Detainees’ Denied Justice:

 

The Palestinian Authority’s Contempt for its Judiciary

 

 

Draft

 

July 1999

 

 

Written by:                             Gerald Simpson

 

Researched by:                      Bassem Eid, Alia Siksik, Maher Faraj and Gerald Simpson

 

 

 

With thanks to:                      All the judges, lawyers, Palestinian National Authority (PNA) officials, the Palestinian Legislative Council (PLC),  Palestinian NGOs (those who cooperated) and international agencies for their help and cooperation in the researching of this report.

 

 

And to our funders:                Swiss  Agency  for  Development  and Cooperation (SDC),

                                                Canada Fund, European Foundation, Finnish Representative’s Office to the PNA, , the Moriah Fund and the Government of the Netherlands.

 

 

 

 

Table of Contents

 

Words on the judiciary and political prisoners                                                       pp. 2-3                                     

I. Introduction and Structure of the Report                                                   pp. 4-5

 

II. Palestinian Political Detainees held in Palestinian Prisons:

     The Political and Legal Context                                                               pp. 5-8

 

Table 1  Overview of High Court Cases from Gaza & the West Bank

 related to the detention of political prisoners                                           p. 9

 

and its evolving approach to Palestinian Detainees                          pp. 10-26

           

 1. An overview of the High Courts cases                                               pp. 10-11

 2. General comments on pleadings and judgments                                   pp. 11-12

 3. The High Courts legal approach in its cases

     related to political detainees                                                               pp. 12-25

       a. Delays in reaching of final judgment                                              pp. 12-16

       b. Addressing the question of the High Courts jurisdiction                  pp. 16-21

       c. Invoking applicable criminal procedural law                                  pp. 21-23

       d. Presenting facts of the case and applying the law to the facts        pp. 23-24

       e. The failure to bring prosecution cases against officials

           responsible for illegal detention of Palestinian political prisoners    p. 24

 

IV.       Training of lawyers and judges                                                           pp. 24-26

 

V.         Further issue relating to annexes and observations

concerning access to laws and judgments and cooperation

between Palestinian human rights NGOs                                          pp. 26-27

 

VI.       Recommendations                                                                              p. 28

 

Annexes I – XIII        See beginning of Annex I for details of the content of each Annex

 

Annex I                  A Chronology of the Development of the Palestinian Legal System                      pp.1 -2      

Annex II         Analysis of provisions in the 1993  1995 and 1998 Israeli- Palestinian     

Peace Agreements related to security and criminal jurisdiction                    pp. 3-49

Annex III               Summary of aspects of criminal procedure applicable in Gaza              pp.50-56                    

Annex IV        Summaries of aspects of criminal procedure applicable in the West Bank  pp. 57-73

Annex V                Table of Gazan High Court judgments related to the detention of

political prisoners and translations of/commentaries on these cases                 pp. 74-135

Annex VI        Table of West Bank High Court judgments related to the detention           

                        of political prisoners and translations of/commentaries on these cases       pp. 136-190

Annex VII       Articles 1962 Gaza Constitution and 1998 Prison Law                              pp.191-194

Annex VIII            Provisions of 1979 PLO Code applicable in military detention cases                pp. 195-199

Annex IX               Analysis of selected fair trial principles under the ICCPR                                  pp. 200-206

Annex X                International Legal Principles related to the rights of detainees                        pp.207-217

Annex XI               Articles from Draft Basic Law relating to detainees procedural rights      pp. 218-223

Annex XII              The Draft Judicial Authority Law                                                              pp. 224-238

Annex XIII            Selected interviews held with High Court judges and defense attorneys     pp. 239-250

Annex XIV            Tables of detainees detained for over one year without charge or trial       pp. 251-

 

Words on the judiciary and political prisoners

 

 

 

 

Dictum used [in place of existing legal provisions] by the High Court of Justice in Gaza in its judgments to justify its jurisdiction over detainees claimed by the General Prosecutor to fall under the jurisdiction of the State Security Court.

 

 

 

 

 

Mr. Attiyah Abu Moor  Head of the Legal Development Programme of the Palestinian Authoritys Ministry of Justice  answering questions about the PAs failure to implement the decisions of the High Court.

 

 

 

 

 

 

 

Defense lawyer for one of the PAs political detainees  commenting upon why not a single member of the Executive Authority and its security forces had been convicted by the High Court for illegally detaining political prisoners.

 

 

 

 

 

Mr. Jamil al-Ashi  judge at the High Court in Gaza  answering questions about why the High Court at times takes over a year to reach its final decision.

 

 

 

 

 

Mr. Fayez al-Quidrah  President of the High Court in Gaza  answering questions concerning why the High Court delays its hearings in detention cases.

 

 

 

 

 

 

Mr. Jamil al-Ashi  judge at the High Court in Gaza  answering questions about why the High Court constantly grants more time to the Attorney General to bring information relating to detainees before the High Court of Justice.

 

 

 

 

 

 

 

Mr. Hamdan al-Abadleh  judge at the High Court in Gaza  answering questions as to why it appears that in recent cases the court is reaching its decision with less delay.

 

 

 

 

 

 

 

Mr. Fayez al-Quidrah  President of the High Court in Gaza  commenting on political detention cases.

 

 

 

 

 

 

Mr. Hamdan al-Abadleh  judge at the High Court in Gaza  answering questions as to the level     of frustration felt by judges whose decisions are not implemented.

 

 

 

 

 

 

Subhiyye Jumaa  defense lawyer at the Palestinian Independent Commission for Citizens Rights

 

 

 

 

 

 

Mr. Fayez al-Quidrah  President of the High Court in Gaza  answering questions concerning the Palestinian Authoritys obligation under the Interim Agreement to detain Palestinians without charge and trial.

 

 

 

 

 

 

Abu Moor  answering a question as to how long he thinks it would take President Arafat to sign a forthcoming law on a unified criminal procedure for Gaza and the West Bank.

 

 

 

 

 

Words of Mr. Mohammad Ayoub  one of the two better lawyers from the West Bank and Gaza in the High Courts political detention cases.

 

 

 

 

 

Subhiyye Juma a  defense lawyer at the Palestinian Independent Commission for Citizens  Rights commenting on the fact that PHRMG had been refused access to non-confidential judgments by the human rights organisations  the Palestinian Centre for Human Rights  and  LAW .

 

 

 

 

 

Defense lawyer in political detention cases  [not answering a question about the High Court s confusion on questions of jurisdiction].

I. Introduction and Structure of the Report

 

At the outset  the aims of this report were undefined. They were limited to a general wish to enter more deeply into the issue of Palestinian political detainees held in Palestinian jails whose releases began to be ordered on a regular basis by the Palestinian High Courts of Justice in Gaza and in the West Bank at the end of 1997. The High Court s rulings in themselves marked a shift in the Palestinian judiciary s relationship with the Executive branch of the Palestinian Authority [PA]  with the High Court rejecting its previous  hands off  approach which had given free reign to the PA in its dealings with Palestinian detainees. The most important issue related to this jurisprudential development remains the systematic refusal by the Executive Authority to implement High Court judgments ordering the release of these detainees.

 

Numerous reports  press releases  references in annual reports of Palestinian human rights NGOs and leading international human rights groups such as Amnesty International and Human Rights Watch have documented summaries of these cases in which the judiciary has sought to hold the Executive Authority accountable for its violation of Palestinian detainees  basic human rights as enshrined under Palestinian and international law. They have also unanimously deplored the Executive Authority s failure to implement the judgments of the High Court of Justice.

 

PHRMG therefore decided to analyse the details of the judgments on the basis that the presentation of details involved in such a broad subject  previously only dealt with on a general level  would help to clarify the precise way in [and extent to] which the Executive Authority has dealt with the High Courts  initiatives and violated the plethora of legally enshrined rights of Palestinian detainees.

 

In the process of researching this report  four principle issues came to light that have expanded the aims and final recommendations of the report.

 

Firstly [Section II] and contextually  it appears that none of the previous reports or commentaries on this subject have made reference to the legal obligations which the PA has signed up to with Israel which effectively oblige the PA to detain without charge Palestinians suspected by Israel of involvement in acts of violence against Israel or Israelis.

 

Secondly [also Section III]  the procedures followed by the High Court in order to reach their final verdicts in themselves violate the rights of detainees and have not been referred to or commented on in previous reports on this subject.

 

Thirdly [Section III]  the accessibility  transparency and clarity of lawyer s pleadings and of the High Court s judgments in these cases appears to be of a surprisingly low level.

 

Finally [Section IV] and related to the second issue  there is a need  confirmed by judges and lawyers themselves in interviews with PHRMG  for a significant increase in the amount of attention given  and donor funds committed  to the continued training of judges and lawyers.

 

Other subsidiary issues [Section V] flowing from [and not directly related to the main issue of] the research include aspects related to the Palestinian legal system s chronic under-funding   a lack of English translations of many legal texts  the difficulty which individuals who are not Palestinian lawyers have in obtaining copies of laws  judgments and any information relating to the daily functioning of the legal system and the lack of cooperation and flow of information  encountered at times during the research for this report  between human rights NGOs in the Palestinian Territories.

 

The structure of this report reflects the somewhat technical nature of the research. The following 24 pages will attempt to summarise the most important aspects related to the four principle issues and aspects of the subsiduary issues referred to above. This summary  though aimed at being sufficient in itself for the reader to create an idea of the issues involved  is based on the more detailed documents contained in Annexes I to XIII. As a reflection of the way in which the report was researched and written  Annexes I to XIII took 12 weeks to research and write whereas the following 24 pages were written in the space of 4 days. The Annexes therefore play a role as reference texts independently of each other  whilst collectively enabling an overall evaluation of the context and way in which the High Court is dealing with the ever-crucial issue of the rights of Palestinian detainees.

 

II. Palestinian Political Detainees held in Palestinian Prisons: the Political and Legal Context

 

1. Pre 1994

 

Based on the  Declaration of Principles on Interim Self-Government Arrangements   signed by the two parties on 13 September 1993  Israel and the PLO signed the  Agreement on the Gaza Strip and Jericho  on 4 May 1994.[1] Prior to the signing of the latter Agreement  in which Israeli military forces undertook to redeploy within the areas mentioned in the title of the Agreement  Israel had complete and unrestricted military control and criminal jurisdiction over all parts of the Occupied Territories. If a Palestinian was deemed by Israel to constitute a threat to Israel s security  that individual could and would be detained in Israeli detention centres both in the Occupied Territories and within the territory of pre 1967 Israel. Many of these detainees were and still are held in administrative detention.[2]

 

2. Post 1994: transferring criminal jurisdiction over Palestinians to the Palestinian Authority

 

The Interim Agreement

 

On the basis of the provisions of the 1994 Agreement  Israel and the PLO signed the  Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip  on 28 September 1995.[3] This Agreement fleshed out the provisions of the 1994 Agreement and conferred  upon what was to become the Palestinian Authority  degrees or different kinds of authority over the so-called Areas A and B. In Area A the PA was  amongst other powers  ostensibly given complete security jurisdiction[4] whereas in Area B the PA was given complete security jurisdiction over Palestinians in matters of internal Palestinian public order[5] concurrent with Israeli  overriding responsibility  [i.e. security jurisdiction] over threats to Israelis  and Israel s security inside and outside Area B.[6] It appeared therefore that the Palestinian Authority was given police jurisdiction over Palestinians within Areas A and B  with accompanying powers to arrest  detain and prosecute Palestinians under the laws that had been in force prior to Israel s occupation in 1967 and under any new laws established by the Palestinian Legislative Council [PLC] or issued by the Palestinian Executive Authority [PA].

 

 

Which criminal laws apply to whom in Areas A and B?

 

The assumption that pre 1967 laws were to be applied was confirmed by President Arafat in Decree 1 of 1994[7] but was promptly contradicted in Law 5 of 1995 which provided in its Article 1[1] that  The Palestinian Authority will assume all power … that is outlined in the legislation  laws  decrees  publications and orders that were in use in the West Bank and Gaza Strip prior to 19 May 1994.  This meant that over 1000 Israeli Military Orders passed separately in Gaza and the West Bank since 1967 were not to be considered as annulled.

 

One of the many questions that arose from this situation concerned the basis for the reenfranchised Palestinian courts  jurisdictional authority. If pre and post 1967 laws applied  then did this meant that the 1962 Gazan Constitution  proclaiming the rights of all Palestinians  could apply to Palestinians?

 

Neither the 1994 nor the 1995 Agreements stipulate whether pre 1967 laws shall apply to all Palestinians.[8] Instead  as we shall see  the 1995 Agreement provides that the PA shall have  functional jurisdiction  [including jurisdiction to apply Palestinian laws] over  powers and responsibilities transferred  to the PA  as specified in this Agreement . [9] As for the jurisdiction of the reenfranchised Palestinian courts  Article XI of the 1995 Agreement provides that  subject to the provisions of this Agreement   the PA  shall within its jurisdiction have an independent judicial system composed of independent Palestinian courts and tribunals . It is therefore clear from this provision and other similar provisions of the 1995 Agreement that Palestinian criminal procedural law [the main legal focus of this report]  whether it be the British laws applicable in Gaza or the Jordanian laws applicable in the West Bank  may not be applied to a Palestinian within Area A or B by either the PA or by the Palestinian courts if [in any given case] Israel determines that an application of such laws exceeds  the powers and responsibilities transferred  to the PA  as specified in [the 1995] Agreement  and is not  within [the] jurisdiction  of the PA.

 

The legal basis for the PA s right to detain Palestinians in Palestinian prisons and the Palestinian courts  to hear criminal cases does not therefore derive in practice[10] from the provisions of Palestinian laws but rather from the provisions of the Peace Agreements themselves. Whilst it was therefore true that criminal procedural law enacted under the British mandate by the British in 1924 was applicable in Palestine [and after 1948 only in the Gaza Strip] since 1924 through to 1967 and then again since 1995 to all Palestinians on the constitutional basis that such laws applied to all persons in Palestine [11] as we shall see under the Peace Agreements this rule of universal applicability can no longer be said to apply. In other words  the Agreement effectively provides that  the Palestinian courts shall apply pre-1967 Palestinian laws in a discriminate manner according to Israel s interpretation of its own interests under the Peace Agreements .

 

 

 

 

 

3. The political context leading to discrimination in the application of Palestinian criminal law to Palestinians

 

As we shall see in more detail below  the 1995 Agreement provides that the PA is under an obligation to transfer to Israel all Palestinians suspected by Israel of having committed an offense falling with Israeli criminal jurisdiction  which effectively means Palestinians suspected by Israel of involvement in threats or accomplished acts of violence against Israelis or Israel.[12] In practice  the PA decided that systematic transfer to Israel of such suspects was politically damaging and Israel s pragmatism and sensitivity to this fact is reflected in the Agreement which provides that whilst the PA must comply positively with a transfer request  the PA may delay such a transfer for the period of time that the Palestinian suspected by Israel is detained in PA prisons.[13] Prior to the Wye River Agreement  the PA s systematic invoking of this second provision drew behind-the-scenes criticism from Israel  which nonetheless tolerated the PA s approach for reasons of political pragmatism. A number of sources have confirmed to PHRMG that there appears to have been an oral agreement reached on this point during the negotiations at Wye  which emphasised that the PA had a responsibility to arrest and detain suspects identified in Israeli lists  if the PA was to avoid transferring them to Israel. This agreement is said to have linked the gradual release of hundreds of detained Palestinians in Israel with the gradual apprehension and detention by the PA of 30 suspects identified in the list of the so-called   30 Most Wanted [14] and the American Central Intelligence Agency [CIA] therefore saw its post 1995 role of ensuring that the PA really was detaining Palestinian suspects consolidated by the secret agreements reached at Wye last year. 

 

4. The High Court and Palestinian suspects in legal limbo

 

As a result of the above  it becomes clear that the Peace Agreements have created a category of Palestinian prisoners who find themselves in legal limbo. The Peace Agreements provide that Palestinians suspected by Israel of security offences should be transferred to Israel to be dealt with under the laws of Israel and under laws of international human rights related to detainees and prisoners. Israel retains all evidence against the suspect  evidence that is necessary in order to charge him/her with a specific offence under Israeli or International law. Jurisdiction over such individuals and the ability to charge such individuals has therefore not been transferred to either the PA or to the Palestinian courts. The provision providing for their detention in PA prisons pending transfer to Israel does not mean that legal jurisdiction is transferred to the PA and its courts: rather it is a temporary measure which in effect  together with other provisions  provides that if the suspect is detained in a PA prison  Palestinian law and international law is not applicable because Israel has retained its jurisdictional right [as Occupying Power] to apply its own laws to that individual. Result: individuals detained by the PA inevitably have both their rights under Palestinian law and under international human rights law violated. And the basis for this violation is enshrined in an International Peace Agreement.

 

The High Courts of Justice in Gaza and the West Bank have consequently found themselves in a legally interesting position. For the first time since 1967 they have started functioning as supposedly independent courts within supposedly clearly defined areas of jurisdiction  supposedly applying  as in pre 1967  all Palestinian laws in force in [now] Areas A and B to all Palestinians. But pursuant to the above legal obligations of the PA under the Peace Agreements  the High Court has come under considerable pressure from the PA to accept that it does not have jurisdiction over such detention cases. This is the legal context within which to place the High Court s approach to Palestinian political detainees held without charge or trial in Palestinian prisons.

 

 

5. The Interim Agreement

 

The essential aspects of the 1995 Interim Agreement relating to the issue of the PA s undertakings vis a vis Israel have already been mentioned above. As we have seen  the provisions to which the PA signed up concerning its treatment of Palestinians suspected by Israel of involvement in acts of violence against Israel mean that the Palestinian Authority is bound to act in accordance with Israel s security concerns.

 

It therefore appeared to be of interest to look in more detail at the provisions of the Interim Agreement relating to jurisdiction over security and criminal matters in general and to establish to what extent the PA had submitted to Israel s security plans on 28 September 1995. The result of this analysis is Annex II of this Report. A summary of the two sides  security and criminal jurisdiction is presented at the end of Annex II [pp. 46-49] and provides an overview of the conclusions reached in the analysis. The main analysis itself goes into detail in identifying the total caos inflicted by the Israeli negotiator Joel Singer on the structure of the Agreement relating to these two areas of jurisdiction. The Agreement is virtually incomprehensible unless the reader sits down with a pen and paper for two or three days and attempts to untangle the mess created by a systematic methodology of cross-referencing between Articles and Annexes. The analysis presented in Annex II attempts to identify at least some of the ambiguities and contradictions [and at times linguistically non-sensical nature] of the provisions and ultimately seeks  through highlighting these  to provide a basis for a less cryptic renegotiation process when the Interim Agreement forms the basis of the next stage of negotiations between the PA and Israel.

 

It is suggested that if the next Agreement between the PA and Israel is to include provisions that continue to fully submit the PA to Israel s security concerns  then at least the next Agreement should reflect this reality in clear and comprehensible language.

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table 1

        Overview of High Court Cases from Gaza & West Bank related to detention of political prisoners

 

Name of Detainee	Date of Arrest	Date of First Hearing	Delay between arrest and 1st Hearing	Date of Final Hearing	Delay between First and Final Hearing	Final Judgment  and whether implemented	Days in detention: arrest to 4.7.99
Gaza
Hamdi al-Kahlut	18.3.99	15.5.99	60 days	3.7.99	47 days	Order to release not implemented on 4.7.99	108 days
Abdul Nasser Karsou	6.3.96	1.7.99	1109 days	1.7.99	Same hearing	Order to release not  implemented	1112 days
Immad Shabaan al-Sharif	18.3.96	5.6.99	1174 days	28.6.99	23 days	Order to release implemented on 29.6.99	1189 days [29.6.99]
Mahmoud Marsouk Abou Watfah	21.3.96	Not stated in final judgment	Not clear from final judgment	8.5.99	Not clear from final judgment	Order to release not implemented	1217 days
Khaled Abdul KarimWahbeh	15.5.95	12.3.98	1033 days	23.3.99	395 days	Order to release not implemented	1500 days
Harb al-Deqis	17.3.96	18.10.98	945 days	18.3.99	151 days	Order to release implemented on 20.3.99	1098 days [20.3.99]
Marwan  Issa	16.3.96	5.11.98	964 days	14.3.99	130 days	Order to release implemented on 16.3.99	1135 days [16.3.99]
Wa el Faraj	25.4.96	19.10.98	707 days	20.2.99	124 days	Order to release not implemented	934 days
Ibrahim al-Halabi	7.4.97	30.6.98	436 days	30.6.98	Same date as first hearing	Application rejected	804 days
Ibrahim al-Maqadmeh	10.4.98	29.4.98	19 days	20.6.98	54 days	Application rejected	449 days
Abd al-Aziz al- Rantisi	9.4.98	29.4.98	20 days	4.6.98	56 days	Order to release not implemented	465 days
Rajab Hassan al-Baba	17.3.96	4.5.97	413 days	28.12.97	237 days	Order to release implemented on 5.4.98	746 days [5.4.98]
West Bank
Wassim Abdul Wahab Youssef  Ataout	22.2.97	18.5.98	451 days	6.3.99	292 days	Request to release annulled:  Ataout released on 20.2.99	730 days [20.2.99]
Shafiq Abdul-Wahab	21.6.97	13.5.98	326 days	13.2.99	276 days	Application rejected	742 days [Mr. Wahab  disappeared]
Ghassan Abdul Salam al-Addassi*	29.3.98	8.7.98	101 days	6.10.98	85 days	Order to release not implemented	462 days
Marwan Juma a Imran Abu Moussa	2.4.98	11.5.98	39 days	19.9.98	132 days	Order to release not implemented	467 days
Sai id Othman Ibrahim Sa adeh	21.6.95	7.1.98	930 days	28.10.98	292 days	Order to release not implemented	1481 days
Mahmoud Musleh*	4.9.97	23.9.97	19 days	30.11.97	68 days	Order to release not implemented	667 days

 

III. The High Court of Justice and its evolving approach to Palestinian Detainees

 

1. An overview of the High Court s cases[15]

 

In 1996 only one case related to political detention was considered by the two High Courts. A five court panel of the High Court in Ramallah [West Bank] heard the by now well-known case of 9 students from the University of Bir Zeit in the West Bank. Finding that the students  arrested on different days during the month of March 1996  had been detained for an average of 150 days without having been charged or brought to trial  the Court ordered their release on 18 August 1996.[16]

 

In 1997  the High Court heard three political detention cases  those of Fathi Subuh [6.10.97  rejection of the case without issuing a written judgment]  Mahmud Musleh [judgment on 30.11.97] and  Rajab al-Baba [judgment on 28.12.98]. Mr Subuh s case was rejected by the High Court  which decided that the State Security Court had jurisdiction over his detention. In both the case of Mahmud Musleh and Rajab al-Baba  the High Court argued that it had jurisdiction and ordered their release.

 

The two cases of Mr. Musleh and Mr. al-Baba marked a shift in the court s role in PA detention cases. Since the beginning of 1998 the High Courts in Gaza and the West Bank have in most cases categorically refused to buckle under the PA s inevitable behind-the-scene dialogue with the courts  a dialogue that has attempted to ensure that the High Court only claims jurisdiction over a detainee s case if a final decision ordering his release does not put pressure on the PA to deal with him in a way contrary to Israel s [self-defined] interest and rights under the Peace Agreement. In almost all of the 17 cases that have come before the High Courts in Gaza and in the West Bank during the period 1 January 1998 - 3 July 1999  the Attorney General  representing the defendant from the Security Services against whom the claims for illegal detention are lodged  has argued that the detainee falls under the jurisdiction of the State Security Court  established by President Arafat by decree in 1995.[17] And with the exception of two of those seventeen cases  two cases in which the High Court in Gaza accepted this claim without requesting any evidence to substantiate it [Ibrahim al-Halabi  judgment 7.4.97 and Ibrahim al-Maqadmeh  judgement 20.6.98]  both High Courts have requested the Attorney General to provide evidence of the State Security Court s jurisdiction to the High Court and have subsequently ordered the release of the detainee lodging the claim.

 

It is these cases that have been documented and commented upon in various ways by a number of Palestinian and international human rights organisations.[18]

Annex V of this Report contains nine of the twelve written judgments issued by the High Court in Gaza during the period 28.12.97 – 4.7.99. The four judgments ever issued by the High Court in Gaza related to political detainees that have not been included in Annex V are firstly the case of Mr. Fathi Subuh [judgment of 6.10.97] in which the court rejected the case without issuing a written judgment  secondly the case of Mr. Immad al-Sharif [judgment of 28.6.99  implemented 1 day later] whose judgment was not available at the time this report was going to print[19]  thirdly the case of Mr. Abdul Nasser Karsou  [judgment 1.7.99] whose judgment  though made available by the court  was refused to PHRMG by Mr. Karsou s lawyers from the Palestinian Centre for Human Rights [PCHR] [20] and finally the case of Mr. Hamdi al-Khalut whose release was ordered 1 day before this report was going to print [judgment on 3.7.99].

 

Annex VI of this Report contains four of the six written judgments issued by the High Court in the West Bank during the period 30.11.97 - 4.7.99. Translations of two judgments could not be included in this report because the Palestinian human rights NGO  LAW   whose lawyers represented Mr. Mahmud Muslah [judgment of 30.11.97] and Mr. Ghassan al-Adassi [judgment of 6.10.98] decided not to respond to PHRMG s request for copies of the judgments.[21] The only other case issued by the High Court in Ramallah relating to political detainees that is not included in Annex VI is the case of the nine students from the University of Bir Zeit [judgment of 18.8.96]. This case has not been included because of the extensive coverage it has already received in a number of reports and because all nine of the students were released before the end of 1996.

 

2. General comments on the pleadings and judgments

 

Before attempting to summarise the most important procedural and substantive issues arising from an analysis of the judgments  a few points should be made concerning the process of translating the pleadings submitted to the court as well as the judgments themselves.

 

Translation

 

Whilst the writer of this report has a legal background  he does not speak Arabic and was assisted principally by one native Arab speaker with no legal background. The latter translated the Arabic texts into English  which then required substantial grammatical correction as well as clarification of legal concepts used by the lawyers and court. This process became easier over time and was done with the writer and the translator sitting together at all times  verifying whether each sentence of the translation corresponded accurately to the sense of the original.

 

Quality of pleadings and of judgments

 

The element chiefly responsible for making the process of translating the documents a difficult task was without a doubt the lack of clarity  from both a linguistic and legal point of view  of both the pleadings and the judgments.

 

1.       Language

 

The language of many parts of the pleadings and judgments is difficult to understand. The reasons include unnecessary complexity; sentences containing numerous separate concepts and points; logical contradictions; imprecise use of legal concepts; absence of verbs and prepositions and ambiguity. At times a number of native Arabic speakers were required in order to make sense of the Arabic before then attempting to convey the sense of the text in English. The result of this can be seen by the amount of additions or rephrasing  contained in square brackets in the translations  that had to be applied to the text in order to make it linguistically comprehensible in English. The question as to whether the above is not simply the result of the difference in nature of the two languages has been asked. On the basis of the opinions of 6 well-educated Arabic speakers  three of whom speak good or fluent English  the answer appears to be a catagoric agreement that the Arabic itself is extremely difficult to understand. Given the often simple legal concepts involved in these cases and the fact that much of both the pleadings and the judgments deal with facts rather than the law  this gives all the more rise for concern.

 

2.       Use of the law

 

A detailed legal analysis of each case has been presented in Annexes V and VI of this report. Regrettably the amount of time available for the researching and writing of the report has been extremely limited and so PHRMG has not been able to engage in a systematic comparison of the two Courts  judgments. It is hoped that others will find the separate analyses of each judgment of use for the purpose of evaluating the quality of the Courts  legal skills as well as for the purpose of identifying contradictions  similarities and trends running through both the style and the contents of these judgments. It would appear that much work is needed on this issue with a view to submitting concrete legal proposals to the judges of the High Court as well as to those involved in the training of new lawyers and judges in the Palestinian Territories.

 

Nonetheless  concerning the use of law  a number of general points might be made about the 13 sets of pleadings and judgments that have been translated. These comments are dealt with under point 3.

 

3. The High Court s legal approach in its cases related to political detainees

 

Though there appears to be an infinite number of issues arising from these cases and the way in which the Court deals with them [22] there are five principle areas worth highlighting.

 

a.        Delays in the reaching of the final judgment

 

As can be seen from the Table 1 on page 5  and in more details from the tables at the beginning of Annex V [p. 74] and Annex VI [p. 136]  the High Court has significantly delayed its final judgments in many of the cases under consideration. Given that in fifteen of the seventeen cases the High Court finally decides that it has been reviewing the case of an illegally detained individual  such delays are an extremely serious matter. 

As can be seen from the summaries of applicable criminal law in Gaza[23] and the West Bank [24] there are clear procedures that must be followed by law enforcement officials when arresting and detaining an individual. As a broad summary of both sets of laws  an arrested person can only be detained for a period of 30 days pursuant to detention orders issued by judicial authorities.[25] The presumption under these laws is that the necessary evidence should be forthcoming through questioning the arrested person after 24 - 48 hours.[26] The 30 days are therefore an exception to this presumption whilst any detention beyond these 30 days is to be the absolute exception.[27]

 

These strict procedural delays  in conformity with the principles contained in the International Civil and Political Covenant and a number of UN Declarations of detainees  procedural rights [28] are the fleshing out of Palestinians  constitutional rights as contained in the 1962 Gaza Constitution[29] and in the Draft Basic Law.[30] This last document is intended to be Palestinian s interim constitution for the period leading up to the Declaration of Statehood and was approved by the democratically-elected Palestinian Legislative Council on 2 October 1997. Palestinians are still waiting for their President to sign this document into law.

 

As can be seen from Table 1 above  there is an approximate  average  delay of 450 days between the date of arrest and the date of the Gazan High Court s first hearing and an approximate  average  delay of 350 days between those events in cases dealt with by the High Court in the West Bank. One of the most serious problems in all the cases is the substantial delay in access being given to the detainee by his lawyer  in clear violation of all applicable criminal procedures.[31] Four cases form the exception in Gaza.[32] In two of these cases  the court held its first hearing within 20 days of the date of arrest and handed down its judgment within two months of the first hearing [Maqadmeh and Rantissi]. In the most recent case [Khalut]  the court held its first hearing within 60 days after the date of arrest and ordered Mr. Khalut s release within 50 days of the first hearing. In the fourth case [Sharif]  the court took a final decision 23 days after the first hearing.[33]  Equally in the West Bank there are two cases[34] in which the court held its first hearing within 40 days of the date of arrest. But even in these cases it took the court 68 days and 132 days respectively to reach a final verdict. The  average  delay between the first hearing and the final judgment in Gazan cases is somewhere in the region of 150 days. In three cases the delay was less than 60 days[35] but as can be seen from the table above  the next most rapid processing of a case took 124 days[36]  whilst the longest delay was 395 days.[37] In the West Bank the  average  delay between the first hearing and the final judgment was 200 days. The two shortest delays in the West Bank were 68 days and 85 days[38] whilst three of the remaining four cases took 276 and 292 days to complete.[39]

 

Two things are therefore clear. First and foremost it is abundantly clear [and according to PHRMG s interviews with judges involved in these cases it was clear to the Court from the very start] that the delays in bringing these cases before the court was in itself a clear prima facie violation of detainees  rights under the applicable law. Secondly [and accepted by the judges themselves in interviews held with PHRMG]  the court s process of reaching its final judgment constitutes a further violation of detainees  rights.

 

The question therefore arises as to why the High Court  made up of judges who are genuinely committed to protecting the natural and legal rights of Palestinian detainees  decides to add insult to injury and adds an average of 350 and 450 days to the illegal detention before handing down its final judgment?

 

There are two principle elements and one secondary element that should be highlighted in answering this question.

 

[i] The technical reason given by the Court in the judgments themselves is that the Attorney General  [responsible under the law in Gaza[40] for the initiation and closing of any criminal file and in the West Bank[41]  for the final say relating to any decision taken by the General Prosecutor in relation to the detention  charging or release of the detainee]  must be given time to obtain information from the Security Services claiming jurisdiction over the detainee. In Gaza the High Court invokes a general power it has to give the Attorney General such an unspecified period of time [usually 8 days]  a period of time that is apparently renewable for a further unspecified period of time.[42] In the West Bank the Court bases its granting of such a period of time on Article 257[43] [sometimes mistakenly referred to by both lawyers and judges in their decisions as Article 258] of the 1961 Penal Law. The Tables on pages 74 [Annex V] and 136 [Annex VI] present the number of hearings the court has convened in each case as well as the delay between each hearing and the total delay between the first and final hearings. The most serious case of delay involved in the seventeen cases reviewed in this report was in the Gazan High Court case of Mr. Mahmoud Watfah. A detailed breakdown of the 395 days that it took the Court to reach its final decision is to be found on p. 80 [Annex V] of this Report. The case of Mr. Watfah is an extreme but good example of the way in which the High Court fails to provide any form of explanation for granting the Attorney General s constant wish  in case after case  to be given more and more time to gather information related to the detainee from the Security Services. The details of each case may be found in the commentaries in Annexes V and VI. Every additional day given to the Attorney General prolongs the illegal detention of the detainee by an additional day. This fact

is  unfortunately  not the guiding principle for the Court and the explanation for this may be found in the second [and somewhat predictable] reason.

 

[ii] The political reason for the High Court taking such long periods of time to reach a final decision is the overriding factor explaining the court s delay in these cases. Political imperatives in effect force the court to deny detainees the immediate justice that is their right:  frankly   says President Fayez al-Quidrah of the High Court in Gaza   in the High Court we cannot do justice in these cases. The court knows that according to the law it should not do this  but as we are under very special circumstances … no judge can decide freely .[44] This view was echoed by his colleague Mr. Jamil al-Ashi:  this is a period of transformation: the extension [of time given to the Attorney General] is like an encouragement to the Attorney General to do his work. It is not a question of strict procedures being applied and more a question of trying to make sure that all the parties fulfil their judicial functions . [45] Mr. al-Quidrah expresses the opinion that in a number of cases the Attorney General has not heard of the case before the first complaint is lodged and that he therefore needs to be given time to obtain the information from the Security Services.[46] The major factor is obviously that there is little cooperation on the part of both the Attorney General s office and on the part of the Executive Authority [which controls the Security Services] and that  the courts want to avoid a face-to-face confrontation . It therefore has to be flexible with procedures so as not to destroy all chances of cooperation.  Procedures are like a general indicator here of what should happen  says Jamil al-A shi.[47] In Mr. al-Quidrah s words   the Attorney General completely reflects the point of view of the Executive Authority. Judges therefore have to hold the stick at the centre  [i.e. balance strict and flexible application of procedures relating to detainees  human rights]. He then pauses:  remember that [Former Attorney General] Abu Rahme resigned . This  last point was a recurring theme in PHRMG s interviews with the judges of the High Court. A strict application of procedures would either lose them their job or would destroy all chances of cooperation with an Attorney General s office and with an Executive Authority that takes decisions not according to the law but according to moods and highly sensitive political issues. PHRMG has also received confidential information from three sources that confirm that in certain cases procedures have been speeded up by the Attorney General s office or pleadings changed on the basis of personal relations between various individuals involved in these cases. As a summary of the sentiments expressed by judges and lawyers in relation to this issue  PHRMG was told by one defense attorney that judges have asked him and his colleagues  not to bring us these cases! . It should therefore be apparent that arbitrariness in the way these cases are dealt with is the order of the day  violating Palestinian s constitutional[48] and international[49] human rights provisions protecting detainees from arbitrary and discriminate treatment.

 

[iii]  Logistical reasons were also mentioned by both judges and lawyers. The High Court in Gaza for example sits in three formations in criminal cases  with three judges in each formation. Each

group of three judges has a ten day period during which they have access to the court s facilities.[50] Given that the number of cases dealt with in each ten day session is by far out of proportion to the time of which the judges dispose during their ten day slot [51] it is by no means clear that a complaint or next hearing can easily be fixed for a session during the subsequent ten day period after the complaint has been lodged or the previous hearing has been heard. Mr. Jamil al-A shi  a judge at the High Court in Gaza  pointed PHRMG to the fact that he had 40 cases to hear in the month of June 1999.[52] Lack of infrastructure and funding for the building of new courts and their support structure therefore means that  the High Court cannot simply convene on a day-by-day or week-by-week basis .[53] Linked to this situation is the fact that unless lawyers constantly put pressure on the Courts and remind them of the need to bring forward hearings or to actually convene as agreed during a previous hearing  the next hearing in case may be delayed or even cancelled.[54]

 

Finally  it should be noted that in at least three recent cases  the High Court in Gaza has taken a strict approach to the question of giving more time to the Attorney General to present the court with the necessary documentation. These are the cases of Mr. Hamdi al-Khalut [judgment 3.7.99]  Mr. Abdel Karsou [judgment 1.7.99] and of Mr. Immad Sharif [judgment 28.6.99]. In the case of Mr. Khalut  the court handed down its final judgment 47 days after the first hearing  whilst in the case of Mr. Sharif the court handed down its final judgment 23 days after the final hearing. In Mr. Sharif s case  he was released within 24 hours of the judgment having been handed down by the court. PHRMG has not been given requested information by the Palestinian Centre for Human Rights [PCHR] pertaining to dates relating to recent cases dealt with by the PCHR  those of Mr. Mr. Abdel Karsou  and Mr. Mahmoud Watfah [judgment 8.5.99]. It is possible that in these cases the court held its final hearing within a relatively short delay of the date of first hearing. It therefore seems that the High Court is gaining confidence in its treatment of these cases and is decreasing the time it itself adds to the period of detention of the detainees through delaying its final hearing.

 

b.   Addressing the question of the High Court s jurisdiction

 

Most of the issues with which the High Court must grapple when dealing with these cases are heavily influenced by the political considerations referred to under point a. None more so than the issue of the High Court attempting since the first judgments to explain in legal terms on what basis it has jurisdiction over the detainees who are lodging complaints.

 

The commentaries in Annexes V and VI  highlight the Court s failure in all of the cases to deal adequately with the issue of the limits to its jurisdiction vis a vis the jurisdiction of the State Security Court  established pursuant to a Presidential Decree on 7 February 1995.[55] According to the decree establishing the Court  it has jurisdiction over individuals committing offenses related to internal and external security.[56] Consequently  the General Prosecutor  who appears as defendant in the cases under review  claims that the State Security Court has jurisdiction to hear - and the Security Services [be it the Preventative Security Service  the General Intelligence Service or any other of the eleven non-judicial police forces] have the powers to detain individuals involved in - these cases.

 

The most straight-forward way in which the High Court could deal with this issue in its judgements would be the following:[57]

 

1.       Explain over which offenses the High Court of Justice has jurisdiction and over which offenses the State Security Court has jurisdiction.[58]

 

2.       Explain which arrest and detention procedures must be followed in relation to the prosecution of the offenses over which the two respective courts have jurisdiction  be they the same or different procedures.[59]

 

3.       Look at the way in which the plaintiff was arrested and which procedures  if any  were followed during the first 30 [or 45] days of detention.[60]

 

4.       Compare the treatment under point 3 with the applicable arrest and detention procedures.[61]

 

Ø      If the applicable procedure has been followed then the Court can go on to point 5.

Ø      If the applicable procedure has not been followed then the High Court has jurisdiction[62] [on the basis that the State Security Court has failed to exercise its jurisdiction to make sure that applicable procedures are applied] to order the release of the plaintiff [because his arrest and/or detention has been carried out illegally].

 

5.       Enquire as to whether a  charge was made against the plaintiff within the time limits provided for under the applicable procedure.[63]

 

Ø      If no charge has been made  the High Court has jurisdiction[64] on the basis that the State Security Court has failed to exercise its jurisdiction to make sure that applicable procedures are applied. It should be noted that in not a single one of the cases  the Attorney General presented genuine evidence of comprehensible charges having been made against the detainee.

 

Ø      If a charge has been made within the time limits provided for under the applicable procedure  then the High Court should proceed to point 6.

 

6.       Decide whether the charge relates to an offense that falls within the jurisdiction of the State Security Court.[65]

 

Ø      If the charge [and evidence for the charge] does relate to an offense falling within the jurisdiction of the State Security Court  then the High Court can review the post-charge procedures applicable to State Security Court detainees.[66] If these have been properly followed  the High Court can decide that it does not have jurisdiction. If they have not been properly followed  the High Court must decide that it has jurisdiction.[67]

 

Ø      If the charge [and evidence for the charge] relates to an offense over which the State Security Court does not have jurisdiction  then the High Court can claim jurisdiction on the basis of the laws conferring jurisdiction on the High Court in relation to the offense.

 

This would be the simplest way of approaching the issue of the High Court s jurisdiction. The commentaries to the cases in Annexes V and VI go into significant detail in order to criticise the way in which the High Court avoids engaging in the above steps. These details won t be repeated here. The following will provide a brief outline of the principle shortcomings of the High Court s approach and will then make reference to comments made by lawyers and the judges themselves when asked about these shortcomings.

 

[i] Cases in which the High Court has rejected the pleadings on the grounds that it does not have jurisdiction

 

The High Court in Gaza has to-date rejected two cases on the grounds that it did not have jurisdiction over the individual concerned. These are the case of Ibrahim al-Halabi and Ibrahim al-Maqadmeh. The judge in Mr. al-Halabi s case  Mr. Khalil Ashayyah  rejected the application with the legal reasoning contained in the following words:  the court decides to reject the request .[68] The court in Mr. al-Maqadmeh s case decided 71 days after his arrest to accept the Attorney General s argument that because a detention order had been issued 8 days after the date of arrest and because this detention order  had been renewed many times   the Court had  lost its jurisdiction . The court does not refer to applicable arrest and detention procedures  fails to comment on the fact that under neither the 1924 British or 1979 PLO procedures  a number of detention orders  can be issued for a total period of 71 days and fails to criticise the erroneous charges that are presented by the Attorney General to the court.[69] A correct application of legal procedures and of substantive law would have led the court to reach the opposite conclusion.

 

The High Court in the West Bank has to-date rejected only one case on the grounds that it did not have jurisdiction over the individual concerned. This is the case of Mr. Shafiq Abdul-Wahab in which the Attorney General submitted an legally irrelevant pleading.[70] The court even states at one point in its judgment that Mr. Wahab s lawyers successfully answers all the arguments made by the Attorney General s assistant. Despite this fact  the Court announces a new principle in criminal law in paragraph IX of its judgment [71] namely that the issues of jurisdiction and of whether Mr. Wahab has been illegally detained depends on the factual testimonies [i.e. not the legal arguments] of Mr. Wahab s wife and of the Governor of Ramallah. Word against word  the court decides that  the complaint has not been proven  by Mr. Wahab. In other words  he has failed to prove his own innocence. The disastrous quality of the  legal reasoning  involved in this case can hardly be overstated.

 

[ii] The High Court s failure to establish clearly the limits of its own jurisdiction and the limits of the State Security Court s jurisdiction

 

The above outline of the most simple way in which the court could deal with the issue of its jurisdiction vis a vis that of the State Security Court [SSC] should be contrasted with the way in which the High Court

 

Ø      fails in all cases to comment upon the basis for [and limits to] the SSC s jurisdiction;

 

Ø      fails in all cases to explicitly identify the criminal procedures by which the SSC is bound and the legal basis for the SSC being bound by such procedures;

 

Ø      fails in many cases to identify clearly as to whether the decision to detain the detainee is administrative or judicial in nature;

 

Ø      fails in a number of cases to separate the notions of a court s powers of judicial review over administrative decisions from a court s powers to apply clearly established legal provisions in reviewing the legality of actions taken pursuant to those provisions or judicial orders based upon such provisions; and

 

Ø      fails  in the case of the court in Gaza  to invoke existing legal provisions conferring jurisdiction upon the High Court when other judicial bodies fail to exercise their jurisdiction either correctly or at all.

 

The legal details of this issue are too numerous and the confusion created by the court on this issue is at times so considerable that the matter cannot be dealt with in more detail in this section of the report. The interested reader should go to the commentaries on the cases in Annexes V[72] and VI [73]  which deal with the issue in as much depth as has been possible given the time constraints in writing this report. [See in particular the West Bank case of Marwan Moussa  Annex VI  pp. 155 – 180] It is above all with regard to this issue that the report is meant to be a starting point for further analysis and commentary upon the High Court s work.

 

PHRMG focused on this question in a number of interviews conducted with some of the lawyers and judges involved in these cases and it appears that the High Court views the question as too politically sensitive and takes refuge in  arguments concerning the limits of its constitutional role.

 

When asked about the lacuna in the Court s judgments vis a vis the SSC  Mr. Fayez al-Quidrah[74] stated that  the High Court does not monitor the work of other courts… I can only say that I do not know how the SSC functions . Asked whether the High Court therefore presumes that the SSC is bound by criminal procedural law applicable to civilians  he states that  previously all courts applied the 1924 procedure. Now there is no channel of communication between the High Court and the State Security Court . In other words  the SSC is not part of a judicial system in which there is internal dialogue but rather a branch of the Executive Authority in direct conflict with the judiciary. Hamdan al Abadleh  a High Court judge in Gaza  opines that  we do not interfere with the work of other courts. All these details would be answered by a constitutional court. Under the Draft Judicial Law there would be such a court and it would clarify these matters.  Subhiyye Juma a believes that  it is not within the High Court s jurisdiction to comment upon this [issue]. This is the job for the Constitutional Court. [75] It is usually a Constitutional Court that passes judgments on the respective jurisdictions of two courts that might be in conflict with one another. As Mr. Mohammad Ayoub[76] has told PHRMG:  the High Court refuses to answer any questions lawyers put to it on this matter… It is mainly political reasons that drive this reluctance. It makes political sense not to deal with this issue and the legal argument used to justify this is that the High Court is not a constitutional court . Mr. Iyad Alami  a lawyer from the Palestinian Centre for Human Rights  refers to the fact that it is the General Prosecutor s responsibility to decide to which court should deal with a case. And if the General Prosecutor fails to exercise this responsibility and violates the law in disregarding his duties?   Judges are afraid of the PA and of the police. Their contracts are renewed on a yearly basis by the Minister of Justice and they are afraid to lose their job .[77] It appeared that the way in which  for example  Mr. Jamil al-A shi[78] failed to address most of the issues raised by PHRMG in an interview  confirms that High Court judges are extremely weary of commenting in any way on the activities of the Executive  as personified by the State Security Court. And it also appears that similar reasons led former President of the High Court in the West Bank  Mr. Sami Sarsour  to decide not to make any statements to human rights organisations concerning these cases. A number of sources have confirmed to PHRMG that Mr. Sarsour is not only increasingly weary of having to submit to the political will of the PA at every turn but is also fearful of the consequences if any statements he might make concerning the unfailing violations by the PA of the judiciary s and detainees  rights.

 

It is worth noting with respect to this argument concerning the constitutional role of the High Court  that the Draft Judicial Authority Law  still not signed into law by President Arafat 21 months after it received its final approval from the Palestinian Legislative Council  provides in its Article 83 that  ..the High Court shall temporarily assume all the duties assigned to the … High Constitutional Court .[79] In the absence of a Constitutional Court  not only would the High Court be well within its limits in passing judgment on this issue: the will of the Palestinian people within the Palestinian Territories  as expressed through their democratically-elected Legislative Council  has provided through Article 83 of this Draft Law that the High Court is under an obligation to do so.

 

c.   Invoking applicable criminal procedural law[80]

 

One of the principle challenges of researching and writing the present report was the difficulty in finding copies in English of applicable criminal law in Gaza and the absence of an English translation of the [Arabic] Jordanian Penal Code applicable in the West Bank. Finding these laws  and either collecting aspects of them in a single document[81] or translating them and rearranging them in something resembling a logical order[82] was essential after discovering that neither the lawyers pleading in these cases nor the judges in their judgments have been invoking very much of the applicable procedure in order to prove the comprehensive violation of applicable procedures and hence the absolute illegality of the political detention.[83]

When looking at the way in which detainees  procedural rights have been violated by the Executive Authority  it is must be difficult to know where to start as a lawyer invoking applicable law. Almost every single provision summarised in the documents providing an outline of the law applicable in Gaza and the West Bank in Annexes III and IV is violated in every detention case reviewed in this report.  It is possibly this fact that helps to explain why it is that both the lawyers and the courts decide not even to begin to refer to all the provisions contravened by the authorities and instead decide to invoke either no law at all or as little law [and this as generally] as possible.

 

On the basis of the material that was made available to PHRMG on request  the following is a brief inventory [Table 2] of the extent to which the High Court [and  where the information is available  the lawyers] invoke any of the criminal procedural laws outlined in Annexes III and IV of this Report. Reference should be made to Annexes III and IV [and to the details of the judgments] in order to appreciate how little applicable law is invoked and the imprecise way in which it is invoked.  The detailed review of the way in which the Court deals with this aspect of its judgments has to be found in the commentaries to the cases themselves [Annexes V and VI].

