legal justification, Judge … kicked him out saying, “Get out. I will call you when your turn comes”! knowing that the proceedings were not held in camera. Not only that, but the judge also yelled at him very loudly when he pointed out that he would like to attend the court hearing and that he is a representative of an indictee in a trial that has not been held yet. Judge … addressed him again and said, “Get out”, and she called the court’s police and reporter demanding them not to let him into the court room. The door was shut in his face in the presence of a number of lawyers, four names of whom are mentioned in the complaint.

He went on to say that due to the unlawful measures which Judge … took against him, his colleague was forced to represent his client on his behalf.
The complaint indicates that on 10/10/2016 the same judge yelled at a witness in the presence of his father and others saying, “If you do not say what happened, I will grab you by the ear to the detention cell”.

As an independent non-governmental watchdog, MUSAWA -with all due respect to all judges- believes that the facts of lawyer Waseem Shimlawy’s complaint, if true, embody a clear violation of the judges’ professional code of ethics, and they represent a prejudice to fair trial guarantees. Moreover, this obstructs and violates the rights of the lawyer, at the forefront of which are the right to a lawyer’s personal dignity and the right to respect the human dignity of litigants. This is in addition to deviating from the requirements of case management, which falls under the competencies of judges but still it is bound by a number of rules (most importantly: impartiality, patience, justice and equity) in order to guarantee the litigants’ right to equality before the law and the judiciary, to ensure the proper administration of justice, and to provide fair trial guarantees for the indictees. For these reasons, this complaint should be examined carefully and referred to the Department of Judicial Inspection so that legal action would be duly taken concerning the matter.

We stress the vitality for all lawyers to adhere to the professional code of ethics regulating their relationship with judges, and we confirm our rejection for any type of offense against a judge or a lawyer, which should be dealt with in accordance with the established legal procedures.

In a similar situation, Jenin’s Magistrate Judge issued a decision to trial an indictee in absentia, and he heard the witnesses while he and his lawyer were absent. According to the report of 28/11/2016, this took place in the early hours of the morning. The report indicates that the trial was declared open at 9:45 am. However, the report of the previous trial which was declared open at 12:01 mentions that the case was postponed to 28/11/2016, without specifying at what time exactly the trial will be held.

In this context, it is worthy to point out that the accused and his lawyer arrived at the court room minutes after the trial was adjourned. Once the lawyer became aware of the action taken and he saw the witnesses in the court room, he asked the judge to re-open the file so that his client can enter the trial. He also asked to be given the permission to examine the prosecution witnesses after viewing their statements if necessary, still the judge rejected the lawyer’s request. So, he returned with his client empty-handed.

The same judge had done the same action and heard witnesses in the absence of the accused and his lawyer, on 22/9/2016 at 10:08 am, even though the previous trial was postponed at 11:07 without specifying at what time exactly the trial will be held.

We, MUSAWA, attach to your Excellency the aforementioned reports. We believe that despite the fact that case management is at the core of a judge’s competencies, there are requirements for justice and fair trial guarantees, and there are decisions by the heads of the High Judicial Council that should be implemented, pursuant to which a court proceeding shall not be taken in the absence of lawyers before 12:00 pm. The same applies to the written agreements and memoranda of understanding between the heads of the High Judicial Council and the Bar Association, which convey the same message. This is particularly because there was no certain time specified to start the trial.

We, MUSAWA, see that the actions taken involve a serious prejudice to the rights of litigants and lawyers. They represent a violation of the principles of fair trial, the judges’ code of conduct, the procedure of case management, and the fair impartial adjudication of disputes.

This is in addition to what these actions might indicate, from domination and abuse of power to fear and intimidation from turning to the judiciary. This poses a threat to the entire set of judicial rules, which requires that this complaint be carefully examined and then referred to the Department of Judicial Inspection so that the proper legal action would be taken and that it would be recirculated amongst judges that actions of this kind shall not be taken in the future.

With all due respect,

Issued on 1/12/2016

Chairman of MUSAWA’s Board of Directors
Lawyer Yasser Jaber    

  
Attachments:
1-    A copy of lawyer Waseem Shimlawy’s complaint to the Acting Chief Justice on 29/11/2016.
2-    Copies of the court reports, before the respected judge …

Copy to:
1-    The honorable chairman and members of the Bar Association.
2-    The Independent Commission of Human Rights.