 

Table 2

Gazan lawyers and the High Court in their use of applicable law

 

Name of case	Lawyer s use of specific legal provisions in the pleadings	Court s use of law
Mahmoud Watfah	No information available from PCHR	No reference to law in decision given to PHRMG by PCHR
Khaled Wahbeh	No reference to law	No reference to law
Harb al-Dequis	From judgment it appears no reference made	General reference made in paragraph VIII of judgment to Articles 3 - 10 of 1924 law
Marwan Issa	From judgment it appears no reference made	General reference made in paragraph X of judgment to Articles 3 - 10 of 1924 law and to the 1962 Gazan Constitution
Wa el Faraj	Reference to one legal provision	No reference to law. Only reference to principles
Ibrahim al-Halabi	No reference to law	Court refers to not a single provision in rejecting the case
Ibrahim al-Maqadmeh	From judgment it appears no reference made	Court refers to not a single provision in rejecting the case
Abd al-Aziz al-Rantissi	From judgment it appears no reference made	General reference made in paragraph VII of judgment to Article 10 of 1924 law
Rajab Hassan al-Baba	Reference to Article 4 of the 1962 Gazan Constitution and general reference to principles contained in the law of 1924	General reference to Articles 3 and 4 of the 1924 law. Article 10[1] referred to in more detail. Articles 4  5 and 12 of the 1962 Gazan Constitution quoted without commentary.

 

 

 

 

Table 2 continued

West Bank lawyers and the High Court in their use of applicable law

 

Name of case	Lawyer s use of specific legal provisions in the pleadings	Court s use of law
Saleh Talahmeh	No reference to law	No final judgment yet
Wassim  Ataout	No reference to law	Court closes case subsequent to Mr.  Ataout s release and upon the request of his lawyer
Shafiq Wahab	No reference to specific legal provisions  only to principles
Ghassan Adassi	The human rights NGO LAW refused to provide copies of the documentation	The human rights NGO LAW refused to provide copies of the judgment
Marwan Moussa	Articles 7  8  9  100  104  105  108 of 1961 Penal Code and reference to general principles of administrative review	Reference to Article 100 and 102
Sai id Sa adeh	No reference to law	General reference to  the provisions of the Penal law
Mahmoud Musleh	From publications issued by LAW  it appears that no reference was made to specific legal provisions	From publications issued by LAW  it appears that no reference was made to specific legal provisions

 

d.    Presenting facts of the case and applying the law to the facts

 

In many of the cases  facts are confusingly presented [both in the lawyer s/court s use of language and structure of the case s chronology] and are not systematically placed side by side with the law in order to establish the precise way in which the law has been violated by the detaining authorities.

 

The most striking example  to mention but one  is the case of Mr. Khaled Wahbeh[84] in which Mr. Wahbeh s lawyer  Mr. Ismaail Iqdeih  provides extremely confusing accounts during a number of court hearings of the way in which Mr. Wahbeh was arrested and detained. Mr. Iqdeih fails to apply applicable criminal procedures to the dates of arrest and subsequent detention. In fact he  like the court  does not refer to a single provision of applicable law. The court s judgment  ordering Mr. Wahbeh s release 395 days after the first court hearing and 1428 days after Mr. Wahbeh s arrest  consists of 1 line. It makes no reference to the dates involved in this case and makes no reference to the way in which applicable law should be applied to the facts of the case.

 

It appears that there are two principal reasons why in particular the court prefers not to apply applicable procedure to the dates of arrest and subsequent detention.

 

The first relates to wishing to avoid overly clear and precise judgments  which establish with no ambiguity the exact extent to which the detaining authorities have violated the law.[85] Again  the motive is political and the same psychology applies as that referred to under section 3.a concerning procedural delays sanctioned by the court. Mr. Mohammad Ayoub[86] summarises this problem perfectly: as lawyers  when presenting the law to the judges in order to get them to take any action in favour of the detainee   we have to feel their suffering . In other words  the law must be presented in such a way as to help the court swallow the bitter pill of handing down any form of judgment against the Executive Authority s interests.

 

The second reason involves a more personal element: if the court starts applying the law to the dates involved  it will highlight its own complicity in the violation of the detainee s rights through its constant delaying of the hearings in most cases.

 

e.  The failure to bring prosecution cases against officials responsible for illegal detention of Palestinian political prisoners

 

According to the provisions of the 1936 Criminal Ordinance Code in force in Gaza [87] any officials directing [Section 112[1][a]] an illegal detention  any official failing to do an act which he is obliged to do [Section 142] by law and any person disregarding the contents of a court order [Section 143] is liable to be imprisonment for a maximum period of two years.

 

According to the provisions of the 1960 Jordanian Penal Law in force in the West Bank [88] any official illegally arresting and detaining an individual [Article 178] and any official working in a detention centre involved in the illegal detention therein of an individual [Article 179] is liable to imprisonment for a maximum period of one year. Any official refusing to bring a detainee before a court with due jurisdiction is liable to imprisonment for a maximum period of six months [Article 180]. Any official delaying the implementation of a judicial judgment or order is liable to imprisonment for a maximum period of two years [Article 182[1][89]].

 

To-date not a single prosecution ahs been brought by the lawyers of the detainees involved in the cases under review.  In an ideal situation   says Gazan High Court judge Hamdan al-Abadleh[90]   such prosecutions would take place . Without referring to the 1936 laws in force in Gaza  he adds that he hopes that the Draft Judicial Authority Law will soon be approved:  once this law is approved  every party would know clearly the limits of his authority and there would be punishment for all those who commit mistakes .

 

It goes without saying that a situation in which hundreds of detainees are being illegally detained by the PA and in which the few who are able to obtain court orders ordering their release are not able to turn to a judicial system that feels comfortable enough to hold members of the executive to account for such illegal detention is not a situation in which deterrence and notions of justice play much of a role. What  in such a situation  is left as an incentive for the PA to refrain from systematic human rights violations on a daily basis?

 

IV. Training of lawyers and judges

 

Flowing from the above  it appears to be clear that even lawyers who have qualified some time ago and judges in the High Court of Justice in Gaza and the West Bank require what in the legal training jargon has become to be known as  continuing legal education . The issue is a sensitive one for obvious reasons  but through the interviews conducted by PHRMG it has become clear that lawyers and judges themselves accept the need for training in skills such as drafting and methodological skills for the purpose of invoking legal provisions in a clear and structured manner. High Court judges have pointed to the fact that there are  very few lawyers who are experienced and even when experienced do not help the court with applicable law. Even judges in the High Court do not follow clear structures .[91] Mr. Mohammad Ayoub confirms that  judges do not have the necessary knowledge to exercise their functions. For thirty years they were told how to fill in forms and not argue matters of substance. This killed us as lawyers. We need training of both judges and lawyers. I desperately need training. [92] Mr. Fayez al-Quidrah informed PHRMG that lawyers can appear before the High Court one day after they have qualified.  There are 500 qualified lawyers in Gaza. I would say that of these 500 perhaps 10-15 know what they are doing when they appear before the High Court. [93] When asked whether any of these included lawyers appearing in the detention cases reviewed in this report  the answer was negative.  Personally   he adds   I am happy to learn as long as I live. But veteran lawyers may refuse and may be reluctant to get involved in training . Essential priorities identified by judges included  knowledge of procedures and proceedings before the courts  advocacy skills and knowing how to apply the law to the details of a case. [94] One judge informed PHRMG that he had  written a report on our needs for the UN and for the World Bank. Nothing appears to have been done so far with this information. [95]

 

Unfortunately  this report has not benefited from enough time to be able to research in detail initiatives taken in the past and at present relating to the much-needed establishment of training programmes for lawyers and judges. The first workshop in thirty years for all judges from Gaza and the West Bank  was held in Jericho at the end of May 1999. Reference should be made to the recent Report issued in May 1999 by the Office of the United Nations Special Coordinator in the Occupied Territories [UNSCO] entitled  Rule of Law Development in the West Bank and Gaza Strip: Survey and State of Development Effort . The Report s contents  misrepresented by the Palestinian Authority in its reaction to the report [96] identifies support for the judiciary and training of its staff as one of the most often repeated priorities mentioned by the dozens of key officials consulted by UNSCO.[97] The Report includes reference to donor money committed and applied so far to training programmes for members of the judiciary. The most significant initiative adopted so far has been a judicial training programme set up in of May 1999 at the Law Centre at Bir Zeit University in the West Bank. Just under 1 million US dollars has been committed by the World Bank to this programme and the detailed curriculum and format of the programme appears still to be under development. Other smaller programmes are already underway at Bir Zeit[98] and it would appear that a larger programme  funded by the European Union [EU]  includes  training sessions for lawyers and legal researchers in Belgium .[99] A second EU programme  already underway with more funds pending  is geared towards  the establishment and maintenance of a Legal Training Unit .[100] A further programme focusing on  training for judges in international human rights standards and administration of justice [101] with a budget of approximately 85 000 US dollars is pending.

 

UNSCO has confirmed to PHRMG that following a renewed commitment by US AID  anticipated US AID funding will be coordinated with any initiatives undertaken by the Law Institute at Bir Zeit.[102] It appears that US AID has already approved figures for the training of judges and prosecutors[103] and UNSCO confirms that there are significant gaps in this crucial area of financial support to the Palestinian legal system. Training of the legal system s staff  according to UNSCO  features amongst the top three priorities of hundreds of areas that need to be dealt with. UNSCO also stressed to PHRMG that the focus should be on those lawyers already in place and not on new lawyers. There is not major shortage of lawyers and there appears to be agreement that the effect of 30 years of Israeli Occupation has done no good to the legal skills of lawyers that qualified some time ago.

 

The United Nations Office of the High Commissioner for Human Rights [OHCHR] has confirmed that the struggling Bar Association[104] does have plans for a programme of  Continued Legal Education [105] for lawyers. As the name suggests it would focus on qualified lawyers who are in need of training or retraining in basic skills such as those identified in the process of reviewing the cases in this report. Information pertaining to the details of future Bar Association projects should hopefully be obtainable from the Bar Association itself.

 

 

V. Further issues relating to the annexes and observations concerning access to laws and judgments and cooperation between Palestinian human rights NGOs

 

A number of documents contained in the Annex have not been referred to either at all or very often during this commentary. Annexes VII  VIII  XI and XII are a collection of Palestinian laws either in force or pending approval from President Arafat. The 1962 Gazan Constitution  the 1979 PLO Code and the 1998 Prison Law appear never to have been translated into English  whilst the available translations of the 1997 Draft Basic Law and the 1998 Draft Judicial Authority Law were not sufficiently clear or precise for the purposes of an accurate and reliable legal analysis to take place.

 

It is particularly important that the Draft Judicial Authority Law [Annex XII] be accurately referred to by external actors involved in the development of the Palestinian legal system. The Draft Law as it stands guarantees a solid basis upon which an independent and well-structured judiciary can be built. The extent to which Israel s policy of systematically undermining and purposefully neglecting the judicial system between 1967 and 1994 has been continued by the Palestinian Authority has been well documented.[106] The PA has decided to add a third element to this abuse  namely undemocratic interference in all judicial affairs not to its liking. The failure of President Arafat to approve the Draft Judicial Authority Law is the clearest possible indication the President could give of his policy of ensuring that complete control over judicial matters ultimately rests in the hands of the President s office.

 

Coupled with the lack of English translations of applicable laws[107]  getting access to full copies of laws and judgments proved not to be as easy as expected. Concerning access to laws [and as already mentioned above]  Bir Zeit Legal Centre did not have copies of applicable British Penal Law  despite the fact that these laws have been published in a series entitled  The Laws of Palestine . Prior to discovering the existence of this series through information obtained from the International Committee of the Red Cross  PHRMG received photocopies of some of these volumes from one of two American Professors involved in the organisation of a Report entitled  the Palestinian Legal Study .[108] Copies of the applicable Jordanian laws were available from Bir Zeit Law Centre in the form of photocopies  whilst practising lawyers in the West Bank may obtain bound copies of these laws.

 

Concerning access to judgments of the High Court  the practice in the Palestinian Territories appears to be that lawyers involved in cases have full discretion as to whether judgments delivered by courts in open session may be given to requesting members of the public and of the human rights community. This report has already made clear that the two leading organisations in the West Bank [LAW] and Gaza [PCHR] responsible for representing the detainees in the cases under review have refused PHRMG access not only to copies of written pleadings but also to the resulting judgments. It has been considerably frustrating that access to these judgments has depended on the state of personal relations between the requesting party and the lawyer with access to the judgment. The immediate solution would appear to be a separation of personal ego from professional matters relating to the protection of Palestinian s human rights. The structural solution is clearly to avoid such matters depending on personal exchange of documents and the establishment of a documentation centre at the High Court with full access to documentation by any requesting member of the public.

 

 

 

 

 

 

VI. Recommendations

 

In the light of this report  the Palestinian Human Rights Monitoring Group:

 

Ø      calls upon the Palestinian Authority to respect the principle of the rule of law and to enforce the judgments of its High Court of Justice ordering the release of illegally detained Palestinian detainees;

 

Ø      calls upon the Palestinian Authority to ensure that its security forces respect arrest and detention procedures enshrined under Palestinian and International Law;

 

Ø      calls upon the President of the Palestinian Authority to sign the Draft Basic Law and Draft Judicial Authority Law into law and to issue a categoric statement signalling to the High Court that in accordance with these laws its judges shall not fear retribution from the Executive Authority as a result of their strict protection of detainees  human rights;

 

Ø      calls upon the Palestinian Authority and the Israeli authorities to ensure that the results of future peace negotiations includes an unambiguous text clarifying the extent to which the Palestinian Authority s respect for the protection of Palestinian s due process rights remains submitted to Israel s security concerns and calls upon the international community to exercise its influence in ensuring such clarification;

 

Ø      calls upon the Palestinian Authority to appoint official Arabic-English legal translators for the purposes of increasing the transparency of the development and application of human rights law in the Palestinian Territories;

 

Ø      calls upon the High Court to ensure that it limits the delay in handing down final judgments in detention cases as much as possible;

 

Ø      calls upon the High Court to clarify in unambiguous terms its jurisdiction with regard to the jurisdiction of the State Security Court;

 

Ø      calls upon the international donor community to take into consideration the urgent need for funds to be directed at the continued training of lawyers and judges working within the Palestinian legal system and at the chronic shortcomings of the Palestinian judiciary s infrastructure;

 

Ø      calls upon certain fellow human rights NGOs to separate personal considerations and ambitions from their professional duty to cooperate with the Palestinian human rights community and its collective aim to protect and advance the human rights of Palestinians.

 

 

 

Annex I

 

 

 

 

 

 

 

 

A Chronology of the Development of the Palestinian Legal System

 

 

pp. 1 - 2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex II

 

 

 

1. Analysis of provisions in the 1993, 1995 and 1998 Israeli- Palestinian Peace

                        Agreements related to security and criminal jurisdiction                  

 

pp. 3 - 39

 

 

2. Table of provisions from the 1993, 1995 and 1998 Israeli-Palestinian

Peace Agreements related to security and criminal jurisdiction                     

 

pp. 40 - 45

 

 

3. Summary of Israeli and Palestinian security and criminal jurisdiction

under the 1993, 1995 and 1998 Peace Agreements

 

pp. 46 – 49

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex III

 

 

 

 

Summary of aspects of criminal procedure applicable in Gaza

 

 

 

pp. 50 – 56

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex IV

 

 

 

1.      Summary of aspects of criminal procedure applicable in the West Bank

under the 1961 Jordanian Penal Code

 

 

pp. 57 – 62

 

 

 

2.      Provisions of the 1961 Jordanian Penal Code relevant to

Arrest and  Detention Procedures

 

 

pp. 63 – 71

 

 

 

3. Provisions of 1960 Jordanian Penal Law providing for the punishment of officials violating arrest and detention procedures

contained in the  1961  Jordanian Penal Code

 

 

 

pp. 72 – 73

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex V

 

 

Table of Gazan High Court judgments related to the detention of

political prisoners and translations of/commentaries on these cases

 

 

p. 74 et seq.

 

 

 

I.  Judgment in the case of Mahmoud Watfah                                            p. 75

 

II.  A. Documents in the case of Khaled Wahbeh                             pp. 76 - 81

      B. Commentary on the case of Khaled Wahbeh                          pp. 82 – 83

 

III.  A. Documents in the case of Harb al-Dequis                             pp.  84 - 86

        B. Commentary on the case of Harb al-Dequis                         pp.  87 - 89

 

IV. A. Documents in the case of Marwan Issa                               pp.  90 - 92

      B. Commentary on the case of Marwan Issa                            pp.  93 - 97

 

V. A. Documents in the case of Wa’el-Faraj                                   pp.  99 – 100

     B. Commentary on the case of Wa’el-Faraj                               pp. 100 - 105

 

VI. A. Documents in the case of Ibrahim al-Halabi                     pp. 106 – 110

      B. Commentary on the case of Ibrahim al-Halabi                      p.  110

 

VII. A. Documents in the case of Ibrahim al-Maqadmeh               pp. 111 - 112

        B. Commentary on the case of Ibrahim al-Maqadmeh       pp. 113 - 115

 

VIII. A. Documents in the case of Abdul Azziz al-Rantissi         pp. 116 - 118

          B. Commentary on the case of Abdul Azziz al-Rantissi     p.  119

 

IX. A. Documents in the case of  Rajab al-Baba                            pp. 120 - 128

      B. Commentary on the case of Rajab al-Baba                                 pp. 129 – 135

 

 

 

 

 

 

 

 

 

 

 

Annex VI

 

 

Table of West Bank High Court judgments related to the detention of political prisoners and translations of/commentaries on these cases

 

p.       136 et seq.

 

 

I. Pleadings in the case of Saleh Talahmeh                                   pp. 137 - 138

                                     

 

II. A. Documents in the case of Wassim ‘Atout                           pp. 139 - 142       

     B. Commentary on the case of Wassim ‘Atout                        pp. 143 - 144

                              

   

III. A. Documents in the case of Majeda el-Wahab                     pp. 145 – 150                              

      B. Commentary in the case of Majeda el-Wahab                                pp. 151 - 153

                       

           

IV. Commentary on the case of  Ghassan al-Adassi                      p.  154

                       

          

V.   A. Documents in the case of Marwan Moussa                       pp. 155 - 167

       B. Commentary on the case of Marwan Moussa                            pp. 168 - 180

                       

        

VI. A. Documents in the case of Sai’id Sa’adeh                            pp. 181 - 186

       B. Commentary on the case of Sai’id Sa’adeh                       pp. 187 - 188

 

 

VII. Commentary on the case of Sheikh Mahmoud Musleh                 pp. 189 – 190

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex VII

 

 

 

1.     Articles from 1962 Gaza Constitution relevant to the rights of detainees

 

 

pp. 191 – 192

 

 

 

2.     Provisions from the 1998 Law on Centres of Reformation and Rehabilitation (Prisons) relevant to the procedural rights of detainees

 

 

p. 193 – 194

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex VIII

 

 

 

Provisions of the 1979 PLO Revolutionary Code procedures

Applicable in military cases of arrest and detention

 

 

pp. 195 – 199

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex IX

 

 

An analysis of Fair Trial Principles under the

International Covenant on Civil and Political Rights (ICCPR)

directly related to pre-trial arrest and detention procedures

 

 

pp. 200 – 206

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex X

 

 

International legal principles related to the rights of detainees

 

p. 207 et seq.

 

 

1. Extracts from Standard Minimum Rules for the Treatment of Prisoners

 

pp. 207 – 208

 

 

 

2. Extracts from Basic Principles on the Independence of the Judiciary

 

p. 209

 

 

 

3. Extracts from Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

 

pp. 210 -214

 

 

 

4. Extracts from Guidelines on the Role of Prosecutors

 

pp. 215 - 216

 

 

5.Excerpt from United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)

 

p. 217

 

 

 

 

 

 

 

 

 

Annex XI

 

 

 

Articles from the Draft Basic Law relating to detainees’ procedural rights

 

 

pp. 218 – 223

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex XII

 

 

 

The Draft Judicial Authority Law

 

 

 

pp. 224 – 238

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex XIII

 

 

 

Selected interviews held with High Court judges and defense attorneys

 

p. 239 et seq.

 

 

1.      President of the High Court in Gaza, Fayez al-Quidrah

 

pp. 239 – 243

 

 

2.      Subhiyye Juma’a from the PICCR in Gaza

 

pp. 244 – 248

 

 

3.      Mohammad Ayoub, defense attorney from Ramallah, West Bank

 

pp. 249 - 250

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A Chronology of the Development of the Palestinian Legal System

 

[adopted  & adapted from UNSCO’s “Rule of Law Development in the West Bank and Gaza Strip, May 1999”]

 

1517                Palestine is incorporated into the Ottoman Empire

1518- 1839      Ottoman laws and legal systems are put in place in Palestine; Islamic jurisprudence and legal traditions shape legal realities

 

1839                The Tanzimat legal reform movement is initiated by the Ottoman Sultan and  results in the adoption of European-style legal codes

1840           The French model Penal Code is adopted

1871                                Majalla, the Ottoman Civil Code, is adopted, substantively codifying Islamic Shari’a law, principally from the perspective of the Hanafi School of jurisprudence but following the Napoleonic form

1879                                The French model criminal procedure code is adopted

 

1917                                British occupation of Palestine begins as the First World War begins to draw to a close

1918                                British Military administration is established, assuming responsibility for all laws, proclamations and orders; British authorities begin to amend and supersede land laws by proclamation, ordinance and formal amendment

1919                                The First Official Gazette of Palestine is published, under the authority of the “Government of Palestine”, i.e. the British administration

 

1920                                The British military administration is replaced by a civil administration headed by the High Commissioner for Palestine

1922                The League of Nations decides to entrust the mandate of Palestine to Great Britain; the Palestine Order-in-Council provides for the wholesale introduction of British common law and legal structures in most legal areas; contracts remain subject to Majalla whilst personal status remains under the jurisdiction of Muslim, Christian and Jewish courts

1923                The British mandate is formally approved by the League of Nations

1923-1948       The British legal system is superimposed on existing legal structure

 

1948                The State of Israel is declared in the largest portion of the territory; Jordanian administration begins in the West Bank; Egyptian administration begins in the Gaza Strip; three separate and different legal development tracts begin in the three territorial units of historical Palestine

 

1948-1967       In the West Bank: Jordanian administration is put in place; previously existing laws continue to have effect to the extent that they do not conflict with Jordanian defense laws; from 1949 the King of Jordan assumes all powers previously exercised by the King of England and amends several laws; from 1950 the West Bank is united with the East Bank, with Parliamentary representation from both sides; the result is a hybrid system with some laws applying to both banks and with others being applicable only to one side or to the other; a legislative boom brings with it several legal reforms, reducing English legal influence and common-law-form and increasing the degree of influence of Arab legal tradition and continental legal structure

 

1948-1967       In the Gaza Strip: Egyptian administration is put in place; pre-existing substantive laws and legal structures remain largely in force; several administrative, procedural and regulatory reforms are introduced; in 1955 Egypt issues the Basic Law as a new constitution for the Gaza Strip, confirming the applicability of pre-existing laws; in 1962 Egypt issues the Constitutional Order, emphasising Palestinian identity and providing that all laws and court judgments are to be issued in the name of the Palestinian people

 

1967                                Israel occupies  the West Bank  and Gaza Strip, annexing  (without  international recognition) Jerusalem and its surrounding areas; the Palestinian Court of Appeals is evicted from the court house in Jerusalem and the building is taken over by the Israeli District Court; the West Bank court system is cut off from the Cour de Cassation in Amman and that court is abolished, as is the Court of Appeals; Israeli military assumes law making function, and begins to revise the  laws and legal structures in force in the West Bank and Gaza Strip

1967 - 1993     Israel abolishes the independence of the judiciary, putting West Bank and Gazan courts under the authority of the Occupying Power; military tribunals are introduced throughout the territories; over 1400 military orders are introduced in the West Bank and over 1100 in Gaza; virtually every piece of legislation in the Occupied Territories is amended, changed or repealed by military order

 

1993                The Declaration of Principles on Interim Self-Government Arrangements ("Oslo Agreement”) is signed by the PLO and Israel; the Agreement provides for a five-year timetable for negotiations, details the issues to be discussed, establishes a framework for the redeployment of Israeli forces and provides for Palestinian self rule in much of the Gaza Strip and Jericho; it also provides for early empowerment of the Palestinians in the rest of the West Bank and for the election of a Palestinian Legislative Council

 

1994                The Agreement on the Gaza Strip and Jericho Area ("Cairo Agreement") is signed, further detailing interim arrangements; PLO Chairman Yasser Arafat returns to Gaza and establishes the  Palestinian Authority

 

1995                The Israel-PLO Interim Agreement on the West Bank and Gaza Strip ("Oslo II Agreement” or Taba Agreement") is signed, extending limited Palestinian jurisdiction to certain other areas of   the West Bank and dividing the territory into Areas A, B and C with varying levels of limited  autonomy and redeployment; concurrently, all of the West Bank and Gaza Strip remains occupied territory under  international law. Israel retains full control in all areas over final status issues, including  Jerusalem, refugees, borders, foreign relations, settlements, and Israeli nationals in the  West Bank and Gaza Strip

 

1996                Elections are held for the Palestinian Legislative Council and for the position of President of the Palestinian  Authority; the Palestinian Authority, the Palestinian Legislative Council and the Palestinian Judiciary operate in the self-governing areas; a number of Presidential Decrees are issued and the Council begins to adopt new laws; the first of several Palestinian Law Reform Committees is established to review laws on the judiciary; the Palestinian Authority issues plans for the reform of the legal system

 

1997                The Palestinian Authority establishes an inter-ministerial “core group” on the rule of law and institutions, charging that group to plan the development of the legal sector. The core group, working together with established donor fora, issues detailed plans covering the period 1997-1999. Projects are under way in all areas of the sector, preparing the way for the next millennium of Palestinian legal development. The PLC adopts the Draft Basic Law on 2 0ctober, the new Palestinian constitution for the Interim period. Yasser Arafat fails to sign the law, as is required, within 30 days.  As of 1 July 1999 he has still not signed the Draft Basic Law.

 

1998                The Wye River Memorandum is signed by Palestinian President Yasser Arafat, Israeli Prime Minister Netanyahu and US President Clinton and is witnessed by Jordan's King Hussein. The Memorandum, created to facilitate implementation of the stalled Interim Agreement and other related agreements, sets forth specific steps to be taken in three phases of further redeployments and in security measures; it states that the “Palestinian Police will exercise powers and responsibilities to implement this Memorandum with due regard for internationally accepted norms of human rights and the rule of law and will be guided by the need to protect the public, respect human dignity and avoid harassment.”  The PLC adopts the Draft Judicial Law on 25 November, regulating the accountable and independent functioning of the Palestinian judiciary. Yasser Arafat fails to sign the law, as is required, within 30 days. As of 1 July 1999 he has still not signed the Draft Judicial Law.

 

1999                The Draft Basic Law and the Draft Judicial Law are not signed into law by President Arafat. Work begins on establishing draft legislation on a unified system of criminal procedures for the West Bank and Gaza Strip. As of 1 July, draft legislation on the Palestinian Bar Association has yet to be established.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Analysis of the provisions in the 1993, 1995 and 1998

 Israeli-Palestinian Peace Agreements

related to security and criminal jurisdiction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.   Declaration of Principles on Interim Self-Government Arrangements,

13 September 1993

 

 “Article VIII

 

  In order to guarantee public order and internal security for the Palestinians of the West Bank and the Gaza Strip, the Council will establish a strong police force, while Israel will continue to carry the responsibility for overall security of Israelis for the purposes of safeguarding their internal security and public order.” [Emphasis added].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2. Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip,

 28 September 1995

 

Main text of Agreement

 

“CHAPTER 1 – THE COUNCIL

 

ARTICLE VIII, Judicial Review

 

Any person or organisation affected by an act or decision of the Ra’ees of the Executive Authority of the Council or off any member of the Executive Authority, who believes that such an act or decision exceeds the authority of the Ra’ees or of such member, or is otherwise incorrect in law or procedure, may apply to the relevant Palestinian Court of Justice for review of such activity or decision”. [Emphasis added].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“Article IX, Powers and Responsibilities of the Council

 

6. Subject to the provisions of this Agreement, the Council shall, within its jurisdiction, have an independent judicial system composed of independent Palestinian courts and tribunals”. [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“CHAPTER 2 - REDEPLOYMENT AND SECURITY ARRANGEMENTS

 

ARTICLE XII, Arrangements for Security and Public Order

 

1. In order to guarantee  public order  and internal  security for  the Palestinians  of  the West

Bank and the Gaza Strip, the Council shall establish a strong police force as set out in Article XIV below. Israel shall continue to carry the responsibility for defense against external threats … as well as the responsibility for overall security of Israelis … for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility.” [Emphasis added].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ARTICLE XIII

 

Security

 

l. The Council will, upon completion of the redeployment of Israeli military forces in each district, as set out in Appendix 1 to Annex I, assume the powers and responsibilities for internal security and public order in Area A in that district.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ 2.a There will be a  complete  redeployment  of Israeli  military forces  from  Area B. Israel

will transfer to the Council and the Council will assume responsibility for public order for Palestinians. Israel shall have the overriding responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism.” [Emphasis added].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“b. In Area B the Palestinian Police shall assume the responsibility for public order for Palestinians …”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ARTICLE XV

 

Prevention of Hostile Acts

 

1.     Both sides shall take all measures necessary in order to prevent acts of terrorism, crime     

and hostilities directed against each other, against individuals falling under the other's authority and against their property and shall take legal measures against offenders.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“2. Specific provisions for the implementation of this Article are set out in ANNEX I.”

 

 

 

 

 

 

 

 

 

“ANNEX I  Protocol Concerning Redeployment and Security Arrangements

ARTICLE II

Security Policy for the Prevention of Terrorism and Violence

 

1. The Palestinian security policy as defined by the Palestinian Authority on March 1995, for the Gaza Strip and the Jericho Area will also be implemented in the rest of the West Bank in areas which come under Palestinian security responsibility as follows:” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“b. The Palestinian Police will act systematically against all expressions of violence and terror.”[Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“d. The Palestinian Police will arrest and prosecute individuals who are suspected of perpetrating acts of violence and terror.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“2. Both sides will, in accordance with this Agreement, act to ensure the immediate, efficient and effective handling of any incident involving a threat or act of terrorism, violence or incitement, whether committed by Palestinians or Israelis. To this end, they will cooperate in the exchange of information and coordinate policies and activities. Each side shall immediately and effectively respond to the occurrence or anticipated occurrence of an act of terrorism, violence or incitement and shall take all necessary measures to prevent such an occurrence. [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 “3. With a view to implementing the above, each side shall, in accordance with the provisions of this Agreement, carry out the following functions in the areas under its security responsibility:

 

a. protect all residents of, and all other persons present in, these areas;

 

b. actively prevent incitement to violence, including violence against the other side or persons under the authority of the other side;

 

c. apprehend, investigate and prosecute [NB: emphasis added to emphasise cumulative nature of these three actions] perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement;” [Emphasis added]

 

 

Reading:   Firstly, for the purpose of identifying the powers this provision gives to Israel, the notion of “areas under its security responsibility” has to be defined. This phrase is used firstly in Article XII(1) (see above: Israel, if it so chooses in any given case, has criminal jurisdiction over Palestinians in Areas A, B and C who threaten the overall security of Israelis); secondly  in Article XIII(1) (see above: Israel has (concurrent) jurisdiction over Palestinians in Area A suspected by Israel of affecting Israel’s security); and thirdly Article XIII 2(a) (see above:. the Palestinian Authority will have over  security matters affecting Israelis inside and outside of Area B, as long as Israel  does not insist on its jurisdiction concerning such security matters (jurisdiction which Israel has on the basis of its “overriding responsibility”). These three provisions lead to the conclusion that in effect the Palestinian Authority’s “security responsibility” for the purpose of this provision may extend only, in particular if Israel insists on it in a  particular case, to internal Palestinian security issues   If this interpretation is correct then strictly speaking from a legal point of view and despite other provisions in this Agreement to the contrary, the Palestinian Authority has no obligation to take any action whatsoever against Palestinians actually or potentially engaging in terrorist activities against Israel from within Areas A, B and C. In practice however, the way in which these provisions have been drafted and the way in which other contradictory provisions will be pointed to, means that the Palestinian Authority appears to have jurisdiction and will therefore be called upon by the Israelis and the international community to abide by its undertakings to take necessary anti-terrorist action. But it is crucial to retain the fact that he Israeli authorities have drafted these provisions in such a way as to effectively make the Palestinian Authority an extended arm of the Israeli anti-terrorist campaign: at the end of the day it is the Israeli authorities that have jurisdiction and which can consequently, if they so wish, determine the way in which Palestinian suspects in Areas A and B  are dealt with.   Secondly, the logic and consistency of Article II has been turned on its head by the provisions of paragraph 3 a. and b. Concerning paragraph 3.a., the full idea, when combining paragraphs 2 and 3, reads “With a view to implementing the above [i.e. paragraph 2, i.e. the handling of threats and acts of terrorism”] each side will protect all residents in the areas under its security responsibility” [paragraph 3.a.]. This is meaningless. It should be the reverse, that is to say “with a view to protecting … residents…” [paragraph 3a.] each side shall handle threats and acts of terrorism … etc.” [paragraph 2.]. Such confused logic and drafting is to be condemned as it only confuses the issue of which side has which jurisdiction over what activity.                                                                                                                                    Con…     Con… Similar confusion is created by paragraph 3.b., which, when combined with paragraph 2, reads “With a view to implementing the above [i.e. paragraph 2, i.e. the handling of threats and acts of terrorism”] each side shall actively prevent incitement to violence” [paragraph 3.b].   The two elements - firstly effectively dealing with specific threats and acts [i.e. ones that already exist] of terrorism, violence or incitement [paragraph 2] and secondly the prevention of incitement to violence” generally [paragraph 3.b] - have nothing to do with each other. Paragraph 3b has to do with general policy of making incitement to violence illegal. Paragraph 2 is speaking about how to deal with specific events. Again the resulting confusion only reinforces the confusion concerning who has jurisdiction over which activity.   Thirdly, paragraph 3.c, which does make sense when combined with paragraph 2, should be noted for its cumulative nature: in order for the Palestinian Authorities to “effectively … handle” a terrorist threat or act, they must apprehend, investigate and  prosecute perpetrators and all other persons directly or indirectly involved …”. This means that both parties accept that a suspect cannot only be apprehended but must also be investigated and prosecuted. In other words, if not prosecuted (s)he must be released.   Finally, there are also three questions arising from the language of paragraph 3c to which there appears to be no immediate logical answer. Firstly, what is the difference between a “perpetrator”of and “a person directly involved” in an act of terrorism? Secondly, the phrase “indirectly involved” means nothing in legal terms. Does this mean “activities constituting a threat of terrorist action”? Or does it mean “an accomplice to a terrorist action”? If either or both of these or any other specific action then it would be preferable to specify this with a  view to minimising arbitrariness in arrests and detention made by both sides. Thirdly, paragraph 2 spoke of effectively handling threats of terrorism and anticipated occurrences of acts of terrorism. Paragraph 3c speaks of persons directly or indirectly involved in acts of terrorism. Presumably paragraph 3c is to be interpreted as meaning actual acts of terrorism. Is it to be concluded that paragraph 3c does not apply to implementing paragraph 2’s desire to effectively handle threats of terrorism? Surely not. For the sake of clarity, it would have been preferable to be clearer in the drafting of these crucial provisions.   Conclusion:   Concerning the notion of “areas under its security responsibility”, the three provisions referring to this notion lead to the conclusion that in effect the Palestinian Authority’s “security responsibility” may extend only, if Israel insists on its full jurisdictional rights in a  particular case, to internal Palestinian security issues.   Paragraphs 3a and 3b make no sense in their current form and serve to confuse who is under what responsibility to take which type of action against anticipated or actual violent activities   Paragraph 3c commits both sides to prosecuting “terrorist suspects”. If this is not done they must be released.   Paragraph 3c’s language is imprecise in its reference to potential “terrorist suspects”, leading to fears of arbitrariness in arrest and detention. In addition, its ambit is inconsistent with that of paragraph 2.   The overall effect of the drafting of paragraphs 3 a, b and c is one of jurisdictional confusion and confusion relating to the notion of who may be suspected of and prosecuted for which type of activity.

“4. Both sides undertake to deal with the issue of persons who are present in the areas in violation of this Agreement, and to take further measures in accordance with procedures to be determined by the JSC.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ANNEX I, ARTICLE III, Coordination and Cooperation in Mutual Security Matters

1. Joint Security Coordination and Cooperation Committee

 

a. A Joint Coordination and Cooperation Committee for Mutual Security Purposes is hereby established (hereinafter "the JSC"). It will deal with all security matters of mutual concern regarding this Agreement in the West Bank and the Gaza Strip.

 

b. The JSC shall:

(l) recommend security policy guidelines for the approval of the Joint Israeli-Palestinian Liaison Committee and implement such approved guidelines;

(2) deal with security issues raised by either side;

(3) provide the proper channel for exchanging information between the two sides, needed to solve security problems [i.e. sometimes not exchanging information may well help solve security problems];

(4) provide directives for the Joint Regional Security Committees (hereinafter "the RSCs") and for the Joint District Coordination Offices (hereinafter "the DCOs"); and

(5) subject to the provisions of Article XXVI (the Joint Israeli Palestinian Liaison Committee), and Article XXI (Settlement of Differences and Disputes) of this Agreement, deal with alleged violations, as well as differences relating to the application or implementation of the security arrangements set out in this Agreement.

 

2. Regional Security Committees

 

a. Two RSCs are hereby established, one in the West Bank and one in the Gaza Strip.

 

b. Each RSC shall:

(1) guide the relevant DCOs with security policy guidelines;

(2) deal with security issues referred to it by the DCOs;

(3) ensure proper transfer of information and guidelines to the relevant DCOs; and

(4) propose to the JSC security policy guidelines and forward issues to the JSC for determination.

 

c. The Israeli side and the Palestinian side in the RSCs will maintain contact with each other as follows:

(l) regular as well as special meetings shall be held between the commander of the Israeli military forces and the commander of the Palestinian Police in the West Bank or in the Gaza Strip

 

3. District Coordination Offices

 

a. DCOs are hereby established in the West Bank and the Gaza Strip, as set out below.

 

c. Each DCO shall:,

(l) monitor and manage matters requiring coordination as determined by the JSC and/or the relevant RSC, according to the policy and guidelines established by either of them;

(2) monitor and manage all matters of a joint nature within the respective district of the DCO, including the coordination of activities by one side which may affect the other side;

(3) review, investigate and report to the relevant RSC on the overall situation within the DCO's respective district, with special regard to specific events, incidents and activities occurring in the district; and

 

g. With a view to preventing friction and to enabling the two sides to deal with possible incidents, both sides shall ensure that the relevant DCO shall immediately be notified of any of the following events:

(5) a terrorist action of any kind and from any source;

 

h. Each DCO shall notify the relevant Israeli and Palestinian headquarters, as well as the Joint Patrols operating in the relevant district, of the occurrence of any of the events listed in subparagraph g. above.

 

i. The JSC may modify the content of the list of events included in subparagraph g. above.” [Em. ad]

 

 

 

 

“ANNEX I, ARTICLE IV

 

The Palestinian Police

 

1. Duties and Functions

 

As detailed in the Palestinian law, the Palestinian Police shall carry out its duties and functions in accordance with this Agreement as follows:

 

f. combating terrorism and violence, and preventing incitement to violence” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ANNEX I, ARTICLE XI

 

Rules of Conduct in Mutual Security Matters

 

1. Human Rights and the Rule of Law

 

Subject to the provisions of this Agreement, the Palestinian Police and the Israeli military forces shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms of human rights and the rule of law, and shall be guided by the need to protect the public, respect human dignity and avoid harassment.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“3.b. Within the territory under the security responsibility of the Council, in places where Israeli authorities exercise their security functions in accordance with this Annex and in their immediate vicinities, the Israeli authorities may carry out engagement steps in cases where an act or incident requires such action. In such cases, the Israeli authorities will take any measures necessary to bring to an end such an act or incident with a view to transferring, at the earliest opportunity, the continued handling of the incident falling within the Palestinian responsibility to the Palestinian police.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[MAIN TEXT OF AGREEMENT continued]

 

“CHAPTER 3 - LEGAL AFFAIRS

 

ARTICLE XVII

 

Jurisdiction

 

2.b The functional jurisdiction of the Council extends to all powers and responsibilities transferred to the Council, as specified in this Agreement or in any future agreements that may be reached between the parties during the interim period.

 

6. Without derogating from the provisions of this Article, legal arrangements detailed in the Protocol Concerning Legal Matters attached as Annex IV to this Agreement … shall be observed. Israel and the Council may negotiate further legal arrangements.

 

7. Israel and the Council shall cooperate on matters of legal assistance in criminal and civil matters through a legal committee (hereinafter "the Legal Committee"), hereby established.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ARTICLE XVIII

Legislative Powers of the Council

 

1. For the purposes of this Article, legislation shall mean any primary and secondary legislation, including basic laws, laws, regulations and other legislative acts.

 

2. The Council has the power, within its jurisdiction as defined in Article XVII of this Agreement, to adopt legislation.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“4. a. Legislation, including legislation which amends or abrogates existing laws or military orders, which exceeds the jurisdiction of the Council or which is otherwise inconsistent with the provisions of the DOP [Declaration of Principles, 1993], this Agreement, or of any other agreement that may be reached between the two sides during the interim period, shall have no effect and shall be void ab initio.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“5. All legislation shall be communicated to the Israeli side of the Legal Committee.

 

6. Without derogating from the provisions of paragraph 4 above, the Israeli side of the Legal Committee may refer for the attention of the Committee any legislation regarding which Israel considers the provisions of paragraph 4 apply, in order to discuss issues arising from such legislation. The Legal Committee will consider the legislation referred to it at the earliest opportunity.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

“ARTICLE XIX

 

Human Rights and the Rule of Law

 

Israel and the Council shall exercise their powers and responsibilities pursuant to this Agreement with due regard to internationally-accepted norms and principles of human rights and the rule of law.”[Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

“CHAPTER 4 – COOPERATION, ARTICLE XXII

 

Relations between Israel and the Council

 

1. Israel and the Council shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other and, without derogating from the principle of freedom of expression, shall take legal measures to prevent such incitement by any organizations, groups or individuals within their jurisdiction.”[Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ANNEX IV

 

Protocol Concerning Legal Affairs

 

ARTICLE I

 

Criminal Jurisdiction

 

1. a. The criminal jurisdiction of the Council covers all offenses committed by Palestinians and/or non-Israelis in the Territory, subject to the provisions of this Article.

 

For the purposes of this Annex, "Territory" means West Bank territory except for Area C which, except for the Settlements and the military locations, will be gradually transferred to the Palestinian side in accordance with this Agreement, and Gaza Strip territory except for the Settlements and the Military Installation Area.

 

b. In addition, the Council has criminal jurisdiction over Palestinians and their visitors who have committed offenses against Palestinians or their visitors in the West Bank and the Gaza Strip in areas outside the Territory, provided that the offense is not related to Israel's security interests.

 

c. Notwithstanding the provisions of subparagraph a. above, the criminal jurisdiction of each side over offenses committed in Area B shall be in accordance with the provisions of paragraph 2.a of Article XIII of this Agreement.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“2. Israel has sole criminal jurisdiction over the following offenses:

 

a. offenses committed outside the Territory, except for the offenses detailed in subparagraph 1. b above; and

 

b. offenses committed in the Territory by Israelis.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

“3. a. In exercising the criminal jurisdiction of their courts, each side shall have the power, inter alia, to investigate, arrest, bring to trial and punish offenders.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“4. In addition, and without derogating from the territorial jurisdiction of the Council, Israel has the power to arrest and to keep in custody individuals suspected of having committed offenses which fall within Israeli criminal jurisdiction as noted in paragraphs 1.c, 2 and 7 of this Article [continued…],

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“4. [continued…] who are present in the areas under the security responsibility of the Council, where [continued…]: [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“[continued…] b.1. The individual is a non-Israeli suspected of having just committed an offense in a place where Israeli authorities exercise their security functions in accordance with Annex I, and is arrested in the vicinity in which the offense was committed. The arrest shall be with a view to transferring the suspect, together with all evidence, to the Palestinian Police at the earliest opportunity.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“[b].2. In the event that such an individual is suspected of having committed an offense against Israel or Israelis, and there is a need for further legal proceedings with respect to that individual, Israel may retain him or her in custody, and the question of the appropriate forum for prosecuting such a suspect shall be dealt with by the Legal Committee on a case by case basis.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“5. In the case of an offense committed in the areas under the security responsibility of the Council by a non-Israeli against Israel or an Israeli, the Council shall take measures to investigate and prosecute the case, and shall notify Israel of the result of the investigation and any legal proceedings.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“7. a. Without prejudice to the criminal jurisdiction of the Council, and with due regard to the principle that no person can be tried twice for the same offense, Israel has, in addition to the above provisions of this Article, criminal jurisdiction in accordance with its domestic laws over offenses committed in the Territory against Israel or an Israeli.

 

b. In exercising its criminal jurisdiction in accordance with subparagraph a. above, activities of the Israeli military forces related to subparagraph a. above shall be as set out in the Agreement and Annex I thereto.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ANNEX IV, ARTICLE II

Legal Assistance in Criminal Matters

1. General

 

a. Israel and the Council shall cooperate and provide each other with legal assistance in criminal matters. Such cooperation shall include the arrangements detailed in this Article.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

“2. Cooperation in Criminal Matters

 

a. The Israeli Police and the Palestinian Police shall cooperate in the conduct of investigations, subject to detailed arrangements to be agreed upon, such cooperation shall include the exchange of information, records and fingerprints of criminal suspects, vehicle ownership registration records, etc.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“7. Transfer of Suspects and Defendants

 

“a. Where a non-Israeli [i.e. a Palestinian] suspected of, charged with, or convicted of, an offense that falls within Palestinian criminal jurisdiction is present in Israel, the Council may request Israel to arrest and transfer the individual to the Council.

 

b. Where an individual [i.e. Israeli or Palestinian] suspected of, charged with, or convicted of, an offense that falls within Israeli criminal jurisdiction, [as defined above under Article I] is present in the Territory, Israel may request the Council to arrest and transfer the individual to Israel.

 

c. Requests under subparagraph a. and b. above shall specify the grounds for the request and shall be supported by an arrest warrant issued by a competent court.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“d. Where the request is for the transfer of a suspect who is not a Palestinian requested by the Council :

 

1.       the arrest warrant shall only be issued pursuant to an application made by or on behalf of

the Attorney-General, confirming that there is reasonable evidentiary basis that the offense was committed by the suspect;

 

2.       The offense must be punishable by not less that 7 years imprisonment under the law of

the requesting side.”[Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“e. (l) Individuals suspected of offenses punishable by less than 7 years' imprisonment shall be interrogated by the investigating side in a facility of the other side or at an agreed location.

 

(2) Interrogation shall take place in the presence of a police officer of the other side.

 

(3) Upon the request of the investigating side the other side may detain the suspect in custody pending and during questioning. Where the presence of the suspect is required for an objective reason, such as confronting witnesses and identification of sites the suspect shall be transferred for that purpose only.”

 

“f. (1) Both sides, upon receipt of a request in accordance with this Article, shall [emphasis added] effect the arrest and transfer requested.” [amended by Part II, Section C, paragraph 2 of the Wye River Agreement, see below] [Emphasis added].

 

 

 

 

 

“(2) If the individual requested is detained in custody or is serving a prison sentence, the side receiving the request may delay the transfer to the requesting side for the duration of the detention or imprisonment. [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“h. (l) Both sides shall take all necessary measures to ensure that the treatment of the individuals transferred under this article complies with the applicable legal arrangements in Israel and in the Territory and with internationally- accepted norms of human rights regarding criminal investigations”. [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“(2) Suspects transferred under this paragraph shall have the right to be assisted during the investigation period by an advocate of their own choice.”

 

“10. Nothing in this Annex shall derogate from each side's powers and responsibilities as detailed in Annex I.”

 

 

 

 

 

 

 

 

 

3. The Wye River Memorandum, 23 October 1998

 

“II. Security

 

In the provisions on security arrangements of the Interim Agreement, the Palestinian side agreed to take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against the Israeli side… [reference to Article XV, Interim Agreement, see above].

 

Both sides recognise that it is in their vital interests to combat terrorism and fight violence in accord with Annex I of the Interim Agreement and the Note for the Record. [See above] They also recognise that the struggle against terror and violence must be comprehensive in that it deals with terrorists, the terror support structure and the environment conducive to the support of terror. It must be continuous and constant over a long-term, in that there can be no pauses in the work against terrorists and their structure. It must be cooperative in that no effort can be fully effective without Israeli-Palestinian cooperation and the continuous exchange of information, concepts and actions.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“A. Security Actions

 

1. Outlawing and Combating Terrorist Organisations

 

a. The Palestinian side will make known its policy for zero tolerance for terror and violence against both sides.

 

d. The Palestinian side will apprehend the specific individuals suspected of perpetrating acts of violence and terror for the purpose of further investigation, and prosecution and punishment of all persons involved in acts of violence and terror” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 “B. Security Cooperation

 

The two sides agree that their security cooperation will be based on a spirit of partnership and will include, among other things, the following steps:

 

1. Bilateral Cooperation

 

There will be full bilateral cooperation between the two sides which will be continuous, intensive and comprehensive.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

“C. Other Issues

 

2. Legal Assistance in Criminal Matters

 

Among other forms of legal assistance in criminal matters, the requests for arrest and transfer of suspects and defendants pursuant to Article II (7) of Annex IV of the Interim Agreement [see above at page …] will be submitted (or resubmitted) through the mechanism of the Joint Israeli-Palestinian Legal Committee and will be responded to in conformity with Article II (7) (f) of Annex IV of the Interim Agreement within the twelve week period. Requests submitted after the eighth week will be responded to in conformity with Article II (7) (f) within four weeks of their submission. The US has been requested by the sides to report on a regular basis on the steps being taken to respond to the above requests.”

 

4. Human Rights and the Rule of Law

 

Pursuant to Article XI (1) of Annex I of the Interim Agreement, and without derogating from the above, the Palestinian Police will exercise powers and responsibilities to implement this Memorandum with due regard to internationally accepted norms of human rights and the rule of law, and will be guided by the need to protect the public, respect human dignity, and avoid harassment.” [Emphasis added]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of provisions from the 1993, 1995 and 1998 Israeli-Palestinian Peace Agreements related to security and criminal jurisdiction

 

Provision	Consequence for Israeli security jurisdiction	Consequence for PA security jurisdiction
1993, Article VIII	Israel retains “responsibility for overall security” of Israelis’ internal security and public order in Areas A and B.	The PA has jurisdiction over public order and internal security for the Palestinians in Areas A and B.
1995, Article XII, para 1 (and Annex IV, Art. I 1.b)	Israel retains “responsibility” (and the necessary powers) for defending Israelis within Areas A and B and for defending Israel against threats coming from Areas A and B.	In Areas A, B and C the PA has exclusive jurisdiction over non-Israelis in cases related to internal security and Palestinian public order.
Article XIII, para 1	Israel has no internal security and public order jurisdiction over Palestinians and non-Israelis in Area A. Conversely, Israel has jurisdiction over Palestinians in Area A suspected by Israel of threatening or having committed offenses against Israel’s security.	The PA has exclusive internal security and public order jurisdiction over Palestinians and non-Israelis in Area A.
Article XIII, para 2.a and b.	Israel explicitly retains jurisdiction over Palestinians in Area B threatening the security of Israelis in and outside of Area B and threatening Israel (see also Annex IV, Article 1, para 1.c below).	The PA has exclusive internal security and public order jurisdiction over Palestinians and non-Israelis in Area B (see also Annex IV, Article 1.a. below). If Israel does not insist on its security jurisdiction in a given case, the PA has jurisdiction over Palestinians suspected by Israel of constituting a security threat.
Annex I, Article II, para 1		The PA  implements its security policy (defined March 1995) in Gaza, the Jericho Area and in areas coming under its “security responsibility”.
Annex I, Article II, para 1.b		The PA must act systematically against expressions of violence and terror in Gaza, the Jericho Area and in areas coming under its “security responsibility”.
Annex I, Article II, para 1.d.		The PA must arrest and prosecute individuals in Gaza, the Jericho Area and in areas coming under its “security responsibility” who are suspected of perpetrating acts of violence and terror.
1995, Annex I, Article II, para 2	This provision does not help clarify over whom Israel has jurisdiction.	This provision does not help clarify over whom the PA has jurisdiction.

 

 

Provision	Consequence for Israeli security jurisdiction (continued)	Consequence for PA security jurisdiction (continued)
Annex I, Article II, para 3	As far as Israel is concerned, the phrase “security responsibility” may be defined by reference to Article XII, para 1, Article XIII, para 1 and Article XIII, para 2.a. The conclusion of a reference to these Articles is that areas under Israel’s “security responsibility” cover all acts committed by Palestinians within Areas A, B and C threatening Israelis inside or outside these areas or Israel. According to the rest of the provision, this Article gives Israel security jurisdiction to  actively prevent incitement to violence in these areas and to apprehend, investigate and prosecute Palestinian suspects in these areas.	Presumably it is to be deduced from Israel’s security jurisdiction when at its broadest, that the PA’s “security jurisdiction” refers as a minimum to internal security matters. In theory therefore, if Israel insists on its full jurisdictional rights in relation to security issues, this provision strictly speaking only applies to Israel. In practice, however, Israel does not insist on its full rights so long as the PA is cooperating in the manner required by Israel. Consequently the PA’s “security responsibility” may, if permitted by Israel, cover all acts committed by Palestinians within Areas A and B threatening Israelis inside or outside these areas or Israel. This provision therefore gives the PA security jurisdiction to  actively prevent incitement to violence in these areas and to apprehend, investigate and prosecute Palestinian suspects in these areas.
Annex I, Article XI, para 3.b	Israel may carry out “engagement steps in cases where an act or incident requires such an action” in Areas A, B (and C) and “in their vicinity”. If the incident falls within the responsibility of the Palestinian police, the case must be handed over to it “at the earliest opportunity”.	This provision affects the PA’s internal security jurisdiction. Israel may take engagement steps against an individual within Areas A and B who does not in fact pose a threat to Irsaelis’ or Israel’s security. In such a case the PA can demand that the suspect be handed over “at the earliest opportunity”.
Article XVII, para 6	This provision provides that the provisions of Annex IV concerning Legal Matters and Israel’s rights thereunder cannot affect the notion  and nature of the PA’s “functional jurisdiction”. Consequently, Israel’s security jurisdiction (which keeps tight control over the PA’s functional jurisdiction) cannot be affected by an interpretation of Annex IV that would increase the PA’s functional jurisdiction in a way that would diminish Israel’s security jurisdiction.	The notion and nature of the PA’s ‘functional jurisdiction” cannot be affected by the provisions of Annex IV concerning Legal Matters.
Article XVIII, para 4	Israel’s military orders affecting its security jurisdiction in Areas A and B continue to apply.	The PA’s security jurisdiction over Palestinians suspected of threatening Israel’s security is subordinate to Israel’s military orders.
Annex IV, Article I, para 1.a	Israel’s jurisdiction under this provision is defined by the rest of Article I (see paragraphs 1.c; 2; 3; 4; 5 and 7).	The PA is given jurisdiction over ALL offenses committed by Palestinians in Areas A and B, subject to the jurisdiction given to Israel in the rest of Article I (paragraphs 1.c, 2, 3,4,5 and 7).

 

 

 

Provision	Consequence for Israeli criminal jurisdiction	Consequence for PA criminal jurisdiction
Annex IV, Article I, para 1.b and para 2.a	Israel has criminal jurisdiction in Area C over all individuals who are not Palestinians or Palestinian’s visitors and has criminal jurisdiction over all Palestinians and Palestinians’ visitors who commit an offence involving Israel’s security interests.	The PA has jurisdiction over Palestinians and their visitors who have committed offenses not involving Israel’s security interests against Palestinians or their visitors in Area C.
Annex IV, Article I, para 1.c (referring to Article XIII, para 2.a)	Israel has “overriding” (i.e. not absolute) criminal jurisdiction for the purposes of protecting Israelis inside and outside Area B and for the purposes of protecting Israel against the threat of terrorism.	The PA has jurisdiction over offences affecting the public order of Palestinians within Area B. If Israel chooses (on a case by case basis to allow such jurisdiction), the PA also has jurisdiction over offences threatening Israelis inside and outside Area B and offences committed within area B affecting Israeli security.
Annex IV, Article I, para 2.b	Israel has sole jurisdiction over offenses committed in Areas A and B by Israelis.	The PA has no jurisdiction over offenses committed in Areas A and B by Israelis.
Annex  IV, Article I, para 3.a	Israel’s criminal jurisdiction includes the power to investigate and arrest Palestinians in Areas A, B and C and to bring to trial and punish such offenders within Israel.	The PA’s criminal jurisdiction includes the power to investigate and arrest Palestinians in Areas A, B and C and to bring them to trial and punish them within Areas A , B and C.
Annex IV, Article I, para 4 and 4.b.1 read together	Israel “has the power” to arrest and detain non-Israeli individuals whom Israel suspects of having committed offenses in Areas A and B affecting Israeli security, as in accordance with Israeli criminal law, as long as the individual is suspected of having just committed an offense within the areas in which Israel exercises security functions under Annex I (Article II, para 3: acts committed by Palestinians within Areas A, B and C threatening Israelis inside or outside these areas or Israel) and as long as the arrest takes place within the vicinity of where the offence was committed. Subject to paragraph 4.b.2, Israel must then transfer the suspect (though it is not clear why), together with all the evidence, to the Palestinian Police at the earliest opportunity.	Depending on Israel’s approach to a specific case, the PA may have jurisdiction to arrest and detain in custody individuals specified in the box opposite. If Israel effects the arrest and detention itself, then subject to paragraph 4.b.2, the PA can demand that the suspect be transferred to the Palestinian Police at the earliest opportunity.
Annex IV, Article I, para 4.b.2	If there is a “need for further legal proceedings” against the individual mentioned in paragraph 4.b.1, Israel may retain him/her in custody. Israel may only retain jurisdiction over the individual if the Legal Committee so decides.	If there is a “need for further legal proceedings” against the individual mentioned in paragraph 4.b.1, Israel may retain him/her in custody. The PA may only be given jurisdiction over that individual if the Legal Committee so decides.

 

 

 

Provision	Consequence for Israeli criminal jurisdiction (continued)	Consequence for PA criminal jurisdiction (continued)
Annex IV, Article I, para 5	Israel has a right to be informed by the PA about investigations and proceedings initiated by the PA against non-Israelis suspected of having committed an offense against Israel or an Israeli in areas under the security responsibility of the PA. (But see para 7)	The PA must investigate and prosecute non-Israelis “in areas under its security responsibility” suspected of having committed an offense against Israel or an Israeli. It must then notify Israel of the result of such investigations and proceedings. (But see para 7)   (NB: the conclusion reached above was that the notion of PA “security responsibility” relates, (if Israel insists on its full jurisdiction), to offences committed within Areas A and B that affect only internal Palestinian matters).
Annex IV, Article I, para 7.a.	Israel maintains jurisdiction over the individuals specified as falling under PA jurisdiction in para 5!   See also Annex I, Article XI, para 3.b.	Subject to the rule that no person may be tried twice for the same offense, Israel can invoke jurisdiction over the individuals, which under paragraph 5, fall under the jurisdiction of the PA.
Annex IV, Article II, para 1.a and 2	This provision provides that Israel and the PA shall cooperate in criminal matters. Such cooperation includes arrangements detailed in the rest of Article II and further arrangements are to be agreed upon subsequent to the signing of the Agreement. Because any such arrangements will refer to a binding obligation to cooperate they will affect jurisdictional scope. The consequence therefore of Article II’s non-exhaustive nature  is that it is difficult to determine the extent to which Israel has jurisdiction.	This provision provides that Israel and the PA shall cooperate in criminal matters. Such cooperation includes arrangements detailed in the rest of Article II and further arrangements are to be agreed upon subsequent to the signing of the Agreement. Because any such arrangements will refer to a binding obligation to cooperate they will affect jurisdictional scope. The consequence therefore of Article II’s non-exhaustive nature  is that it is difficult to determine the extent to which Israel has jurisdiction.
Annex IV, Article II, para 7.a * ®	Israel must respond positively to the PA’s request (in the box opposite) within a maximum of 12 weeks.   *and para 7.f (and its confirmation in the Note for the Record of 15 January 1997  and its amendment by Part II, Section C, para 2 of Wye River)	The PA may request Israel (through an arrest warrant and a document specifying the grounds for arrest) to arrest and transfer a non-Israeli, present in Israel, who is suspected by the PA of having committed an offense falling within Palestinian criminal jurisdiction. (Palestinian criminal  jurisdiction, we have seen, includes firstly, offences committed against non-Israelis within Areas A, B and C (Article I, para 1.a and 1.b/2.a); secondly, non-Israelis committing acts from within Area A against Israel (Article I, para 1.a); and thirdly the PA has residual jurisdiction over non-Israelis committing acts from within Area B against Israel (Article I, para 1.c)).

 

Provision	Consequence for Israeli criminal jurisdiction (continued)	Consequence for PA criminal jurisdiction (continued)
Annex IV, Article II, para 7.b and c and f   *and para 7.f (and its confirmation in the Note for the Record of 15 January 1997 and its amendment by Part II, Section C, para 2 of Wye River)	Israel may request (through an arrest warrant and a document specifying the grounds for arrest) the PA to arrest and transfer an Israeli or Palestinian suspect, present in Areas A and B, who is suspected by Israel of having committed an offense falling within Israeli criminal jurisdiction. (Israeli criminal jurisdiction, we have seen, includes firstly, exclusive jurisdiction over Palestinians in Area C who commit an offence (in or outside Area C) involving Israel’s security interests (Annex IV, Article I, paras 1.b and 2.a); and secondly, “overriding” criminal jurisdiction within Area B over offences threatening Israelis inside and outside Area B and over terrorist offences  committed against Israel by persons inside Area B during or after the offense was committed (Annex IV, Article I, para 1.c/Article XIII, para 2.a.). In addition according to Article XII, para 1, Israel has “responsibility” and the necessary powers to enforce this responsibility for defending Israelis within and outside Area A and for defending Israelis from threats coming from with Area A.	* The PA must respond positively to Israel’s request (in the box opposite) within a maximum of 12 weeks.
Annex IV, Article II, para 7.d. 1 and 2	Concerning Israel, this provision refers to Israeli requests for the transfer of Palestinians falling within Israel’s criminal jurisdiction and provides that in relation to such individuals suspected of having committed offences with a minimum penalty of 7 years imprisonment, Israel’s Attorney General must have requested the arrest warrant which must “confirm” that there is a “reasonable evidentiary basis” against the suspect.	Concerning the PA, this provision refers to PA requests for the transfer of Palestinian’s visitors falling within the PA’s criminal jurisdiction and provides that in relation to such individuals suspected of having committed offences with a minimum penalty of 7 years imprisonment, the PA’s Attorney General must have requested the arrest warrant which must “confirm” that there is a “reasonable evidentiary basis” against the suspect.

 

Provision	Consequence for Israeli criminal jurisdiction (continued)	Consequence for PA criminal jurisdiction (continued)
Annex IV, Article II, para f.2	The philosophy behind this provision has probably mutated since its original inclusion. Since Wye, it’s post-Oslo use has been politically sanctioned by Israel, on the basis of the political sensitivity involved in the transfer of Palestinian suspects. It gives the Israeli side the same power as described in the  box opposite vis a vis the Palestinian side. It is essentially invoked by the PA.	This provision allows the PA to “delay the transfer” of the suspect requested by Israel for the duration of “the detention” of that suspect in PA prisons if that suspect “is detained in [PA] custody” (presumably at the time the request is made). This is the legal basis upon which the PA  is holding the prisoners in whose favour the Palestinian High Court is issuing release orders. They are suspects wanted by Israel who, for political reasons, are not being transferred. Their release is impossible in the seems that either the PA detains them or they must be transferred to Israel. Any release of a suspect by the PA [which would violate the provisions of this Article] would first have to be secretly agreed to by Israel.
Annex IV, Article II, para h.1	All procedure relating to suspects transferred by Israel according to this Article must respect applicable Israeli law, Palestinian law and “internationally-accepted norms of human rights regarding criminal investigations”.	All procedure relating to suspects transferred by the PA according to this Article must respect applicable Israeli law, Palestinian law and “internationally-accepted norms of human rights regarding criminal investigations”.
1998, Section II, A.1.d		The PA must apprehend, investigate and prosecute individuals suspected [presumably by Israel] of committing terrorist acts against Israel. This provision does not make reference in which areas the PA must do so. Given that as we have seen Israel has full criminal jurisdiction over all PA Areas for the purposes of apprehending terrorist suspects, this provision appears to reiterate the residual criminal jurisdiction which the PA has over such suspects in Areas A, B and C.
1998, Section II, C. 4.		The PA is under an obligation, when implementing the 1998 Agreement, to respect internationally accepted norms of human rights and the rule of law. This however is subject to the proviso that such norms and the rule of law may only be applied if their application do not derogate from the 1998 Memorandum!

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summaries of Israeli and Palestinian security and criminal jurisdiction

under the 1993, 1995 and 1998 Peace Agreements

 

Summary of Israel’s Security Jurisdiction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

        Summary of the Palestinian Authority’s Security Jurisdiction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    Summary of Israel’s Criminal Jurisdiction (as it affects Palestinians)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summary of the Palestinian Authority’s Criminal Jurisdiction

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Palestinian Authority Criminal Jurisdiction continued

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                

 

 

 

 

Summary of aspects of Criminal Procedure applicable in Gaza

 

 

 

 

 

 

 

 

 

 

 

 

Ø         British law does not give the detainee an explicit right to be visited by his defense counsel whenever he or his lawyer asks for such a visit to take place.

 

See Article 54 of 1998 Prison Laws.  Article 6 of 1962 Gaza Constitution. Articles 14 and 16 Draft Basic Law. [See also Articles 49 and 50 of 1979 PLO Code].

 

Ø         British law does not give an explicit right to the detainee to have a defense lawyer present during the primary investigations by the police or prosecutor.

 

See Article 54 of 1998 Prison Laws. Article 6 of 1962 Gaza Constitution. Articles 12 and 14 Draft Basic Law. [See also Articles 49 and 50 of 1979 PLO Code].

 

Ø         If the accused is unable to hire a lawyer then he is “entitled” to have a lawyer appointed to deal with his defense.

 

Section 3, Poor Prisoners Defense Ordinance, 1926*

 

Ø         If a magistrate decides that the accused should be tried by the Court of Criminal Assize and that the accused faces a difficult defense and that he does not have sufficient money to pay for his own lawyer, the magistrate must send a letter to the Chief Justice requesting that the accused be given a lawyer.

 

Section 3, Poor Prisoners’ Defense Rules, 1926*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ø    The Attorney General is the highest authority in the Gazan Criminal Justice Process. He prosecutes all criminal cases.

Section 242, 1940 Magistrates Courts Procedure Rules*

 

Ø    Only the Attorney General may initiate a criminal case (if he has “reasonable and probable cause” to do so). Section 242, 1940 Magistrates Courts Procedure Rules*

 

Ø    Only the Attorney General may terminate a criminal case. Article IV, Ordinance Concerning the Competence of the Public Prosecutor, No. 473 of 1956**

 

Ø    However, the Attorney General may delegate his authority to whomever he chooses (including members of his staff and police officials).

Section 242, 1940 Magistrates Courts Procedure Rules*

 

Ø    The police may initiate an investigation upon receipt of information concerning a  crime.  Section 242, 1940 Magistrates Courts Procedure Rules*

 

Ø    The police must fulfil one of a number of conditions before arresting without a warrant. (These include being ordered to do so by magistrate, having reasonable grounds for believing the suspect to have committed a felony, knowing that the suspect commits in his presence/has recently committed an offence punishable for period exceeding six months, being obstructed by the suspect in his execution of duty, finding the suspect in suspicious circumstances.) Sections 3(1) and 4(1), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    Arrest warrants must be issued by a Magistrate.

Section 6, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    Any person arrested without an arrest warrant shall be taken either “forthwith” before a Magistrate or to the nearest police station where, if the officer in charge determines the arrest to have been legally executed, the suspect may be taken into custody. Sections 7, 8 and 9, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    After a Magistrate has issued a search warrant, the police have the authority to enter any premises and conduct a search. Section 16, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    Only in certain cases (“Caught in the Very Act Cases”), the police have authority to enter any premises and conduct a search without a warrant.  

Section 18, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    If, in the opinion of a subsequent court, a police officer did not make the arrest of the detainee in “good faith” and if the arrest of the detainee cannot be justified through the “interests of public security”, the police officer incurs liability.

Section 25, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

 

 

 

 

 

 

 

 

Ø    The police officer executing a warrant of arrest shall “without unnecessary delay” bring the person arrested before the court before which he is required by law to produce such person. Section 257, 1940 Magistrates Courts Procedure Rules*

 

Ø    If the accused is detained or arrested with or without a warrant, he must be brought before the Magistrate within forty-eight hours of arrest.

Section 10(1), Criminal Procedure (Arrest and Searches) Ordinance, 1924**. 

Section 257, 1940 Magistrates Courts Procedure Rules*

 

Ø    The only exception to this rule is if the magistrate is sick or absent. In such a case, detention may be extended for another forty-eight hours.

Section 10(4), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    Otherwise the accused must be released immediately.

Section 10(4), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    If the Magistrate finds reason supporting continued detention, the detention may be extended for fifteen days.

Section 10(3), Criminal Procedure (A & S) Ordinance, 1924**

 

Ø    If the Magistrate finds no reason for the extension of the detention or for the continued arrest, the Magistrate shall release the detainee.

Section 10(3), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    The Magistrate may authorise a second fifteen-day extension.  

Section 10(3a), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    After the second fifteen-day period has expired, the Attorney General must apply in writing for any subsequent extension. [The law does not provide for a limit on such a subsequent extension].

Section 10(3a), Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    A Magistrates Court may adjourn its hearing of a case more than once but no adjournment shall exceed the period of fifteen days.

Section 266, 1940 Magistrates Courts Procedure Rules*

 

Ø    Unless there is clear evidence of the detainee being ill and therefore not able to attend the hearing, a Magistrate cannot make an order for the detention of the detainee if that detainee is not present to hear such an order being made.

Section 10A, Criminal Procedure (Arrest and Searches) Ordinance, 1924**

 

Ø    At any time during the detention period, the unaccused detainee may apply for release on bail. Section 5, Release on Bail Ordinance, 1944**

 

Ø    The bail hearing must be made in the presence of the detainee.

Section 9, Release on Bail Ordinance, 1944**

 

 

 

 

 

 

 

Ø    The detainee has a right to be seen by a doctor at the beginning of his detention.

     Article 13, Prisons Law 1998.

 

Ø    Evidence of confession by the accused is only admissible when the prosecution has given evidence of the circumstances in which it was made and if the court is (thereafter) satisfied that it was made voluntarily.

Section 9, Law of Evidence Ordinance, 1924*; Article 165 of 1979 PLO Code.

 

 

 

 

 

 

 

 

  

 

 

 

 

Ø    Magistrates have criminal jurisdiction in offences which are contraventions or misdemeanours, these being defined as offences for which the maximum length of imprisonment is one or two years (respectively).

Section 3(1), Magistrates’ Courts Jurisdiction Ordinance, No.45 of 1947*

 

Ø    The procedures that must be followed by Magistrates Courts are to be found in Sections 268 – 280, 1940 Magistrates Courts Procedure Rules**

 

Ø    A Magistrate's sentencing decision may be appealed to the District.

Section 12(1), Magistrates’ Courts Jurisdiction Ordinance, No.45 of 1947*

 

Ø    The District Court has jurisdiction by virtue of Section 4(1), Criminal Procedure (Trial Upon Information) Ordinance, 1924. [Not published in the Laws of Palestine Collection.]

 

Ø    This appeal to the District Court must be done within thirty days from the day of sentencing by the Magistrate or within 30 days of notification of the sentence to the detainee if this sentence was handed down in his absence.

Section 16(1), Magistrates’ Courts Jurisdiction Ordinance, No.45 of 1947*

 

Ø    Furthermore, the decision of the appellate District Court may be appealed before the “Supreme Court sitting as Court of Appeal” if permission is granted from the District Court. Section 14,  Magistrates’ Courts Jurisdiction Ordinance, No.45 of 1947*

 

Ø  Where a charge is made against a Government official in respect of an act carried out relative to that official’s functions, the Magistrate must refer the complaint to the Attorney General. The Magistrate may then only proceed upon further instructions form the Attorney General.

Section 18, Magistrates’ Courts Jurisdiction Ordinance, No.45 of 1947*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ø    The court having jurisdiction (as a second instance court) in all criminal cases shall be the court of Criminal Assize or the District Court of the District within which the charged criminal act was committed. Section 4(1)*

 

Ø    If the crime is a felony, however, the Magistrate will look into the case as  'Investigatory Magistrate' (and not as a 'Judicial Magistrate, a role reserved only for contraventions and misdemeanour cases) before the case is dealt with by the Court of Criminal Assize or the District Court (13). This is done to decide whether there is enough evidence for the purposes of committing the detainee to trial before the District Court (18).

      Sections 13 and 18*

 

Ø    Except for rare specified circumstances, no such hearing before an Investigatory Magistrate shall be held in the absence of the accused. Section 26*

 

Ø    For procedures before the Investigatory Magistrate, see Sections 15, 16, 17 and 18*

 

Ø    The defendant cannot be sentenced or convicted by the Investigatory Magistrate. The Investigatory Magistrate must either dismiss the charge or refer the accused to trial before the District Court or the Court of Criminal Assize. Section 18*

 

Ø    If the Magistrate decides that there is enough evidence and therefore commits the accused to trial, he must forward a set of specified documents to the District Court/Court of Criminal Assize. Section 23*

 

Ø    In addition, before the accused can be put on trial before the District Court/ Court of Criminal Assize, information pertaining to his case must be filed by the Attorney General before the trial court. This information must include, amongst other things, a description of the offence with which the accused is charged and details of the law under which the accused has been charged. Section 28 (1) and (2)*

 

Ø    For procedures before the District Court/Court of Assize see Sections 33 – 52*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ø     The court having jurisdiction (as a second instance court) in all criminal cases shall be the court of Criminal Assize or the District Court of the District within which the charged criminal act was committed. Section 4(1)*

 

Ø    The procedure before the District Court/Court of Assize are set out in Sections 33 – 52*

 

Ø    A person convicted of a criminal offence by the District Court/Court of Criminal Assize and sentenced to a term of imprisonment exceeding one year may, if he has legitimate grounds for appeal (65), file an appeal against the court's decision to the Court of Appeal (63). Sections 63 and 65*

 

 

 

 

 

 

 

 

 

Ø    The rights of the Court of Appeal in hearing an appeal are set out in Section 72*

 

Ø    Procedures of the Court of Appeal: see below under point 9,“section 49”.

 

 

 

 

 

 

 

 

Ø    Magistrate Courts are established under section 39*.

 

Ø    District Courts, the Court of First Instance, are established under section 40*. They deal with all criminal matters not within the jurisdiction of the Court of Criminal Assize.

 

Ø     The Court of Criminal Assize has exclusive jurisdiction with regard to offences punishable by death and has jurisdiction over other offences prescribed by Ordinances. Section 41*

 

Ø    The Supreme Court is established under section 43*. It sits as a Court of Appeal. Subject to any other Ordinances it ha jurisdiction to hear all appeals from all judgments given by District Court or by the Court of Criminal Assize.

 

Ø    “The Supreme Court, sitting as High Court of Justice shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other court and necessary to be decided for the administration of justice”. Section 43, second paragraph*

 

Ø    Practice and procedure of the High Court is “made” by the Chief Justice with the approval of the High Court. Section 49*

 

 

 

 

 

 

 

 

 

 

Ø       “Any person who, being employed in the public service: - … does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another … is guilty of a misdemeanour and is liable to imprisonment for two years.”

Section 112(1)(a)*

 

Ø       “A prosecution for [an offence under Article 112(1)(a)] shall not be instituted except by or with the consent of the Attorney-General”.  Section 112(2)*

 

Ø      “Any person who, being authorised or required by law to give a certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular, is guilty of a misdemeanour.” Section 113*

 

Ø      “Every person who wilfully disobeys any law by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, is guilty of a misdemeanour and is liable, unless it appears from the law that it was the intention to provide some other penalty for such disobedience, to imprisonment for two years …” Section 142*

 

Ø      “Every person who disobeys any order, warrant or command duly made, issued or given by any court, officer or person acting in any public capacity and duly authorised in that behalf, is guilty of a misdemeanour and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years”.  Section 143*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Summary of aspects of Criminal Procedure

 applicable in the West Bank under the 1961 Jordanian Penal Code

 

 

 

 

 

Ø        Any official aware of the fact that an offence or crime has been committed shall immediately inform the General Prosecutor of this fact and shall send all related information and documents to him.   Article 25.

 

Ø        The General Prosecutor shall receive information and complaints referred to him.  Article 20.

 

Ø        If the General Prosecutor receives a complaint, he shall conduct an investigation into the complaint.  Article 53.

 

Ø        When the General Prosecutor with jurisdiction has received a complaint and the evidence contained within that complaint appears to be insufficient for the purposes of being sure of suspected offender’s identity, the General Prosecutor shall organise an investigation in order to establish the identity of the offender.  Article 61.

 

 

 

 

 

 

 

 

 

Ø      The suspect has the right to retain legal counsel: when the suspect has been brought before the General Prosecutor after the procedures described below have been followed, the General Prosecutor must advise him that he has the right to remain silent until his lawyer is present.  The fact that this advice has been given must be recorded in writing.   Article 63(1).

 

Ø      If the suspect’s lawyer does not arrive within 24 hours of the arrest, the General Prosecutor may initiate the investigation without the accused’s lawyer being present.   Article 63(1).

 

Ø      There is an exception to the aforementioned provisions: if there is a fear that a delay in proceeding with the investigation would lead to the losing of evidence, the investigation may take place without the accused’s lawyer being present.  Article 63(2).  [It is clear, however, that Article 63(1) applies even if Article 63(2) is invoked: the suspect must be allowed to contact his lawyer and the lawyer may have access to the suspect at any time after the investigation has begun.]

 

Ø      If questioning begins without the suspect’s lawyer being present and if the lawyer only arrives after the investigation has been concluded, the lawyer has a right to have access to the investigation file.  Article 63(2).

 

Ø      Whilst the law provides that the General Prosecutor has the right to prevent outside contact with the suspect for a renewable period of 15 days – Article 66(1) – this rule does not apply to the accused’s lawyer (Article 66(2)).

 

Ø      Unless the General Prosecutor decides otherwise, the accused’s lawyer has the right to make confidential contact with the accused at any time.  Article 66(2).

 

 

 

 

 

Ø      Any arrest may only be made pursuant to an order issued by the authorities with due jurisdiction. Article 103

 

Ø      Providing that there is sufficient evidence against him or her, any official of the judicial police may order a suspect’s arrest  if

 

§         (s)he has been caught in the act of committing an offense carrying a maximum punishment of six months; or

 

if there is suspicion that (s)he has, at some time in the past, committed one of the following offenses:

 

§         a crime;

§         a crime constituting an offense punishable by imprisonment (and the suspect has already been under police observation or (s)he does not have a known address);

§         offenses involving theft, serious violence, violently resisting government officials, dealing in prostitution or the offending of public morals.  Article 99.

 

Ø      As soon as the suspect has been arrested, (s)he must immediately be listened to by a police official. If that police official decides not to release the suspect, the police official must transfer the suspect to the General Prosecutor within 48 hours.  Article 100.

 

 

 

 

 

 

Ø      Pursuant to a summons and in “penal cases”, [this is unclear and undefined] the General Prosecutor can decide to call the suspect in for questioning.  Article 111(1).

 

Ø      If the suspect has been brought in pursuant to a summons, the General Prosecutor must question the suspect immediately.  Article 112(1).

 

Ø      If the suspect has been brought in pursuant to a “detention order”, the General Prosecutor must question the suspect within 24 hours.  Articles 112(1) and 112(2).

 

Ø      If the suspect has been brought in pursuant to a detention order and has remained in detention for more than 24 hours without being questioned and without being brought before the General Prosecutor, his detention is to be considered as “unjust” and the official responsible shall be prosecuted.  Article 113. [The official’s punishment is provided for under Article 178 of the 1960 Penal Law. ]

 

Ø      If the suspect is resident in the [Palestinian Territories] [“Jordan” in the original], if the maximum punishment for the offense of which the suspect has been suspected is one year’s imprisonment and if the suspect has not previously been convicted of an offense carrying a minimum penalty of three months, the General Prosecutor may release the suspect after five days of interrogation.  Article 121(2). [This provision appears to make little sense in itself and no sense whatsoever when placed side by side with the other provisions mentioned here].  

 

 

 

 

 

 

 

 

 

 

 

 

 

      (a)  Summons

 

Ø      If a suspect has been brought in pursuant to a summons, the General Prosecutor may only replace the original summons with a detention order if the interrogation “so requires”. Article 111(1)

 

(b)  Overall procedures applicable to all cases

 

Ø      Providing that the offense of which the suspect is suspected carries a term of imprisonment,  the General Prosecutor may issue a detention order, once he has questioned the suspect, that applies for a maximum period of 15 days. “If necessary” these 15 days may be extended for a further maximum period of 15 days.   Article 114(1)

 

Ø      Providing that the suspect informs the General Prosecutor’s office of his place of residence, the General Prosecutor may decide to annul the detention order at any point during the interrogation procedure. Article 114(2)

 

Ø      The General Prosecutor must issue, sign and stamp all summons and all detention orders. These documents must contain the name of the suspect, a description of the suspect (as far as is possible) and the nature of the charge.  Article 115

 

Ø      If the General Prosecutor issues a detention order, he must ensure that the order clarifies the charge, the legal provision upon which the charge is based and the period of time for which the detention order applies.   Article 116

 

Ø      The suspect must be given a copy of the summons and of each detention order issued against him.  Article 117

 

Ø       If the situation “so requires”, the General Prosecutor may decide to release any detained person charged with a penal offence. Article 121(1)

 

(c)  Procedures between the General Prosecutor and the Attorney General

 

Ø       If during questioning, the General Prosecutor establishes that there is no evidence that the suspect committed the crime of which (s)he has been accused, the General Prosecutor must decide not to commit the suspect to trial. Article 130(a)

 

Ø       If the Attorney General establishes that the General Prosecutor’s decision (not to commit the suspect for trial) is justified, he approves the decision within three days of receiving the file and orders the release of the suspect. But if he decides that further interrogation is necessary, he must order the file to be returned to the General Prosecutor so that the General Prosecutor continues his inquiries. Article 130(b) [What is the difference between the hypothesis in the second sentence and that in Article 133(3), below?]

 

Ø       If the Attorney General establishes that the General Prosecutor’s decision (not to commit the suspect for trial) is not justified, he may reverse the decision and proceed with the case as follows: if the act constitutes “a crime and it is penal” he must charge the suspect; whereas if the act constitutes an “offence” he must bring the suspect before a court of law and must return the file to the General Prosecutor. The General Prosecutor must then present the file to the court with due jurisdiction. Article 130(c) [What is the difference between this hypothesis and that in Article 133(2), below?]

 

Ø       If the General Prosecutor establishes that the act committed by the suspect does not constitute a  “crime ”, he must refer the suspect to the court with due jurisdiction and must order his release. He does this unless the suspect is to be arrested for a different  “reason”.  Article 131

 

Ø       If the General Prosecutor decides that the act committed by the suspect does constitute a “crime”, he must “suspect” [i.e. charge?] him and must refer the file to the court with due jurisdiction in order for the suspect to be tried. Article 132

 

Ø       If the General Prosecutor establishes that the act which the suspect is suspected of having committed does constitute a “ crime ” but that the evidence against him is not sufficient, he shall decide to “suspect him” of that crime and must send him for trial before a court with due jurisdiction and must send the file to Attorney General.  Article 133(1)

 

Ø       If the Attorney General finds that the General Prosecutor’s decision to suspect the individual is justified, he must also suspect the individual of the crime and must refer the file back to the General Prosecutor. The General Prosecutor must then present it to the court with due jurisdiction. Article 133(2) [What is the difference between this hypothesis and that in Article 130(c), above?]

 

Ø       If the Attorney General decides that there is a need for further investigations, he refers the case to the General Prosecutor for this purpose. Article 133(3) [What is the difference between this hypothesis and that at the end of Article 130(b), above?]

 

Ø       If the Attorney General decides that the act does not constitute a crime [see Article 131] or that there is no or not enough evidence against the suspect [see Article 133(1)], he “prevents the suspect from being tried”. Article 133(4) [Contrast the provisions of Articles 131 and 133(1). ]

 

Ø       If the Attorney General decides that the act does not constitute a “crime”, but that it does constitute an “offence”, he decides to annul the General Prosecutor’s classification of the act and officially suspects the detainee of the “offense”. He must then return the file to the General Prosecutor, who in turn must presents it to the court with due jurisdiction. Article 133(5)

 

Ø       In all the above cases, the detention order issued against the suspect remains valid until the Attorney General decides on his case. [Presumably this must be done within the time delay provided for in the detention order]. If his decision is to charge the suspect with the offense “or” to send him for trial, the detention order “remains valid” [i.e. is automatically extended] until his trial is completed or until the date of his release. Article 134

 

Ø       In the case of “crimes”, the Attorney General or one of his assistants carries out the prosecution process against the suspect identified in the charge sheet and can only accuse the suspect of the charges mentioned in the charge sheet. Article 202

 

Ø       As soon as the General Prosecutor receives the Attorney General’s decision to charge the suspect, the General Prosecutor must assess the list of charges, must inform the suspect of the details of the charges and must send the file to court. He must then ensure that shall all procedures are followed in order to ensure that the court hearing takes place on its assigned date. Article 203

(d)  General provisions

 

Ø      A detained suspect has the right at all times to present a written or oral complaint to a prison official and to ask that prison official to transfer the complaint to the General Prosecution. The prison official must accept the complaint, must record the complaint in the prison’s records and must transfer it immediately to the General Prosecutor.  Article 107

 

Ø      When at any point during his detention a suspect who has been “accused”  makes a testimony, it must be recorded in writing by the clerk who must read it back to the suspect. The suspect must then sign it or print his thumbprint on the testimony. The General Prosecutor and clerk must then “approve” this signed/thumb-printed testimony.  Article 63(3).

 

Ø       Decisions taken by the Attorney General and by the General Prosecutor must include, amongst other things, the name of the person making the complaint and the name of the suspect. Article 135

 

Ø      If the suspect has not been brought to trial because of a lack of evidence and subsequently new evidence comes to light supporting the charge, the General Prosecutor must begin a new investigation for which must be supported by a new detention order. Article 138

 

 

 

 

 

 

 

 

 

 

 

Ø       When the General Prosecutor has interrogated the suspect within 24 hours of the suspect having been brought to him, he shall either decide to detain or release the suspect.  Article 100

 

Ø      It is prohibited to arrest or imprison any person without an order [having been issued] by the authorities with due jurisdiction. Article 103

 

Ø       No person shall be imprisoned other than in the appropriate prison and no prison official shall accept any person unless pursuant to an approved order from the authority with jurisdiction [.] He shall not detain [such person] beyond the specified period in the order. Article 105

 

Ø       The Head of the General Prosecution and the General Prosecutor and Heads of Courts of First Instance and Courts of Appeals must inspect General Prisons at least once a month. Through inspecting the prison’s records and detention orders, they must ensure that no person is detained illegally. They must seek to contact imprisoned or detained persons and must listen to their complaints. Prison Directors must assist them in obtaining any information that they request. Article 106(1) and (2)

 

Ø      Any person aware of the fact that person is being illegally detained or of a person detained in an inappropriate place of detention must inform any member of the General Prosecutor’s department of this fact. The General Prosecutor’s department must then visit the detainee, carry out an investigation, order the detainee’s release and shall make a written record of this occurrence. Article 108(1)

 

 

 

 

Ø      If the person with the knowledge of the illegal detention of the detainee or if General Prosecutor fails to comply with the previous obligation (mentioned in Article 108(1)), that person or the General Prosecutor shall be considered to be accomplices in the offense of illegally detaining a person. They shall be prosecuted for being such an accomplice.  Article 108(2)

 

Ø       The General Prosecutor immediately questions a suspect brought in pursuant to a summons. If the suspect has been brought in pursuant to a detention order, the General Prosecutor shall question him within 24 hours. Article 112(1)

 

Ø       When the initial 24 hours have expired, a prison official must take the suspect to the General Prosecutor for questioning. Article 112(2)

 

Ø       If the suspect has been brought in pursuant to a detention order and has remained in the detention centre for more than 24 hours without being questioned and without having been brought before the General Prosecutor, his detention shall be deemed to be illegal. The official responsible for the “crime of arresting the personal freedom” will be prosecuted according to the Law of Punishments [see Article 178, 1960]. Article 113

 

Ø       Having questioned the suspect, the General Prosecutor may issue a detention “warrant”  not exceeding 15 days, providing that the crime of which the detainee is suspected is punishable by a period of imprisonment. If necessary, this period may be extended for a further 15 days. Article 114(1)

 

 

 

 

 

 

 

See the provisions from the 1960 Jordanian Penal Law, Annex V.

 

 

 

 

 

 

Provisions of the 1961 Jordanian Penal Code

relevant to Arrest and Detention Procedures

 

[translated from Arabic]

 

 

Article 2(1)

 

The General Prosecutor has jurisdiction to initiate claims concerning the public interest.  No other party shall have such jurisdiction unless [otherwise] provided for in this law

 

Article 2(2)

 

The General Prosecutor is obliged to initiate [such a claim] if the person suffering prejudice has himself lodged the complaint according to the provisions of this law.

 

Article 2(3)

 

[The claim referred to in this Article] may only be discontinued … under the circumstances clarified under the present law.

Article 4

 

Any person who has a complaint made against him which concerns the public interest shall be referred to as the “complainee”. He shall be referred to as “the accused” if he has been accused of [committing] an offence.

 

Article 7

 

Employees of the penal justice system are responsible for investigating crimes, collecting evidence, arresting offenders and bringing them before the courts with due punitive jurisdiction.

 

Article 8

 

Duties within the penal justice system are executed according to specific legal provisions by the General Prosecutor, by his assistants and, in Districts without General Prosecutors, by Magistrates.

 

Article 9 (1)

 

The following may help the General Prosecutor to exercise the duties of the judicial police:

 

District Governor

Directors of Regions

Director of General Security

Police Directors

Police Officials

Government Employees with delegated powers for the purpose of investigation

Prisons Directors …

 

Article 9(2)

 

The above-mentioned government officials shall execute their responsibilities within the limits of the law.

 

 

The General Prosecution

Article 11(1)

 

Individuals representing the General Prosecution are judges who exercise their jurisdiction as conferred upon them by law [.] They are bound by rules of the hierarchy of the authority [.] They are to be administratively associated with the Ministry of Justice.

 

Article 11(2)

 

Officials of the General Prosecution are committed [“] in all their written dealings [”] to implement written orders issued to them by their superiors or bythe Minister of Justice

 

Duties of the General Prosecutor

Article 15(1)

 

The General Prosecutor is Head of the Judicial Police in his area. All employees of the judicial police come under his authority.

 

Article 16(1)

 

The General Prosecutor ensures the application of justice in his area and supervises prisons and detention centres as well as the implementation of laws [.]  He represents the Executive Authority before the courts and before judicial circuits. He may contact the concerned authorities directly.

 

Article 20

 

The General Prosecutor shall receive information and complaints referred to him.

 

Article 22

 

If officials of the Judicial Police are reluctant in carrying out duties within their jurisdiction, the General Prosecutor must warn them. He may [“] propose [”] to such officials that certain disciplinary measures be taken.

Article 25

 

Any official authority or employee who is aware of an offence or a crime, must immediately  inform the General Prosecutor and send all the information and related documents to him.

 

Investigation: 1. Complaints

 

Article 53

 

When a complaint within his jurisdiction has been presented to the General Prosecutor, he shall conduct an investigation.

Article 60

 

When a complaint falling outside his jurisdiction has been presented to the General Prosecutor, he must refer it to a General Prosecutor with due jurisdiction.

 

Article 61

 

If the complaint is not [“] very clear [”] and the proof included [therein] is not sufficient, the General Prosecutor shall organise an investigation in order to establish the identity of the offender. In order to achieve this and subject to the provisions of Article 68, he may [interview] any person or persons mentioned in the complaint.

Article 63(1)

 

When the accused is brought before the General Prosecutor, the latter shall verify the identity of the former and shall present him with the charges made against him. He shall advise him that he has the right to remain silent until his lawyer is present [.] This advice shall be recorded in writing in the investigation file. If the accused refuses to appoint a lawyer or if his lawyer does not arrive within 24 hours, the investigation shall proceed in [the lawyer’s] absence.

 

Article 63(2)

 

In case of wanting to complete the investigation rapidly on the basis of a fear that some of the evidence might be lost, the investigation may take place without [the accused’s] lawyer being present [.] However, when the investigation has been completed, the accused’s lawyer may request access to the investigation file.

 

Article 63(3)

 

When the accused gives his testimony, it must be recorded in writing by the clerk who must then read it back to him with a view to the accused signing or placing his thumb print on the testimony [.] Following this, the General Prosecutor and the clerk have to [“] approve it [”].

 

Article 66(1)

 

The General Prosecutor has the right to prevent [external] contact with the [“] arrested accused [”] for a maximum and renewable period of 15 days.

 

Article 66(2)

 

This [“] prevention [”] does not include the accused’s lawyer who may contact him at any time [and who may confer with him] in the absence of a [“] monitor [”], unless the General Prosecutor decides otherwise.  

Article 68

 

The General Prosecutor has the right to [interview] the persons mentioned in the complaint,  persons who may have any information related to the crime or persons to whom the accused may make reference.

 

Article 99

 

Providing that there is sufficient evidence against him, any official of the judicial police may order the arrest of a suspect in any of the following [“] situations [”],:

 

1.       [“] In crimes [”] [i.e. if there is suspicion that a crime has been committed]

2.       When being caught in the act [of committing an] offense that carries a maximum punishment of six months [imprisonment].

3.       If the crime [i.e. if the crime which he is suspected of having committed] constitutes an offence punishable by imprisonment [“] and [”] if the accused has [previously] been under police observation [“] or [”] if he does not have a known address in the Kingdom.

4.       Offenses involving theft, serious violence, violently resisting government officials, dealing in prostitution and the offending of public morals.

 

 

 

 

 

Article 100

 

An official of the judicial police shall listen immediately to what the [“] arrested accused [”] has to say and if he is not thereby convinced, he shall send him within 48 hours to the General Prosecutor with jurisdiction [.] The General Prosecutor shall interrogate him within 24 hours and shall then either decide to detain or release him.

 

Article 103

 

It is prohibited to arrest or imprison any person without an order [having been issued] by the authorities with due jurisdiction.

Article 104

 

Prisons and detention centres should be [“] assigned [”] and organised according to [“] legal principles [”].

Article 105

 

No person shall be imprisoned other than in the appropriate prison and no prison official shall accept any person unless pursuant to an approved order from the authority with jurisdiction [.] He shall not detain [such person] beyond the specified period in the order.

 

Article 106(1)

 

The Head of the General Prosecution and the General Prosecutor and Heads of Courts of First Instance and Courts of Appeals shall inspect the [“] General Prisons [”] in areas within their jurisdiction [.] They shall ensure that no person is imprisoned or detained illegally and shall inspect the prison’s records and detention orders and shall make copies of them [.] They shall contact imprisoned or detained persons and shall hear any complaints made by them [.]  The Prison Director shall assist them in obtaining any information that they request. 

 

Article 106(2)

 

The General Prosecutor and - in places in which there is no General Prosecutor - the Conciliation Court judge, may inspect the prisons within the area under his jurisdiction at least once a month for the purposes mentioned in Article 106(1).

 

Article 106(3)

 

Heads of Penal Courts and General Prosecutors and - in places in which there is no General Prosecutor - Conciliation Court judges, shall order Prison Directors within areas under their jurisdiction to take any measures necessary for the interrogation.

 

Article 107

 

Detained or imprisoned persons have, at any time, the right to present a written or oral complaint to a prison official and to ask him to transfer it to the General Prosecution [.] The prison official shall accept [the complaint] and shall transfer it immediately after recording it in the prison’s records.  

Article 108(1)

 

Any person who knows of a person illegally detained or imprisoned or [of a person] detained in an inappropriate place of detention or imprisonment, shall inform a member of the General Prosecution [.] He, in turn, shall immediately go to the place in which the detained or imprisoned person is to be found, shall carry out an investigation, shall order the release of the illegally detained or imprisoned [person] and shall immediately record in writing all of the above.

Article 108(2)

 

If [“] they [”] fail to exercise the above responsibilities, they shall be considered as accomplices to the [“] crime of arresting personal freedom [”] and shall be pursued as such.

 

Detention Orders and Summoning Suspects

 

Article 111(1)

 

In penal cases, the General Prosecutor may only decide to issue a summons and then replace it with a detention order if [“] the interrogation so requires [”].

 

Article 111(2)

 

If the suspect does not [react to the summons] or if there is a fear that he might abscond, the General Prosecutor shall issue a [“] summons [”] [this last word appears not to be referring to a detention order but rather to a summons justifying forcible action to be taken in order to ensure that the suspect responds to the General Prosecutor’s decision to interrogate him].

 

Article 112(1)

 

The General Prosecutor immediately questions the complainee who is the subject of a summons [.] If the complainee has been [“] brought in [”] pursuant to [“] a detention order [”] [is this referring to an arrest warrant?”], the General Prosecutor shall question him within 24 hours.

 

Article 112(2)

 

When the initial 24 hours have expired, a prison official – on his own initiative - takes the complainee to the General Prosecutor for questioning.

 

Article 113

 

If the complainee has been [“] brought in [”] pursuant to a detention order and has remained in the detention centre for more than 24 hours without being questioned and [without being] brought before the General Prosecutor (according to [provisions of] the previous Article), his detention shall be considered as [“] unjust [”] [.] The official responsible for the [“] crime of arresting the personal freedom [”] will be prosecuted according to the Law of Punishments [see Article 178, 1960].

Article 114(1)

 

Having questioned the complainee, the General Prosecutor may issue a detention [“] warrant [”] [i.e. order] not exceeding 15 days, providing that the [crime of which the detainee is suspected] is punishable by a period of imprisonment [.] If necessary, this period may be extended for a further 15 days.

 

Article 114(2)

 

During interrogation measures in penal [“] crimes [”] [i.e. offenses], the General Prosecutor may annul the detention [“] warrant [”] [i.e. order], providing that the complainee informs the General Prosecutor’s office of his place of residence [.] This [should take place] in order [to ensure] that [the suspect] is informed of all related matters concerning the investigation and implementation of the [final?] judgment.

 

 

 

Article 115

 

The General Prosecutor issues, signs and stamps (with the official stamp of his circuit) the summons and the detention orders. [These shall] mention the name of the complainee … , his description as far as is possible and the nature of the charge.

 

Article 116

 

In the detention order he clarifies the charge … , the legal provision upon which the charge is based and the period of the detention.

 

Article 117

 

The complainee is given the summons or the detention order or copies of them. 

 

Article 118

 

The summons and the detention orders are valid in all of Jordan.

 

Article 119

 

Anyone ignoring the summons or detention order and tries to abscond is brought in by force…

 

Article 121(1)

 

The General Prosecutor may decide to release any detained person [charged with] a penal offence if the situation [“] so requires [”] and, after the case has been transferred to it, [“] the [”] court may decide to release him on bail.

 

Article 121(2)

 

If the maximum punishment for the [“] penal crime [”] is one year’s imprisonment and the complainee has a place of residence in Jordan, the General Prosecutor may release him after 5 days of interrogation, provided that [the complainee] has not previously been convicted of a crime carrying a minimum penalty of three months [imprisonment].

 

Article 122

 

In the case of [“] penal offenses [”], a request to be released on bail may be made

 

1.       to the General Prosecutor if the interrogation is still underway;

2.       to the court in which the complainee is being tried, if the case has already been transferred to it;

3.  to the court that has issued the judgement or to the court hearing the appeal.

 

Article 123(1)

 

No person should be released on bail if the [maximum] [“] judgment [”] is a capital sentence or a life sentence with hard labour

 

Article 123(2)

 

With reference to Article 123(1), no person shall be released on bail if he has been convicted of a crime, unless the court decides that, due to special circumstances, his release on bail would not affect [“] interrogation [”] [procedures] and [would not] threaten public order.

Article 125

 

A request for release must be carefully considered and takes into account the prosecution’s opinion

 

[Articles 126 –129 concern the Conciliation Court’s consideration of requests for release on bail.]

 

Decisions taken by the General Prosecution after interrogation has been completed

 

Article 130(a) [SEE ARTICLE 103 PLO 1979 Code]

 

If the General Prosecutor establishes that the act [committed by the suspect] does not constitute a [“] crime [”] or that there is no evidence that the complainee is the person who committed the crime  … the General Prosecutor decides … to [“] prevent [”] the trial of the complainee. “In other cases” he must drop the complaint and immediately send the file to the Attorney General.

 

Article 130(b)

 

If the Attorney General establishes that the [“] decision [”] [?] is justified, he may, within three days of receiving the file, issue a decision of approval and shall order the release of the complainee if [the latter] is still being detained [.]  If he establishes that further interrogation is necessary, he shall order the file to be returned to the General Prosecutor to complete what is missing.

 

Article 130(c)

 

If the Attorney General establishes that the General Prosecutor’s decision is not justified, he may reverse the decision and proceed with the case as follows: if the act constitutes a crime “and it was penal” he decides to charge the complainee. If the act constitutes an [“] offence [”] he shall decides to bring him before court shall and send the file to the General Prosecutor with a view to presenting it to the court with due jurisdiction.

 

Article 131

 

If the General Prosecutor establishes that the act [committed by the suspect] does not constitute a [“] crime [”], he refers the complainee to the court with due jurisdiction and orders his release unless he [“] is to be [”] arrested for a different [‘] reason [”].

 

Article 132

 

If the General Prosecutor establishes that the act [committed by the suspect] does constitute a [“] crime [”], he decides to [“] suspect him [”] and he refers the file to the court with due jurisdiction [“] in order to be tried [”] [presumably the suspect and not the file].

 

Article 133(1)

 

If the General Prosecutor establishes that the act [committed by the suspect] does constitute a [“] crime [”] and that the evidence is not sufficient, he shall decide to [“] suspect him [”] of that crime and to try him before the penal court with due jurisdiction [.] He sends the file to Attorney General.

 

 

 

 

 

Article 133(2)

 

If the Attorney General finds that the [“] decision of suspicion [”] is correct, he decides to suspect the complainee of that crime and refers the file back to the General Prosecutor who presents it to the court with due jurisdiction.

 

Article 133(3)

 

If the Attorney General establishes that there is a need to take further investigations in the case [,] he refers the file to the General Prosecutor [who shall] carry out those investigations.

 

Article 133(4)

 

If the Attorney General establishes that the act does not constitute a crime or that there is no evidence against the complainee or that the [“] indications [”] are not sufficient …, he [“] prevents [”] the trial of the complainee …

 

Article 133(5)

 

If the Attorney General establishes that the act does not constitute a [“] crime [”] but that it does constitute an [“] offence [”], he decides to annul the form of the General Prosecutor’s decision and [“] suspects [”] [the suspect] of the offence [.] He returns the file to the General Prosecutor, who [in turn] presents it to the court with due jurisdiction [in order] [“] to have him tried [”].

 

Article 134

 

The [“] judgment in the detention order [”] issued against the complainee remains valid until the Attorney General decides on his case. If his decision is to charge him or try him [i.e. to send him for trial] before a court of law, then the judgment [in the detention order] remains valid until his trial is completed or until the date of his release.

 

Article 135

 

Decisions of the Attorney General and of the General Prosecutor mentioned in this section shall include the name of the person making the complaint, the name of the complainee, his age, place of residence and whether he has [“] been stopped before [”] [presumably this means “whether he has previously been arrested”]. [If he has been “stopped” before, such decisions shall include] dates, the nature of the charge, any legal material and evidence of [his] having committed [“] that crime [”] [i.e. the offense with which he was charged] and [“] the reasons [”] [i.e. the motive for committing “that” crime?].

 

Article 138

 

If [“] the complainee’s [”] trial has been prevented because there was not sufficient evidence [against him] and new evidence comes to light that supports the charge [made] against the complainee, the General Prosecutor who issued the decision preventing his trial shall begin a new investigation [.] During that investigation [he shall issue] a new detention order against the detainee, [“] even [”] if [the suspect] was released.

 

Article 140

 

Under its jurisdiction, the Court of First Instance shall look into all “offenses” that are referred to it by either the General Prosecutor or by his Deputy. These cases are those not falling within the Jurisdiction of the Conciliation Courts.

 

Article 146

 

All judicial documents must be [“] reported [”] [presumably to the court] with the knowledge of [“] the clerk [”] or of a member of the judicial police [.] [This “reporting” shall be done] according to applicable Regulations contained in the Court Laws and taking into consideration the [“] special rules [”] of the present law.

 

Article 157 and 158 [“Evil organsiations”]

 

These Articles concern organisations committing violent acts against people or property.

 

Article 159

 

“Illegal organisations” defined (definition does not include violent activities)

 

Article 161

 

Incitement by organisations referred to in Article 159.

 

Article 202

 

In the case of [“] crimes [”], the Attorney General himself, or one of his assistants, carries out the prosecution process against suspects [“] as mentioned [”] in the decision to charge [the suspect]. He has no right to [“] claim against [”] [i.e. accuse or charge?]  the suspect [of/with?] any [“] acts [”] [i.e. offenses?] other than with those in the [“] decision to charge [”] [the suspect].

 

Article 203

 

As soon as he receives a decision to charge [the suspect], the General Prosecutor shall give his full attention to the list of charges and list of witnesses and shall inform the suspect of [such details] in the decision to charge him [.] Having sent the file to court, he shall complete all initial procedures and [“] take the needed methods [”] [i.e. follow all necessary procedures] to [“] hold the trial on its date [”] [i.e. to ensure that the trial takes place on its assigned date].

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Provisions of the 1960 Jordanian Penal Law

providing for the punishment of officials violating arrest and detention procedures contained in the 1961 Jordanian Penal Code

[translated from Arabic]

 

Article 169

 

Officials referred to in this section are those [working] within administrative and judicial authorities in the public service. They include all officials from the civil and military establishments as well as any other state employee.

 

Article 170

 

Any official and person who, either through election or appointment, has [duties] delegated [to him with a view] to carrying out a public service and whose official task is regarded as an arbitrator, expert or consultant and who has accepted a gift or a promise for self-interest, shall be punished by imprisonment for a minimum period of two years and by a fine equal to what he has asked for or accepted.

Attacks against freedom

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Abuse of Authority and Abuse of Professional Capacity

 

 

 

 

 

 

 

 

 

 

 

Article 182(2)

 

If the person abusing his authority or [exercising undue] influence is not a public employee, he shall be punished with imprisonment for a period of one week to one year.

 

Article 183(1)

 

Any [“] employee [”] who, without legal justification, is reluctant to carry out the duties of his position [including] the implementation of orders issued to him according to [applicable] legal provisions, shall be punished [by a fine of] 10 to 15 dinars or with imprisonment for a period of one week to three months.

 

Article 183(2)

 

If the interests of the state are harmed as a result of this [Article 183(1)] negligence, the employee shall be imprisoned for a period of one month to one year, depending on the harm caused.

Article 184

 

Any officer or member of the police force who refuses to implement an order issued to him by a judicial or administrative authority, shall be punished with a period of imprisonment from one week to one year of by a fine of 5 to 50 dinars or with both [forms of] punishment.

 

Crimes committed against the judiciary

 

 

 

 

 

 

 

 

 

 

Article 207(2)

 

Any employee who fails [to inform] or delays [in informing] the authority with due [penal] jurisdiction about a crime or an offence about which he has become aware in his professional capacity shall be punished by a term of imprisonment from one week to three months or [shall be] fined 5 – 20 dinars.

 

Article 207(4)

 

Exempted from the above [provisions of this Article] are crimes the investigation into which is only executed pursuant to a complaint.

 

Article 473(1)

[contrast Article 182(1)]

 

Anyone obstructing the implementation of any decision issued by a secular court with a view to maintaining or discontinuing any action [contrary to such decision] … shall be punished by a term of imprisonment of up to one week or [shall be] a maximum of 5 dinars or [shall be subjected to] both [these] punishments.

 

 

 

 

 

Timetable of Gazan High Court judgments related to the detention of political prisoners

 

Name of Detainee

Attorney

Judges

Date of arrest

First Hearing (+days since arrest)

Second Hearing (+ days since arrest; +First hearing

Third Hearing (+ days since arrest; +First hearing

Fourth Hearing (+ days since arrest; +First hearing

Fifth Hearing (+ days since arrest; +First hearing

Sixth Hearing (+ days since arrest; +First hearing

Seventh Hearing (+ days since arrest; +First hearing

Eighth Hearing (+ days since arrest; +First hearing

Ninth Hearing (+ days since arrest; +First hearing

Date of Judgment (+ days since arrest; +First hearing

Decision and whether implemented

Days in detention since arrest to 4 July 1999

Hamdi Al-Kahlut

PICCR

Fayez al-Quidrah, Hamdan Abadleh Sa’adeh Addajjany

18.3.99

17.5.99 (+ 60 days)

3.7.99 (+ 107; +47)

3.7.99 (+107; +47)

On 4.7.99 order to release not implemented

108 days

Abdel Nasser Karsou’

PCHR

Fayez al-Quidrah, Hamdan Abadleh Sa’adeh Addajjany

6.3.96

1.7.99 (+ 1109 days)

1.7.99 (1109 days)

Order to re lease not implemented

1112 days

Immad Shabaan al-Sharif

PICCR

Radwan el-Agha, Khalil al-Shiyah and Hussein Abu ‘Assi

18.3.96

5.6.99 (+ 1174 days)

28.6.99 (+ 1197 days; + 23 days)

28.6.99 (+ 1197 days; + 23 days)

Order to release implemented on 29.6.99

1198 days (29.6.99)

Mahmoud Marsouk Abou Watfah

PCHR

Radwan el-Agha, Khalil al-Shiyah and Hussein Abu ‘Assi

21.3.96

Not stated in Judg-ment

8.5.99 (+1161 days)

Order to release not implemented

1217 days

Khaled Abdul Karim Wahbeh

PHRMG

Raduan al-Aagh, Khalil Ishayyah and Hussain Abu A’aassi

15.5.95

12.3.98 (+1033 days)

10.5.98 (+1099 days; + 69 days)

10.6.98 (+ 1129 days; + 99 days)

7.9.98 (+1220 days; +187 days)

1.11.98 (+1275 days; + 242 days)

2.12.98 (+1306 days; + 273 days)

5.1.99 (+ 1340 days; + 307 days)

1.3.99 (+ 1406 days; + 373 days

23.3.99 (+1428 days; + 395 days)

23.3.99 (+1428 days; + 395 days)

Order to release not implemented

1500 days

Harb al-Deqis

PCHR

Fayez al-Quidrah, Hamdan Abadleh and Sa’adeh Addajjany

17.3.96

18.10.98 (+945 days)

10.12.98 (+998 days; + 53 days)

11.2.99 (+1051 days; +116)

18.3.99 (+1096 days; + 151 days

18.3.99 (+ 1096 days; + 151 days)

Order to release implemented on 20.3.99

1101 days (20.3.99)

Marwan ‘Issa

PCHR

Fayez al-Quidrah, Hamdan Abadleh and Sa’adeh Addajjany

16.3.96

5.11.98 (+ 964 days)

13.12.98 (+ 1003 days;+ 39 days

28.1.99 (+ 1088 days ;+ 85 days

14.3.99 (+ 1133 days;+ 130 days

14.3.99 (+ 1133 days;+ 130 days)

Order to release implemented on 16.3.99

1135 days   (16.3.99)

Wa’el Faraj

PCHR

Jamil al-A’shi, Fayez al-Quidrah and Mohammad Souboh

25.4.96

19.10.98 (+ 707 days)

25.11.98 (+744 days;+37 days

9.12.98 (+758 days; + 51 days

20.2.99 (+831 days; +124)

20.2.99 (+ 831 days; +124 days)

Order to release not implemented

934 days

Ibrahim al-Halabi

Mahmoud Muhamad Abu Dan

Khalil Ashayyah

7.4.97

30.6.98 (+436 days)

30.6.98 (+436 days)

Application rejected by High Court

804 days

Ibrahim al-Maqadmeh

PCHR

Fayez al-Quidrah, Hamdan Abadleh and Sa’adeh Addajjany

10.4.98

29.4.98 (+19 days)

4.6.98 (+55 days;+38 days)

20.6.98 (+71 days;+54 days)

20.6.98 (+71 days; +54 days)

Application rejected by High Court

451 days

Abd al-Aziz al- Rantisi

PCHR

Jamil al-A’shi, Fayez al-Quidrah and Mohammad Souboh

9.4.98

29.4.98 (+20 days)

9.5.98 (+50 days;+30 days)

27.5.98 (+68 days;+48 days)

4.6.98 (+76 days; + 56 days)

4.6.98 (+ 76 days; +56 days)

Order to release not implemented

465 days

Rajab Hassan al-Baba

PICCR

Fayez al-Quidrah, Hamdan Abadleh and Sa’adeh Addajjany

17.3.96

4.5.97 (+ 413 days)

20.9.97 (+551 days;+ 138days)

11.11.97 (+ 603 days;+ 190days)

13.12.97 (+635 days; + 222days)

28.12.97 (+650 days; + 237 days)

28.12.97 (+650 days; + 237 days)

Order to release implemented on 5.4.98

746 days (5.4.98)

 

 

 

 

I. Mahmoud Marsouk Abou Watfah [Document, no commentary]

 

In the name of the Merciful and Compassionate God

The High Court of Justice in Gaza

In Case Number 187/98 (High Justice)

 

********************************

 

The Court                   Radwan el-Agha (President),  Khalil al-Shiyah and Hussein Abu

                        ‘Assi

 

Secretary                     Nur Fares

 

The plaintiff                  Mahmoud Marsouk Abou Watfah, held by the PSS in Gaza Central Prison

His representatives Iyaad Alamai and Ibrahim Surani from the

Palestinian Centre for Human Rights

 

Defendants                              The PSS, represented by the Attorney General

 

Date of session                       Saturday, 8.5.99

 

In the presence of      Ibrahim Surani, the plaintiff’s representative and Mohammad al-Lidawi

 

The Attorney General’s representative stated that having contacted the [“] State Security’s Attorney General’s office’s department [”] [,] it had become clear that there was nothing that could answer the [“] questions raised [”] by your respected court [.] [C]onsequently, I [the Attorney General’s representative] request that the application be refused. The plaintiff’s representative said that [“] I request that my request be answered [”].

 

In the name of the Merciful and Compassionate God

 

In the name of the Palestinian People

 

[End of page 1, Arabic version]

 

-Verdict-

 

The court decides to [order the] release of the plaintiff, Mahmoud Marsouk Abou Watfah, issued and declared on 8.5.99.

 

Signature                                                          Signature                                  Signature

 

President                                                          Member                                    Member

 

 

 

 

 

 

 

 

 

 

II. Khaled Abdul Karim Wahbeh

A. Documents

[Document 1: Mr. Wahbeh’s lawyers pleadings]

 

 

To the respected High Court in Gaza

In its position as the

High Court of Justice

Case  Number 33/98

 

The plaintiff                 Khaled Abdul Karim Wahbeh – a resident of Raffa

His representative     Attorney– Ismaail Iqdeih

The defendants           The Head of the Military Intelligence – represented by the Attorney General

 

The request                1. – Issuing a temporary decision [,] committing the defendant to present the reasons for [the plaintiff’s] arrest and for not bringing him before a court [of law]

 

2. – Issuing a final decision against the defendant to release the plaintiff.

 

Details of the petition

                                    

1.       – The plaintiff was arrested on 15.5.95 by the Military Intelligence [,] was          

interrogated by the civilian and criminal police and was released[.] [F]ollowing this he was rearrested on 7.11.95 by the Military Intelligence.

 

2. – Between 2.4.94 and the day of his arrest [,] the plaintiff worked in the police force.

 

3.       –  The plaintiff is sick [,] has been [“] injured by many injuries [”] and his mental

health is [“] unbalanced [”] [“mottaribah”].

 

4. – The continued detention of the plaintiff without presenting him before a court leads to a lack of comfort [“raha”] and ease [“mitnahn”] [for both] him and [for] all the members of his family.

 

5.       - On the basis of what has been presented, the plaintiff, with all due respect,

requests the following:

 

1.       Presentation of the reasons preventing bringing [the plaintiff] to court.

 

2.       [“] Releasing the plaintiff without bail until the court issues a further decision. [”]

 

With respect

The representative’s lawyer

Signature

 

I am the lawyer – Ismaail Iqdeih and I swear to the Great God that all that has been mentioned in the petition is [,] according to my knowledge and opinion [,] truthful.

The above-mentioned speaker swears under legal oath to the veracity of his petition.

Speaker

 

Signature                      [End of page 1, Arabic version]

 

 

 

 

[Document 2: The High Court’s first hearing]

 

The High Court in Gaza

 

In its position as the High Court of Justice

 

In Case Number 33/98

 

In the presence of         Mr Khalil Ashayyah, High Court Judge

 

Secretary                     Nur Fares

 

Plaintiff                        Khaled Abdul Karim Wahbeh – a resident of Raffa

 

His representative     Attorney – Ismaail Iqdeih

 

Defendants                  The Head of the Military Intelligence – represented by Mr Attorney General

 

This session                Thursday, 12.3.98

 

[The following 11 lines form one sentence in the Arabic original]

 

In the presence of: Mr Ismaail Iqdeih, the plaintiff’s representative said that [no quotation marks in Arabic original] I repeat what was mentioned in the application and add that the detainee was working for the civilian police force until the day of his arrest [.] After his first arrest on charges of collaboration, he was released in November [,] after six months [of detention] [.] [H]e was given a [“] certificate of innocence [”] [“shehadih baraah”] [he was certified innocent ?] of the charges listed against him [.] [A] week later he was arrested for a  further year on the same charge. [I] was told by his father that he [the plaintiff] had [End of page 2, Arabic version] a broken arm and leg and that before working with the police he had been a student [.] [H]e was arrested in Raffa by the Military Intelligence and was not presented before an [official] authority [.] [I] therefore request that my application be accepted. 

 

Decision

 

The Court decides to issue a memorandum against the defendant [requesting him] to present the reasons [firstly] for the arrest of the plaintiff Khaled Abdul Karim Wahbeh and [secondly] for [having failed to] bring him before [a] court according to [the usual] legal requirements [“ussoul”] [.] [These reasons should be presented to the court] within eight days of his being informed of this decision. [This decision] was issued and publicly declared on 12/3/98.

 

Signature

 

High Court Judge

 

 

 

[End of page 3, Arabic version]

 

 

 

[Document 3: the High Court’s second hearing]

 

To the High Court in Gaza

 

In its position as the High Court of Justice

 

Case Number 33/98

 

In the presence of Judges      Mr – Raduan al-Agah as President and Mr Khalil Ishayyah and Mr Hussain Abu A’assi

 

Secretary                                 Nul Fares

 

Plaintiff                                    Khaled Abdul Karim Wahbeh – a resident of Raffa

 

His representative                 Attorney – Ismaail Iqdeih

 

Defendants                              The Head of the Military Intelligence – represented by [the] Attorney General

 

Date of hearing                       Sunday. 10.5.98

 

In the presence of                  Mr Ismaail Iqdeih, the plaintiff’s representative and Mr Fahmi al-Najjar

 

 

The Attorney General office’s representative said [that] [no quotation marks in the Arabic original] we request the prolongation of the period of time [previously] granted [to us, in order] to respond [,] because we have not received a response from Military Intelligence. The plaintiff’s representative said that the plaintiff was detained for three years and [that] the [court] decision issued on 12.3.98 restated that he [??] will [“] give the authority to the court to handle the issue [”].

 

Decision

 

[End of page 4, Arabic version]

 

[The court decides to postpone its verdict to a further] session on 10.6.98 to enable the Attorney General’s office to present its response. [This decision] was issued on 10.5.98.

 

Signature

 

Head of the Court

 

[End of page 5, Arabic version]

 

 

 

 

 

 

 

 

 

 

[Document 4: the High Court’s third hearing]

 

The High Court in Gaza

In its position as the High Court of Justice

Case Number 33/98

 

In the presence of Judges      Mr – Raduan al-Agah as President and of Mr Khalil Ishayyah

and Mr Hussain Abu A’assi

 

Secretary                                 Nul Fares

 

Plaintiff                                    Khaled Abdul Karim Wahbeh – a resident of Raffa

 

His representative                 Attorney – Ismaail Iqdeih

 

Defendants                              The Head of Military Intelligence – represented by Mr Attorney General

 

Date of Session                       Wednesday 10.6.98

 

In the presence of: Mr Ismaail Iqdeih, the plaintiff’s representative and Mr Fahmi al-Najjar

 

The Attorney General office’s representative said [that] [no quotation marks in Arabic original] we received a letter from Mr. General Director of the Military Intelligence [which] mentioned that the plaintiff Khaled Wahbeh was and remains detained under their [authority] for security reasons [.] [A] copy of the letter [can be found under] document MA/1. The plaintiff’s representative said [no quotation marks in original] I received a copy of the document MA/1 [Arabic version, end of page 6] [.] [T]he representative of the Attorney General office’s said [no quotation marks in original] we don’t know what the charge is against him and [that] he was detained only according to the Revolutionary Law of 1979 [.] [B]ecause he is detained for security reasons I ask, with thanks, that his [the plaintiff’s] request be rejected.

 

[The following 17 lines form one sentence in the Arabic original; no paragraph space here in the original]

 

The plaintiff’s representative said [no quotation marks in the original] we are before a Court of Law and the reasons [put forward by] the representative of the Attorney General’s office [arguing for a rejection of the petition] find no legal basis [.] [All that is] mentioned [is] that he [the plaintiff] has been detained for security reasons[.] [W]e have [“] never seen or    heard [”] of a law on this matter[.] [“] [T]his [”]  [arresting suspects for] security reasons [occurred] during the days of occupation [.] [B]efore his [second] arrest [the plaintiff] was arrested [for the first time] on 17.5.95 and was released with an [“] innocence certificate [”] after three months [defense lawyer factually mistaken: the plaintiff was released after SIX months] [.] [T]his [“] letter [”] [i.e. the certificate] was issued by the Palestinian General Security and he [the plaintiff’s representative] presented it [to the court] and referred to it as Document M/1 [.] [I] say that he was arrested for personal reasons [,] after a [personal] dispute [,] [and] [“] I cannot mention it [”] [.] [The plaintiff’s] father said in his testimony under oath that there was a personal dispute [about] which the detainee could not [speak with] his father [.] I was prevented from visiting [the plaintiff] [.] [“] [I] therefore request to release him for illegal arrest [”] [End of page 7, Arabic version].

 

[Paragraph spacing added]

 

The representative of the Attorney General’s office stated [no quotation marks in the original] I don’t have documents in addition to those that I have [already] presented to your court and I request that you give us a chance to clarify the situation [“] (knowledge) [”] and to be sure of the nature of the charge [made against the plaintiff].

 

Decision

 

In the light of the request made by the Attorney General’s office to obtain further information pertaining to the reasons behind the plaintiff’s arrest,  [the court decides to postpone its verdict] to a [further] session of Monday, 7.9.98,. [This verdict] issued on 10.6.98.

 

 

Signature

 

President of the Court

 

[End of page 8, Arabic version]

 

Chronology between the third hearing on 10 June 1998 and the final verdict on 23 March 1999 during which time (and beyond) Mr Wahbeh remained in detention:

 

1.       10 June 1998

 

High Court postpones hearing in the above judgment to 7 September 1998.

 

2.      7 September 1998

 

Because of delay at another hearing Mr Wahbeh’s lawyer was one hour late for the hearing at the High Court. Because of this delay the High Court decided to close the file. After Mr Wahbeh’s lawyer protested, the Court requested him to address a letter to the court formally requesting the file to be reopened. After receiving the letter the Court reopened the file and fixed the next hearing for 1 November 1998.

 

3.      1 November 1998

 

On 1 November Mr Wahbeh’s lawyer arrived at court and was informed that the Court would not be convening and that the hearing had been postponed to 2 December.

 

4.   2 December 1998

 

On 2 December, without giving reasons, the Court postponed the hearing to 5 January 1999.

 

5.  5 January 1999

 

On 5 January the Attorney General failed to bring the additional documentation which had originally been asked of him by the Court on 10 June 1998. Without explaining why, the Court extended the time granted to the Attorney General until 1 March 1999.

 

6.       1 March 1999

 

Again for no stated reasons the Court postponed the hearing to 23 March 1999.

 

7.       23 March 1999

 

The High Court decides it is time to hand down a judgment ordering Mr Wahbeh’s release.

[Document 5: The High Court’s final hearing]

 

The High Court in Gaza

 

In its position as High Court of Justice

 

Case  Number 33/98

 

In the presence of Judges      Mr – Raduan al-Agah as President, Mr Khalil Ishayyah and Mr Hussain Abu A’assi

 

Secretary                                Nul Fares

 

Plaintiff                                    Khaled Abdul Karim Wahbeh – a resident of Raffa

 

His representative                Attorney – Ismaail Iqdeih

 

The defendants                       The Head of Military Intelligence – represented by Mr

Attorney General

 

Date of Session                       Tuesday, 23.3.99

 

In the presence of                  Mr Ismaail Iqdeih, the plaintiff’s representative and Mr Fahmi al-Najjar

 

In the name of the Merciful and Compassionate God

 

And in the name of the Palestinian People

 

-Decision-

 

The Court decides publicly to release the plaintiff Khaled Karim Abdel Wahbeh, issued and declared on 23.3.99.

 

 

 

Signature                                              Signature                                  Signature

 

[End of page 9, Arabic version]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B. Commentary

 

Judges                                    1. Mr Khalil Ashayyah in first hearing (12.3.98)

2. Mr Raduan al-Agah as President 

                 Mr Khalil Ishayyah and Mr Hussain Abu A’assi in second and

    third and final hearing (10.5.98 ,  10.6.98   and   23.3.99)

 

Mr. Wahbeh’s lawyer Ismaail Iqdeih

 

(1)  Chronology of case

 

1.      The first hearing was held on 12.3.98. Mr. Wahbeh was arrested on 15.5.95.

Why did it take  1033 days before Mr. Wahbeh’s case came to court? Why did the Attorney General not ensure that Mr Wahbeh received legal representation in May of 1995?

 

2.      During the first hearing on 12.3.98, the Attoney General was given eight days to explain

why the arrest had been made and why Mr. Wahbeh had not been brought before a court of law. The next hearing took place on 10.5.98, that is 69 days after the first hearing. Why did a period of 8 days turn into a period of 69 days?

 

3.      Why  did the court  not make  reference to the  applicable criminal  procedural  law

during the first hearing on 12.3.98?

 

4.      During the second hearing on 10.5.98, the Court decided to accept the Attorney General’s

request for a prolongation of the 69 days he had already been given (61 too many since the first hearing) and decided to postpone the hearing to the third hearing on 10.6.98. The court thereby added 30 days to the detention of Mr Wahbeh in addition to the 61 days that had already been added in breach of the court’s first decision. Why did the court accept the Attorney General’s request? Why did the court not make reference to the applicable criminal procedural law?

 

5.      During the third hearing on 10.6.98, 99 days after the first hearing, the Court decided to

accept the Attorney General’s strategy of changing his pleading during the third hearing and decided to accept his request for more time to obtain information. The court postponed the hearing to 7.9.98, 88 days later. Why did the court decide, without requesting an explanation, to accept the  Attorney General’s request and thereby to double the time the plaintiff had been in detention, now to be come a total of 187 days, since the court held its first hearing? Why did the court not make reference to the applicable criminal procedural law?

 

6.   Because of delay at another hearing, Mr Wahbeh’s lawyer was one hour late for the fourth hearing on 7.9.98. Because of this delay the High Court decided to close the file. On what legal basis did the court decide to close the file? After Mr Wahbeh’s lawyer protested, the Court requested him to address a letter to the court formally requesting the file to be reopened. After receiving the letter, the Court reopened the file. The court then fixed the next hearing for 1.11.98, 55 days after the fourth hearing should have taken place and a total of 242 days after the first hearing had taken place. Why did the court add a further 55 days to the detention of Mr Wahbeh?

 

7.  On 1.11.98, the date of the fifth hearing, Mr Wahbeh’s lawyer arrived at court and was informed that the Court would not be convening and that the hearing had been postponed to 2.12.98. He was given no explanation. Why did the court add 31 days to the detention of Mr Wahbeh, a detention period that would now total 273 days since the first hearing?

 

8. During the sixth hearing on 2.12.98, the date of the postponed fifth hearing, the Court postponed the hearing to 5.1.99. No reasons were given and no written decision was issued. The court thereby added 34 days to Mr Wahbeh’s detention, which would now total 307 days since the first hearing. Why did it do so?

 

9.  During the seventh hearing on 5.1.99, the Attorney General failed to bring the additional documentation which had originally been asked of him by the Court on 12.3.98. Without explaining why and without issuing a written decision, the Court extended the time granted to the Attorney General 1.3.99. This added a further 66 days to Mr Wahbeh’s detention and would bring the total detention period since the first hearing to 373 days. Why did the Court add 66 days to Mr. Wahbeh’s detention? Why did the court again fail to make reference to the applicable criminal procedural law?

 

10.  On 1.3.99, the date of the eigth hearing, the Court postponed the seventh hearing to 23.3.99. It gave no reasons, issued no writen decision and thereby added another 22 days to Mr. Wahbeh’s detention, bringing the total detention time since the court’s first hearing to 395 days. Why did the court add  a further 22 days to Mr. Wahbeh’s detention?

 

11.  During the ninth and final hearing on 23.3.99, 395 days after the court’s first hearing of Mr. Wahbeh’s case and 1428 days after Mr. Wahbeh had been arrested on 15.5.95, without referring to a single article of criminal procedural law, the High Court of Justice in Gaza issued an order for the release of Mr. Wahbeh. Why did the court not provide an explanation for the 387 days that had been added to the original 8 days given to the attorney General to explain Mr Wahbeh’s detention and why did it not base its decision on applicable criminal procedural law?

 

Since 23.3.99, Mr Wahbeh remains detained. (Written 1 July 1999)

 

(2) Substantive analysis

 

Three things are striking in this case.

 

Firstly, the court at no point makes reference to a single provision of the law. It does not address the issue of jurisdiction and does not refer to applicable criminal procedural law.

 

Secondly, the court adds a total of 395 days to the previous 1033 days during which Mr Wahbeh had already been detained prior to the first High Court hearing. The court fails to give even one explanation, based on law, as to why it should postpone each hearing and as to what legal basis it has for giving the Attorney General more time to assemble the requested documentation. The effect of this case, regardless of the judges’ good will, is to suggest to the Executive Authority that the High Court itself is not very preoccupied with playing its part in the illegal detention of individuals petitioning it for protection against abusive executive actions. Such abusive procedures on the part of the court can only serve to encourage the Executive to disregard the Court’s final verdict. If the Court itself is unhappy with the reasons for the constant delay in such a case, then it is under an obligation to explain such reasons during each assigned hearing and above all in its final judgment.

 

Finally, why does the court not hold the Attorney General, prison officers and the Security Services to account under the applicable laws? All these parties have legal obligations which, if breached, should (according to Articles 112, 113, 142 and 143 of the 1936 Criminal Code Ordinance) lead to terms of imprisonment. Why are legal costs not awarded against the Attorney General? Why is the law giving the plaintiff a right to compensation not invoked?

 

 

III.  Harb Salameh Zre’iy al-Dequis

A.   Documents

 

In The Name of Merciful and Compassionate God

 

The High Court of Justice in Gaza

Case Number1888/98

*****************************

 

 

 

 

In the presence of Judges      Fayez el-Quidra (President), Hamdan Abadlah and

Sa’adeh Addajjany.

Secretary                                 Salman Murtajja

The plaintiff                             Harb Salameh Zre’iy al-Dequis, detained by the Preventative Security Services in Gaza Central Prison and his representatives, Attorneys Iyyad el-Alami and Ibrahim Surrani from the Palestinian Center For Human Rights.

The Defendant                                    The Preventative Security Services, represented by the

Attorney General.

Object of application:              1. Issuing a temporary decision committing the defendant to

            clarify the reasons justifying the plaintiff’s detention    

            without the [applicable] legal procedures being followed.

2. Issuing a final decision, committing the defendant to release the plaintiff.

Date of application                  14.10.98

Date of session                       Thursday, 18.3.99

Present                                   Ibrahim Surrani, the plaintiff’s representative and Fahmi al-Najara, the representative of the Attorney General’s office, representing the defendant

 

//Decision//

 

[I] Having reviewed the documents and having listened to the pleadings and the legal arguments.

 

[II] According to the facts as mentioned by the plaintiff in his application – [these are] summarised [to establish the following.] [O]n 17.3.96 [the plaintiff] was arrested and detained by the PSS [.]  [On] 26.3.98 and on 18.4.98 his representative sent written applications to the defendant in order to establish the reasons for the plaintiff’s arrest [.] [T]hey did not receive a response from him. [T]hey add in their application that  [end of page 1, Arabic version] since [the beginning of] his detention [,] their client has not been brought before a judge with [due] jurisdiction [.] [Nor] has he been interrogated by the Attorney General’s office [.] [H]e suffers from incurable pains in the spinal cord [, a condition] which is dangerous for his health [.] [The plaintiff’s] representatives added that [their client’s] detention violates his natural and legal rights and ended with the request [that the court] issue a temporary decision accepting their application and [consequently] requiring the defendants to justify the reasons for [continuing] to detain their client without having followed applicable procedures and legal principles[.] [They also requested that] a final decision be issued, ordering his release.

 

[III] After listening to the plaintiff’s pleadings [,] the High Court of Justice (1 judge) issued its initial decision during its hearing on 18.10.98 [,] responded [positively] to the plaintiff’s request and required the defendant to present his response within 8 days of the date on which he was informed of the decision.

 

[IV] In his capacity as the defendant’s representative [,] the Attorney General presented his counter-pleading on 10.12.98 [and] responded to the plaintiff’s application [by] stating that the plaintiff had been detained by the [“] partial [”] State Security Court on 18.3.96 [,] case number 288/96 [,] and [that] his detention had been ordered by a court with [due] jurisdiction [.] [On this basis he argued that] the High Court of Justice does not have jurisdiction to review this application and ended by requesting that the plaintiff’s request be rejected and [that the plaintiff be] committed to pay costs and expenses.

 

[V] [During] the specified session [NB: it is not clear when the court “specified” this session, of 11.2.99, should take place] to review the application on 11.2.99 [,] the plaintiff’s representative reiterated what had been stated in his application and added that the plaintiff’s detention for three years for the purposes of interrogation [,] without his detention having been prolonged by a court with jurisdiction [on the basis of ] a specific charge [,] made no sense. [H]e ended by requesting that his request to release the plaintiff be answered [by the court].

 

[VI] [T]he representative of the Attorney General’s office reiterated what had been presented in his counter-pleading and added that the plaintiff was being detained by the partial State Security Court and that he did not know what charge had been made against the plaintiff [.] [He spoke of] detention orders in the plaintiff’s [name,] dated from 18.3.96 to 20.11.96 [,] [which had been issued] for the purpose of interrogation [.] [T]he Attorney General’s representative presented 16 detention orders dated from the period 3.10.96 to 4.11.96 [4.11.98??] [.] ([T]he court has looked at [these documents] and ordered them to be attached) [.] [T]he court notices that the specified charge in the investigation orders is “under interrogation” [the court is making a factual statement and being sarcastic] [.] [T]he court also notices that [all 16] detention orders come from the same book [.] [They stick] to each other [and this leads the court to believe that they] were written recently [,] all in one day and all in the same hand-writing [“] !!! [”]. The Attorney General’s representative added in his oral pleading that he did not have any information as to whether any investigation of any type had been carried out against the plaintiff [.] [He added that] the Attorney General [End of page 2, Arabic version] did not request the plaintiff to be detained and that [the Attorney General] did not conduct an investigation [into the plaintiff’s case] [.] [In addition,] no list of charges were made by the Attorney General’s office against the plaintiff.

 

[VII] Detention and precautionary imprisonment [for the purposes of] interrogation is considered to be [“] a dangerous procedure [”] as the [“] assel [”] [legal principles?] [provide that] the human being cannot be deprived of his freedom unless this is pursuant to the execution of an enforceable judicial decision [.] [P]re trial precautionary imprisonment [for the purposes of] interrogation is not [,] according to the law [,] a punitive measure [.] [Instead] it is meant  to prevent [firstly] the interference by the suspect with witnesses [, secondly] playing [by the suspect] with the evidence and [thirdly] the possibility of his escape in the case of his being released [on bail] before trial [.] [T]he law provides that a suspect’s precautionary imprisonment should be based on an order from a judge after a request has been made by the investigator if [the latter] sees a necessity [“] of imprisoning the suspect for 48 hours [”].

 

[VIII] In the law of Arrest and Search of 1924 the legislator has set out [,] in this law’s article 3 – 10 [,] the applicable principles and procedures in cases of arrest and detention [.] [A]rticle

10 ensures that no one shall be detained for a period exceeding 15 days and that no one shall be detained for a period exceeding 30 days unless a signed application has been made by the Attorney General and has been sent to a magistrate  [,] requesting that the individual be detained for [“] another period of time [”].

 

[IX] Some Articles in the Gazan constitutional system support and [seek to] ensure that these principles and legal procedures be followed and considered in any case [involving] arrest [and/or] precautionary imprisonment [.] [A]rticle 4 provides that: “Individual freedom is guaranteed and no one shall be arrested or detained unless it be according to provisions of the law.”. Article 5 states that “all crimes and punishments are to be based on the law [….]” [whilst] Article 12 provides that “freedom of opinion is guaranteed. Within the limits of the law, every individual has the right to express his opinion and to publicise it orally, visually or in any other manner.”

 

[X] Article 58 of the 1962 Gaza constitution has specified [this court’s] jurisdiction as it states that “taking into consideration the provisions of the law concerning the jurisdiction of the High Court, the Court has jurisdiction to annul administrative decisions in cases in which [another] court challenging the decision does not have jurisdiction to do so [annul the decision]; or if there is a legal flaw or violation of the law or regulation or an error in their application or their interpretation; or in the case of irregular use [abuse] of power…”.

 

[XI] It was clear to this court that the plaintiff was detained on 17.3.96 without a list [of charges] having been made against him [.] [H]is detention for the purpose of interrogation for a period of approximately there years was done without following the procedures provided for the law on Arrest and Search [.] [This law] does not permit detention for a period of time exceeding 30 days unless [End of page 3, Arabic version] signed authorisation has been given by the Attorney General [.] [T]he Attorney General’s representative ensured [the court] that [the Attorney General] had not requested the plaintiff’s detention and that he knew nothing of the existence or manner of plaintiff’s interrogation [.] [Thus] the continued detention violates legal and constitutional provisions.

 

[XII] [T]he High Court of Justice has [jurisdiction to] review the legality of any decision issued by any party [.] [This is because] the [“] evaluationary [”] [“taqdireah”] [i.e administrative discretionary power?] power that is given by the legislature to the administration or any other party is not a special privilege [, but rather] a necessity needed for the public good and [for] achieving justice in the application and execution or application of civilian law [.] [For these reasons] it is not an absolute power but restricted and limited [.] [I]t is restricted by the public interest and limited by the good use of power within the limits that are needed in the interest of the public interest and justice [.] [The latter two concepts] require such decisions to be correct [in order] to render [their] goals [compatible with] the public interest [.] [These decisions] should not exceed its [i.e. the public interest’s] limits or be abused [.] [Nor should they] violate the law  [“] or its provisions [”] [.] [C]onsequently [,] the High Court of Justice has jurisdiction to review this application. 

 

[XIII] According to the above, the High Court of Justice recognises that detaining the plaintiff and imprisoning him for such a long period of time is illegal and violates legal and constitutional provisions [.] [I]t attacks individuals’ freedoms and is an unjust use of power [.] [This] leads us to decide to [order] the plaintiff’s immediate release [from] his illegal detention on the grounds that his arrest was not based on [applicable] law and because it violates the provisions of the constitution.

 

For these reasons and in the name of the Palestinian People

 

//Verdict//

The Court has decided to answer the plaintiff’s request [and orders his] release.

This verdict was issued and declared during the hearing on 18.3.99

      Member                                   Member                                President

(Sa’adeh Addajjany )                 (Hamdan Abadlah)                    (Fayez el-Quidra)                     

 

 

 

B. Commentary

 

Judges                                    Fayez el-Quidra (President), Hamdan Abadlah and Sa’adeh Addajjany.

Mr. Al-Dequis’ lawyers          Iyyad Alami and Ibrahim Sourani

 

1.      Mr. al-Dequis was arrested on 17.3.96. Why did it take until 26.3.98, 739 days after the date of arrest, for a representative to be appointed and for him to send the first letter to the Preventative Security Service? Why did the Attorney General not ensure legal representation and protection of Mr. al-Dequis’ rights under criminal procedural law in March of 1996?

 

2.      The court’s first hearing took place on 18.10.98, 206 days after the first letter had been sent by Mr. al-Dequis’ defense lawyer to the PSS and 945 days after Mr. al-Dequis’ arrest. Why was there a delay of 206 days?

 

3.      During the first hearing on 18.10.98, the court gave the Attorney General 8 days to provide the court with reasons for Mr al-Dequis’ arrest and detention. Even if it had not yet established its jurisdiction over Mr. al-Dequis (necessary in order for the Court to be able to review the facts of the case against specific legal provisions), why did the court not refer to the potentially applicable criminal procedural law as an indicator of the gravity of the situation in which Mr. al-Dequis was at that time?

 

4.      The court’s second hearing took place on 10.12.98. Why was there a 53-day delay between the first and second hearing when the court had provided only for an 8-day delay in its first hearing?

 

5.      During the second hearing on 10.12.98, the Attorney General argued that the High Court did not have jurisdiction over Mr. al-Dequis. Without explaining why, the court, in its final judgment, makes reference to the fact that a third session was assigned for 11.2.99. this was presumably to enable Mr al-Dequis’ representative to provide a defense against the Attorney General’s claim that the High Court had no jurisdiction over Mr. Al-Dequis. Why was the defense lawyer not able to argue this defense during the second hearing on 10.12.98? Why did the court decide to assign the third hearing to a date 63 days after the second hearing, this bringing the total time of detention since the first hearing to 116 days (322 days after the appointment of Mr al-Dequis’ defense lawyer and 1061 days since Mr al-Dequis’ arrest)?

 

6.  In  referring to  the  third hearing  on 11.2.99, 116 days after  the first hearing,  the  court 

            states, in paragraph II of its final judgment, that Mr. al-Dequis’ lawyers “reiterated what they had stated in their application”, a reference to the original pleadings, but the court does not indicate whether the lawyers refer to specific legal provisions or whether they refer generally to their client’s “natural and legal rights” which the court suggests was the case in the original pleadings. If the lawyers did refer to such provisions, the court should refer to them in detail at this point (and not simply of its own accord as it does later on in the judgment). If the lawyers did not make such specific reference, then the court should comment on this fact in order to encourage more precise reference to legal provisions.

 

7.   According  to  paragraph V of the  judgment,  the defense  lawyer’s  conclude  that  three

years illegal detention “makes no sense”. Given the provisions in the law providing for punishment of officials involved in illegal detention cases (Articles 112, 113, 142 and 143 of the 1926 Penal Law), this would appear to be an understatement which might be replaced by a request to the court to accept a case prosecuting those officials responsible for Mr. Al-Dequis’ illegal detention. If defense lawyers fail to advise their client to make such a claim (possibly for political or professional reasons, believing for example that such a claim would jeopardise their standing within the profession or would be counter-productive when seeking the court’s cooperation), the court should make reference to this fact in its judgment.

 

8.   In paragraph VI of its decision, the court establishes firstly that  the Partial  State  Security

Court was claiming jurisdiction over Mr al-Dequis and secondly that the Attorney General was not involved in his case. It then refers to a number of detention orders, which the Attorney General states were issued by the State Security Court for the purposes of interrogating Mr. al-Dequis for the period 18.3.96 to 20.11.96. and refers to the fact that the Attorney General presents 16 of these which have been issued for the period 3.10.96 to 4.11.96 (i.e. for a period of 1 month). Presumably there is a mistake as regards the latter dates. The court then establishes that none of the detention orders mention a specific charge and it indirectly states that in its opinion they have been falsified.

 

9.  The Court then appears to fail to mention the fact that  the third session  was adjourned (no

            reason apparent from the final judgment) to the fourth and final hearing on 18.3.99. The Court therefore added another 35 days to Mr. Al-Dequis’ detention, this bringing the total time of detention since the first hearing to 151 days (357 days after the appointment of Mr al-Dequis’ defense lawyer and 1096 days since Mr al-Dequis’ arrest). Why did the Court decide to do so and why is there no reference in the final judgment to this final adjournment?

 

10. In  paragraph  VII,  the  Court  refers to the gravity of the procedure it calls “precautionary

            imprisonment”, refers to the goals and justifications of such detention and makes no reference to any legal articles pertaining to the notion. Paragraph VIII refers to criminal procedural law. Paragraphs IX and X refer to provisions of the 1962 Gazan Constitution. In paragraphs X and XII, separated by a paragraph referring to the length of Mr al-Dequis’ detention and, once again, criminal procedural law, it establishes that by virtue of Article 58 of the Gazan Constitution of 1962, the High Court has jurisdiction to review “administrative decisions” under a number of circumstances. Without using the Arabic  for “judicial review”, Article 58 does establish that the High Court may exercise “judicial review” over administrative decisions. Without using the phrase “judicial review”, the Court seeks, in paragraph XII, to explain the values and principles, which the court takes into account when exercising “judicial review”.

 

            What the Court does not do is the following.

 

Ø    It does not make reference to the law establishing the Partial State Security Court (established after the date of Mr. al-Dequis’ arrest).

Ø    It does not comment on which procedures bind this or any of the other State Security Courts.

Ø    It does not establish the scope and nature of these courts’ jurisdiction.

Ø    It does not address the possibility that the 1979 Revolutionary PLO Code may apply.

Ø    It does not make reference to the 1945 Emergency Laws and their basis for administrative detention.

 

It may be implicit in the reference to the 1962 Constitution and to the 1924 Law on Arrest and Search, that the High Court rejects the idea that the State Security Courts are bound by other legal provisions and procedures other than these two laws. If this is the case, then the High Court should explain this explicitly. And if this is the case, then there is no question of the plaintiff’s detention constituting an administrative decision: if civilian law applies and there are no provisions in the law giving the executive the right (which, it seems, there are not), then why does the High Court refer to an administrative decision to detain? The 1924 law speaks only of judicial decisions to detain and the 1962 law refers to “the law” being applied. On the basis of the above, the High Court should therefore distinguish three possibilities.

 

Firstly, the High Court deals with the possibility that the State Security Courts deals with detention cases according to the 1979 PLO Code and/or according to the 1945 Emergency Laws. In this case (and as we have seen), the court may confirm that there are procedures to be followed. And on the basis of Article 43 of the 1922 Palestine Order in Council, it has jurisdiction to review the case, if the State Security Court fails to do so according to the provisions of those two laws.

 

Secondly, the Court may establish that the State Security Courts do not apply the 1979 PLO Code and the 1945 Emergency Regulations and that they are bound to apply the provisions of the 1924 Law on Arrest and Search and the provisions of complementary laws. In this case, the High Court, also on the basis of Article 43 of the 1922 Order in Council, may review the State Security Court’s failure to apply the relevant procedures. But if the 1924 and complementary Laws are to be applied, then why establish the State Security Courts at all? It is therefore more likely that the first option applies.

 

Finally, the Court may decide that the decision to arrest and detain was an administrative decision, which can be reviewed under the principles of judicial review (as correctly identified by the Court in this judgment). In this case, the Court must establish which provisions of the law permits the executive authority to exercise administrative powers over detention cases. Despite their draconian nature and despite the Palestinian Authority’s obvious reluctance to invoke them explicitly, this may well be the 1945 Emergency Laws. If so then the Court has to establish the procedural limits to such administrative power and it must establish whether it believes that the State Security Court has jurisdiction to exercise judicial review over detention cases. It must then argue, again on the basis of Article 43 of the 1922 Order in Council, that if the State Security Court fails to exercise such review then it, the High Court, has the power to exercise such review.

 

11. It should also  be noted that  paragraph VIII’s reference to  the 1924 law is not particularly

            exhaustive. It does not refer to all the applicable procedure in Mr. Al-Dequis’ case and it does not make reference to specific Articles and subparagraphs when referring to the law. One of the reasons why this is the case may be that the court , if it were to start applying the detailed provisions of the law to the facts of the case (i.e. date of arrest followed by applicable procedure etc), would have to admit openly that all the violations of the applicable law had taken place even before the case came to court. And this would question the court’s own (political) decision, through adjourning the case and not deciding on it immediately, to add 151 days to Mr. Al-Dequis’ detention.

 

12. Dealing  with  the  issue of  a  court’s  jurisdiction  is  usually  done at  the beginning  of a

            judgment in order to justify the addressing of the substance of a case. Why does the Court deal with the issue of its jurisdiction in the second to last paragraph (paragraph XII)?

 

13. Finally, why does the court  not  hold  the  Attorney General, General Prosecutor,

prison officers and the Security Services to account under the applicable laws? All these parties have legal obligations which, if breached, should (according to Articles 112, 113, 142 and 143 of the 1936 Criminal Code Ordinance) lead to terms of imprisonment. Why are legal costs not awarded against the Attorney General? Why is the law giving the plaintiff a right to compensation not invoked?

 

IV.  Marwaan Abd el-Karim Ali ‘Issa

A. Documents

 

In the name of the Merciful and Compassionate God

 

 

The High Court of Justice in Gaza

Case Number 202/98 (High Justice)

********************************

 

 

 

The Court                   Fayez al-Quidreh (President), Hamdan Abadleh and Sa’adeh Addajjany

Secretary                     Salmaan Murtaja

 

The plaintiff                  Marwaan Abd el-Karim Ali ‘Issa – held in Gaza Central Prison

His representatives    Iyaad Alamai and Ibrahim Surani from the Palestinian Centre for Human Rights

Defendants                  The PSS [Preventative Security Service], represented by the Attorney

                        General

 

Object of application   1. Issuing a temporary decision to commit the defendant to

    clarify the reasons justifying the plaintiff’s detention   

    without the [applicable] legal procedures being followed.

2. Issuing a final decision, committing the defendant to 

    release the plaintiff.

 

Date of application        27.10.98

Date of session                         Sunday, 14.3.99

In the presence of      Ibrahim Surani, the plaintiff’s representative and Mr. Fahmi 

 Najaar, the Attorney General’s representative

------------------

//Decision//

 

[I] Having reviewed the documents and having heard the pleading and the legal arguments.

 

[The following 18 lines form one sentence in the Arabic original]

 

[II] According to the application of the plaintiff’s representative, the plaintiff was arrested on 16.3.96 by the PSS [Preventative Security Service] [.] [O]n 14.2.98 [the plaintiff’s representative] was directed to the defendant in order to establish the reasons for his client’s arrest [.] [H]e did not receive a response and tried again on 24.2.98 but to no avail [.] [H]e added in his application that since the plaintiff’s detention [,] no interrogation [procedures] have been undertaken by the Attorney General’s office [.] [Nor] has he been brought before a court [for the purpose of obtaining a] detention [order] or for the purpose of prolonging his detention [,as is required] according to [“] principles [”] and [“] enforceable legal procedures [”] [.] 

 

[Paragraph spacing added]

 

[III] [This situation] led him to submit [End of page 1, Arabic version] this application in order to obtain [firstly] a temporary decision accepting [his petition] and requiring the defendants to clarify the reasons justifying his client’s detention and [secondly] the issuing of a final decision committing the defendant to release his client [.] [H]aving heard the pleading of the plaintiff’s representative [,] the Justice Court (1 judge) issued its decision on 5.11.98 [,] in which it decided to accept the plaintiff’s application and to require the defendant to clarify the reasons justifying the plaintiff’s arrest and detention [.] [T]he defendant [was required to] submit his response [to the court] within 8 days of being informed of the decision.

 

[IV] In his capacity as the defendant’s representative [,] the Attorney General submitted his counter-pleading to the High Court of Justice on 12.12.98 [.] [I]n it he stated that the plaintiff had been detained on 16.3.96 under file number 287/96 by the al-Rimahl police [Gaza district] on security charges and that the investigation by the SSC [State Security Court] was still continuing [.]  [This, he claimed] meant that the High Court of Justice had no jurisdiction to review this application. He ended his counter-pleading by requesting that the plaintiff’s application be rejected and that he be committed to pay costs and expenses.

 

[V] During the hearing on 13.12.98 reviewing the application [,] the plaintiff’s representative reiterated what he had mentioned in his application and added that since his detention [,] his client had not been interrogated [.] [N]or had he been brought before a court [for the purposes of authorising] his detention or an extension of his detention [.] [This, he added,] violates the provisions of Article 10 of the law of Arrest and Search [.] [H]e [also mentioned that he] had sent two letters to the Attorney General in order to establish the reasons for his client’s detention [.] [H]e had not [,] however [,] received a response.

 

[VI] The Attorney General’s representative reiterated what he had mentioned in his counter-pleading and added that the plaintiff was being detained under file number 287/96 by al-Rimal police on the charge of engaging in activities [“] against the Authority [”] which violated Articles 59 and 60 of the 1936 Penal Law [.] [This] charge [had been] listed against him.  He requested to be given a chance to collect all the documents related to the plaintiff [.] [He then] presented [some of these documents which he had already collected, namely] a detention order for 15 days and second detention order [applicable until the date of] the trial [.] [Both] orders had been issued by the SSC [.] [C]onsequently [,] the complaint was postponed until 28.1.99 in order to enable the  Attorney General’s office to collect [and present] the [remaining] documents and papers related to the plaintiff.

 

[VII] The plaintiff’s representative did not attend the hearing on 28.1.99 and the [review of the] complaint was postponed to14.3.99.

 

[VIII] Both parties’ representatives attended the hearing on 14.3.99 and the Attorney General’s representative stated that the Attorney General’s office had not requested [that the] suspect [be detained] [.] [In addition,] he had not been able to collect the [remaining] documents relating to plaintiff [.]  [He reiterated that] the Attorney General’s office had not investigated and that he had not requested his detention [.] [He] had asked the defendant [,] the PSS [,] to give him access to the information relating to he reasons for the plaintiff’s detention and arrest but the PSS had not responded [:] no documents or information [relating to the plaintiff’s case] had been received. [End of page 2, Arabic version]

 

[IX] The plaintiffs’ representative asked that he receive a response to his request for his client’s release. Detention and precautionary imprisonment [for the purposes of] interrogation is considered to be [“] a dangerous procedure [”] as the [“] assel [”] [legal principles?] [provide that] the human being cannot be deprived of his freedom unless this is pursuant to the execution of an enforceable judicial decision [.] [P]re trial precautionary imprisonment [for the purposes of] interrogation is not [,] according to the law [,] a punitive measure [.] [Instead] it is meant to prevent [firstly] the interference by the suspect with witnesses [, secondly] [“] playing [”] [by the suspect] with the evidence and [thirdly] the possibility of his escape in the case of his being released [on bail] before trial [.] [T]he law provides that a suspect’s precautionary imprisonment should be based on an order from a judge after a request has been made by the investigator if [the latter] sees a necessity [“] of imprisoning the suspect for 48 hours [”].

 

[X] In Articles 3 – 10 of the law of Arrest and Search of 1924 the legislator laid down the applicable principles and procedures in cases of arrest and detention [.] [A]rticle 10 provides that no one shall be detained for a period exceeding 15 days and that no one shall be detained for a period exceeding 30 days unless a signed application has been made by the Attorney General and has been sent to a magistrate  [,] requesting that the individual be detained for [“] another period of time [”].

 

[XI] Some Articles in the Gazan constitutional system support and [seek to] ensure that these principles and legal procedures be followed and considered in any case [involving] arrest [and/or] precautionary imprisonment [.] [A]rticle 4 provides that: “Individual freedom is guaranteed and no one shall be arrested or detained unless it be according to provisions of the law.”. Article 5 states that “all crimes and punishments are to be based on the law [….]” [whilst] Article 12 provides that “freedom of opinion is guaranteed. Within the limits of the law, every individual has the right to express his opinion and to publicise it orally, visually or in any other manner.”

 

[XII] The court has clarified that the plaintiff has been detained since 16.3.96 [,] without any charges [having been made against him] [.] [I]t has not been proved that any investigation has been conducted and through its representative [,] the Attorney General’s office has denied that it has  any information concerning the reasons for his detention [.] [I]t did not request his detention or its extension [,] [it] did not conduct an investigation and [it] did not issue any charges against him [.] [T]he Court has been provided with evidence showing that the plaintiff has been detained for approximately three years and [that his arrest and detention] was not executed according to the [provisions of] the law of  arrest and search [.]  [T]his renders his detention illegal and violates the provisions of the law and of the constitution.

 

[XIII] [T]he High Court of Justice has [jurisdiction to] review the legality of any decision issued by any party [.] [This is because] the [“] evaluationary [”] [“taqdireah”] [i.e. administrative discretionary power?] power that is given by the legislature to the administration or any other party is not a special privilege [, but rather] a necessity needed for the public good and [for] achieving justice in the application and execution or application of civilian law [.] [For these reasons] it is not an absolute power but restricted and limited [.] [I]t is restricted by the public interest and limited by the good use of power within the limits that are [“] needed in the interest of the public interest and justice [”] [.] [The latter two concepts] require such decisions to be correct [in order] to render [their] goals [compatible with] the public interest [.] [These decisions] should not exceed its [i.e. the public interest’s] limits or be abused [.] [Nor should they] violate the law  [“] or its provisions [”] [.] [C]onsequently [,] the High Court of Justice has jurisdiction to review this application. 

 

[XIV] According to the above and [pursuant to the fact that there has been a] violation of  legal and constitutional provisions and that [the plaintiff’s detention] [“] attacks [”] individuals’ freedoms and [that it has constituted] an unjust use [i.e. abuse] of power [,] the Court has [established] the illegality of the plaintiff’s detention This leads us to annul the detention and arrest order and [to issue an order for the] immediate release of the  plaintiff.

 

For these reasons

In the name of the Palestinian People

//Verdict//

The Court has decided to answer the request of the plaintiff Marwaan Abd el-Karim Ali ‘Issa and commits the defendant, the Head of the PSS, to release him.

This verdict was issued and declared during the hearing on 14.3.99

       Member                                          Member                                     President

(Sa’adeh Addajjany )                         (Hamdan Abadlah)                        (Fayez el-Quidra)           

 

B. Commentary

 

Judges              Fayez al-Quidreh (President), Hamdan Abadleh and Sa’adeh Addajjany

 

Mr Issa’s        Iyaad Alamai and Ibrahim Surani from the Palestinian Centre for Human

Lawyers:          Rights

 

1.      The plaintiff was arrested on 16.3.96. His lawyers turned to the person responsible for his detention, the Head of the Preventative Security Service, for the first time on 14.2.98.

 

Why did it take 700 days before Mr. Issa’s case received legal attention? Why did the Attorney General not ensure that he had knowledge of the arrest on 16.3.96?

 

2.      The first court hearing (with 1 judge) took place on 5.11.98.

 

Why did it take 264 days from the day on which Mr. Issa’s representative contacted the Preventative Security Service for the first time for Mr. Issa’s case to be reviewed by a court of law?

 

3.      During the first hearing on 5.11.98, the court gave the Attorney General 8 days to provide the court with reasons for Mr. Issa’s arrest and detention.

 

Even if it had not yet established its jurisdiction over Mr al-Dequis (necessary in order for the Court to be able to review the facts of the case against specific legal provisions), why did the court not refer to the potentially applicable criminal procedural law as an indicator of the gravity of the situation in which Mr Issa was at that time?

 

4.      The second hearing took place on 13.12.98.

 

Why did this hearing take place 39 days after the first hearing and not 8 days as the court had previously stipulated?

 

5.      a) In paragraph IV, the court refers to the Attorney General’s counter-pleading which argues that simply because Mr. Issa had been arrested on “security charges” and simply because the State Security Court was investigating Mr. Issa, the High Court had no jurisdiction over Mr. Issa.

 

Why does the court not argue anywhere in the judgment that this is not a legal argument? Why does it not criticise the Attorney General for lack of reference to applicable jurisdiction of the two courts?

 

b) The court establishes later in the judgment (paragraph XII) that no proof was produced to show that “any investigation” was conducted into Mr. Issa’s involvement in the charges mentioned in paragraph VI of the judgement. On this basis and without referring to the applicable Article 43 of the 1922 Order in Council, the court later argues that it has jurisdiction over Mr. Issa.

 

Comments arising at this stage of the judgment:

 

Why does the court not correct the Attorney General anywhere in the judgment by stating the fact that the State Security Court is an ad hoc body, set up temporarily only for the purpose of holding a trial, and that it is not the State Security Court, but rather the Preventative Security Service that supposedly conducts security investigations?

 

Given that both the Attorney General and Mr. Issa’s representative failed to do so, why does the court not address the question of the scope of the State Security Court’s jurisdiction as a matter of principle?

 

Why does the court not establish which procedures the State Security Court must review in detention cases that do supposedly fall under its jurisdiction? If these procedures are those of the 1979 PLO Code or those of the 1945 Emergency Regulations, why does the court not refer to these in order to establish whether they have already been violated? If it did so, it would automatically have jurisdiction over Mr Issa’s case under Article 43 of the 1922 Order in Council.

 

Is it to be inferred from the court’s silence on this matter that it believes that the State Security Court’s jurisdiction is identical to the jurisdiction of the High Court, that is to say that the two courts review the same substantive law and the same procedural law? If so, why does the Court not say so?

 

6.      After stating in paragraph IV that the Attorney General had argued in his counter-pleading on the previous day that the Court had no jurisdiction over Mr. Issa, the court states in paragraph VI that the Attorney General goes through a list of documents relating to Mr Issa’s detention, which he has obtained from the Preventative Security Service. The court proceeds to state at the end of the paragraph that the Attorney General requests that the case be adjourned in order to obtain more documents.

 

Why does the court not explain its view of the Attorney General’s claim that the High Court has no jurisdiction (see also above, point 5) and why does it not comment on the difference between the Attorney General’s counter-pleading on 12.12.98 (which argued that the High Court had no jurisdiction) and the Attorney General’s request for more time on 13.12.98? 

 

7.      In paragraph VI, the court also refers to the fact that the Attorney General’s representative has stated that a specific charge has been “listed” against the plaintiff. For the purposes of evaluating the application of relevant procedures (be they under the 1924, 1945 or 1979 Laws), it is important that the date on which these charges were “listed” be clear.

 

Why does the court not mention the date on which this charge was made? If the Attorney General has not established the date, then why does the court not mention this fact?

 

8.      In paragraph VI, the court also refers to the fact that the Attorney General’s representative has stated that he has received two detention orders. The court does not mention on which dates these detention orders were issued. Again, it is important that these details appear for the purposes of evaluating applicable procedures.

 

Why does the court not mention the dates of the detention orders?

 

The second detention order is purportedly applicable until the date of the trial.

 

Why does the court not mention the fact that not even under the 1945 or 1979 laws, let alone under the 1924 laws, such a detention order can be issued? Why, during this hearing of 13.12.98, did the court not already establish that even the most draconian of procedures had been violated (see also point 5)?

 

 

 

9.      On 13.12.98, the court decided to postpone the hearing of the case to a third hearing on 28.1.99. It did so on the basis that the Attorney General had requested more time in order to collect all relevant documents from the Preventative Security Service (paragraph VI). It did so despite the fact that the Attorney General had already produced a document relating to the charge and a document illegally purporting to legally detain the plaintiff up to the date of his future trial by the State Security Court.

 

Why did the court need further documents? And why did the Court decide to add 46 days to Mr Issa’s detention, bringing the total number of days of Mr. Issa’s detention since the first hearing to 85 ?

 

10.  Neither of Mr. Issa’s two representatives from the Palestinian Centre for Human Rights turned up for the third hearing on 28.1.99.

 

Why did the court decide to postpone the hearing by 45 days, to 14.3.98? Was there a good reason for bringing the total detention time since the first hearing to 130 days?

 

11.   Following paragraph VIII (in which the court states that the Attorney General has been unable to present any additional information concerning the plaintiff’s detention), the court, in paragraph IX, begins to refer to legal principles it believes to be applicable to Mr Issa’s case. Normally the court should explain how it makes the step from the Attorney General failing to provide the relevant information to the Court deciding that it has jurisdiction over the case. Only once the court has established it has jurisdiction can it then apply the applicable law to the facts of the case. The court half-heartedly addresses the issue of its jurisdiction at the end of the judgment, in paragraph XIII. This will be dealt with below (point 14).

 

12.   In paragraph IX, the court refers to “detention” and “precautionary” imprisonment as if it they were synonymous. It refers to the conditions under which “pre-trial precautionary imprisonment” are acceptable but does not refer to any law establishing such a principle nor to the conditions that must be fulfilled before it can be applied to a detainee. The court finishes the paragraph by referring to “precautionary imprisonment” having to be based on an order from a judge who is responding to an investigator wanting to detain the suspect for 48 hours. It does not mention from which law this principle derives.

 

Firstly, precautionary imprisonment should read “precautionary detention”. Someone is “imprisoned” when they have been sentenced by a court of law. Someone is “detained” when they are being investigated for the purposes of being charged or when they have been charged and are awaiting trial. The court should make this distinction clear in the use of its terminology.

 

Secondly, “precautionary detention” is not a term that refers to a 48-hour period of detention. It refers to exceptional measures that can be taken against a suspect who, after all relevant investigatory procedures have been correctly followed, has been charged with an offence. In other words, before precautionary detention can apply, the usual burden of proof on the authorities applies. They must establish enough evidence against the suspect for the purpose of charging him or her. (As the court establishes in paragraph XII of its judgment, no evidence has been produced by the Preventative Security Service pertaining to Mr Issa’s case.) And, as we have seen, there are clear limits to the period of time that is available for collecting such evidence, both under the 1924 and 1979 laws. “Precautionary detention” applies therefore only when the suspect has been charged and is awaiting trial and it applies as a doctrine in order to justify a judicial decision refusing a suspect’s application for bail. (Here the court correctly identifies the general reasons why precautionary detention is applied : preventing interference with witnesses or evidence and preventing the potential escape of the suspect.)

 

Thirdly, presumably the court’s reference to 48 hours is a reference to the provisions of the 1924 law of Arrest and Search. As we have seen, these laws deal with normal arrest and detention procedures and not with “precautionary detention”.

 

13.  In paragraph X, the court makes reference to the 1924 Law of Arrest and Search. It only

 makes reference to Article 10 in general, not citing specific subparagraphs and not quoting the law. As we have seen, there are a number of other Articles under the 1924 law that could be cited in relation to the facts of Mr Issa’s case, such as the need for an arrest warrant, such as the rights to legal counsel and such as the responsibilities of the head of a detention centre. In paragraph XII the court makes general reference to the facts of the case, reiterating that Mr. Issa was arrested on 16.3.96 and that there has been no proof of charges having been made or an investigation having been conducted against him.

 

The judgment would be more transparent if the court explicitly applied the applicable procedure to the dates of the case.

 

Such an explicit application would show in Mr. Issa’s case, that Mr. Issa should never have been arrested. As we have seen, Articles 3(1) and 4(1) of 1924 require that for an arrest to be effectuated without a warrant, one of a number of conditions have to be fulfilled before such an arrest is legal. None of the conditions have been shown to have existed on 16.3.96. Even if they had, Mr. Issa should have been brought before a Magistrate at the latest on 18.3.96 (Article 10(1)). The Magistrate could only have prolonged his detention for an additional 15 days if sufficient evidence had been presented (Article 10(3)). It appears from the way in which the court has dismissively dealt with the detention orders issued by the State Security Court (NB: no procedures regulating the State Security Court’s issuing of such orders have been identified or discussed by the court) that no such evidence existed at the time of Mr. Issa’s arrest. Therefore, the 15 days would not and should not have been granted. Even if the 15 days and the subsequent possible 15 days had been granted (Article 10(3)(a), 1924), the Attorney General himself would have had to apply for an extension of detention beyond this total of 32 days (Article 10(3)(a), 1924).

 

It may therefore be concluded that Mr. Issa should have been released at the very latest by 17.4.96. The judgment of the High Court was issued on 14.3.99, 1061 days after the 17.4.96, 394 days since Mr Issa’s representatives had contacted the PSS and 130 days after the court had held its first hearing. Do these numbers explain why the court was reluctant to specifically apply the facts of the case to the applicable procedure?

 

14. In paragraph XIII, the High Court begins with the phrase “[we have jurisdiction] to review

            the legality of any decision issued by any party”. It then speaks of the legislature having given the “administration or any other party” an “evaluationary power” (presumably referring to administrative discretion) and then speaks of this discretion having to be applied within certain limits, notably those set by “the public interest”.

 

Like in other judgments, it may be concluded that the court is speaking here of the principle of judicial review, the power of a court to review the way in which executive discretion, a discretion that must be explicitly provided for by law, is exercised. It concludes that the application of such discretion may not “violate the law”.

 

The High Court fails to identify where in the law the detention of suspects by the State Security Services applying the State Security Court’s jurisdiction is dealt with under principles of executive discretion. It then fails to explain why, even if such discretion does exist (which it seems not to), such discretion is bound by the limits of the 1924 law. The very existence of discretion in detention cases presupposes that the 1924 law is set aside in special cases in which the procedures applied are more flexible, responding to the needs of the Executive in particular cases. Judicial review is not about applying normal legal procedures to the exceptional administrative decision-making by the executive. It is about reviewing such decisions on the basis of principles such as “proportionality, rationality and procedural propriety” (under English laws these principles are established in case law from 1948). The application of these general principles do not involve the application of specific criminal procedural law, though such law may provide an indication of what is, for example, rational or proportionate in terms of executive decision-making.

 

Therefore, either the court is dealing with judicial review or it is applying the strict provisions of the 1924 criminal procedural law. It cannot be doing both. Which makes paragraph XIII of the judgment somewhat confusing.

 

If the court is dealing with an administrative decision then it must apply the principles of judicial review. The court must establish where the law or a Presidential decree states that State Security Court cases are based on administrative decisions, must review the conditions that must be fulfilled for such administrative decision-making to be invoked and must identify the sources of the somewhat general principles of judicial review that it identifies in paragraph XIII of the judgment.

 

Alternatively, the court must explicitly conclude that the decision to detain Mr. Issa, issued by the State Security Court, is not an administrative decision but a judicial decision. In this case 1924 or 1979 legal principles apply and the Court, on the basis of Article 43 of the 1922 Order in Council, has jurisdiction to enquire as to whether the State Security Court is following these procedures and has jurisdiction, if it is not, to deal with the case itself.

 

15.  Finally, why  does the  court not  hold the  Attorney General,  prison officers and the

Security Services to account under the applicable laws? All these parties have legal obligations which, if breached, should (according to Articles 112, 113, 142 and 143 of the 1936 Criminal Code Ordinance) lead to terms of imprisonment. Why are legal costs not awarded against the Attorney General? Why is the law giving the plaintiff a right to compensation not invoked?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

V.  Wa’el Faraj

A. Documents

 

In the name of the Merciful and Compassionate God

 

 

The High Court of Justice in Gaza

Case Number 189/98

 

*******************************************

 

 

In the presence of Judges      Jamil al-A’shi, as President and members Fayez al-Quidra and Mohammad Souboh.

Secretary                                  Salmaan Moortajja

Defendants                              General Intelligence Force in the Palestinian National

Authority, represented by [the] Attorney General.

Subject of application             1. – Issuing a temporary decision committing the

defendant to present the reasons justifying the plaintiff’s

imprisonment without [respecting relevant] legal norms.

2. – Issuing a final decision committing the defendants to

release the plaintiff.

Date of petition                       14.10.98

Date of this session                Saturday, 20.2.99

 

In the presence of                     Mr. Iyad Alami and Mr. Ibrahim Surani, the plaintiff’s representatives and Mohammad Alli Dawi,  representative of the Attorney General’s Office – the defendant

-----------------------

//Decision//

 

[The following 12 lines form one sentence in the Arabic original]

 

[I] [T]he summary of the petition [clarifies] that the plaintiff was arrested on 25.4.96 by  [the] General Intelligence Force [.] [O]n 17.11.96 his representative  was directed to the defendant to clarify the reasons [End of page 1, Arabic version] justifying [the plaintiff’s] arrest [.] [H]e did not receive a response and was directed to Mr. Attorney General on 9.1.97 to receive clarification of the reasons for [the plaintiff’s] arrest [.] [Again] he did not receive a response [.] [D]uring all of his time under arrest the plaintiff was not interrogated by the Attorney General’s office and was not brought before a judge [with a view to] detaining him or to prolonging his detention according to legal procedures under the 1924 Law of Criminal Procedure [.] [N]o list of charges was made against him [.] [H]e suffers from a permanent infection of the throat [,] which affects his health [.] [His detention] dangerously violates his natural and legal rights and it badly affects him on the mental, social and professional level [.] 

 

[II] [W]e [therefore] petition the court [,] requesting:

 

1. – the issuing of a temporary decision, forcing the defendants to present the reasons justifying [the plaintiff’s] imprisonment without [due] legal procedures [having been followed].

 

2. – the issuing of a final decision forcing the defendant to release the plaintiff.

 

[III] In its review of the [plaintiff’s] petition during its session on 19.10.98, the Court decided to [grant the first request,] issu[ing] a temporary order which gave the defendants [“defendants” is in the plural in the Arabic original] eight days to present their reasons.

[IV] [During the court’s] session on 25.11.98 [,] [in light of the fact that the Attorney General had] sent letters [to the General Intelligence only] on 2.11.98 and on 11.11.98 [,] the representative of the Attorney General’s office requested the postponement of the petition’s review until [the Attorney General] had received the response from the specified party [the General Intelligence] [.] [T]he court [accepted and] decided to postpone the review until 9.12.98. [The following 8 lines form one sentence in the Arabic original] On 6.12.98 the Attorney General’s office responded to the petition with a counter-pleading which argued that the plaintiff’s detention was legal and that it had been carried out according to legal procedures [because] he had been detained on 10.6.97 under case number 292/97 by a department of the State Security Court [.] [T]he Attorney General’s office added in its response that this [High] Court has jurisdiction [over detention cases] when detention procedures [followed] are illegal [.] [B]ut in this case the issue was different and the Attorney General’s office [therefore] requested [the petition] be rejected.

 

[V] During the [High Court] session on 9.12.98 [,] the plaintiff’s representative repeated what had [already been] mentioned in the petition [.] [H]e added that he had received the counter-pleading of the Attorney General’s office two years into the plaintiff’s detention and this in spite of the detention violating Article 10 of the Criminal Procedure Law 1924 which obliges [the Attorney General] to bring [the detainee] before a judge [if] his detention [is to be] prolonged [.] [As]this had not happened[,] [the plaintiff’s representative] asks [for the plaintiff] to be released.

 

[The following 14 lines form one sentence in the Arabic original; no paragraph spacing here in the original]

 

[VI] The representative of the Attorney General’s office responded to this pleading by saying that there exists a detention order [issued] by the department of the State Security Court’s Attorney General [as well as] a [second] one [issued by] the State Security Court [.]  [“] I [”]  indicate that these [are] in the Annex [.] [T]he Attorney General had agreed to [continue to] detain the plaintiff and he was awaiting a letter proving this [presumably “this”  means (proving) “that to do so would be legal”] [.] [H]e [therefore] requested a [future] postponement [of the review] [.] [T]he court [accepted and] decided to postpone the review [End of page 2, Arabic version] of the petition to 20.2.99 [.] [I]t [also] offered to issue a memorandum for any party requesting it [.]

 

[Paragraph spacing added]

 

[VII] [During the] session on 20.2.99 the representative of the Attorney General’s office decided that the Attorney General [no longer] agreed to the [continued] detention of the plaintiff [as] there was nothing to prove that a charge [had been] made [against him] [.] [H]e [therefore] [“] gave the authority to this court [”] [i.e. he agreed that the High Court had jurisdiction].

 

[The following 12 lines form one sentence in the Arabic original; no paragraph spacing in the Arabic original]

 

[VIII] [T]he plaintiff’s representative presented his final pleading on 20.2.99 [in which] he repeated his opinion [.] [H]e added that in its counter-pleadings before this court [,] the Attorney General’s office had been unable to present any documents such as [firstly,] an arrest warrant [,] [secondly] a request following legal procedures and signed by the Attorney General for the prolongation of the detention [,] [thirdly] any file on the plaintiff’s case or [fourthly] [any] list of charges [.] [I]n particular because he has been detained for three years [the plaintiff’s representative] requested [that] the plaintiff [be called] for cross-examination [in order] to hear his testimony [.] [T]he plaintiff’s two representatives added that according to the provisions of Article 7/A of the Court Law No. 41 of 1940 and its amendments [,] this Court has jurisdiction in reviewing this petition.

 

[IX] It is clear to this court that the plaintiff’s arrest [,] executed three years ago without a court [hearing] and without a specific legal charge provided for in the law [being made] [,] was not [an] arrest [carried out in a ] legal [manner] [.] [This flows from] the following reasons:

 

1. - The presented detention order, dated 10.6.97, mentioned that the plaintiff  belongs to the [“] secret confidential [”] military wing of (Hamas) without any legal provision criminalising such membership [.] [N]o law or [“] order [”] [“amr”] has been issued determining such membership to be illegal.

 

2.       – The  detention order  presented [to the court]  and dated  2.8.97 [,]  mentions  the  case

number and that the charge was the engagement in activities potentially [“] against [”] the [“] interests [”] [“masaleh”] of [“] the authorities [”] [“sultah”] [.] [This not only] contradicts the aforementioned charge in the first detention order [but] is [also] not justified or supported by a legal provisions.

 

3.       - After  stating during the  session of 9.12.98  that the Attorney  General agreed  with  the

[continued] detention of the plaintiff [,] the Attorney General’s representative turned to this matter [again] on 20.2.99 and stated that the Attorney General did not agree to the plaintiff’s detention [.] [T]here is nothing that proves there to have been a charge made against the plaintiff [.] [The Attorney General therefore (!!)] [“] authorises [”] [“fawwada”] the Court to handle the matter.

 

4. – [The second part of the following sentence was somewhat difficult to unravel] After these contradictory procedures the court thinks that the department of the State Security Court’s Attorney General did not interrogate the plaintiff and did not make a specific legal charge against him [“] after warning [”]  [him? of his legal rights?] and [after] giving [him?] [“] the option [”] of [“] (charging the charged) [”] [“itiham al-mutaham”] [.] [N]or did it [the Attorney General’s Department] present the State Security Court’s  list of charges [.]

 

[X] Consequently, the State Security Court did not assign a session to review the plaintiff’s case and [,] because of the lack of charges [made against the plaintiff] [,] did not exercise its jurisdiction [.] [T]he plaintiff [therefore] [“] has no court for him [”] despite [the fact that he has been] detained for approximately three years [End of page 3, Arabic version] [.] [A]s [“] this court is the court for those who have no court [”] [,] [this court claims] jurisdiction over the issue of the plaintiff’s release.

 

[XI] [T]his court has decided [“] from another side [”] that [“] political arrest [detention!] is unlawful [”] [“al-i’itiqal al-seeyasee gheer mashru’ah”] [.] [A]ll courts of Palestine are obliged to apply the decisions of the High Court of Justice.

 

For these reasons

And in the name of the Palestinian People

//the judgment//

 

the court has decided to accept the request of the plaintiff, Wa’el Ali Darwish Faraj and [thus] commits the General Intelligence Force to release the plaintiff.

 

Issued and declared publicly on 20.2.99.

Signature                                              Signature                                              Signature

President                                                               Member                                                 Member

 

 

B. Commentary

 

Judges:            Jamil al-A’shi, as President and members Fayez al-Quidra

            and Mohammad Souboh.

 

Mr. Faraj’s      Mr. Iyad Alamia and Mr. Ibrahim Surani

Lawyers          from the Palestinian Centre for Human Rights

 

1.      Mr. Faraj was arrested on 25.4.96. His lawyers turned to the body responsible for his detention, the General Intelligence Force, on 17.11.96.

 

Why did the Attorney General not ensure that he had knowledge of Mr Faraj’s arrest on 16.3.96 in order to ensure that Mr. Faraj had legal representation that could take issue with Mr Faraj’s detention on the 16.3.96 and not only 206 days after his arrest?

 

2.      The court’s first hearing took place on 19.10.98.

 

Why did it take 661 days from the first date on which Mr Faraj had active legal representation and 707 days from the date of his arrest for Mr Faraj’s case to be brought to trial?

 

3.  During the first hearing on 19.10.98, the Court gave the Attorney General 8 days to present

     the reasons for Mr. Faraj’s arrest and detention.

 

Even if it had not yet established its jurisdiction over Mr. Faraj (necessary in order for the Court to be able to review the facts of the case against specific legal provisions), why did the court not refer to the potentially applicable criminal procedural law as an indicator of the gravity of the situation in which Mr. Faraj was at that time?

 

4.  The second hearing took place on 25.11.98, 37 days after the first hearing.

             

            Why was there a 37-day delay between the first and second hearing when the court had provided only for an 8-day delay in its first hearing?

 

5.      In paragraph IV the court notes that the Attorney General had only attempted to contact

General Intelligence by letter on 2.11.98, that is 14 days after the first hearing. Not only did the court fail to ask the Attorney General as to why, when given an 8-day delay, the Attorney General had only sent letters to General Intelligence 14 days after the first hearing. It also accepted the Attorney General’s request for more time in order to receive a response from General Intelligence and fixed a third hearing on 9.12.98.

 

Why did the court on 25.11.98 fail to cross-examine the Attorney General for breach of the court’s first ruling?

 

Why did the Court decide to let 14 days, nearly double the original time given to the Attorney General, elapse before, 51 days after the first hearing, reviewing Mr. Faraj’s case again?

 

Why did the Court not conclude that the lack of response from General Intelligence meant that General Intelligence did not have the relevant documents, that the High Court therefore had jurisdiction under Article 43 of the 1922 Order in Council and that it could set a final date for the final review of Mr. Faraj’s case under the applicable law?

6.      In paragraph IV, the Court refers to a counter-pleading submitted by the Attorney General 3 days before the third hearing in which the latter argued that the procedures followed by General Intelligence had been legal, simply because General Intelligence had detained Mr. Faraj on 10.6.97 under a specific case number issued by a department of the State Security Court. In paragraph VI, which refers to the third hearing on 9.12.98, the Court essentially repeats this content of the counter-pleadings, adding that a second detention order had been issued. The court does not mention the date of this second detention order.

 

In relation to the above, the court fails to address two principle issues.

 

Firstly, it fails to point out that Mr. Faraj was arrested on 25.4.96 and that consequently a detention order dated 10.6.97, 411 days after the arrest, was of relative little use in attempting to build a defense case for the GI.

 

Secondly, it fails to systematically address the fundamental lack of legal argumentation on the part of the Attorney General. The latter does not submit legal arguments supporting the State Security Court’s jurisdiction over Mr. Faraj, fails to submit the applicable procedural law under which the State Security Court functions and fails to produce proof of a charge, based on evidence, having been made against Mr. Faraj.

 

Why did the court not address these questions during the hearing on 9.12.98? Why did it, instead, give the Attorney General 73 additional days to collect information? (See below point 7)

 

7.      In paragraph VI, the court decided during its third hearing on 9.12.98 to accept the Attorney General’s actions, which the Attorney General himself states were based on “agreeing with the plaintiff’s detention”. The court decides to give the Attorney General 73 additional days to “await a letter” proving that to detain the plaintiff was legal. This brought the total detention time since the first hearing to 124 days.

 

Why does the High Court not apply the above reasoning under point 6 and decide that legal procedures under either the 1924 Laws or under the 1979 laws have already been violated and that if the State Security Court is basing its jurisdiction over Mr. Faraj on an administrative decision having been taken under the 1945 Emergency laws, then evidence against Mr. Faraj should have been presented to the High Court 8 days after the High Court’s first hearing or at the very latest at the second hearing of the Court on 25.11.98? Why, instead, does the Court give 73 additional days for general evidence (which under applicable legal procedures cannot be positive evidence since all applicable procedures have already been violated) of the legality of Mr. Faraj’s detention to be collected?

 

8.      On  20.2.99  the  Court  held its  fourth  hearing.  The  Attorney General’s  representative

confirmed that there was no evidence proving that a specific charge had been made against Mr. Faraj. He therefore, without providing legal reasoning, accepted that the High Court had jurisdiction over Mr. Faraj’s case (see paragraph VII of the judgment).

 

9.      In paragraph VIII of the judgment  Mr. Faraj’s lawyers  refer to Article 7(a) of Court Law

# 41 of 1940 in order to justify the High Court’s jurisdiction in the case. Why does the court not deal with this argument anywhere in the judgment?

 

10.  In paragraph IX of the judgment the Court makes 4 points in relation to why Mr. Faraj’s

“arrest” was carried out in an illegal manner. The first two points are indirectly relevant to “the arrest”, whilst the third and fourth points are not. They are relevant to Mr. Faraj’s “detention”.

 

Points 1 and 2

 

In points 1 and 2 of paragraph IX, the Court points out that the first detention order of 10.6.97, i.e. 411 days after the arrest, “mentions that the plaintiff belongs to the secret confidential military wing of Hamas”. It then says that no legal provision criminalises such membership. Presumably this is relevant to the “arrest “ of the plaintiff when taken in conjunction with point 2 of paragraph IX of the judgment in which the Court notes that a second detention order, dated 2.8.97 – that is 464 days after Mr. Faraj’s arrest – “mentions” that Mr. Faraj was being charged with “engaging in  activities potentially against the interests of the authorities”. The court concludes that the two accusations in the detention orders are “contradictory”. Presumably, the Court believes they are relevant to Mr. Faraj’s arrest on the following grounds: the “arrest” is illegal because, as shown by the delayed detention orders, the Security Services did not have sufficient evidence against Mr. Faraj at the time of his arrest for the purposes of making the arrest in the first place.

 

There are a number of points to be made here.

 

Firstly, if talking about “the arrest”, why does the court not take note of the fact that the first document it has received concerning reference to a potential charge (potential because the court does not clarify whether the first detention order “charged” him with membership of Hamas’ military wing or whether it simply “mentioned’ this as a secondary element to a further charge) is dated 411 days after the arrest? This document in itself renders the arrest and entire detention procedure illegal. In this context, the court fails to review applicable arrest and detention procedures at the moment of arrest. Simply doing this would lead to the conclusion that M. Faraj had not been treated in accordance with applicable criminal procedure.

 

Secondly, it is not true to say that there are no legal provisions criminalising membership of Hamas’ military wing. The 1936 Penal Codes’ Articles 69-73 apply to violent activities and more importantly for present purposes, the Palestinian Authority has an absolute obligation under the 1995 Interim Agreement to combat violent activities against Israel. It is surprising that the Court should make such a fundamental error. Membership of Hamas itself is not to be outlawed as not all of Hamas’ members are members of the military wing. But the law concerning the military wing is clear.

 

Finally, the second detention order does not “contradict” the first detention order. The second order’s reference to “activities potentially against the interests of [“] the [”] authorities is another way of saying that violent activities carried out by Hamas against Israel is against the interests of both Israel and against the interests of the Palestinian Authority, especially with regard to the latter’s responsibility under the Interim Agreement. What is true, is that the phrase “activities potentially against the interests of the authorities” is not to be found in any legal provisions. It is also true that this charge is different (though not contradictory) to the charge in the first detention order. The court should be more precise in its treatment of these documents in order to be able analyse the activities of the Security Service and the mentality of the Executive Authority more accurately.

 

Points 3 and 4

 

In points 3 and 4 of paragraph IX of the judgment, the court makes points unrelated to Mr. Faraj’s “arrest”.

 

Point 3 refers to the fact that the Attorney General changed his pleading between the third hearing on 9.12.98 (758 days after Mr. Faraj’s arrest) and the fourth hearing on 20.2.99 (831 days after Mr. Faraj’s arrest)  and that he did so on the basis that he had found “no proof” of there having “been a charge made against the plaintiff”. On this basis, the court argues that the “arrest” was illegal.

 

Firstly, it is not necessary to charge an individual with an offence in order to effectuate an arrest. The authorities must have a reasonable basis for suspicion against an individual. As we have seen, the charge is made later, either within 48 hours of the arrest or within the legally extended additional 15-day period of interrogation etc. Therefore, the fact that between 758 and 831 days after Mr. Faraj’s arrest the Attorney General decided that there had been no charge made against Mr. Faraj is irrelevant as to whether Mr. Faraj’s arrest was legal or not.

 

Secondly, why does the Court refer to the Attorney General’s opinion, uttered 831 days after Mr. Faraj’s arrest, to review the legality of procedures that were applicable 831 days earlier?

 

Thirdly, the Court concludes point 3 by stating that on the basis that he had changed his opinion on the legality of Mr. Faraj’s detention, the Attorney General “authorises the Court” to have jurisdiction over the case. Why does the Court not point out that the Attorney General’s opinion on whether the Court has jurisdiction over a case or not does not in any way affect whether the Court has jurisdiction?

 

Point 4 is of interest for what it does not say rather than for what it does say. Again, like point 3, it has nothing directly to do with the legality of Mr. Faraj’s “arrest” but rather concludes that on the basis of “these contradictory procedures”, the “Attorney General of the State Security Court” failed to “interrogate and charge” the plaintiff and failed to “inform him of his rights”. Point 4 is therefore referring to the detention procedure as a whole rather than to the moment of arrest.

 

      What are the “contradictory procedures” to which the court refers?

 

Why does the High Court not specify the role and jurisdiction of the “Attorney General of the State Security Court”? If the role is not established by law or in writing, why does the Court not say so?

 

Why does the High Court, when stating that the Attorney General of the State Security Court has failed to fulfil a number of obligations (interrogate and charge; inform the plaintiff of his [which”] rights), not refer to the law upon which these obligations are based? Why does it not specify what the punishment is for failing to fulfil these obligations? Again, if there are no legal provisions covering these obligations and specifying punishment in the case of failing to fulfil them, why does the Court not say so?

 

Why does the High Court not point out that legal procedures should have been carried out 831 days previously?

 

11.  Again, paragraph X of the judgment is more interesting for what it does not say rather than for what it does say. The implication of what the Court does say requires, but does not receive, further attention by the Court. The High Court states that the State Security Court did not assign “a” session to review Mr. Faraj’s case “and because” of the lack of charges made against Mr. Faraj did not exercise its jurisdiction. The court therefore concludes that Mr. Faraj “has no court for him” and that because the High Court “is the court for those who have no court”, the High Court has jurisdiction over Mr. Faraj.

 

A number of points arise from this statement.

Firstly, the State Security Court’s “jurisdiction” is made up of its hearing a case (i.e. “assigning a session”). These two separate phrases referred to by the court are the same thing. Presumably the Court is seeking to say that “because no charges were made, there was no case to be heard and therefore no jurisdiction over the case”.

 

Secondly, the Court implies that if there had been charges made, the State Security Court would have had jurisdiction. Why does the Court not state over which chargeable offences the State Security Court has jurisdiction? If it recognises the potential jurisdiction of the State Security Court, then why does the court not give an opinion as to which procedures bind the State Security Court?

 

Thirdly, and linked to the last questions, when should “a” session have taken place in the State Security Court? Why does the High Court, 831 days after Mr. Faraj’s arrest, refer so generally to the fact that potentially the State Security Court could have had jurisdiction to hear Mr. Faraj’s case at some point in time? Why does it not review applicable procedure to determine when, at the very latest and in the case of having evidence against Mr. Faraj, the State Security Court should have reviewed the case?

 

Finally, why does the High Court not refer to Article 43 of the 1922 Order in Council to explain why it has jurisdiction over Mr. Faraj? Why does it not comment upon Mr. Faraj’s representative’s jurisdictional arguments referring to the 1940 Court Laws? Why, instead, does it base its jurisdiction on a general statement with no reference to legal basis?

 

12.  The High Court concludes its judgment in the case of Mr. Faraj by “deciding”, in paragraph XI, that political arrest [presumably meaning detention] is unlawful”. This sums up the most significant misgiving about the Court’s approach to the case.

 

Firstly, there is no legal need for the court to “decide” that “political arrest [i.e. detention] is illegal”. As we have seen, there are legally enshrined procedures, either under the 1924 or 1979 laws, that are applicable to arrest and detention cases. These procedures apply in all criminal cases. They require that evidence be produced and a charge be made against an individual on the basis of offenses defined by law. Thus it is irrelevant for what motive these procedures are not followed, be it political, personal or other. It has become clear from PHRMG’s interviews with judges sitting in the High Court that the reason that the court has made this statement was to send an indirect message to the Executive Authority, making it clear that the High Court would not accept the notion of administrative detention being invoked under the 1945 Emergency Laws. The reason for not stating this explicitly is principally political.

 

Secondly, the High Court fails to conclude its judgment with an application of applicable procedure to the facts and dates of the case. It fails to identify the individuals who should now be prosecuted under Articles 112, 113, 142 and 143 of the 1936 Penal Law for violation of the 1924 procedures. And it fails to refer to how much compensation Mr. Faraj is entitled for having spent, at the time of the final judgment,  831 days in detention.

 

 

 

 

 

 

 

 

VI.  Ibrahim Ismai’il al-Halabi

A. Documents

 

 

 

 

 

[Document 1: Letter written by Mr. al-Halabi’s lawyers to the Attorney General ]

 

 

 

Plaintiff:                       Ibrahim Ismai’il al-Halabi

                                    Held by the GI in Gaza

Represented by Attorney Mahmoud Muhammad Abu Dan – Gaza

Subject:                       To release al-Halabi held by the GI in Gaza

Details:

 

1.       The plaintiff Ibrahim Ismai’il has  been detained by the General Intelligence  [GI] in Gaza

since April 1997, on the charge[s] [firstly] of collaborating with Israeli Intelligence and [secondly of] taking part in blowing up Anwar al-Shabrawi and Abdullah al-Madhun [.] As a result of severe torture [,] (in itself a crime) [,] the plaintiff confessed to all the GI’s investigator wanted him to [confess].

 

2.       After  one  year  of  [“] arrest [”] [,] the  plaintiff’s  file  was transferred  to  the  Attorney

General’s office [.] [This file contained documents in which] the plaintiff denied what was related [“mansoub” – NB: this does not mean “charged”] to him [.] [It should be stressed that] there are [“] material and legal events or facts [”] that prove the truthfulness of the plaintiff’s denial.

 

3.        [T]he PSS in Gaza has [“] caught [”] the real perpetrators [responsible] for the operation

[“] related to [”] the plaintiff [.] [T]hey are Muhammad Abdul Al [,] Akram al-Hallaq [,] Nabil al-Krei’i and others [.] [T]hey confessed to being responsible for the operation and [to] their membership of the military wing of the Islamic Jihad movement [.] Muhammad Abdul Al and Nabil al-Krei’i were released for reasons unknown to us.

 

4.       Officials  of  the  Islamic Jihad  movement have  confessed  to being  responsible for  the

operation, either [by organising military operations/crimes from] outside [Palestine] [such as in the case of] Dr Ramadan Shalah [,] the General Secretary of the Movement [,] or [by organising military operations/crimes from] within [Palestine] as [evidenced by the] confession made [“] in the name of the movement [”] by Abdullah Ashami [.] [I] want to add that this confession was [made during] the prayers of Aladdha holiday in front of thousands of worshippers [.]

 

Officials of the Islamic Jihad movement confessed on many occasions that lack of coordination between the inside and outside [of the Islamic Jihad movement] was responsible for the [“] confusion [”] in the [“] martyr operation [”] (for which the plaintiff was detained). 

 

 [“] [T]he charged/suspect ? [“] [“mutaham”] is innocent until proven guilty  by an order of a court with [due] jurisdiction [that has assured itself that] correct legal procedures for arrest, detention and [even] trial procedures have been followed [.] [T]he plaintiff is innocent of all the [“] charges related to him [“] [“attuham al-mansubah illaiyh”] [,] [which has been proved through the fact that] the real perpetrator [,] Akkram al-Hallaq [,] who drove the martyrs in his car to the operation’s location [,] [as well as] his co-colleagues [,] have been apprehended

 

**** The plaintiff’s continued arrest and detention and the [“] wrongdoing [”] that happened during the investigation affects the dignity of the GI.

Because the security forces have been created only to protect and preserve the dignity and life of the citizens [,] the innocence and dignity of citizens is above the dignity of all security forces.

 

**** On the basis of the above, we request from your honours to accept our request and [either] to issue a just decision ordering the release of Ibrahim Ismai’il Taha al-Halabi currently held in Gaza’s Central Prison by the GI  [or] to send him to a just court if you think this to be the right thing.

 

Written on 30.5.98 [End of page 1, Arabic version]

 

[Document 2: Pleadings submitted to the High Court]

 

In the name of the Merciful and Compassionate God

 

The High Court of Justice

In its role as High Court of Justice

Case Number 117/98

 

Plaintiff                        Ibrahim Ismai’il Taha al-Halabi

Currently detained in Gaza Central Prison / General Intelligence (GI) Department.

Represented by Attorney Mahmoud Abu Dan – Gaza, PO Box 360

Defendants:                1. Head of the GI in Gaza – represented by the Attorney General in

                                    Gaza

                        2. [The] Attorney General in Gaza as well as in a personal  capacity

Subject of the              1. Issuing  a  preliminary  decision  against  the  first  and  second

pleadings                     defendant requiring them to present [to the court] the [“] real [”] reasons  preventing them from releasing the plaintiff [who is] currently [“] arrested [”] by the GI in Gaza.

 

                                    2. Issuing a preliminary decision against the second defendant requiring him to present the [“] real [”] reasons preventing him from issuing a list of charges and from bringing the plaintiff before a court with [due] jurisdiction and [requiring him to state] whether he has [“] reasons [”] [i.e. evidence] that justify bringing the plaintiff to trial.

 

3. Issuing a final decision committing the first defendant to release the plaintiff [“] and releasing him from prison [“].

 

Details of the pleadings

 

1. The plaintiff Ibrahim Ismai’il Taha al-Halabi has been detained by the GI in Gaza since April 1997 on the charge[s] [firstly] of collaborating with Israeli Intelligence and [secondly] [of] taking part in blowing up Anwar al-Shabrawi and Abdullah al-Madhun [.] As a result of severe torture [,] (in itself a crime) [,] the plaintiff confessed to [having committed] all the [offenses to which the] GI’s investigator wanted him to [confess].

 

2.       After one year of [“] arrest [”] [,] the file of the plaintiff was transferred to the Attorney

General’s office [.] [This file contained documents in which] the plaintiff denied what was related [“mansoub” – NB: this does not mean “charged”] to him [.] [It should be stressed that] there are [“] material and legal events or facts [”] that prove the truthfulness of the plaintiff’s denial.

 

3.       [T]he PSS in Gaza has [“] caught [”] the real perpetrators [responsible] for the operation

[“] related to [”] the plaintiff [.] [T]hey are Muhammad Abdul Al [,] Akram al-Hallaq [,] Nabil al-Krei’i and others [.] [T]hey confessed to being responsible for the operation and [to] their membership of the military wing of the Islamic Jihad movement [.] Muhammad Abdul Al and Nabil al-Krei’i were released for reasons unknown to us.

 

4.       Officials of the Islamic Jihad movement have confessed to being responsible for the

operation, either [by organising military operations/crimes from] outside [Palestine] [such as in the case of] Dr Ramadan Shalah [,] the General Secretary of the Movement [,] or [by organising military operations/crimes from] within [Palestine] as [evidenced by the] confession made [“] in the name of the movement [”] by Abdullah Ashami [.] [I] want to add that this confession was [made during] the prayers of Aladdha holiday in front of thousands of worshippers [.] [I]n addition[,] [the] issuing [of] leaflets signed by the movement proves its responsibility for the failed operation.

 

5.       The officials of the Islamic Jihad movement confessed on many occasions that lack of

coordination between the inside and outside [of the Islamic Jihad movement] was responsible for the [“] confusion [”] in the [“] martyr operation [”] (for which the plaintiff was detained). 

 

6.       [T]he plaintiff’s continued  detention causes him [,] his family and [his] future serious

prejudice [.] [H]e is married [,] a father of two children and studies at the Islamic university [where] he only has one semester left before  graduating.

 

[The following sentence made little sense in Arabic and has been rearranged and significantly amended according to the translators understanding of what the court is trying to say]

 

[“] [T]he charged/suspect ? [“] [“mutaham”] is innocent until proven guilty  by an order of a court with [due] jurisdiction [that has assured itself of the fact that] the correct legal procedures for arrest, detention and [even] trial procedures have been followed [.] [T]he plaintiff is innocent of all the [“] charges related to him [“] [“attuham al-mansubah illaiyh”] [,] [which has been proved through the fact that] the real perpetrator who drove the martyrs in his car to the operation’s location [,] [as well as] his co-colleagues [,] have been apprehended. [End of page 2, Arabic version]

 

According to the above, the plaintiff presents his pleadings to the high position of your respected court and requests the following: -

 

1.       The issuing of a just decision and the acceptance of this request.

 

2.       The issuing of a preliminary decision against the first and second defendants [,]

[requesting them] to present [to the court] the [“] real [”] reasons preventing them from releasing the plaintiff currently arrested by the GI in Gaza.

 

3.       The issuing of a preliminary decision against the second defendant requiring him

[firstly] to present the [“] real [”] reasons preventing him from issuing a list of charges and from bringing the plaintiff before a court with [due] jurisdiction and [secondly requiring him to state] whether he has [“] reasons [”] [i.e. evidence] that justify bringing the plaintiff to trial.

 

4. The issuing of a final decision committing the first defendant to release the plaintiff [“] and releasing him from prison [”].

 

With the utmost respect

25.6.98

 

(Plus oath and signature of Mahmoud Abu Dan) [End of page 3, Arabic version]

[Document 3: The High Court’s final judgment]

 

The High Court of Justice

As High Court of Justice

Case Number 117/98

 

In the presence of         Mr – Khalil Ashayyah, the High Court Judge

 

Secretary                    Nur Fares

 

Plaintiff                        Ibrahim Ismai’il Taha al-Halabi,

                        His representative, Attorney - Mahmoud Abu Dan 

 

Defendant                   1. [The] Head of the GI in Gaza – represented by Attorney General in Gaza

                        2. [The] Attorney General in Gaza as well as in a personal capacity

 

Date of session          30.6.98

 

[The following 35 lines of English form one sentence in the Arabic original]

 

In the presence of: Mr – Mahmud Abu Dan, the plaintiff’s representative was present [.] [He] stated  [no quotation marks in Arabic original in the following] I repeat what has been stated in the pleadings and add that the plaintiff has been detained by the GI for 13 months on the charge of having collaborated with Israeli Intelligence and for having participated in the bombing of the [“] martyrs [”] Anwar al-Shabrawi and Abdullah al-Madhun [.] [In addition,] what happened during the interrogation [reference to extensive torture of the plaintiff and of his bother] [as] according to [the contents of] the testimony of the plaintiff’s brother Ramis al-Halabi [,] [constitute] [“] extremely dangerous legal violations [”] [.] [“] I  [”] [the plaintiff’s attorney] have [already] sworn to this under oath before the Magistrates Court in Gaza [.] [End of page 4, Arabic version] [A] copy of this oath [can be found in] Annex M/1 [.]

 

[Paragraph space added by translator]

 

[I]t was proved by the PSS that the real perpetrators [of the crime] [“] related to him [”] [i.e. of which he has been accused] [“] are other persons [”] [i.e. are not him] [.] [These persons] are now with the PSS in Gaza [.] [T]his issue was exposed and the truth was clarified [by the plaintiff’s lawyer] to the officials in the GI and to the “raquib” [person with a particular military status] [who was] aware [of the issue] in the PSS [.] [B]ecause they were scared of [“] confusion  and shame [”] and because of the sensitivity of the case [,] the officials refused to release him [.]

 

[Paragraph spacing added by translator]

 

[T]he Attorney General’s office had the complete file but did nothing [.] [T]he new [“] charge [”] is before the State Security Court before [which] the plaintiff [“] stands [”] [for] almost a month [.] [“] I [”] [the plaintiff’s lawyer] contacted [“] them [”] [the State Security Court] [although] I did not present a written request or [make an] application for his release [.] [Instead] I talked to them orally and because of the sensitivity [of the case] they refused to talk about the issue [.] [T]his [fact] was mentioned in a letter sent by President [Arafat’s] office to the Attorney General’s office [,] a copy of which may be found in [Annex] M/2 [.] [The letter,] dated 13.10.97 [,] asks [“] them [”] [the State Security Services presumably] to do what is required [.]  [End of page 5, Arabic version]

 

[Paragraph spacing added by translator]

 

[However,] Mr. Attorney General did not follow any legal procedure[s] pertaining to this issue and refused to present it to [a] court [with due jurisdiction] [.] [This is all the more unacceptable, given that] he had reviewed the files and knew personally [that] the real perpetrators [of the crime] are other individuals [.] [Because of the fact that] the plaintiff and his family have been unjustly treated [,] we present this request to rectify the injustice [.] [A]s the request was presented according to [“] legal provisions [”] [“ussoul”] [NB: not a single legal provision has been mentioned in these pleadings] [,] we request your court to accept this request and to proceed with legal procedures according to the provisions of the law [.]

 

Decision

 

The court decides to reject the request.

 

Issued on 30.6.98

 

Signature

 

High Court Judge

 

 

[End of page 6, Arabic version]

 

 

 

 

B. Commentary

 

Judge                                             Khalil Ashayyah

 

Mr. al-Halabi’s lawyer                        Mahmoud Abu Dan

 

1.      The judge presiding in Mr. al-Halabi’s case decided on 30.6.98 to reject Mr. al-Halabi’s claim for illegal detention on the basis of no reasoning. It is therefore not possible to comment upon a judgment as such. The “judgment” consists of a repetition of Mr. al-Halabi’s pleadings with a one line rejection of the complaint.

 

2.      It is worth noting that Mr. Mahmoud Abu Dan does not invoke a single provision of criminal procedural law. His pleadings to and before the court are a summary of the political considerations surrounding Mr. al-Halabi’s arrest and are therefore interesting as an indicator of the political issues surrounding many of the cases considered in this report.

 

3.      As for the way in which Mr. Khalil Ashayyah decides to reject the case, it can only be noted that had Mr. Ashayyah insisted on receiving evidence that all applicable procedures under the 1924 law had been followed, he would have had to draft a judgment somewhat longer than the one for which he finally opted.

 

 

VII.  Ibrahim Ahmad Khaled al-Maqadmeh

A. Documents

 

In the name of the Merciful and Compassionate God

 

 

The High Court of Justice

Complaint Number 62/98

 

**********************

 

Judges                          Fayez al-Qidreh

                                    Hamdan al-Abadleh

                                    Sa’adeh al-Dajani

 

Secretariat                  Nur Faris

 

Plaintiff                        Dr. Ibrahim Ahmad Khaled al-Maqadmeh

                                    Detained in the criminal department of the police headquarters

Represented by Attorneys Raji Sourani and Iyyad al-Alami from the Palestinian Center for Human Rights

 

Defendant                   General Director of the Police

                                    Represented by the Attorney General

 

Subject                        1. Issuing a preliminary decision committing the defendant to present the reasons justifying the plaintiff’s detention without following [relevant] legal provisions.

                                    2. Issuing a decision committing the defendant to release the plaintiff.

                                    3. Allowing visits to the plaintiff until the issue has been [conclusively] reviewed.

 

Date of complaint        28.4.98

 

Today’s date               Saturday, 20.6.98

 

Those present                        Raji Sourani and Iyyad al-Alami – Representing the plaintiff

                                    Muhammad al-Liddawi – the Attorney General’s representative

 

-------------

 

//Decision//

 

[I] Having reviewed the documents and having listened to the pleadings and legal arguments.

 

[II] According to the facts presented in the application [,] on 10.4.98 the plaintiff was arrested by the police and detained at [“] the [”] police headquarters [.] [O]n 12.4.98, the plaintiff’s representative was directed [by whom?] to [“] the [”] police headquarters with a view to visiting his client [.] [T]he police [,however,] refused to allow him [access]  [End of page 1, Arabic version] [.] [Subsequently] he was directed to Mr - Attorney General whom he asked for  permission to visit his client [.] [Despite the fact that] the Attorney General gave him this permission [,] the police refused to allow him [to] visit [his client] [.] [H]e was directed [by whom?] to many other parties in order to [establish] the reasons for his client’s arrest, but to no avail [.] [This] has led him to present this pleading to the High Court of Justice [,]  requesting [firstly] the issuing of a preliminary decision which accepts [t]his application and which requires the defendant to present the reasons that led him to detain [his] client and [secondly] the issuing of a final decision [ordering] his release.

 

[III] [T]he High Court of Justice (single judge) decided in its session of 29.4.98 to issue a preliminary decision accepting this request and requiring the defendant to present the reasons for the plaintiff’s detention and [stipulating that] he should present his response [to the court]  [with]in 8 days of being informed of the decision [of 29.4.98].

 

[IV] [During] the session reviewing this application on 4.6.98 [,] the Attorney General’s representative requested that the application’s review be postponed [,] because of a [“] lack [”] of response from the General Director of the Police concerning the subject of the application [i.e. because the GD had failed to answer the AG’s questions about the detainee] [.] [The court accepted this request and] the application’s review was postponed to a hearing on 20.6.98.

 

[V] [During] the hearing on 20.6.98 [i.e. this hearing], the Attorney General’s representative presented his counter-pleading in which he stated that the plaintiff had been detained [,] [pursuant to an order issued by] the partial [“juziya”] State Security Court on 20.4.98* under case number 219/98 [,] [by] al-Rimal police [,] on the charge of incitement and conspiracy to commit [“] a [”] crime [.] [H]e was detained for the first time on 12.4.98* [.] [I]t [the detention] [“] was renewed many times [”] [with the] last detention [order] being issued on 8.6.98 for [a period of] 15 days [.] [Again,] the same [?] [“] charge [”] of incitement and conspiracy to commit a crime in contravention of Articles 31 and 34 of the Penal Law applied [.] [T]he Attorney General’s representative repeated what he had stated in his counter-pleading and finished his counter-pleading by requesting for the application to be rejected.

 [* see above dates ?]

 

[VI] The plaintiff’s representative argued [firstly] that the plaintiff’s detention violates [“] legal articles [”, secondly] that the Attorney General was unaware of [his client’s case] and [thirdly] that to-date no charges had been pressed against the [“] plaintiff’s client [”].

 

[VII] After the court had reviewed the detention orders issued by the partial State Security Court, the High Court of Justice [decided that it had] [“] lost [”] its jurisdiction to review this application [.] [The reason for this conclusion is that] the [High] court is the court for those who have no court [.] [Consequently] the plaintiff should go back to the court that has jurisdiction [to consider the plaintiff’s representative’s] request [End of page 2, Arabic version] to release his client [.] [I]t has been [“] shown [”] to this court [that] the plaintiff is detained according to detention orders issued by the State Security Court under case number 219/98 [.] [T]herefore  the application should be rejected.

 

 

For these reasons

and in the name of the Palestinian People

//Verdict//

 

The Court has decided in the presence [?] to refuse this application and to order the plaintiff [to pay his own] expenses and legal costs.

Issued and declared during the session of 20.6.98.

 

Signature                               Signature                                        Signature

 

     Fayez al-Qidrah                  Hamdahan al-Abadlah                                  Sa’adah Addajani

 

President of the Court                          Member                                           Member

B. Commentary

 

Judges                          Fayez al-Qidreh (President), Hamdan al-Abadleh and Sa’adeh al-Dajani

 

Mr. al-Maqadmeh’s       Raji Sourani and Iyyad al-Alami from the Palestinian Centre for

Lawyers:                     Human Rights

 

1.      In paragraph II, the court refers to the fact that Mr. al-Maqadmeh was arrested on 10.4.98

and that his lawyers attempted to visit him on 12.4.98 but were refused access by the police. The court also mentions that the police refused his lawyers access, even after the Attorney General had given then “permission” to do so.

 

Nowhere in the judgment does the court state that a detainee has a right to be visited by his lawyer and nowhere does it condemn the fact that the lawyers were not given access to Mr. Al-Maqadmeh. The 1924 law appears not to guarantee this fundamental right, though this right is now guaranteed under Article 54 of the 1998 Prison Law.

 

2.  The  first court hearing  (with 1 judge)  took place on 29.4.98.  Compared with other cases,  

            the time lapse between arrest and lawyers seeking access to the detainee (2 days) and the time lapse between the arrest and the first hearing (17 days) is very little and is to be noted. The first hearing thus took place at the end of what under duly applied  procedures under the 1924 law of Arrest and Search (Article 10(3)) should have been the end of the maximum time allowed by an extension order issued by a Magistrate on 14.4.98 (48 hours after Mr. al-Maqadmeh’s arrest).

 

3.   During the first hearing on 29.4.98, the court gave the Attorney General 8 days to provide

            the court with reasons for Mr. al-Maqadmeh’s arrest and detention.

 

Even if it had not yet established its jurisdiction over Mr. al-Maqadmeh (necessary in order for the Court to be able to review the specific legal provisions against the facts of the case), why did the court not highlight the fact that under the provisions of the 1924 law, should it turn out to be applicable, Mr. al-Maqadmeh could only be detained under a Magistrate’s order for a further maximum of 15 days and that any detention beyond such 15 days would have to be expressly authorised by the Attorney General himself?

 

4.   The second hearing took place on 4.6.98, 36 days after the first hearing and 53 days after

Mr. al-Maqadmeh’s arrest.

 

Why did the court hear the case 36 days after the first hearing, thus quadrupling the time it had given to the Attorney General to present evidence concerning Mr. al-Maqadmeh’s detention?

 

5.      During the second hearing on 4.6.98, the Attorney General requested more time to receive

a response from the General Director of the police concerning Mr. al-Maqadmeh’s case. Without giving a reason or commenting on this request, the Court accepted the request and fixed a third hearing for 20.6.98.

 

Why did the court accept the Attorney General’s request? Why did it not instead mention the potential applicability of the 1924 (or the 1979) laws and decide that the Attorney General had already had 36 days to produce documentary evidence of the relevant detention orders and procedures?

 

Why, in deciding to give the Attorney General another chance, did the Court prolong Mr. al-Maqadmeh’s detention by a further 16 days?

 

 

6.      The third hearing took place on 20.6.98. In paragraph V of the judgment, the High Court mentions that the Attorney General’s representative produced a “detention order” issued by the State Security Court on 20.4.98, 8 days after Mr. al-Maqadmeh’s arrest.

 

Why does the court not ask under which procedures detention orders are issued 8 days after a suspect’s arrest? This, as we have seen, is not the procedure to be followed under either the 1924 law or under the 1979 PLO Code.

 

Why does the court not question why a detention order is produced without an arrest warrant (containing reference to the charge and evidence) being produced?

 

 

7.      Again  in paragraph V,  the court refers  to the  detention “being renewed many times”, the last order being issued on 8.6.98 “for [a period of] 15 days”.

 

Why does the court not review exactly how many orders were issued, by whom they were issued and under which procedures?

 

 

8.      Still in paragraph V, the Court refers to “charges” having been made against Mr. al-Maqadmeh. The “charge” consists of two parts.

 

Firstly, Mr. al-Maqadmeh is supposedly charged with “incitement to commit a crime” in contravention of Article 31 of the 1936 Penal Law, applicable in Gaza. Article 31 of this law speaks of “inciting another to do an act of such a nature that … if the act were done … an offence would thereby be committed”. Therefore, Article 31 cannot be the basis of a charge in itself. It must be accompanied by reference to another legal provision, which provides that a specific act constitutes an offence. In other words, to charge a suspect with inciting someone under Article 31, the charge must stipulate to which offence the suspect has incited the other person.    Why does the court and why do Mr. al-Maqadmeh’s lawyers not state this? [PHRMG interviews with members of the court did not receive an explanation when pointing this out to them]

 

Secondly, Mr. al-Maqadmeh is supposedly charged with “conspiracy to commit a crime” in contravention of Article 34 of the 1936 Penal Law. Conspiracy to commit “a” crime is precisely why this article is not enough to form the basis of a charge. Like Article 31, Article 34 has also to be accompanied by reference to a separate legal provision, stipulating the nature of the crime that is supposed to have been the subject of the “conspiracy”.  Again, the question must be asked as to why the court and Mr. al-Maqadmeh’s lawyers (according to the court’s judgment) did not ask the Attorney General to explain this lacuna in the “detention orders”. [PHRMG interviews with members of the court did not receive an explanation when pointing this out to them]

 

The court had a responsibility to identify all parts of the Attorney General’s pleadings which indicated that the so-called “charges” made against Mr. al-Maqadmeh were insufficient to qualify as such and that the evidence produced by the Attorney General was not sufficient to convince the court that the State Security Court was exercising its [undefined] jurisdiction in a legal manner. In this paragraph of the judgment, it failed to exercise this responsibility.

 

 

9.      In paragraph VI of the judgment, the court states that Mr. al-Maqadmeh’s lawyers argued that their client’s detention “violates legal articles”.

 

If Mr. al-Maqadmeh’s lawyers mentioned specific legal provisions, presumably from the 1924 law of Arrest and Search, then it is not acceptable that the court failed to deal with this reference and only referred to the matter in two words. It is the court’s legal obligation to deal step by step with every argument made by the plaintiff’s lawyers. Failing to deal with this argument meant that the court failed to deal with the entire issue of which procedural law should be applied to Mr. al-Maqadmeh’s detention.   

 

If Mr. al-Maqadmeh’s lawyers failed to mention specific legal provisions (which is unlikely, given that in past detention cases the same lawyers had cited, even if somewhat generally, Articles from the 1924 Law), then the primary responsibility remains with them. However, the court is under an obligation in such cases to make amends where lawyers fail to invoke applicable law and should therefore, even under this hypothesis, have dealt with the applicable procedure.

 

10.  The court’s  unsatisfactory conclusion reached at the end of its judgment in paragraph VII

            is based on the notion that the High Court has “lost” its jurisdiction because of having been presented with the aforementioned detention orders.

             

            We have already seen that these “detention orders” have not been adequately dealt with by the court. What does the court mean by “lost” jurisdiction? Did it have jurisdiction? Did it have prima facie (presumed) jurisdiction?

 

11.  The court concludes with its own legal doctrine, stating that it is “the court for those who

have no court”.

 

This is not a particularly accurate explanation of its jurisdiction in criminal cases. The High Court has jurisdiction over all criminal cases (Section 72, 1924 Criminal Procedure Ordinance). The creation of the State Security Court meant that cases involving security issues were taken from its jurisdiction by Presidential decree. Thus, the High Court has jurisdiction over detainees unless the Attorney General can show that firstly, the case involves a security issue and secondly, that the applicable procedures under the State Security regime have been applied. On the basis of Article 43 of the 1922 Order in Council it has jurisdiction if either of these two conditions are not fulfilled.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

VIII.  Abdul Azziz Ali Abdul Hafeez al-Rantissi

A. Documents

 

In the name of the Merciful and Compassionate God

 

The High Court of Justice in Gaza

Complaint Number 60/98

 

**************************

 

 

Judges                                    Jameel el-Ashi, as President

                                    Fayez al-Qidreh

                                    Muhammad Subuh

 

Secretariat                  Salman Murtaji

 

Plaintiff                        Dr. Abdul Azziz Ali Abdul Hafeez al-Rantissi - detained at the criminal department [of the] (Police Headquarters)

Represented by Attorneys Raji Sourani and Iyyad al-Alami from the Palestinian Center for Human Rights

 

Defendant                   General Director of the Police

                                    Represented by the Attorney General

 

Subject                        1. Issuing a temporary decision committing the defendant to present the reasons for detaining the plaintiff without following due legal procedures.

2. Issuing a decision committing the defendant to release the plaintiff.

3. Allowing access to the plaintiff until his application has been reviewed

 

Date of complaint        28.4.98

 

Today's date               Thursday, 4.6.98

 

Those present   Iyyad al-Alami, representing the plaintiff Fahmi al-Najjar, representing the defendant, the Attorney General 

 

Verdict

 

[I] According to the facts mentioned in the plaintiff's pleading dated 9.4.98 [,] the plaintiff was detained by the civilian police at Police Headquaters [.] [O]n 12.4.98 the plaintiff's representatives, Attorneys Raji Sourani and Ilyad Alami from the Palestinian Centre for Human Rights, attempted to visit him [.]  [T]he police refused [them access]. [O]n 13.4.98 the plaintiff's' representatives were directed to the Attorney General to [seek the plaintiff's] release and to establish the reasons for his detention.[End of page 1, Arabic version] [The following 14 lines form one sentence in the Arabic original] On the same day, the Attorney General issued a visit permit [.] [Nonetheless,] the police refused to allow the visit. [The plaintiff's representatives] informed the Attorney General [of the polices' refusal] and sent the application to the Minister of Justice [.] [The latter] did not [provide them with a response explaining] the case and so they turned to this court [.]  [T]he plaintiff's representatives added that the continued detention of the plaintiff [,] a childrens doctor and a Professor in the Islamic University who suffers from diabetes [,] dangerously violates his natural and legal rights and causes him much prejudice on a mental, social, professional and health level [.] [T]he plaintiff's representatives concluded [their pleadings of 9.4.98] with a request [firstly] to have access to the plaintiff [, secondly] that a temporary decision be issued committing the defendants to clarify the reasons for detaining the plaintiff without having followed the required legal procedures and [thirdly] that a final decision be issued committing the defendants to release the plaintiff immediately.

 

[The following 15 lines from one sentence in the Arabic original]

 

[II] [T]his court has [already] reviewed the application during its session dated 29.4.98 in the presence of the plaintiff's representatives [.] [In that session it] issued an order allowing the plaintiff to be visited by his representative pending the court's review of the application [,] and it issued the preliminary order in favour of the plaintiff to review the application [.] [The court also requested that] within eight days, [the defendant] clarify the reasons preventing the plaintiff's release [.] [W]hen [,] after eight days [,] the Attorney General's office had not responded [,] [the court instead received] a request from the Attonery General's office to prolong the delay [within which it had to provide a response] [.] [T]he Court's Prseident decided on 9.5.98 to extend the period for a further 8 days [.] [A]t the end of this second period the Attorney General's office had still not replied [and instead,] on 26.5.98 [,] applied for another extension [.] [I]n this [third application] it mentioned that it had sent a letter to the party with jurisdiction [over the plaintiff, requesting] the required [information] concerning [the plaintiff's case]. However [,] to-date [the Attorney General's] office has not received a response [.] [C]onsequently, the court held a session on 27.5.98 to review this application.

 

[III] Th[is] court reviewed the [plaintiff's] application on 27.5.98[.] [During that session] the representative of the Attorney General's office reiterated [his] request to extend the period [,] [on the grounds that he] had sent letters to the parties with jurisdiction [over the plaintiff] but had [,] to-date [,] received no response [.] [T]he plaintiff's representative retorted that it [seemed] strange that [firstly] the Attorney General's office did not know of the reasons for the plaintiff's detention [, that secondly] to-date [the plaintiff] had not been presented to the Attorney General and [that thirdly the plaintiff] had not been brought before a court [of law]. He added that [the Attorney General's representative] had exhausted all the [necessary] procedures to clarify the reasons for the plaintiff's arrest [.][The plaintiff's representative expressed] astonishment at [firstly] the lack of response from the party with jursidiction [over the plaintiff] and [secondly] about the [additional] request for an extension [, which had been made] depsite the fact that [the plaintiff's case] concerned a violation of procedures [.] [H]e added that the plaintiff's continued detention caused grave prejudice and ["] I request ["] that he be released immediately.

 

[The following 16 lines form one sentence in the Arabic original]

 

[IV] Concerning the lack of response [from the party with jurisdiction over the plaintiff,] the court decided to give the defendant's representative a final chance to answer the request [for clarification of the reasons for the plaintiff's continued detention] and [consequently] ordered that the review of the application be postponed to 4.6.98. [.]

 

[Paragraph spacing added: as of this point the Court appeasr to be referring to this sessions' (4.6.98) pleadings]

 

[V] [T]he representative of the Attorney General's office mentioned that a letter had been sent on 29.4.98 to the General Director of the Police requesting  [End of page 2, Arabic version] ["] access to the circumstances of the plaintiff's arrest ["] [.]  [The Attorney General's office] sent a [second] letter on 27.5.98 [with the same request] but [again] received no response [.] [T]he [Attorney General's representative] added that the [Attorney General's office] did not know about the circumstances of the plaintiff's arrest [, nor] the reasons for his arrest [.] [On this basis,] he requested to be given another opportunity and requested the court to order what it deemed to be appropriate [.] [T]he court asked the Attorney General's office for a copy of the letter sent [to the party with jurisdiction over the plaintiff] on 29.4.98 [.] [T]he representative of the Attorney General's office [responded by saying that he] did not currently have a copy of the letter.

 

[VI] [Under] Article 7F (A) of the Court Laws of 1940 [,] the High Court of Justice has jurisdiction to review applications (concerning appeals against imprisonment) which seek the issuing of release orders [in favour of] illegally detained persons.

 

[VII] The Attorney General's office has been unable to prove [firstly] that it has brought the plaintiff before  a magistrate with [due] jurisdiction [, secondly that the plaintiff] has been detained according [to procedures contained in] Article 10 of the 1924 law of Arrest and Search [and thirdly] that the plaintiff has been detained [on the basis of] specific legal charges contained in the Penal Laws or in complementary laws.

 

[VIII] The Attorney General's office [,] representing the defendant (the General Director of the police) [,] has testified [before this court] on more than one occassion that [the Attorney General] was unaware of the plaintiff's detention and that he has no information concerning the circumstances [surrounding], the facts [relating to] or the reasons [for] the plaintiff's arrest .

 

[IX] Consequently the plaintiff's detention ["] became illegal ["] ["] and ["] was not based on charges provided for by law.

 

[X] Consequently the plaintiff's immediate release is ["] essential ["].

 

On these grounds

 

And in the name of the Palestinian People

 

//Verdict//

 

The court decides to release the plaintiff, Dr. Abdul Azziz Ali Abdul Hafeez al-

Rantissi : issued and declared on 4.6.98.

 

     Member                                    Member                                President

 

Muhammad Subuh                     Fayez al-Qidreh             Jameel el-Ashi, as President

                                                           

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B. Commentary

 

Judges                                    Jameel el-Ashi, (President), Fayez al-Qidreh, Muhammed Soubuh

 

Mr. Rantissi’s             Raji Sourani and Iyyad al-Alami from the Palestinian Centre for

Lawyers                      Human Rights

                                   

 

1.      Paragraphs I – V (and thus 80% of the Court’s judgment) outlines the chronology of events leading from Mr. Rantissi’s arrest (on 9.4.98) to the date of final court hearing on 4.6.98. According to the judgment, it is not clear when Mr. Rantissi was arrested, but his lawyers have confirmed that he was arrested on 9.4.98. His lawyers attempted to visit him on 12.4.98.

 

2.   The court’s first hearing took place on 29.4.98.

 

     Thus it only took 20 days from the date of the written pleadings to convene a first hearing.

 

3.  During the first hearing on 29.4.98, the Court gave the Attorney General 8 days to present

     the reasons for Mr. Rantissi’s arrest and detention.

 

4.  The second hearing took place on 9.5.98, 10 days after the first hearing.

             

     The court accepted the Attorney General’s request for more time to receive the relevant

     information. The court gave no reason for accepting the request.

 

5. The third hearing was held on 27.5.98, 18 days after the second hearing and 28 days after

the first hearing.  The court decided to give the Attorney General more time and fixed a fourth hearing for 4.6.98, 8 days later.

 

6.  On 4.6.98, 36 days after the first hearing, the Court held its final hearing.

 

7.  In paragraphs VI - VIII, the   Court  basis  its  jurisdiction to  review Mr. Rantissi’s case

on Article 7 of the1940 Court Laws, something it has not done previously.  In a couple of lines the Court states that the Attorney General’s office  has not been able to prove that the 1924 procedures have been respected by the police and by the prosecuting authorities. It makes reference only to Article 10 of the 1924 Law and to the fact that the Attorney General’s office has admitted that it was unaware of the Mr. Rantissi’s case. On this basis,  the Court concludes that the release of Mr. Rantissi is “essential”.

 

8.      It appears that in  Mr. Rantissi’s case  there was  no pleading  on the p art of  the Attorney

General  to  the   effect   the  State  Security  Court  had   jurisdiction   over   Mr. Rantissi.

Consequently, the High Court did not have to deal with the issue of conflicting jurisdiction and could deal with this case as a straightforward case in which it had simply to review actual procedures against those stipulated in the 1924 provisions. This makes it all the more surpassing that the High Court did not engage in a more systematic review of the way in which Mr. Rantissi’s arrest and detention had been handled and as per usual, the court attributes no culpability  to any of the authorities involved in Mr. Rantissi’s detention. It remains clear, of course, that the political context of this case in particular helps to explain the court’s reluctance to engage in even the simplest of legal analysis.

 

 

 

 

IX. Rajab Hasan al-Baba

A.     Documents

 

[Document 1: Mr. al-Baba’s written pleadings before the High Court ]

 

In the name of the Merciful and Compassionate God                                   

 

 

 

The High Court of Justice in Gaza                            

Case number 52/97

 

 

 

 

The Plaintiff                Rajab Hasan al-Baba – Detained in Gaza Central Prison

                                    His Attorney Subhiyye Juma’a – from the PICCR

 

The Defendant                        Head of PSS [“Preventative Security Service”] in Gaza 

                                    Represented by the Attorney General

 

Subject                        1. Issuing a temporary verdict that commits the defendant to give reasons for not following legal procedures when prolonging the arrest of the plaintiff.

 

2. Issuing a final instance judgment ordering the defendant to release the plaintiff.

 

The Final Defense Memo:

 

1.       The  plaintiff  has  been  detained  in  Gaza  Central Prison  since 17.3.96 [,]  after  having

been arrested by the PSS in Gaza. In a testimony given under oath given to his lawyer [,] the plaintiff maintained that [,] since his arrest [,] arrest [and detention] procedures had not been followed. He also maintained that he had not been presented before a judge in a court of law and that no charges had been made against him. [End of page 1, Arabic version]

 

2.       Following  severe  torture  during  interrogation  about his membership of the Islamic

resistance Hamas, the plaintiff [“] confessed [”] to such membership. He maintained, however, that he did not engage in any activities that harmed the PNA in any way and [that he] did not constitute a danger to security at any time. On the contrary, the plaintiff is known amongst his colleagues for being [“] completely devoted [”] to the laws and regulations of the PNA.

 

3.       As the  plaintiff’s  representative[s], the  PICCR followed his case as soon as he was

arrested [.] They spoke with the Head of the PSS who had arrested him [the plaintiff], asking him [the Head of the PSS] to state the reasons for the arrest, to respect  Palestinian Law and [“] to work according [”] to the procedures contained in that law [.] [I]n addition, [the PICCR asked the Head of the PSS] to take into consideration the laws/decisions [“ahkam”] [“] made under [”] the Constitution of 1962 (Article 4), which guarantees personal freedom [and reaffirms that] no one should be arrested or jailed without legal procedures being respected.

 

[Paragraph spacing added]

 

The PICCR received a reply stating that the case was with [and being considered by] the Attorney General in Gaza. Following this, we [the PICCR] communicated our concern for the rule of law to the Attorney General and requested that legal procedures in force under the Criminal Procedure Law (Arrest and Searches) of 1924 (# 4) be respected [,] by bringing the detainee before a Magistrate in order [for the Magistrate], [either] to detain him [;] or, in the case of evidence against him [,] to prolong his detention [so] that the detainee [be brought] to trial before a court of law [;] or [,] in particular because the Attorney General’s office had had sufficient time to reach its decision in the case [,] to release him.

 

We did not receive a reply from the Attorney General and both ourselves and the plaintiff were not aware as to whether the Attorney General’s office knew whether the plaintiff had been presented before a court of law or whether a judge had extended his detention. To-date, no charges have been pressed against the detainee.

 

4.       Following an order from the Attorney General, the plaintiff was released on 16.8.97 [,]

together with nine of his “colleagues” [from Hamas], because of lack of evidence against him for the purposes of presenting him before a court of law. He was taken home, but to his surprise was re-arrested two hours later by members of the police’s criminal department [.] Again, no legal procedures were followed. [End of page 2, Arabic version].

 

5.       Before the plaintiff’s arrest two years ago, the plaintiff was a teacher, married with

children and [financially] supported his blind mother, his sister and his father who has recently died without seeing his son. [The plaintiff’s] salary has been discontinued without there having been a court decision against him or a decision dismissing him [from his work].  In addition to the suffering that this has caused to those financially dependent on the plaintiff, these [dependants] have suffered emotionally as a result of being separated from the plaintiff.

 

6.       As the respected High  Court of Justice, [“] with its real and unique resources [”] for this

case and for the protection of human rights guaranteed under the Constitution and under [“] all international covenants law [”], we have had no other choice but to turn to you with this application.

 

In the light of what has been presented [above,] we are asking your respected  court to make a judgement of final instance [,] which commits the defendant to release the plaintiff.

 

 

The plaintiff’s Attorney, Subhiyye Juma’a

 

PICCR [Palestinian Independent Commission for Citizens Rights]

 

27.12.97.

 

[End of page 3, Arabic version]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Document 2: The High Court’s final judgment]

 

The High Court of Justice [in Gaza]

Case number 52/97

 

Judges                                    Mr. Fayez al-Qidreh (President),

                                    Hamdan al-Abadleh and Sa’adeh al-Dajani

 

Secretariat                  Salman Murtaji

 

Plaintiff                        Rajab Hasan al-Baba – detained in Gaza civil prison

                                    His Attorney Subhiyye Juma’a

 

Defendant                   Head of PSS in Gaza

                                    Represented by the Attorney General

 

Subject                        1. Issuing a temporary verdict to commit the defendant to state the reason for prolonging the arrest of the plaintiff without following any legal procedures.

2. Issuing a final instance judgment committing the defendant to release the plaintiff.

 

Date of representation  23.4.97

 

Today’s date               Sunday 28.12.97

 

Those present                        Subhiyye Juma’a – representing the plaintiff

            Ahmad Syam – representing the Attorney General [,] the defendant

 

Decision

 

[I] Having reviewed the documents, having listening to the pleadings and having discussed the law:

 

[II] It may be concluded from the facts, that the plaintiff presented the High Court with complaint number 52/97 [,] [filed] against the defendant (the Head of the PSS) [,] in which he asked the court [firstly] to issue an initial decision accepting his application [,] [secondly] to require the defendant to give reasons for the continued arrest and [“] imprisonment [”] of the plaintiff in violation of current legal principles and [thirdly] to issue a final decision [ordering] the plaintiff’s release.

 

[III] In his application [,] the plaintiff’s lawyer explained that his client [:] was arrested at his home in Gaza on 17.3.96 by the PSS [End of page 4, Arabic version] [;] was interrogated [,] tortured and beaten without having been charged [;] was not sent to a Magistrate for his detention [to be reviewed] [;] and did not have a list of charges made against him [.] [H]e also added that he had previously made an application to the Head of the PSS and to the Attorney General, inquiring as to the reasons for his client’s detention [“tawqief”] and [“] imprisonment [”] [“habes”], but [that he had] received a response from neither. Because the [manner of the] plaintiff’s arrest and [“] imprisonment [”] violates [both] the provisions of the Criminal Procedure (Arrest and Search) Ordinance of 1924 (#4) as well as his natural rights and because his being a teacher and a married man with children depending on him financially leads to [additional] harm [,] his Attorney filed an application with the High Court of Justice in order to get a response to his [previous] requests [made to the Attorney General: see above] and to secure the release of his client.

[IV] After studying the documents and hearing the plaintiff’s pleadings, the High Court decided on 4.5.97 to issue an initial decision accepting the application and requiring the defendant [the Attorney General] and his counsel to give, within a period of eight days, the reasons for the arrest and [“] imprisonment [”] of the plaintiff, [the eight days] starting from 4.5.97 [,] (the date on which they were informed of this decision).

 

[V] The Attorney General’s office presented his response, [answering the questions made to him by the plaintiff’s lawyer] mentioned in the plaintiff’s application [and upon which was based the High Court’s order to the Attorney General of 4.5.97], which stated that the plaintiff was being detained for security reasons identified by the State Security Court and which meant that according to Article 7A of the Court Laws of 1940 (and its amendments), the High Court of Justice had no jurisdiction over the plaintiff’s case.  The plaintiff should [therefore] have filed his request at the court responsible [for his case, i.e. the State Security Court].

 

[VI] During the assigned hearing to review the application in the presence of the High Court’s Council on 20.9.97, the plaintiff’s representative repeated his application once again and added that his client had been detained for over one and a half years without being charged [and without] appearing before a court of law. The representative of the Attorney General’s office repeated what had appeared in his reply to the  [High Court] order [of 4.5.97] and asked that he be given an extension [to the eight day period] to present the [High] Court with the plaintiff’s case number [,] with the [details of the] charges pressed against the plaintiff and with the detention orders made by the prosecutor in the State Security Court. In response to this and to the request [made by] the Attorney General’s  representative to be given the possibility to prepare his evidence, the court  adjourned the hearing until 11.11.97.

 

[VII] During the hearing of 11.11.97, the Attorney General’s representative asked the court to postpone [the hearing] and to give him another chance to present his evidence, given that he had not managed to obtain [either] the [plaintiff’s] case number, [nor] the [relevant] detention orders. The court accepted his request and adjourned the hearing until 13.12.97.

 

[VIII] During the hearing of 13.12.97, the Attorney General’s representative presented a memorandum (dated 25.11.96) which had been sent to the Attorney General by the State Security Court, containing an explanation of the circumstances [surrounding] and  the reasons for the plaintiff’s detention.[End of page 5, Arabic version] The Attorney General’s representative presented the court with two detention orders issued by the State Security Court against the plaintiff [.] [T]he first order, dated 13.11.96, stated that the plaintiff was being detained for interrogation, [though] it did not clarify the charge against him [.] [T]he second order [,] dated 2.8.97 [,] stated that the plaintiff was being detained for interrogation ([concerning his membership of] Hamas) [.] [T]he Attorney General’s representative added that the plaintiff was one among a number of other persons who had been released under an order from the Attorney General, [but] that after the release he had been re-arrested once again [.] [The plaintiff] was taken back to prison. The Attorney General announced that he had finished his presentation.   

 

[IX] The plaintiff’s lawyer asked to be given an extension in order to prepare a defense memo. [Accepting the request], the court was adjourned until 28.12.97, with a request to both parties to present their defense memos [on that date].

 

[X] On 27.12.97, the plaintiff’s representative presented her written defense memo to the clerk of the court, stating [therein, firstly,] that her client, the plaintiff, had been detained in Gaza prison since 17.3.96 without having being charged, without a list of charges having been presented before a court of law and without having been brought before a court of law [;] and [secondly] that as a result of severe torture her client had confessed to belonging to Hamas [whilst] maintaining that he had done nothing that harmed the PNA or which [“] threatened security [”].

 

[XI] [In its capacity] as the plaintiff’s representative, the PICCR followed his case as soon as he was arrested. They [the PICCR] spoke with the head of the PSS who had arrested him [the plaintiff], asking him [the Head of the PSS] to state the reasons for the arrest, to respect Palestinian Law and to work according to the procedures contained in that law. On 16.8.97, the plaintiff was released together with nine of his “colleagues” [from Hamas], because of lack of evidence against him for the purposes of presenting him before a court of law. He was taken home, but to his surprise was re-arrested two hours later by members of the police’s criminal department [.] Again, no legal procedures were followed.

 

[XII] Having reviewed the memorandum [that had been] presented by the State Security Court’s representative to the Attorney General and having heard both parties, the following has been concluded [by this High Court]. [End of page 6, Arabic version]

 

1.  The plaintiff Rajab al-Baba was arrested by the PSS [Preventative Security Service] on 17.3.96 and was detained by the State Security Court for interrogation, [beginning] on 13.11.96 for [a period of] 15 days, without the detention order clarifying the charge against the plaintiff and without an extension of the detention period on the expiry [of the 15 days].

 

 2. Literally from Arabic: On 2.8.97, (after approximately one and a half years), a detention order was issued by the judge of the SSC on the charge ((for interrogation – Hamas-) as it appears in the detention order, since the day17.3.96, until his sentence.

 

[Our translation, considerably changing the wording of the original: On 2.8.97 (approximately one and a half years after his arrest by the PSS), a further detention order was issued by the State Security Court authorising further interrogation following the plaintiff’s being charged with being a member of Hamas. This detention order of 2.8.97 claimed retroactive effect, purportedly beginning on 17.3.96 and expiring on the date of the plaintiff’s future final sentence.]

 

3. Since his detention [began,] no specific charge [,] providing for punishment under the law [,] has been made against the plaintiff.

 

4. The Attorney General’s office, (representing the defendant), failed to present anything that could prove [firstly, the existence of] a file with a specific number belonging to the plaintiff and [secondly] the existence of a specific charge made against the plaintiff, and this despite the fact that the court had [,] according to the  [Attorney General’s own] request during [previous] hearings [,] given the Attorney General a chance to produce [such] evidence.

 

5.  The Attorney General’s representative – representing the defendant - stated during the hearing of 13.12.97, that the plaintiff had been one of a number of people who had been released by the Attorney General and that he had been re-arrested. What can be inferred from this, is that the Attorney General could not identify any charges [that had been made] against the plaintiff and that this had led him to release the plaintiff.

 

6.  On the basis of the memorandum, dated 25.11.96, signed by General Imad Kalloub and sent by the State Security Court to the Attorney General, it is evident to the Court that the plaintiff was detained on 17.3.96 [“] under the jurisdiction of [”] the State Security Court on the grounds that he had joined the Hamas Movement in 1988 in whose media network he had worked. During the Intifada his activities included distributing Hamas pamphlets and joining Hamas’ military wing, [through which] he participated [firstly] with two other groups in shooting at an Israeli military jeep on 26.1.95 [and secondly] in another military operation on 12.4.95 which involved shooting and grenade throwing at the border. In May 1995, [Palestinian] Military Intelligence [PMI] confiscated the weapons owned by his group [within Hamas] and following this [,] Hamas suspected that the plaintiff had informed [the PMI] about his group and accordingly there was mutual termination of his relationship [membership?] with the movement. [End of page 7, Arabic version]  The memorandum presented by the State Security Court contained no evidence to prove that charges had been made against the plaintiff.

 

[XIII] Detention and precautionary [“] imprisonment [”] for [the purposes of] interrogation is [considered to be] one of a number of [“] dangerous [”] procedures, because the normal [way of proceeding] is not to deprive [anyone of his/her] human liberty except when executing a binding judicial decision.  Precautionary [“] imprisonment [”] [“] for the purposes of interrogation [”] prior to a court hearing should not be viewed as a punishment sanctioned by law [:] [instead] it exists [both] to prevent the defendant from influencing witnesses or from tampering with the evidence [as well as in cases where] there is a fear of [abscondment] if he is released [pending] trial. The law provides that a defendant is precautionarily [“] imprisoned [”] [only] following a judge’s order, which [i.e the order] is responding to a request from the [detainee’s] interrogator who deems it necessary that the defendant be detained for more than 48 hours. [Established] jurisprudence [“FIQH”] of the [1924] Law [of Arrest and Search]  requires that the following conditions should be fulfilled for precautionary [“] imprisonment [”] to take place [:]

 

1.  Through his review of the investigation file, of the defendant’s [personal] [“] circumstances [”], of the charge made against the defendant and having attended a hearing with the person requesting the detention, the judge must be persuaded by the reasons arguing [in favour of] the defendant’s detention for more than 48 hours.

 

2.  The judge should listen to the accused’s representative with a view to identifying reasons arguing against continued [“] imprisonment [”] . [Language of this sentence changed considerably through the translation].

 

3.  [The judge must be sure] that the crime with which the defendant is charged is a felony [serious crime] which [“] requires [”] pre-trial detention.

 

4. If the judge is convinced by the reasons [arguing in favour] of holding [the detainee], he should issue a written order for the [“] imprisonment [”] for a suitable period of time not exceeding 15 days, this period being extendable for the same period of time again.

 

[XIV] The provisions of the Criminal Procedure Law (Arrest and Searches) of 1924 (# 4) form the legal basis of these [above] principles of [“] cautionary imprisonment [”]. Article 3 of this law clarifies the circumstances under which persons may be arrested and Articles 4 to 10 clarify the procedures that should be followed when detaining a person after his arrest.

 

[XV] Article 10 paragraph 1 provides that that the arrested person must be brought before a magistrate within 48 hours of his arrest, [whilst] paragraph 3 of the same Article provides that having reviewed the reasons for the arrest of any person [i.e. the detainee], the Magistrate may [either] release him or prolong his detention for a period he considers [“] right [”] [which may be] no longer than 15 days [.] [This]  period can be renewed or extended from time to time for a period of time that does not exceed 15 days [.] [A] person shall not be detained for a period that exceeds [this maximum of] 30 days, unless an application signed by the Attorney General requesting the detention of the [“] person [”] for [“] another period of time [”] has been sent to the Magistrate. [End of page 8, Arabic version] Paragraph 4 of the same Article provides that if a person is not brought before the magistrate within the stipulated 48 hours, he should be released.

 

[XVI] Gazan constitutional law contains Articles supporting [“] this basis [”] and these legal principles which should be considered and which concern the circumstances of arrest and precautionary imprisonment. [A]rticle 4 provides that: “Individual freedom is guaranteed and no one shall be arrested or detained unless it be according to provisions of the law.”. Article 5 states that “all crimes and punishments are to be based on the law [….]” [whilst] Article 12 provides that “freedom of opinion is guaranteed. Within the limits of the law, every individual has the right to express his opinion and to publicise it orally, visually or in any other manner.”

 

[The following 21 lines form one sentence in the Arabic original]

 

[XVII] According to the spirit of the law, it is known that the administrative courts should not monitor the suitability of an administrative decision, although [“] it is agreed [”] [“MUSALAMAT”] that the judiciary has a right to review the reality of the facts [“material events”] upon which the decision was based [.] [This is] because these events are [important] elements upon which the administrative decision is based. This [right to review exists] in order to give the judiciary a chance to review the events [taken into account by the administrative decision] and to apply the law to the [corrected] version [of events]. The reviewing authority [‘s review of] the administration’s [acts] or for the [acts of the] body issuing the [administrative] decision, cannot prevent judicial review of the legality of the administrative decision.

 

[Paragraph spacing added]

 

[XVIII] The [“] authority to review [”,] given by the legislator to the administrative authority or body, is not a special privilege, but rather a necessity required for the effective functioning of public utilities and for the securing of justice through [respect for] the laws applicable to citizens.  For this reason it is not an unfettered [“absolute”] power but is restricted and limited: restricted by the public interest and limited with good use of the authority within the limits required by the public interest and justice.

 

[Paragraph spacing added]

 

[XIX] What is needed in addition for the administrative decision to be valid is that its goal must be the public interest, that it must respect the limits [of the public interest] and that it must not abuse nor violate the laws.

 

[XX] Whilst bearing in mind other laws concerning the High Court’s jurisdiction, Article 58 of the Gazan Constitutional Law of 1962 provides that the jurisdiction of the High Court of Justice [“] specialises in hearing [”] the annulling of administrative decisions, when

 

“[another] court challenging the decision does not have jurisdiction to do so [annul the decision]; or if there is a legal flaw or violation of the law or regulation or an error in their application or their interpretation; or in the case of irregular use [abuse] of power…”.

 

[XXI] According [firstly] to what has been presented and clarified [by the parties or by the court?], [secondly] to the correct application of the law, principles of [“] right [”] and justice and [thirdly,] according to the requirements of the spirit [“FIQH”] of previous judicial decisions [,] the High Court of Justice decides that the continued arrest [end of page 9, Arabic version], detention and imprisonment of the plaintiff in prison is illegal and [that] it violates constitutional provisions and laws for the following reasons:

 

[XXII] Firstly, according to what we have clarified above, Articles 4 and 5 of the Constitution provide that no one is to be arrested or imprisoned unless it is according to the law – in other words, according to the provisions of the Law on Search and Arrest  – and that there is no crime or punishment unless [it be] according to the law and that freedom of opinion and expression is guaranteed to every person [.] [F]rom the complaint [submissions], it appears clearly that the plaintiff was arrested and imprisoned in a manner that violates the provisions of Criminal Procedure Law (Arrest and Searches) of 1924 (# 4).

[XXIII] The plaintiff was arrested and was [“] put in prison [”] on 17.3.96 and was detained for the first time on 17.3.96 [.[ [N]o procedures were followed in prolonging or renewing the detention, [i.e. the procedures contained in] the law of arrest and search and in particular Articles 3 and 10 of that law, as [they have been] outlined above.

 

[XXIV] In addition, no charges were made against the plaintiff alleging violation of any [specific] laws, [“] except “under interrogation – Hamas – [”] [.]

 

[presumably this last phrase seeks to say “and he was only accused, “under interrogation” of belonging to Hamas”]

 

[XXV] [S]imply being a member of Hamas is not currently considered a crime punishable by the law.

 

[XXVI] Secondly, Article 10 of the Arrest and Search Law provides that the arrested person should be brought before the Magistrate within 48 hours from the moment of arrest, and that the Magistrate shall decide whether to prolong his imprisonment or whether he should be released [.] [This is to be done] according to what he deems right, having heard from the authority requesting detention [firstly] the reasons for and the circumstances surrounding the arrest [and secondly] the request for [continued] imprisonment. Under this Article, the Magistrate is bound not to [“] detain the person for detention [”] for a period of time exceeding 15 days [,] a period that can be renewed.

 

[XVII] This Article is qualified  [in Article 10(3)] [by the requirement] that if a request for a [further] renewal of detention of the arrested person is made [and this] period of time [i.e. of the renewal] [is to] exceed 30 days, [then] there should be a request, presented by the Attorney General’s delegee [which has been] signed by him personally [the Attorney General] to the magistrate, asking him [the Magistrate] in that application for [such] a further extension. What is clear from the documents is that these procedures were not followed for [the purposes of the] detention and precautionary imprisonment of the plaintiff.

 

[XVIII] Thirdly, it is clear from the pleadings that since his detention on 17.3.96, no crime or charge for which the law provides punishment was made against him and the Attorney General’s office – the defendant’s representative  – was unable to present [evidence] that a specific charge had been made against the plaintiff [.] [On the contrary], [“] it [”] [the Attorney General’s representative] showed that there had been no charge, [this being shown because of the fact that] the Attorney General’s office representative decided on 13.12.97 that the plaintiff had been one of the persons released by Mr. Attorney General and that these persons were re-arrested “by the Security Force”.  

 

[The following 10 lines form one sentence in the Arabic original]

 

[XXIX] The defense [pleadings] of the Attorney General’s representative, in which it is stated that this court had no jurisdiction because [of the fact that] the plaintiff was detained by the State Security Court according to the last detention order issued on 2.8.97, [“] are not in the right order [”] [end of page 10, Arabic version] and it does not detract from the illegality of the plaintiff’s imprisonment [.] [This is because] it is obvious that Mr Attorney General ordered the release of the plaintiff and [that he] executed this order on 16.8.97.(as mentioned in the plaintiff’s memorandum and as confirmed by the Attorney General’s representative) [;] in other words the [plaintiff’s] release, after the date on which the detention order had been issued by the State Security Court, [effectively] cancelled the order [“] as if it had never existed [”].

 

[XXX] According to this [order of events], the re-arresting and imprisonment of the plaintiff by the State Security Force and the placing of him in prison [once again] after the Attorney General had released him on 16.8.97 – [the Atttorney General having] the right and jurisdiction [“] in following the public complaint [”] - constitutes illegal imprisonment, as it violates the provisions of the law of Arrest and Search [.] [B]ecause no order had been issued by any court or by any body with jurisdiction, the High Court of Justice has jurisdiction over this application and consequently it sets aside [“] this part [”] of the defense’[s case] and [because of his] illegal imprisonment and detention [,] orders the plaintiff to be released.

 

 

 

For these reasons

and in the name of the Palestinian people,

//the decision//

 

the court has decided, in the presence [of others], to respond to the plaintiff’s application and to order the defendant, the Head of the PSS, to release [the plaintiff]. This decision was issued and delivered in public during today’s session, 28.12.97.

 

 

 

Head of the Court                                Member                                   Member

(Fayez Al-Kidrah)                       (Hamdan Al-Abadlah)                         (Saa’ dah Al-Dajani)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B. Commentary

 

Judges                        Mr. Fayez al-Qidreh (President), Hamdan al-Abadleh and Sa’adeh al-Dajani

 

Mr. al-Baba’s

Lawyer:           Subhiyye Juma’a

 

1.      Mr. al-Baba was arrested on 17.3.96. According to his lawyer’s pleadings, his lawyer followed the case “as soon as he was arrested” (see third paragraph of his lawyer’s final pleadings to the High Court of 27.12.97.) The first hearing took place on 4.5.97, that is to say 413 days after Mr. al-Baba’s arrest.

 

Why, despite Mr. al-Baba having legal representation “as soon as he was arrested”,

did it take 413 days before his case first came to court? Why does the court not comment upon this? Why does the Court, nowhere in the judgment, ask the Attorney General as to why he did not fulfil his legal obligation as the only person able to initiate criminal investigations? Why does the court not follow up on its confirmation of Mr. al-Baba’s lawyer’s claim that the Attorney General did not respond to questions put to him after Mr. al-Baba’s arrest?

 

2.   During the first hearing on 4.5.97, 413 days after Mr. al-Baba’s arrest,  the court gave the

Attorney General 8 days to provide the court with reasons for Mr. al-Baba’s arrest and      “imprisonment” [i.e. detention] (paragraph IV of judgment).

 

3.    The  next  paragraph in the judgment, paragraph V, fails to clarify whether the “Attorney

General’s office’s” response, claiming that the State Security Court had jurisdiction, was made during the first hearing on 4.5.97 or whether it was made during a subsequent hearing. No additional date is mentioned and so it must be presumed that the court is referring to the first hearing, even though in paragraph IV (point 2 above) the court appears to have reached a conclusion concerning that hearing. This is only one example of where the court’s drafting leads to confusion on basic questions such as a chronology of events.

 

4.      The second hearing took place on 20.9.97, 138 days after the court had given the Attorney General 8 days to respond to its order and 551 days after Mr. al-Baba’s date of arrest.

 

Why was there a 138-day delay between the first and second hearings when the court had provided for an 8-day delay in its first hearing?

 

5.      After the 138 days, the Attorney General’s representative appeared in court and asked for

an 8-day extension to enable him to gather the relevant documents related to Mr. al-Baba’s case. The court not only accepted but fixed  the third hearing for 11.11.97.

 

Why did the court accept the Attorney General’s request? Why did it not pass judgment on the case during this hearing? Why did it decide not to give the Attorney General 8 days but rather 52 days, thus bringing the total detention time since the first hearing to 190 days?

 

6.      During the third hearing on 11.11.97 the Attorney General failed to produce the relevant documents (proof of case number, charges pressed and detention orders issued). He asked the court to give him more time. The court obliged and fixed a fourth hearing for 13.12.97.

 

190 days after the first hearing and 603 days since Mr. al-Baba’s arrest, why did the court decide to ignore the fact that the Attorney General had had 190 days to collect the relevant evidence? Why did it decide to add 32 days to the 190 days?

 

7.  In  paragraph  VIII (which  concerns the  fourth hearing  on 13.12.97,  222 days  after the

first hearing), the court refers to the Attorney General’s representative presenting a memorandum, dated 25.11.96 (i.e. 253 days after Mr. al-Baba’s arrest), which sought to “explain” Mr. al-Baba’s detention. It referred to (and the Attorney General’s representative presented) two detention orders issued by the State Security Court. The first (mentioning no charge) was dated 13.11.96, 241 days after Mr. al-Baba’s arrest whilst the second (speaking only of membership of Hamas) was dated 2.8.97, 505 days after Mr. al-Baba’s arrest.

 

Why did the court not enquire of the Attorney General as to why a memorandum dated 25.11.96 had not been produced at either the first, second or third hearings of the case, given that all three of these hearings took place 6, 11 and 13 months after the memorandum had purportedly been written?

 

Nowhere in the judgment, which does criticise the State Security Court on other issues, does the court refer to the fact that the State Security court was producing, as evidence of its jurisdiction, detention orders issued 253 days and 505 days after the date of Mr. al-Baba’s arrest. The court fails to refer to the procedure that is applicable to the State Security Court’s jurisdiction in criminal cases.

 

8.  It is worth noting that Mr.al-Baba’s defense lawyer herself requested that a fifth (and final)

 session be held in order to be able to prepare a defense memo (paragraphs X and XI of the  

 judgment summarise this memo, which is also translated in full and attached as document   

     1 to  the  English  translation  of the  judgment).  This fifth  hearing  was held  on 28.12.97, 

     bringing the total detention time since the first hearing to 237 days.

 

9.   The court’s summary of the facts for the purpose of its final judgment begins at paragraph

            XII of the judgment.

 

10. Paragraph XII  of  the judgment  consists of  6 points. Point one refers to the fact that Mr.

al-Baba was arrested on 17.3.96 and that he was “detained … for interrogation on 13.11.96 for a period of 15 days … without an extension of the detention … on the expiry [of the 15 days].” [emphasis added]

 

One might think that the court is trying to be funny or being sarcastic but according to the

Arabic, it is not. Nowhere in the judgment does the court comment on this chronology of events. There is no explanation of what applicable procedure should be in State Security Court cases, nor is there an explicit pointing out of the fact that the first “detention order” produced is an order dated 241 days after the date of Mr. al-Baba’s arrest.

 

11.  In  point 2, the Court’s  wording is  particularly  difficult to  understand  and a  significant

amount of imagination is needed in order to unravel what it is trying to say.  It appears to be saying that the second detention order of 2.8.97 claims to have retroactive effect to the date of Mr. al-Baba’s arrest as well as prospective validity to the date of the final (State Security Court) trial.

 

Whilst the court automatically applies the procedures under the 1924 Law of Arrest and Search later in the judgment, it would have been constructive for the court to enquire as to which procedures the State Security Court was purporting to be applying in issuing a detention order claiming retrospective effect covering a period of 505 days and unlimited prospective effect.

 

12.  In point 6 the court gives a brief summary of the reasons which the State Security Court presented in its memo on 25.11.96 trying to justify the arrest of Mr. al-Baba. The court notes at the end of point 6, that the memo contained no evidence that specific charges had been made against Mr. al-Baba.

 

13.  The court begins its legal analysis in paragraph XIII. From this point on, the judgment

is written in an unstructured, and consequently confusing, manner. The High Court does not outline what it understands the jurisdiction of the State Security Court to be. It does not explain the scope of its own jurisdiction. Establishing the jurisdiction of the two courts would mean explaining which offenses the courts review and which procedural laws they apply to those offences. This would be a logical place to start in order to justify any further consideration of the details of the case.

 

Given that the High Court decides in this case that it has jurisdiction over Mr. al-Baba’s and despite the fact that it took 215 days to consider the possibility of the State Security Court having jurisdiction, it would seem that the court should do the following.

 

Firstly, explain under which conditions the State Security Court has jurisdiction [definition of “security case”], which detention procedures the High Court understands the State Security Court applies [1924, 1979?] and on what legal basis the High Court has jurisdiction to review claims that the State Security Court is not correctly exercising its jurisdiction [Article 43 of the 1922 Order in Council].

 

Secondly, explain the legal basis for the High Court’s jurisdiction in criminal cases [1924 and 1922 provisions].

 

Thirdly, in one paragraph, explain the applicable procedural law in arrest and detention cases [detailed reference to procedure under the 1924 law].

 

Finally, to apply the law reviewed under point 3 to the facts of the case.

 

14.  In paragraph XIII, the court refers to “detention” and “precautionary” imprisonment as if

it they were synonymous. It refers to the conditions under which “pre-trial precautionary imprisonment” are acceptable but does not refer to any law establishing such a principle nor to the conditions that must be fulfilled before it can be applied to a detainee. The court finishes the paragraph by referring to “precautionary imprisonment” having to be based on an order from a judge who is responding to an investigator wanting to detain the suspect for 48 hours. It does not mention from which law this principle derives.

 

Firstly, precautionary imprisonment should read “precautionary detention”. Someone is “imprisoned” when they have been sentenced by a court of law. Someone is “detained” when they are being investigated for the purposes of being charged or when they have been charged and are awaiting trial. The court should make this distinction clear in the use of its terminology.

 

Secondly, “precautionary detention” is not a term that refers to a 48-hour period of detention. It refers to exceptional measures that can be taken against a suspect who, after all relevant investigatory procedures have been correctly followed, has been charged with an offence. In other words, before precautionary detention can apply, the usual burden of proof on the authorities applies. They must establish enough evidence against the suspect for the purpose of charging him or her. And, as we have seen, there are clear limits to the period of time that is available for collecting such evidence, both under the 1924 and 1979 laws. “Precautionary detention” applies therefore only when the suspect has been charged and is awaiting trial and it applies as a doctrine in order to justify a judicial decision refusing a suspect’s application for bail.

 

Finally, presumably the court’s reference to 48 hours is a reference to the provisions of the 1924 law of Arrest and Search. As we have seen, these laws deal with normal arrest and detention procedures and not with precautionary detention.

             

15.  At the  end of paragraph XIII, the Court jumps to  the 1924 Law of Search and Arrest and

            states that according to that law, a number of conditions have to be fulfilled for “precautionary imprisonment” to take place. It therefore becomes clear that the court views the 1924 detention procedures as procedures of “precautionary imprisonment”. As we have seen, the 1924 procedures are not what is termed ‘precautionary imprisonment’ and it appears therefore that what the court is trying to do in paragraph XIII, is to underline the seriousness of any form of detention.

 

Presumably the fact that the court simply turns to the 1924 laws means that it believes that the State Security Court should have followed these procedures. It would have been helpful to say so explicitly in order to exclude the possibility of the court believing that other provisions, such as the 1979 PLO Law or the 1945 Emergency Laws, apply.

 

16. The  Court  then makes  four points  relating to  the  applicable  procedure  under the 1924

            provisions. Point 1 refers to a judge having to reach a decision that the defendant should be detained beyond 48 hours. Point 2 refers to the judge listening to the detainee’s representative in order to take into account all reasons arguing against the detainee’s continued “imprisonment” (i.e. detention). Point 3 is fundamentally mistaken. It states that the judge must be sure that the defendant is being “charged” with a “felony which requires pre-trial detention”.  The Magistrates hearing is not concerned with reviewing charges. It is concerned with detainees who have not been charged and whom the authorities wish to detain for a longer period for the purposes of interrogation with a view to collecting enough evidence in order to be able to make a charge. And this applies to misdemeanours and felonies alike. (See Article 10(3), 1924). Point 4 refers to the principle of the magistrate only extending the detention for a maximum period of 15 days, a period that is renewable for the same maximum period.

             

            The court could have added a point 5 (which it does half way through the next paragraph of the judgment) by adding that the detention may be extended beyond the second 15-day extension if the Magistrate receives convincing reasons for such a prolongation directly from the Attorney General.

 

            For some reason the court then repeats everything it has said in these four points. It does so in paragraphs XIV and XV of the judgment, making vague reference to the fact that these procedures are to be found in Articles 3 – 10 of the 1924 Law.

 

Firstly, the court’s desired effect would be increased if it referred to each step of the applicable procedure and mentioned the precise provision mentioning that step. Not doing so and spreading the principles, some of them wrong, across two paragraphs in a repetitious manner in long sentences has the effect of confusing the reader.

 

Secondly, a number of other applicable provisions could be cited, such as the need for an arrest warrant, the rights to legal counsel and the responsibilities of the Attorney General and the head of a detention centres (as defined in the 1936 Penal Law and the 1998 Prison Law).

 

Finally, it would be more systematic, striking (and honest) if the court explicitly applied the applicable procedure to the dates of the case.

 

17. Without comment,  the court  refers in  paragraph  XVI to  three relevant Articles from the

1962 Gazan Constitution.

 

What is the status of this law in relation to the law of 1924? Does it help as an interpretative aid? Does it limit other laws in their interpretation?

 

18.    In what the translator has termed paragraphs XVII, XVIII and XIX (which originally formed one sentence in the Arabic original), the High Court of Justice speaks of the principle of judicial review (the power of a court to review the way in which executive discretion, a discretion that must be explicitly provided for by law, is exercised). It does not use this phrase but it can be concluded from the confusing Arabic that it is referring to this notion.

 

The court begins by referring to a judicial body reviewing the facts, which an administrative decision-maker has taken into account in order to reach his or her decision. It then speaks of the discretion involved in such a decision having to be applied within certain limits, notably those set by “the public interest”. It finishes by invoking Article 58 of the Gazan Constitution in order to provide a legal basis for engaging in judicial review.

 

The High Court fails to explain why principles of judicial review are relevant in this case. The existence of executive discretion in a detention case, presupposes that the 1924 law is set aside in special cases in which the procedures applied are more flexible, responding to the needs of the Executive in particular cases. But the court has just reviewed procedures under the 1924 law. And the court has not established that the Executive has taken a decision that requires judicial review. Judicial review is not about applying normal legal procedures to the exceptional administrative decision-making by the executive. It is about reviewing such decisions on the basis of principles such as “proportionality, rationality and procedural propriety” (under English laws these principles are established in case law from 1948). The application of these general principles do not involve the application of specific criminal procedural law, though such law may provide an indication of what is, for example, rational or proportionate in term s of executive decision-making.

 

Therefore, either the court is dealing with judicial review or it is applying the strict provisions of the 1924 criminal procedural law. It cannot be doing both. Which makes paragraphs XVII, XVIII and XIX of the judgment somewhat confusing.

 

If the court is dealing with an administrative decision then it must apply the principles of judicial review. The court must establish where the law or a Presidential decree states that State Security Court cases are based on administrative decisions, must review the conditions that must be fulfilled for such administrative decision-making to be invoked and must identify the sources of the somewhat general principles of judicial review that it identifies in paragraph XIII of the judgment.

 

Alternatively, the court must explicitly conclude that the decision to detain Mr. al-Baba, issued by the State Security Court, is not an administrative decision but a judicial decision. In this case 1924 or 1979 legal principles apply and the Court, on the basis of Article 43 of the 1922 Order in Council, has jurisdiction to enquire as to whether the State Security Court is following these procedures and has jurisdiction, if it is not, to deal with the case itself.

 

 

19.    In paragraph XXI the court states that it has concluded that Mr. al-Baba’s “detention and

 imprisonment” [i.e. his detention] is “illegal” and that it has done so on the basis of firstly the facts, secondly “the law, principles of right and justice” and thirdly “the requirements of the spirit of previous judicial decisions”.

 

The fact that the court has taken the law (presumably it is referring to the Constitution of 1962 and to the Law of Arrest and Search of 1924: this presumption is confirmed by the court’s repetition for the third time of the 1924 and 1926 provisions in later paragraphs) and the facts into account is to be welcomed. But what are “principles of right and justice” and what are the “previous judicial decisions” (and their “spirit”) to which the court makes reference? Without being more specific about these legal references points, the court might as well not invoke them at all.

 

The court concludes paragraph XXI by repeating the fact that Mr. al-Baba’s detention violates the constitution and the law, saying it does so “for the following reasons”. Aside from the fact that this makes paragraph XXI difficult to read and renders its structure somewhat illogical, this leads, in the following paragraphs, to a wholesale repetition of all the provisions previously quoted by the court. This repetition is accompanied by reference to some of the facts which is to be welcomed. It would seem however that it might have been more effective and efficient to apply the facts to the provisions the first time that they were mentioned in the judgment.

 

20.    Paragraph XXII repeats applicable provisions of the constitution and links them to the 1924 provisions. Paragraph XXIII intends to deal with the moment of arrest but slips into the issue of the State Security detention orders and into the issue of no charge being made against Mr. al-Baba (paragraph XXIV and paragraph XXV). The court does not apply the facts to the strict requirements of how an arrest must be effectuated and when a charge must be made. The court also cross-references to previous references to the 1924 provisions which complicates the understanding of what could be a straightforward comparing of procedures and facts.

 

21.    Paragraph XXV states in one sentence that belonging to Hamas is not a crime.

 

Contextually, this is the crux of the entire case and it is perhaps surprising that the court does not look at the legal issues arising from the activities of Hamas’ military wing, nor the relevant provisions of the Interim Agreement which might help to explain why Mr. al-Baba had been detained for so long. It is clearly too political an issue for the court to deal with openly.

 

22.   Paragraphs XXVI and XXVII needlessly repeat in great detail the provisions of Article  

10.

 

23.   Paragraph XXVIII repeats the fact that no charge has been made against Mr. al-Baba.

 

24.   It is difficult to know where to start when analysing paragraphs XXIX and XXX.

 

In paragraph XXIX, the court argues that the Attorney General is mistaken to have argued that because a detention order was issued by the State Security Court (i.e. one of the two orders issued 253 and 505 days after Mr. al-Baba’s arrest)  the High Court does not have jurisdiction. The High Court states that this argument is mistaken on the grounds that after these orders were issued, the Attorney General ordered the release of Mr. al-Baba and on the grounds that the order was executed (even though Mr. al-Baba was  immediately rearrested). This release, says the court, effectively “cancelled the order as if it had never existed”.

 

Is the court saying that if the Attorney General had not ordered the release of Mr. al-Baba (and if that order had not been carried out), then the detention orders would not have been “cancelled” and consequently the State Security Court would have had jurisdiction? This is the logical reverse of the High Court’s argument and is a conclusion that flies in the face of everything that the court has said in the preceding paragraphs. It appears to reflect a significant level of confusion in the court’s mind as far as the issue of its own jurisdiction is concerned.

  

In paragraph XXX the Court reinforces the somewhat worrying conclusion of paragraph XXIX. The court states that “the re-arresting and imprisonment” of Mr. al-Baba constitutes “illegal imprisonment” because it violates the provisions of the law on Arrest and Search and that “because no order has been issued by any court…” the High Court has jurisdiction.

 

Is it to be concluded from this that the original arrest and detention of the plaintiff (with the accompanying detention orders 243 and 505 days after his arrest) was legal because their was an order issued and that therefore all the above reasoning only applies to the second arrest and detention of Mr. al-Baba?

 

 

 

 

 

                                   

 

 

 

 

 

 

 

Timetable of West Bank High Court judgments related to the detention of political prisoners

 

Name of Detainee	Attorney	Judges	Date of arrest	First Hearing (+days since arrest)	Second Hearing (+ days since arrest; + First hearing	Third  Hearing (+ days since arrest; + First hearing	Fourth Hearing (+ days since arrest; + First hearing	Date of Judgment (+ days since arrest; + First hearing	Decision and whether implemented	Days in detention since arrest to 4.7.99
Jamal al-Natsheh	ADDAMEER	Sami Sarsour (President), Ghazi Akreh, Zuheir Khalil	5.10.98	24.4.99	Fixed for 7.7.99					270 days
Saleh Mahmoud Hussein Talahmeh	ADDAMEER	Sami Sarsour (President), Ghazi Akreh, Zuheir Khalil	26.5.96	24.4.99	Fixed for 7.7.99					1508 days
Wassim Abd el-Wahab Youssef ‘Ataout	PHRMG	Zuheir Khalil + Sami Sarsour (alternating Presidency), Nassri Awad and Iman Naser al-Deen	22.2.97	18.5.98 (+ 451 days)	6.3.99 (+743 days; +292 days)			6.3.99 (+ 743 days; + 292 days)	Court requested by lawyer to annul request because Mr. Ataout had been released on 20.2.99	730 days (20.2.99)
Shafiq Abdul-Wahab	PHRMG	Zuheir Khalil  Sami Sarsour and Nassri Awad	21.6.97	(Magistrates court: 13.5.98; + 326 days)	10.6.98 (+354 days; +28 days)	26.9.98 (+ 462 days; + 136 days)	13.2.99 (+ 602 days; + 276 days)	13.2.99 (+ 602 days; + 276 days)	Application rejected by High court	741 days (Mr. Wahab has dis- appeard.
Ghassan Abdul Salam al-Addassi*	LAW	??	29.3.98	8.7.98 (+ 101 days)	13.7.98 (+ 106 days; + 5 days)	5.9.98 (+ 160 days;  + 54 days)	6.10.98 (+ 191 days; + 85 days)	6.10.98 (+ 191 days; + 85 days)	Order to release not implemented	462 days
Marwan Juma’a Imran Abu Moussa	Mohammad Ayyoub	Sami Sarsour, Masri Ahwad and Iman Naser al-Deen	2.4.98	11.5.98 (+ 39 days)	4.6.98 (+ 64 days; + 25 days)	12.7.98 (+ 102 days;  + 63 days	19.9.98 (+171   days; +132   days)	19.9.98 (+171 days; + 132 days)	Order to release not implemented	465 days
Sai’id Othman Ibrahim Sa’adeh	Nader Tawfiq Kharaz	Sami Sarsour, Zuheir Khalil and Iman Naser al-Deen	21.6.95	7.1.198 (+ 930 days)	28.10.98 (+1224 days; + 292 days)			28.10.98 (+1224 days;  + 292 days)	Order to release not implemented	1481 days
Mahmoud Musleh*	LAW	Sami Sarsour, Nassri Awad and Hisham al Hatu	4.9.97	23.9.97 (+ 19 days)	30.11.97 (+ 87 days; + 68 days)			30.11.97 (+ 87 days; + 68 days)	Order to release not implemented	667 days

* PHRMG was not able to obtain these judgments from LAW.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. Saleh Mahmoud Hussein Talahmeh

 

[Pleadings of Mr Talahmeh’s lawyers]

 

For the respected High Court of Justice            Annulling complaint number ../99

 

The plaintiff     Saleh Mahmoud Hussein Talahmeh from Dura, Hebron

His representatives, Attorneys

 

1.       Attorney Dr. Adnan Amru

2.       Attorney Ribhi Quatamish

3.       Attorney Hussam Arafat

 

The defendants

 

1.       The respected Head of the PSS in the [“] Palestinian [”] Bank [,] [“] in addition to his position [”]

2.       [The] Attorney General

 

Subject

 

Annulling the decision of the Head of the PSS in the [“] Palestinian [”] Bank [,] which ordered the arrest of the plaintiff and which was issued on 26.5.96.

 

The complaint, pleadings and reasons

 

1.       The plaintiff was working as an engineer with the international electronic calculators company in Al-Bakri building in Ramallah [.] [H]e is a breadwinner for a family of 6.

 

2.       On 26.5.96 [,] Colnel Mohammed Jubrini [,] the Head of Political Security in the PSS [,] [a security force that is under the ultimate] authority of the defendant [,] arrested [the plaintiff] at his workplace without an arrest warrant [.] [H]e was transferred to the Academy [“] Martyr Sa’id Sayyil [”] in Jericho City for the purposes of interrogation [.] [This interrogation] continued for one year [,] during which he was exposed to torture [.] [He was] placed in a dark room for five consecutive months and [“] no charge was proved [”] against him [.] [The following part of the sentence is translated more or less word for word] [.] [T]he defendant’s party is supported by information received from a foreign party and they would like to force him to confess to it and to blackmail him on that [information] and claims that his arrest is necessary to protect him. [The following is a rephrased translation of the last phrase:] The defendant’s actions are based on information received by an outside body [i.e. Israel] [.] [The defendant] is seeking [firstly] to force the plaintiff to confess to [having committed the offenses mentioned] in that information [and secondly seeks to] blackmail [the defendant] with this [information] [.] [The defendant also] claims that [the plaintiff’s arrest] is necessary for his own protection.

 

3.       The plaintiff is still [“] under arrest [”] by the defendant’s Security Service [.] [No] list of charges has been made against him and [he has not been] tried [.] [I]t has not been proven that he has committed any act threatening public order [or] justifying his arrest.

 

4.       [The following is more or less word for word:] [“]The defendant’s party did not give the plaintiff a copy of the decision that it had issued and the fact of the decision’s execution indicates the decision [”]. [Rearranged translation:] The defendant did not show the plaintiff a copy of the [arrest warrant or detention order] which it had issued [,] but the fact that [the plaintiff has been arrested and detained] proves that a decision [to arrest and detain the plaintiff] had been taken. [End of page 1, Arabic version]

 

5.       At no time did the plaintiff commit an act which might  threaten Palestinian public order.

 

6.       [The following is more or less word for word:] [“] The decision to arrest is of the attacked acts and continued decisions which the challenge is not specified before your respected court at [“] bi ajal [”] [a phrase referring to some point in the future]. [”][Rearranged translation:] [The plaintiff’s complaint refers] to the decision to arrest him [,] [which is one of a number of] decisions [taken by the defendant against him] [.] …. The translator was at a loss concerning the rest of this paragraph.

 

7.       The plaintiff’s [continued] arrest causes him and his family grave prejudice.

 

8.       The plaintiff and his relatives have requested the defendant’s party [either] to relese him or to bring him before a court [.] [These requests have been] to no avail.

 

9.       [“] For your respected court [,] full jurisdiction to review this complaint. [”]

 

Reasons for the application

 

1.       The [“] administrative decision [”] issued by the first defendant [“] does not exist [”] because it is a grave violation of the law and [of the] general principles of law and justice [.] [The decision] is defective because it violates the law.

 

2.       The administrative decision is not based on any legal or material facts that justify the taking of this decision [.] [Therefore] it is [“] defective by the reason defect [”] [these last five words may be trying to say that the decision is fundamentally legally and factually flawed because it is executing an order from Israel without facts and evidence having been transferred by Israel to the Palestinian Security Services].

 

3.       The administrative decision has not been taken to protect public order in the National Authority’s Territories [.] [I]t is [therefore] defective by reason of [consisting of an] abuse of power.

 

4.       The administrative decision is [one] of the decisions [“] that is considered the attacked acts [”] [i.e. that are to be considered as acts which should be challenged?] because it violates the plaintiff’s personal freedoms and violates the [“] decided [”] rights of the members of his family.

 

5.       The administrative decision is taken [“] without considering [applicable] legal procedure[s] [”] so it is defective in [“] form [”].

 

Requests: For the aforementioned reasons [,] the plaintiff requests your respected court [firstly] to  accept the complaint [“] in the form [”] [, secondly] to [“] inform [”] the defendant’s party of a copy of the pleading and its Annexes and [thirdly] to assign a hearing [in order to pass] judgment [on the] following:

 

1.       Issuing an intial decison requesting the defendant’s party to clarify the reasons preventing him from releaseing the plaintiff.

2.       Annuling the administrative decision issued by the Head of the PSS in the [“] Palestinian [”] Bank on 26.5.96 [,] which orders the plaintiff’s [“] perpetual adminstrative arrest [”].

3.       Ordering the defendant’s party to pay expenses, costs and legal fees.

Written on …/4/99

The plaintiff’s representatives

II. Wassim Abd el-Wahhab Youssef ‘Ataout

A.    

 

Documents

 

 

 

 

 

 

[Document 1: Pleadings presented to the High Court]

 

Pleadings presented to the respected Palestinian High Court of Justice

 

The Plaintiff:               Wassim Abd el-Wahhab Yousef ‘Ataout from Beit-Lead, Tulkarem, detained in Juneid Central Prison since 22.2.97 and his representative, Attorney Hussam Arafat from Ramallah.

 

The Defendant:           Attorney General, the Nablus General Prosecutor.

 

The Subject:               [“] Releasing the plaintiff from his illegal detention.[”]

 

Details of the complaint

 

Firstly: the plaintiff has been detained since 22.2.97 without [having been] interrogated [and without having been] brought before [a] court [of law] [.] [H]e is a student at An-Najah National University.

 

Secondly: Having contacted the Attorney General [,] it has become clear that the plaintiff is being detained under an administrative [,] and not a judicial [,] decision.

 

Thirdly: [The plaintiff] has been [detained] in prison for more that a year and two months without [the existence of] any [“] legal justification [”] for [either] his arrest [or for his] remaining in prison [i.e. continued detention].

 

Fourthly: the plaintiff requests from this respected court that a release order be issued in his favour and against the parties with jurisdiction [over his detention] [.] [H]is illegal arrest [,] [“] [and] especially his remaining in prison [,] will affect his academic career and the future of his family very badly.

 

Written on 28.4.98

 

Plaintiff’s Representative.

Attorney Hussam Arafat

 

Signature

 

[End of page 1, Arabic version]

 

 

 

 

 

 

 

 

 

[Document 2: High Court hearing of 18.5.98]

 

The Judges:                            Presided over by Judge Mr. Sami Sarsour and judges Zuheir Khalil and Mr Nasri 'Awwad.

 

The plaintiff’s representative: Mr Hussam Arafat [“] was present [”]

 

Mr Hussam said; [no quotation marks in the original] I [hereby] restate the plaintiff’s pleading and present my evidence [,] the witness Khitam Mohammed Abd El-Fattah 'Ataout, 50 years [of age and] a housewife from Beit-lead.

 

After [having taken the] legal oath [, the witness] [“] answered [”] that: [no quotation marks in the original] the plaintiff Wassim is my son [.] [H]e is currently [held] in Juneid prison on political charges. He was arrested by P[alestinian] G[eneral] I[intelligence] on 26.2.97 [.] [F]irst he was [detained] in Jericho prison, [but was] then transferred to Nablus [.] I visited him and he told me that he had done nothing for which he could be charged. The last time I visited him in Juneid prison was ten days ago.

 

We contacted many people concerning my son [’s case]. We contacted the Governor’s Office and the PGI but they told us that they had no jurisdiction over his case. My son Wassim is still detained in Juneid prison.

 

Answering the court’s question:

 

PGI [Palestinian General Intelligence] told us that he is [“] precautionarily [”] [“ihtirazy”] detained. Each time [we spoke with them] they told us that he would be released within a week or ten days, that the charge was political and [that it was] in the hands of the President.

 

Mr. Hussam said: [no quotation marks in the original] I request [to be able to] present my letter [written] to the Attorney General [on 28.4.98, which requested firstly] that a release order be issued in favour of the plaintiff [and secondly that] clarification be given of the reasons for his [continued] detention. (Letter presented and identified as A[nnex]/1).

 

Mr Hussam said: [no quotation marks in the original] With this I conclude my evidence and request that a preliminary decision be issued [,] requesting the defendant to clarify [End of page 2, Arabic version] the reasons for detaining the plaintiff and [to identify the obstacles] preventing [him] from releasing [the plaintiff] and [from] proceeding according to the law.

 

The following decision was read [see next page]

 

[End of page 3, Arabic version]

 

 

 

 

 

 

 

 

 

 

 

 

 

[Document 2 continued]

 

High Justice, 27/98

 

In the name of the Merciful and Compassionate God

 

The High Court of Justice in Ramallah

 

The Plaintiff                Wassim Abd el-Wahhab Yousf 'Ataout from Beit-Lead, Tulkarem

 

His Representative       Attorney Hussam Arafat, Ramallah

 

Defendants                  1. Attorney General.  2. Nablus General Prosecutor.

 

The Judges                 Presided over by Judge Mr. Sami Sarsour and Judges Mr.

Zuheir Khalil and Mr. Nasri 'Awwad.

 

Decision

 

This complaint is brought by the plaintiff and his lawyer with a view to annuling [firstly] his [“] detention procedure [”] [and secondly] his [“] continued arrest [”,] [an arrest, which occurred on] 22.2.97 [and which has continued] to the present date without an investigation having been conducted and without him having been brought before a court.

 

This complaint is supported by the fact that the procedure requested to be annulled is based on an administrative decision[.] [In addition,] the plaintiff’s continued detention finds no [“] legal justification [”].

 

In court [,] the plaintiff’s representative repeated his pleadings and presented his evidence [,] consisting [firstly] of the testimony of the witness Khitam Mohammed Abe el-Fattah 'Ataout, the plaintiff’s mother, and [secondly] the [letter contained in] A[nnex]/1 [.]  [H]e concluded his evidence and requested that a preliminary decision [be issued, requesting] the defendant to present justifications for detaining the plaintiff and for not releasing him.

 

On the basis of the presented evidence and of the provisions of Article 257 of the Court Laws [,] we request the defendant to present the justifications for detaining the plaintiff and for not releasing him [“] in the case under review [”] [.] In the case of opposition to this procedure, [the court will] proceed according to Article 258 of the same law [,] according to which a counter-pleading [must be] presented [with]in fifteen days of the date of [the defendant being] informed of these pleadings, Annexes and of [this] preliminary decision.

 

Decision issued and declared in the name of the Palestinian people and announced in the presence of the plaintiff’s representative on 18.5.98.

 

 

   Judge                                             Judge                                                    President

Signature                                       Signature                                                 Signature

 

[End of page 4, Arabic version]

 

 

 

 

 

[Document 3: The High Court’s final judgment]

 

In the  name  of  the Merciful and the Compassionate God

 

The High Court of Justice in Ramallah

 

 

The plaintiff                 Wassim Abd El-Wahhab Youssef ‘Ataout from Beit Leid

His representative     Attorney Husam

The defendants           1. The Attorney General  2. Nablus General Prosecutor

The judges                  Presided over by Judge Mr. Zuheir Khalil with Judges Nassri Awwad and Iman Naser al-Deen

 

Decision

 

This complaint is brought by the plaintiff and his lawyer with a view to annulling [firstly] his [“] detention procedure [”] [and secondly] his [“] continued arrest [”,] [an arrest, which occurred on] 22.2.97 [and which has continued] to the present date without an investigation having been conducted and without him having been brought before a court.

 

This complaint is supported by the fact that the procedure requested to be annulled is based on an administrative decision[.] [In addition,] the plaintiff’s continued detention finds no [“] legal justification [”].

 

During the court session on 18.5.98, this court issued a preliminary decision requesting the defendants to clarify [firstly] the reasons for the [plaintiff’s] arrest and [secondly the obstacles] preventing his release [.] [I]n the case of objections [on the part of the defendants, the defendants were requested to] present a counter-pleading [, which] according to Article 258 of the Court Laws [would have to be filed] within 15 days of the date on which [the defendants were] informed of the preliminary decision.

 

In his capacity as the defendant’s representative, the Attorney General’s assistant presented his counter-pleading [,which] included a request to reject the complaint for lack of locus standi [,] for lack of legal reasoning and [for lack of] of a [“] correct basis [”] [.] [O]n 6.3.99 the plaintiff’s representative requested that the complaint be rejected [on the grounds that] the plaintiff [had been] released.

 

Consequently, [and] according to the plaintiff's representative’s request, we decide to reject the complaint and to annul the preliminary decision [.] [Neither] expenses nor lawyers fees [will be awarded].

 

Decision issued and declared in the name of the Palestinian people and in the presence of the plaintiff’s representative and the defendant’s representative. Dated 6.3.99.

 

 

Judge                                                    Judge                                        President

Signature                                           Signature                                   Signature

 

[End of page 5, Arabic version]

 

 

 

 

 

 

B. Commentary

 

Judges                        Mr. Zuheir Khalil and Mr. Sami Sarsour (Presiding in different hearings), Mr. Nassri Awwad and Mr. Iman Naser al-Deen

 

Mr. Ataout’s Lawyer    Hussam Arafat

 

1.      Mr. Ataout was arrested on 22.2.97. The first pleading submitted by his representative, Mr. Hussam Arafat, to the High Court took place on 28.4.98. This was 430 days after Mr. Ataout’s arrest.

 

Why did it take 430 days before Mr. Ataout’s case received legal attention?

 

2.      The first hearing took place on 18.5.98, 21 days after the pleading was submitted to the court and 451 days after Mr. Ataout’s date of arrest.

 

Was this the earliest possible date to hear what was an urgent case of detention?

 

3.      During the first hearing held on 18.5.98, the court summarises the two sides’ arguments.

 

Firstly, Mr. Ataout’s lawyer, Mr. Arafat, fails to mention a single provision of applicable criminal procedural law and given that Mr. Ataout had already been detained for 451 days, it is surprising that the court does not comment upon this fact in its decision of 18.5.98. Given that the Attorney General argues that the detention is based on an administrative decision, an explanation for the court’s omission may be that it wished to give the Attorney General time to prove to the court that the case falls under another body’s jurisdiction.

 

Secondly, in his pleadings, the Attorney General refers to the fact that he has been told by Palestinian General Intelligence that Mr. Ataout was “precautionarily detained”, that the “charge was political” and that the matter was “in the hands of the President”. Again, in its decision on 18.5.98, the Court does not comment upon this highly questionable line of defense which under the circumstances, 451 days after Mr. Ataout’s arrest, is all the more surprising. Again, the explanation may be that the court wanted to hear the Attorney General’s elaboration on the notion of an administrative decision having been taken before the court took a position in the matter.

 

Why did the court not comment upon this omission and the questionable pleadings made? Why did it not stress the urgency of the situation to the Attorney General?

 

4.      On 18.5.98, the court concludes by invoking Articles 257 and 258 of the Court Laws, giving the Attorney General the option of either presenting justifications to the court for Mr. Ataout’s continued detention, or to present a counter-pleading to Mr. Ataout’s pleadings within 15 days of the Attorney General being informed of this decision of 18.5.98.

 

Again, it is surprising that the court did not stress the urgency of the matter and this omission is all the more serious given that the next hearing did not take place 15 days later but rather on 6.3.99, 292 days later.

 

5.      The second and final hearing took place 292 days later.

 

Why did a fifteen-day period turn into 292 days, thus bringing the total time of Mr. Ataout’s detention since the date of his arrest to 743 days?

 

6.      In its final hearing on 6.3.99, the court (whose President had changed form Mr. Sami Sarsour to Mr. Zuheir Khalil) refers to the fact that the Attorney General’s assistant presented a counter-pleading to the court but the court does not state on which date this was done. It then states that Mr. Ataout’s lawyer requested on 6.3.99, the same day as this final hearing, that the court reject Mr. Ataout’s complaint on the grounds that he had finally been released.

 

The court does not mention on which day Mr. Ataout was released.  The court accepts Mr. Ataout’s lawyers request. It does not comment on the period of time Mr. Ataout has been detained (on 6.3.99, 743 days), nor does it request the Attorney General to provide an explanation for the detention.

 

7.      Mr. Ataout’s lawyer does not

 

Ø      request an explanation form the Attorney Generals as to which procedures were supposed to have been applicable to Mr. Ataout’s detention;

 

Ø      seek an explanation in front of the High Court for his detention ;

 

Ø      seek compensation for his period in detention, despite the fact that nearly one year previously his lawyer was arguing in his first pleading that Mr. Ataout’s continued detention would affect Mr. Ataout’s career and his family seriously;

 

Ø      does not invoke the provisions of the 1960 and 1961 Law providing for the culpability and punishment of government officials involved in and aware of Mr. Ataout’s illegal detention.

 

The fact that no such claims are made is, as lawyers and judges have stressed to PHRMG, reflective of a climate of fear on the part of members of the judicial system to seek justice against members of the executive.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

III. Shafiq Abdul Wahab

A.    

 

Documents

 

[Document 1: Pleadings to the High Court]

 

 

 

High Justice 40/98 

 

The Palestinian High Court of Justice

 

The Plaintiffs

 

1. Sgafiq Abdul Wahab/Rammalah/Beit Soreek

 

2. The Palestinian Human Rights Monitoring Group [,] represented by its Executive Director Bassem Eid.

 

3. Hussam Khader / [Member of the] Monitoring and Public Freedom Committee in the Palestinian Legislative Council / Member of Legislative Council [.] His address: Nablus Balattah Refugee Camp – The Martyr Khader Dawood Street.

 

4. Hatem abd el-Qader / Member of The Palestinian Legislative Council, Jerusalem Electoral  Zone/ His address Jerusalem [:] Beit Haniena [,] 38 Taha Hussien Street.

 

Their Attorneys Dr. Adnan Amro and Husam Arafat.

 

The Defendants

 

1. His Excellency, the Head of the Palestinian Authority in his capacity as the Minister of Interior, [“] in addition to his position [”] [i.e. and in a personal capacity?].

 

2. The Attorney General.

 

The applicant’s pleadings and reasons

 

1.       The arrestee works at the el-Raed Real Estate Institute in Hanania Wa Kharraz Building – Rammalah.

 

2.       On Saturday 21.6.97 at 15:30, a young man came to the office of the plaintiff’s husband and asked to speak with the arrestee in private [.] [H]e informed [the arrestee] that the Military Intelligence (MI) needed to see him at its Head Quarters in Ramallah.

 

3.      The arrestee asked his wife to wait for him in the office until he returned [.] [H]is wife asked what was happening and he told her that the MI wanted to see him at its Head Quarters. Another young  man introduced himself by the name “Hilmi” [,] confirmed [the arrestee’s response to his wife] and told her that the matter was a very simple one [.] [W]hen the plaintiff asked [Hilmi] for the [“] arrest or detention warrant [”] [she was told] “five minutes and he will come back to you” [.]  [End of page 1, Arabic version]

 

4.       Since that date [,] the whereabouts’ of the plaintiff’s husband have been unknown [,]  despite the complaint [(] numbered (756/97) [)] which [the plaintiff] lodged with the Ramallah Police on 22.6.1997 with  a view to establishing [her husband’s place of detention].

 

5.       On 5.7.1997 the plaintiff sent urgent requests  through her  lawyer to  His  Excellency [,] The Head of The Palestinian Authority [i.e. Yassir Arafat] [,] [to] the Ramallah General Prosecutor and to the respected Ramallah and el-Beireh Governor to establish her husband’s whereabouts [.] [S]he did not receive a response.

 

6.       On 20.7.1997 and through her [previous] lawyer [,]Abd el-Fattah  el-Burjy [,] the plaintiff called on the Attorney General and the security forces to inform her about her husband’s whereabouts [.] [S]he contacted [them] again through her representative on 5.8.97 to inquire about [all her] previous letters [.] [S]he received no response.

 

7.       The plaintiff [then] testified under oath at the Magistrate’s Court in Ramallah that through the son of [a different] arrestee [,] Mustafa el-Mahseery from Biddo village [,] she [had become] aware of her husband’s whereabouts [.] [S]he visited him [her husband] [“] and called him and he answered her [”] [.] [H]e asked [her] to bring him some of his belongings  but when she [returned,] accompanied the General Intelligence Director [,] she [“] did not find him [”] [any more] [.][T]hose [“] who were there [”] [i.e. the guards and officials] denied  that non-military persons [were ever detained] there.

 

8.       In the same testimony [,] she also testified that she had met His Excellency the President in the presence of the Ramallah and el-Berieh Governor [.] [She] insisted [,] in the President’s presence [,] that [“] “he has my husband in the PSS” [”] [i.e. that Arafat had her husband detained in a PSS detention center] [.] [T]he President asked [the Governor] to deal with the issue and so [the governor] took her telephone number in order to call her the next day [.] [Subsequently] he [“] avoided [”]  her.

 

9.       After fifteen days [,] the plaintiff was informed by the Attorney Fahmi Shabaneh that under an order [issued by] the President [,] a committee had been formed in order to search for her husband [.] [T]he members of the committee are Mr.Majdi [,] the General Intelligence representative [;] Ali Ghoniem [,] representing the Criminal Investigation Department and Adnan Eidieh [,] representing the PSS [.] [This committee] held many sessions [.] [T]he result of its activities was to force everyone knowing of her husband’s whereabouts to deny any knowledge of him.

 

10.   The Palestinian Representative in Washington informed the arrestee’s  sister that he was being detained by the Palestinian Security Forces and that he would accompany the plaintiff’s wife and mother to the prison to visit him [.] When he arrived in Palestine, he denied having promised [such things] [,] despite the fact that his office [“] confessed [”] to Amnesty International that the arrestee was detained in  PA [Palestinian Authority] prisons [prisons is in the plural in the original].

 

11.   None of the arrestee’s relatives were able to contact him in order to get him to sign the documents needed to assign his defense attorney [.] [W]e, the plaintiff’s representatives [,] [encountered the same difficulty.] [End of page 2, Arabic version]   

 

Reasons for the application:

 

1.       The arrest  decision [“] does not exist [”] [“mon’adim”] [i.e. there  is no  arrest   warrant] [.] [This] gravely violates the law and [“] general principles of law and    justice. [”]

 

2.       The decision to arrest [“] is not based on reasons [”], so it is deficient of reasons.

 

3.    Because it is motivated by [personal] revenge [,] the arrest decision constitutes an abuse

       of power.

 

4.   The arrest decision causes grave prejudice to the arrestee and to his relatives.

 

Requests

 

1.       Issuing a preliminary decision [committing] the defendants to clarify the reasons preventing them from releasing the plaintiff’s husband.

 

2.       Annulling the decision to arrest the plaintiff’s husband [,] Shafiq Mohamad Hasan Abd el-Wahhab.

 

3.       [Responding to an] urgent request to enable the plaintiff and the arrestee’s relatives to be [informed] of the arrestee’s whereabouts and [to enable them to] visit him.

 

We therefore request your respected court to accept the complaint [,] [to reach] a decision and to annul the decision to arrest the plaintiff’s husband, [an arrest] which was executed on 21.6.97.

 

Evidence and Annexes

 

1.       [Request] Urgent requests to each of the following [:] his Excellency The President of

Palestine, the General Prosecutor in Ramallah, the respected Ramallah and el-Beireh Governor, the General Prosecutor in Jericho, his Excellency The Justice Minister and to  the Attorney General who was sent by the plaintiff’s Attorney [,] Abd el-Fattah el-Burjy [,] to establish for the whereabouts of the plaintiff’s husband [,] Shafiq Mohamad abd el-Wahhab.

 

2.       [Annex] The  testimony [given] under  oath by the plaintiff  to the Magistrate in Ramallah on 13.5.1998. [End of page 3, Arabic version]

 

3.       [Annex] A  letter  from  Colonel Sameh Kan’an [,]  [a member of]  the  leadership  of  the Preventative Security Service [,] to [“] brother [”] Zakaryya Musleh “Abu Ali” [,] [written] on 23.6.1997  [requesting him] to listen to the plaintiff.

 

4.       [Annex] Report by Amnesty International [,] [published] on 22.4.98.

 

5.       [Annex] An  application  to  obtain a  Magnetic  Card  [the  Magnetic Card and  permit are two essential documents for Palestinians from the Occupied Territories which they need in order to get into Israel] [,] refused by the Israeli Authorities.

 

6.       [Further potential evidence] Other evidences which we will present.

 

 

Written on 1.6.98.

 

     The plaintiff’s representatives

      

   Attorneys

 

Dr. Adnan Amro and Hussam Arafat

 

 

[End of page 4, Arabic version]

 

 

 

[Document 2: The High Court’s final judgment]

 

High Justice, 40/98

 

In the name of the Merciful and the Compassionate God

 

The High Court of Justice in Ramallah

 

The plaintiff     1. Shafiq Abdul-Wahab, Bayt Surayk, wife of the arrestee Shafiq Muhammad Hassa Abd al-Wahab

2. The Palestinian Human Rights Monitoring Group, represented by its Executive Director Mr Bassem Eid

3. Hissam Hadar, Committee for the Public Monitoring and Freedoms  in the Palestinian Legislative Council, Member of the Legislative Council

4. Hatim Abd al Wqadir, Member of the Palestinian Legislative Council and their representatives, Attorneys Adnan Amru and Hussam Arafat

 

The defendants    1. President of the Palestinian Authority in his capacity as

                                Minister of the Interior and in a personal capacity

    2. The Attorney General

 

The Court           Presided over by Judge Sami Sarsour and Judges Zuhayr Khalil and

                Nasri Awad.

 

Decision

 

[I] This appeal is made by the plaintiff, [requesting that] the decision to arrest the first applicant’s husband (Shafiq Muhammad Hassa Abd al-Wahab from Bayt Surayk), the [decision prohibiting] his release and [the decision prohibiting] visits be annulled.

 

[II] [His] case rests on the following points:

 

1.       The  decision to arrest [,]  [the decision requested to be]  annulled [,] is  [not based on] [“] evidence [”] [“munahdem”] [against the plaintiff] and violates the law and principles of justice.

 

2.       The  aforementioned  decision  is  [“] defective [”]  [i.e. legally mistaken]  [and is]  not

supported by legal reasoning.

 

3.  The decision requested to be annulled [“] is devious in its use of  power which has the has

     the object of revenge [”] [i.e. constitutes an abuse of power motivated by a will to seek 

     revenge].

 

4.  The decision requested to be annulled causes grave prejudice to the detainee and  to his 

      relatives.

 

[The following 16 lines form one sentence in the Arabic original]

 

[III] During the court’s session on 10.6.98 [,] the plaintiff’s representative repeated his pleadings and presented the evidence [contained in] the testimony of the plaintiff’s first witness [,] the wife of the arrestee  Shafiq Muhammad Hassa Abd al-Wahab … [.] [She] explained in her testimony that her husband had been detained since 21.6.97 and that despite [both] her inquiry to specific bodies [as well as her] recent acquaintance with a member of the GI in Ramallah [,] [a person] she claimed was connected with those who had carried out the arrest [,] [end of page 5, Arabic version] she [had not been able to establish] who had arrested [her husband] [.]  In her testimony [,] she stated that she had met the Head of the Palestinian National Authority and had raised the subject with him [.] [She also stated] that at the time [,] the Governor in Ramallah explained before the Head [of the PNA] that her husband [“] was to be found in his care [”] [.] [H]er testimony [went on to state that] the reason that she [,] rather than her detained husband [,] had appointed [her husband’s] lawyers was because his whereabouts were unknown [.] [Her husband’s] lawyer was not allowed access to [her husband] [.] [S]he had already tried, together with a lawyer, to appoint [this lawyer] as her husband’s representative, but had not been able to do so.

 

[IV] [The court] finds that the plaintiff’s representative requested [,] on the basis of this evidence [,] that an order be issued against the Director of the M[ilitary] I]ntelligence] prison [,] [ordering firstly] that the plaintiff be allowed to visit her arrested husband [and secondly] the establishment of the reasons preventing [such a] visit [.] [In addition, he requested that the court] issue a temporary decision requiring the defendants to clarify the reasons preventing the aforementioned detainee’s release.

 

[The following 12 lines form one sentence in the Arabic original]

 

[V] Consequently [,] the court has decided [,] by a majority [,] that the assignment [of the lawyer] by the first plaintiff [,] the wife of the arrestee [,] is justified on the basis of [not being able to establish the arrestee’s] whereabouts [and on the basis] of his lawyer and  members of his family being prohibited from visiting him [.] [C]onsequently [,] we consider [this application to be admissible] [.] [We] also decided [,] on the basis of the presented evidence and according to the provisions of Article 257 of the Court Law [,] to require the defendants to state the reasons firstly for the detainee’s wife and his lawyer being prevented from visiting the arrestee and secondly for not annulling the decision to arrest him and [for refusing to] release him [.] [I]n the case of opposition to [the use of] this procedure [,] the provisions of Article 258 of the same law  [should be invoked] [.] [These require] a counter-pleading within eight days of [this decision] having been communicated to [the defendants].

 

[The following 13 lines form one sentence in the Arabic original]

 

[VI] Through the Attorney General’s assistant, the defendants presented a counter-pleading, which stated that the complaint should be rejected for lack of [locus standi] [… the notion of locus standi is then repeated twice with different words] and on the basis of this court’s lack of jurisdiction in the case [.] [It also stated that] the plaintiff’s party has not established the existence of [a formal] decision to arrest [the plaintiff’s husband] and that the case falls outside the jurisdiction of the High Court of Justice [on the basis that] [“] the issue [”] [presumably the decision to arrest] [“] is related to [”] a [“] sovereign act [”] [“a’ammal al-syyadah”] [.] The Attorney General’s assistant did not present any evidence [of any kind] [,] reiterated what had been stated in the aforementioned counter-pleading and [finally] asked for the case to be dismissed and for the annulment of the (preliminary) temporary decision [.] The plaintiff’s representative’s pleading addressed every point raised by the Attorney General’s assistant in his counter-pleading [.]

 

[Paragraph spacing added]

 

[VII] Thereafter [,] and in the light of what had been stated by the detainee’s wife [,] this court decided on 26.9.98 to call four witnesses to hear their testimonies [.] [O]nly two witnesses were heard, [namely] the security officer Ahmad Ibrahim Abd al-Qadir and the governor of Ramallah and Al-Bireh, Mustafa Muhammad Isa al-Heikh Ahmad [.] [Following this], the Attorney General’s assistant and the plaintiff’s representative [repeated] their pleadings, both repeating what had been stated in their original pleadings.

 

[VIII] Firstly, [the court has concluded] that in his counter-pleading and in his [present] pleading before us [,] the Attorney General’s assistant [bases his] request that the [plaintiff’s] complaint be dismissed on [“] unfounded defenses [”] [i.e. on mistaken arguments] [.] [He] also claims that [the plaintiff] has lack of [locus standi] [end of page 6, Arabic version] and [“] interest [”] [,] that the [“] jurisdiction of this court over this case should be annulled [”] and that the case is based upon a [“] sovereign act [”] [a’ammal al-syyadah] [.] [The court] does not agree in any way with [these] facts and with this reasoning [,] [as] presented [by the Attorney General’s assistant] [.] [Consequently,] the court has jurisdiction [over this case] and we therefore decide to reject all the [Attorney General’s assistant’s] defensive arguments.

 

[IX] As for the subject-matter [of the case] itself, we find in the evidence presented [to the court] that the plaintiff’s representative failed to prove the true reasons for the arrest by the Palestinian National Authority of the first plaintiff’s husband and that the testimony of the aforementioned plaintiff’s was denied by the witness, the governor of Ramallah [,] whose testimony we decided to hear in order to discover the truth [.] [C]onsequently we cannot avoid the conclusion that the [existence of the events referred to in the] complaint have not been proven and on this basis alone the complaint should be rejected. [NB: this reasoning is nearly explicitly based on the principle of “guilty until proven innocent”]

 

[X] According to what has been presented, we decide to dismiss the case [,] to annul the temporary decision issued on 10.6.98 and to award all costs and expenses to the plaintiff [i.e. to the defendant, so the plaintiff pays].

 

[XI] Deciding to issue [a decision] as a majority [,] we decide [this case] in the name of the Palestinian People [and in] the presence of the first plaintiff [,] her representative and the Attorney General’s assistant on 13.2.99.

 

Judge                                                    Dissenting Judge                                   President

 

[End of page 7, Arabic version]

 

 

Decision of the Dissenting (Judge)

 

On 10.6.98 I issued a decision opposing the respected majority’s opinion and I decided [“] at that time [”] [i.e. in that decision] to dismiss the complaint for the reasons already mentioned in [“] my [”] [i.e. that] decision [.] [I] find no reason to repeat [them] again.

 

Consequently [,] and having heard all the evidence and the pleadings in this complaint [,] I agree with the result [reached by] the majority view to dismiss the case [,] but I rely on the reasons stated in the opposing decision [,] [namely] that the complaint is brought by an individual without locus standi [...]

 

Decision  issued …and declared in the name of the Palestinian People on 13.2.99.

 

The dissenting Judge

Zuhayr Khalil

 

[End of page 8, Arabic version]

 

 

 

 

 

 

B. Commentary

 

Judges                                                Sami Sarsour and Judges Zuhayr Khalil and Nasri Awad.

 

Mr. Wahab’s lawyers              Dr. Adnan Amru and Mr. Hussam Arafat

 

1.      The pleadings clarify the following. Mr. Wahab was arrested by the Military Intelligence on 21.6.97. Mr. Wahab’s wife lodged a complaint the next day with Ramallah police. Two weeks later she sent requests for information to a number of individuals. Two and four weeks after this she made more inquiries to the Attorney General and no response was received. She appeared before a Magistrates Court on 13.5.98, that is 326 days later, to make her case. Two weeks later she was informed that a committee had been formed to find her husband. Finally, her lawyers, Dr. Adnan Amru and Mr. Hussam Arafat, submitted a pleading to the High Court on 1.6.98. This pleading was therefore submitted 19 days after Mrs. Wahbah had appeared before the Magistrates court and  345 days after Mr. Wahab’s arrest.

 

Why did it take 326 days before Mrs. Wahab made her case before a court of law? Why did the High Court fail to point out this delay in its final judgment?

 

2.   The High Court’s first hearing took place on 10.6.98, 9 days after the pleadings had been

      submitted and 354 days after Mr. Wahab’s date of arrest.

 

3.      In paragraph III, the court refers to the facts as presented by Mrs. Wahab during the hearing on 10.6.98. It refers to the fact that Mrs. Wahab

 

           ·        had made inquiries to various bodies in order to establish her husbands whereabouts’

      but that she had received no response;

           ·        had spoken about the case with Yasser Arafat;

           ·        had been told by the Governor of Ramallah that her husband was “in his care”; and

           ·        had been forced to appoint the lawyers herself  because she had not been told about 

her husband’s whereabouts’. 

 

      Nowhere are these facts disputed and the court appears to accept them as facts.

 

4.      In paragraph V, the court accepts that Mrs. Wahab was forced to appoint the lawyers on behalf of her husband because she and the lawyers had failed to identify his whereabouts’ because the authorities had decided that access to him was “prohibited”.

 

5.      In paragraph VI, the court makes note of the fact that the Attorney General responded to the court’s request of 10.6.98 by presenting a counter-pleading, requesting Mrs. Wahab’s complaint to be rejected. The court does not state in its judgment on which date this counter-pleading was presented to the court.

 

6.      Still in paragraph VI, the court takes note of the fact that the Attorney General’s assistant argues that the case falls outside the jurisdiction of the High Court on the basis that the decision to arrest Mr. Wahab was a “sovereign” act. The court stresses the fact that the Attorney General’s assistant failed to produce any evidence and that Mr. Wahab’s lawyer “addressed every point raised by the Attorney General’s assistant in his counter-pleading”.

 

 

 

 

 

7.      In paragraph VII, the court states that during a (third?) hearing on 26.9.98, presumably the hearing after the unspecified hearing during which the Attorney General made his counter-pleading, it heard two of four witnesses which it had called. Again the court does not state when it called these four witnesses to court.

 

Why was there a court session 108 days after the court had requested a counter-pleading from the Attorney General and 462 days after Mr. Wahab’s date of arrest?

 

8.      During this (third?) hearing on 26.9.98, the court heard two witnesses for the defense (see paragraph VII).

 

9.      In paragraph VIII, which appears to refer to conclusions reached by the court during its fourth and final hearing on 13.2.99, the court lists the Attorney General’s assistant’s “arguments”:

 

        ·          Mr. Wahab has not presented a valid “defense”;

        ·          Mr. Wahab does not have locus standi or “interest”;

        ·          the High Court’s jurisdiction “should be annulled”; and

        ·          the “case” is based upon a “sovereign act”.

 

The court then states that it does not “agree in any way with [these] facts and reasoning” and that consequently it has jurisdiction.

 

Why was the third hearing on 26.9.98 postponed to a fourth hearing on 13.2.99, thus adding 140 days to Mr. Wahab’s detention and bringing the total delay since the first hearing to 248 days and the total delay since Mr. Wahab’s arrest to 602 days? Why does the court not explain why a fourth hearing was needed and why this fourth hearing took place 140 days after the third hearing?

 

Despite the fact that it appears that all four of the Attorney General’s arguments appear to be wrong in law and have little or nothing to do with applicable law or with the facts of the case, why does the court not justify its rejection of the arguments through legal reasoning?

 

For example, the court might have stated:

 

        ·           Mr. Wahab is the plaintiff, not the defendant. Therefore his arguments are not a “defense” and that it is the Attorney General’s obligation to deny the facts as presented by Mrs. Wahab and as listed above by the court with documentary evidence. The court should firstly invoke applicable provisions of the 1961 law (for example, see Articles 115 and 116, 1961) relating to the General Prosecutor’s obligation to issue arrest warrants and detention orders (and to specify specific pieces of information in those documents) and secondly ask the Attorney General why his defense has not included such documentary evidence of procedures having been followed.

 

        ·           Mr. Wahab’s locus standi before the court for the purposes of obtaining information from the authority detaining him in order to establish whether that authority has jurisdiction over him is not a legal issue. As we have seen, the High Court has jurisdiction to hear such issues on the basis of a number of legal provisions. Under Article 10(3)(c) of the 1952 Court laws, the High Court has jurisdiction to hear claims from individuals claiming to have been illegally detained pursuant to an administrative .

 

        ·          Jurisdiction cannot be “annulled”. Either a body has jurisdiction or it does not. If the Attorney General wants to argue that the High Court has no jurisdiction, then the High Court should insist that the Attorney General must present the legal basis for - and explain the purported scope of - the “sovereign act” of which he speaks. If the “sovereign act” is alluding to the notion of an administrative decision, the court should, in line with its judgment in Wahab, repeat its judgment that administrative decisions cannot be the basis for detention.

 

        ·          The Attorney General must provide the legal basis for and scope of the “sovereign act” of which he speaks. If the “sovereign act” is alluding to the notion of an administrative decision, the court should, in line with its judgment in Wahab, repeat its judgment that administrative decisions cannot be the basis for detention.

 

10.   In paragraph IX of the judgment, the court appears to announce the principle of a detainee being guilty of an undefined charge for which he was arrested if he “fails to prove the true reasons for his arrest”. Having established that it had jurisdiction, the court then decides that the case rests upon contrasting Mrs. Wahab’s word with that of the governor of Ramallah (“whose testimony we heard in order to discover the truth”). On this basis, the court decides that the facts of the complaint “have not been proven” by Mrs. Wahab and that therefore her complaint should be rejected.

 

Why does the High Court overrule the logic and reasoning of its previous judgments and place the burden of proof on a detainee whose illegal detention is explicitly established by the Court itself in its unequivocal acceptance of the facts as presented by the Court itself (see paragraphs V and VI of the judgment)?

 

In addition, in paragraph X the court orders Mrs. Wahab to pay the Attorney General’s office’s legal costs.

 

Why does the court in this case decide, 462 days after Mr. Wahab’s arrest, to ignore the fact that the Attorney General’s office has failed to identify

 

           ·        the whereabouts’ of Mr. Wahab;

           ·        the failure of the authorities to grant his lawyers access to him;

           ·        the procedures under which they believed his case was to be dealt with;

           ·        the legal basis and substantive scope of any claimed administrative decision

applicable to his detention;

           ·        the suspicion upon which he was arrested;

           ·        the detention orders sanctioning his detention;

           ·        the charges finally made against him.

 

If the High Court, as in its previous judgments, believes that administrative detention is not admissible under Palestinian law and that consequently only the procedures contained in the 1961 Penal Law are applicable, why does the High Court fail to mention a single provision of the 1961 provisions?

 

11.   In a separate judgment, the opposing judge, Mr. Zuhayr Khalil, decides that the complaint is to be rejected on the basis that his wife has no locus standi in appointing the lawyers on Mr. Wahab’s behalf.

 

The conclusion of this is that whenever the authorities decide not to give an individual access to legal council, that individual does not have legal redress in front of any court in order to challenge detention without charge or trial. The conclusion of such logic speaks for itself and for Mr. Khalil’s analysis of the case.

IV. Commentary on the case of Ghassan al-Adassi

 

 

 

 

 

 

 

 

 

Mr. al-Adassi was arrested by the Preventive Security Service (PSS) on 29.3.98. No arrest warrant was issued and access to legal counsel was denied.

 

On 22.4.98, 25 days after Mr. al-Adassi’s arrest, LAW submitted a writ of habeas corpus to the Palestinian High Court in Ramallah demanding that Mr. al-Adassi be charged or released and he be given access to a lawyer of his choice.

 

The High Court in Ramallah accepted the writ and ordered the Attorney General to explain the reasons for Mr. al-Adassi’s detention. During the first hearing on 8.7.98, 101 days after Mr. al-Adassi’s arrest, the prosecution requested an adjournment to 13.7.98 in order to be able to collect further evidence. Whilst Mr. al-Adassi’s lawyers objected to this move, the court agreed to the request. A second hearing therefore took place on 13.7.98, 106 days after Mr. al-Adassi’s arrest, during which the prosecution presented arrest warrants issued by the Military Prosecutor.

 

A third hearing was fixed for 5.9.98, 160 days after Mr. al-Adassi’s arrest and 54 days after the first hearing. During this hearing, the court adjourned to a fourth hearing on 6.10.98, 191 days after Mr. al-Adassi’s arrest and 85 days after the first hearing. During this final hearing, the court issued an order for the release of Mr. al-Adassi on the grounds that The court stated that his detention violated Articles 100 and 103 of the 1961 Penal Law.

 

The High Court Mr. al-Adassi remains in detention (written 1 July 1999).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

V. Marwan Juma’a Imran Abu Moussa

A. Documents

 

[Document 1: Mr. Moussa’s lawyer’s pleadings]

 

 

The High Court of Justice

 

Case Number 33/98

Date: 21.7.98

 

Plaintiff:

-           

-           

-          Maha Farid Salim Abu Allan, in her capacity as wife of the arrestee Marwan Juma’a  Imran Abu Moussa – [from]  Al-Bireh

 

and her representatives, Attorneys Ihab Abu Ghosh and Muhammad Ayyoub

 

Defendants:

 

1.       [As] Head of the PSS [Preventative Security Service] in the West Bank as well as in a personal capacity

 

2.       The Attorney General in the West Bank as well as in a personal capacity. [End of page 1, Arabic version]

 

The plaintiff’s final pleadings

 

The plaintiff’s attorneys present their final pleadings to your respected court and stress the [“muakedin”] [accuracy/correctness?] of the facts and the legal reasons as presented in the application and which are presented in detail in the following:

 

Firstly – Regarding the facts of the complaint:

 

The facts of the complaint focus on the fact that the first defendant illegally arrested the plaintiff’s husband on a specific date, in the following manner:

 

1. - On 2.4.98, a PSS force arrested the plaintiff’s husband “Marwan Juma’a Imran Abu Moussa” [who is] from the city of al-Bireh.

 

2. - No arrest warrants [issued against] the plaintiff’s husband were presented at the time of the arrest.

 

3. - The plaintiff’s husband (the arrestee) was not brought before the General Prosecutor and again no detention warrants were presented to the detainee.

 

4. - The plaintiff’s representative tried several times, to no avail, to obtain permission to visit the arrestee for the purposes of meeting the arrestee with a view to [firstly] establishing the circumstances of and the reasons behind the arrest and [secondly] [“] to be appointed [“] [“wakalah”] as his representatives by him directly [.] [A]ll these applications, made to the first defendant, were refused and the second defendant failed to reply to the letters sent to him with regards to the same issue [.] [T]his forced the plaintiff’s representatives to approach the court [,] having been appointed by the aforementioned arrestee’s wife.

 

5. The plaintiff’s representatives tried several times to clarify whether detention warrants existed and if so to establish the reasons for the detention and [“] for how long it had been authorised [”] [“muddataho” – “period of time”], but to no avail. The first and second defendants did not respond to any of these inquiries made [“] at that time [”] by the plaintiff’s representatives. [End of page 2, Arabic version].

 

6. The plaintiff’s husband was “illegally” detained by the PSS in Ramallah.

 

Secondly – Regarding the evidence  [supporting] the complaint:

 

The plaintiff’s representatives presented their own oral and written evidence, proving the [historical] accuracy of the aforementioned facts.

 

1. - The oral evidence:

 

The plaintiff’s testimony was presented in the oral evidence, proving the accuracy of the aforementioned facts. The plaintiff’s first witness Maha Farid Salim Abu Allan testified to the following:

 

a. - On 2.4.98, I discovered that my husband had been arrested by the PSS in Ramallah. [No quotation marks in the Arabic version]

 

b. – The witness also testified that during her visit to her husband [,] [who had been] arrested by the PSS [,] he told her that he had not been brought before the General Prosecutor and that he had not been made aware of the existence of any detention warrant issued against him.

 

c. - The witness also testified that preventing the assigned lawyers from visiting her husband had prevented him [the witness’s husband] from appointing these lawyers himself.

 

2. The written evidence:

 

Through the following written evidence [,] the plaintiff’s representatives presented proof of the accuracy of the aforementioned facts:

 

a. - A letter from the plaintiff representatives [,] dated 21.4.98 [,] that was sent to the Head of the PSS requesting access to the aforementioned detainee [,] the plaintiff’s husband [,] so that he could directly appoint them [as his defense counsel] and so that they could establish the [“zuruf i’tiqalahuh”] [“circumstances of his arrest/conditions under detention”?] (Annex 1). [End of page 3, Arabic version].

 

b. - A letter sent by the plaintiff’s representative to the Head of the PSS, dated 2.5.98, reminding him of the case of the arrestee, Marwan Juma’a Abu Moussa, [who is] the plaintiff’s husband (Annex 2).

 

c. - A letter sent by the plaintiff’s representative to the Attorney General, dated 2.5.98, which included [a reminder of] the [“] necessity of [”] [“obligation to”?] informing the plaintiff’s representatives of the reasons for [the detainee’s] arrest [,] of the state of play in the investigation and [a request] to give them access to the arrestee, the plaintiff’s husband (Annex 4).

 

d. - Another letter sent to the Attorney General [,] dated 4.5.98 [,] concerning the arrestee Abou Moussa and [“] explaining in detail [”] the illegal “zuruf i’tiqalahuh” [“circumstances of his arrest/conditions under detention”?] and the lack of [both] an arrest warrant [and] detention order issued against him [.] [I]n light of this, they [in the letter] requested the Attorney General’s office to conduct an investigation into the illegality of the plaintiff’s husband’s arrest [,] as a result [of such an investigation] to issue a release order in favour of the arrestee and [,] according to the provisions of Article 108/1 from the Penal Law (Annex 5) [,] to write a report [on this investigation].

 

However [,] the Attorney General did not reply to any of the above-mentioned letters and [,] until the date of his presentation of the evidence and pleadings [,] he did not indicate the [“] existence of any legal documents [”] for the arrest of the plaintiff’s husband.

 

The above-mentioned evidence proved the accuracy of all the facts presented by the plaintiff’s representatives in their pleadings.

 

In addition to this evidence, the reply and evidence presented by the Attorney General’s assistant [,] the details of which we shall go into later [,] was shown to be inaccurate.

 

Thirdly – Regarding the legal reasons:

 

Continued detention of the plaintiff’s husband [“] in the aforementioned manner [”] violates the law. We will focus on the following:

 

1.       - Article 7 of the [1961 Jordanian] Penal Law provides that:

 

“Employees of the penal justice system are responsible for investigating crimes, collecting evidence, arresting offenders and bringing them before the courts with due punitive jurisdiction.”

 

[End of page 4, Arabic version]

 

Article 8 of the same law provides that:

 

“Duties within the penal justice system are executed according to specific legal provisions by the General Prosecutor, by his assistants and, in Districts without General Prosecutors, by Magistrates.”

 

Article 9 provides that the General Prosecutor’s assistants execute their work as employees of justice within the limits of the jurisdiction given to them under this law and under related laws.

 

[To enhance clarity, the translator has added a number of words to the following sentence]

 

With respect [,] [as can be read in Articles 7-9] the PSS does not have this jurisdiction and no provisions of any law or [“] system [”] [“nizam”] [which might make an exception or contradict the law of 1961] provide for the [PSS to have the] aforementioned jurisdiction. Therefore [,] PSS members violated the law when they arrested and detained the plaintiff’s husband.

 

2.       [“] And  alternatively [”],  arresting  the  plaintiff’s  husband  violates  the  provisions  of

Article 100 of the same law [,] which provides:

 

“An official of the judicial police shall listen immediately to what the [“] arrested accused [”] has to say and if he is not thereby convinced, he shall send him within 48 hours to the General Prosecutor with jurisdiction [.] The General Prosecutor shall interrogate him within 24 hours and shall then either decide to detain or release him.”

 

As the plaintiff’s husband was not detained according to the provisions of the above-mentioned Article and as the General Prosecutor did not interrogate him in order to establish the reasons justifying his detention [,] his continued detention violates the law.

 

3.       The  [“] aforementioned   arrest   procedures [”]  [i.e.  the  way  in   which   the  plaintiff 

was arrested] also violate the provisions of Articles 104 and 105 from the [“] enforced [”] Penal Law [.] [A]rticle 104 provides that:

 

“prisons and detention centres should be [“] assigned [”] [“tao’yyan”] and organized according to [“] legal principles [”] [“marasem”].

 

 

Article 105 provides that:

 

“no person shall be imprisoned other than in the appropriate prison…”. 

 

[End of page 5, Arabic version]

 

[“] These [”] arrest centres are run by the PSS and are not organized according to [“] a legal principle [”] [“marsum”] [.] [C]onsequently [,] the continued arrest of the plaintiff’s husband violates the law.

 

4. With all due respect, the Attorney General office’s conduct constitutes a clear violation of the provisions of Article 108 [NB: the cited provisions is Article 108(1): it is important to note that there is no mentioning of Article 108(2)] [,] which states that:

 

“Any person who knows of a person illegally detained or imprisoned or [of a person] detained in an inappropriate place of detention or imprisonment, shall inform a member of the General Prosecution [.] He, in turn, shall immediately go to the place in which the detained or imprisoned person is to be found, shall carry out an investigation, shall order the release of the illegally detained or imprisoned [person] and shall immediately record in writing all of the above.”

 

Despite the repeated requests by the plaintiff’s representatives [to do so], the Attorney General’s office did not follow any of these procedures [and this] violates the law.

 

Fourthly – Regarding the evidence and the counter-pleadings presented by the defendants:

 

[(a)]– Evidence presented by the defendants:

 

The plaintiff’s representatives reiterated their objections to the evidence presented by their respected colleague, the Attorney General’s assistant, as the following explains in detail.

 

[Paragraph spacings added in the following sentence to enhance clarity]:

 

1. – The [“] evidence [”] [“bayyina”] presented by the respected colleague is [“] illegal [”] [“ghayer qanownyah”] because

 

[firstly] it includes detention orders issued by the [Security] forces and not [orders issued] by members of the [“] civilian police force [”] [“addabttah al-adlyah”] [;]

 

[secondly] the arrest of the [“] mentioned people [”] was made by the Security forces [;] and

 

[finally] the role of the Military General Prosecutor [“] with the conservation [”] [“maa’al-tahfoz”] is limited to an [ex post collective] authorisation of all the [post arrest] procedures taken by the security forces [.] [N]ormal procedures [mean that] he did not issue detention warrantS [plural in the Arabic version] after [initial] interrogation.

 

That evidence did not prove that the General Prosecutor interrogated the mentioned arrestees but [did] prove [firstly] that in this case the arrest and detention was an administrative decision taken and executed by the PSS [and secondly that] the General Prosecutor’s role was limited to trying to [“] render legal [”] [“iddfaa ishara’yyah”] and to [“] giving judicial form [”] [“isbagh asifah al-qadaiyya”] to these illegal administrative procedures [End of page 6, Arabic version].

 

The [“] illegality of the evidence [”] derives from [the fact that] the Military General Prosecutor [firstly] agreed “to the detention” [“] with conservation [”] [“maa’ al- tahfoz”] and [secondly] has no [“] jurisdiction to follow [”] [“aii ikhtisass fi mulahaqeht”] the arrestees, nor to follow [“] any case related to them [”]

 

[“] and without proving otherwise [”] [“wa doon ithbat ma yukhalef thalek”].

 

[NB: these last six words in Arabic could be trying to say that the Military General Prosecutor cannot disprove what the plaintiff claims in the preceding part of the sentence].

 

3.  Consequently, the [“] evidence [”] [“bayyina”] is not supported by [“] proof [”] [“ithbat”] [.] [I]n addition to the aforementioned points, the plaintiff’s representative would like to inform your respected court that [the defendant] did not present or refer to the [“] evidence [”] until our respected colleague [i.e. the defendant – “colleague” is singular in Arabic original] presented his counter-pleading [.] [Previously,] the first and the second defendants had implicitly [“] denied [”] [“inkar”] the existence of [“] these [”] warrants [i.e. implicitly admitting that these warrants did not exist?] [.] [This] is proved by the lack of response by any of the defendants to the plaintiff’s representatives’ repeated inquiries before [the latter] were [“] directed [”] to your respected court.

 

(b) – [“] Defendants’ [”] [i.e.“PLAINTIFFS’”] counter-pleading:

 

The plaintiff’s representatives insist on the accuracy of all the facts and legal reasons presented in their pleadings which [,] with respect [,] [“] show [”] a lack of accuracy in the defendants’ counter-pleadings, [“] and this in what follows [”]:

 

1. – Regarding jurisdiction:

 

The respected colleague argued that your respected court has [“] no jurisdiction to review judicial decisions [”] and that the subject of this case is related to legal detention orders issued by the Military Prosecutor General who investigated this criminal case under charges made against the plaintiffs and that consequently the issue should be transferred to the State Security Court which has jurisdiction.

 

What was argued by the respected colleague, with respect, is incorrect for the following reasons:

 

[The following 10 lines form one sentence in the Arabic original]

 

a. The arrest of the plaintiff’s husband was not based on any specific charges and was not based on arrest warrants issued by the General Prosecutor with [due] jurisdiction[.] [T]he respected colleague did not prove that the State Security Court has jurisdiction to [“] pursue [”] the aforementioned arrestees, nor did he prove that the Military Prosecutor General has legal power to issue a detention or arrest warrant against civilians[.] [I]n addition to this [,] before presenting his counter-pleading [,] the respected colleague did not raise any of [“] these [”] defensive arguments [end of page 7, Arabic version] in order to reject [the arguments] of the plaintiff’s representatives[.] [Consequently], [“] these [”] defensive arguments are an attempt to [“] legalise/render legal [”] [“iddfaa ishara’yyah”] illegal procedures.

 

b. - The documents presented by the respected colleague and issued by the PSS [,which supposedly authorised] the detention and continued detention of the arestee [,] prove that the arrest procedure [“] is [”] an administrative procedure and not judicial [in nature] [“] and accordingly this case does not exceed the jurisdiction of your respected court [”].

 

To insist on this point I would like to refer to the expert on administrative law, Dr. Sleiman al-Timawi, who stated, [“] in his publication The Administrative Judiciary in his first book Cancellation Judiciary [”] [NB: the last 12 words are a literal translation from the Arabic] on page 344:

 

 “the State Council has no jurisdiction over judicial procedures [applicable] prior to the release of a verdict, but this rule is not absolute as actions related to complaint procedures and their development do not fall under the jurisdiction of the administrative courts, regardless of the authority issuing them. But judicial actions, such as arrest and detention … etc. , fall under the jurisdiction of the judicial authority if they are related to judicial employees or if they are of a judicial nature [.] [“] [I]t [”] falls under the administrative court’s jurisdiction in other cases.”

 

In his book Dr Tamwi adds, quoting from a decision taken by the Egyptian administrative court released on 3 February 1957 [,] that the court’s general rule runs along the following lines:

 

[“] … only the orders and procedures issued by [“] maamury al-dabtiyah [”] [type of police officer] in matters falling under judicial jurisdiction [,] [a jurisdiction] given to them by the law and entrusted to them in their capacity [as members of the judicial authority], are to be considered as judicial orders and decisions. But the orders and decisions that are issued by them outside matters falling under [their] judicial jurisdiction and [outside matters] over which the law gives them authority, are not to be  considered orders or judicial decisions but [rather] are to be considered administrative decisions [which] can be monitored by the court.”

 

From the above, we conclude that administrative decisions [clothed in] judicial form do not fall outside the jurisdiction of the administrative court [“] monitor [”] [“raqabah”], in particular when these orders or decisions have been issued [concerning matters falling] outside [“] any judicial jurisdiction provided for by the law [”] [“ayy ikhtisas qadaay nazamaho al-quanun”].

 

The law does not [“] give the role of implementing judicial decisions [”] [“lam yudef siffa dabtiyyah qadaayah”] to the PSS, nor does it give the absolute [“] right [”]  [“elhaq”] [of implementing such decisions – here regarding arrest] to the Military Prosecutor General [.] [[I]n any case], this right [“] would never go so far as to justify the way in which the arrest was made in this case [”]. [NB: the last 19 words are significantly different from the Arabic original in order to try and express what the translator understands the court was trying to say].

 

It can therefore be concluded that the General Prosecution unjustly tried to [“] render legal [”] [what constituted an] administrative procedure. [End of page 8, Arabic version]. To insist on this point, I would like to refer to a similar recent case in the Jordanian High Court of Justice, No. 167/92, which concerned the request to release the detainee Layth Ishbelat [Islamic Member of Jordanian Parliament], [a detainee whose arrest had been] ordered by the Military Attorney General and by the Military Prosecutor General [and on which] Mr Attorney Ibrahim Baker [commented] in his reply on the issue of the High Court of Justice’s jurisdiction [this last sentence has been significantly rearranged and added to in order to enhance clarity]: 

 

“ In what has preceded, the Military Attorney General and Military Prosecutor General maintain that there is no case against them [(] and that therefore the case should be dismissed [)] because the Court cannot review administrative decisions issued by them and because the interrogation and [“] chasing [”] [“muhlahaqah”] procedures are to be considered as legal issues falling outside the jurisdiction of the High Court of Justice.

 

In his defence, the respected colleague has failed in his legal reasoning, [given that] the plaintiff has successfully shown that the decisions and the procedures [used by] the Military Attorney General and by the State Security Court’s General Proscecutor have [“] lost [”] [“faqada”] their [“] judicial validity [”] [“sifaha al-qadaiyya”] because in reality they constitute General Intelligence Department decisions and procedures [.] [The General Intelligence Department] cannot be considered [to be] a judicial authority.”

 

The plaintiff’s representatives have proved beyond doubt that the arrest and detention of the plaintiff’s husband was based on PSS decisions and procedures which do not have any judicial validity [.] [C]onsequently, [“] it [”] [the case] can be reviewed by this Court.

 

b. - [The argument] that your respected court has no jurisdiction is based on the idea that the law [always provides] specific mechanisms to review judicial decisions. But in the case before your respected court, the law has not provided for an [“] alternative [”] [“badeel”] mechanism for review [”] [.] [In addition and] in particular, [“] withdrawing [”] [“ikhtisas”] part of the [“] ordinary [”] [“a’ady”] judiciary’s jurisdiction is not contained in an [“] exhaustive/comprehensive [”] [“ mutakamil”] law that stipulates rights of defense and the right to judicial review.

 

Because of the above, [“] tying the hand of your respected court’s original jurisdiction [”] over the subject-matter of this case violates [“] the basic right [”] [“right” is in the singular in the Arabic original] guaranteed by [“] Constitutions [”] [“Constitutions” is in the plural in the Arabic original] that form the basis of the laws of this country [. ] [This right/these rights] are also guaranteed in the Draft Basic Law, [rights] which the Palestinian Authority committed to respect when it committed itself to implement [“] all [”] [“kaffit”] international agreements related to human rights [.] Individuals and citizens [have] the right to [legal] defense and the right to go to court to defend the rights guaranteed to them under the law.

 

The plaintiff’s representatives have presented all the aforementioned reasons as to why the [“] subject-matter of the [“] review [”] [“ta’an”] is administrative procedure [”] [referring to the nature of the decision to arrest and detain?] and this includes the illegal arrest of the plaintiff’s husband and it [the review] in particular is within the jurisdiction of your respected court. [End of page 9, Arabic version].

 

2.      Regarding conflict and [“] locus standi [”] [“maslahah”]:

 

In response to what the respected colleague argued on the issue of the plaintiff’s [“] lack of locus standi [”]  [“eni’dam maslahah”] [, an argument based on the notion that only] the arestee personally [has locus standi], our view is that this defense is also unfounded for the following reasons:

 

a. -  In spite of their repeated requests [which have been] presented [as] evidence in the [present] complaint, the plaintiff’s representative was prevented from visiting or meeting the arestee.

 

Responding to this defense [concerning lack of locus standi for the arestee’s wife] and accepting this request of lack of locus standi on [the basis of] the aforementioned [“] reason [”] [“reason” refers to the statement that only the plaintiff’s husband has locus standi] would constitute a new legal precedent which would reward the party preventing, without justification and in violation of the law, [defense] attorneys from meeting their clients.

 

b. - In all cases, relatives have locus standi to lodge a complaint [requesting] the annulment of a decision and the issuing of an order releasing their sons or husbands [.] [T]he reasoning of your respected court in many of its decisions, two of which are decisions 38/97 and 26/98,  protected this right [.] [I]n addition, the reasoning of the Jordanian Justice Court has concluded that there is locus standi for detainees’ relatives to lodge a complaint and we refer [specifically] to two decisions numbered 167/1993 and 16/1953.

 

Your respected court recognised the existence of this locus standi through [“] making [”] [“iqaimit”] [ “accepting the lodging of”?] the  complaint in [your] initial decision of 11 May 1998. The plaintiff’s representatives have previously explained in detail that this complaint is supported by valid legal arguments and that it is not [“] ambiguous/legally ignorant (??) [”] [“jahalah”] [.] [In contrast] and as we have shown above in details, there is something ambiguous/legally ignorant (??) in [our] respected colleague’s presentation [of his] counter-pleading and throughout his evidence.

 

[Arabic version, end of page 10]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Document 2: The High Court’s final judgment]

 

In the name of the Merciful and Compassionate God

 

The High Court of Justice, held in Ramallah

 

Plaintiffs:

 

1.      Maha Farid Salim Abu Allan, wife of the detainee;

      Maruan Abu Moussa – al-Bireh

 

2.      Rismeyeh Unis Ibrahim al-Koran, mother of the detainee;

      Luai Ahmad Faraah al-Koran – al-Bireh;

      Their representatives the lawyers Ihab Abu Gosh and Mohammad Ayyub -   

      Ramallah

 

Defendants:

 

1.       Head of the PSS in the West Bank, in his personal capacity

2.       The Attorney General in the west Bank, in his  personal capacity

 

The Court:

 

Headed by Judge Sami Samsur and with judges Masri Ahwad and Imahn Anaser Deen

 

Verdict

 

[I] The plaintiffs [,] in their stated capacity [,] have lodged this complaint to review the procedures [followed] when arresting the detainees Maruam Moussa and Luai Ahmad…., both from al-Bireh, [as well as the decision] not [to] release them. This complaint is based on the claim that the arrest and continued detention of the detainees [followed] [“] illegal procedures [”] and violated [“] legal provisions [”]  and that it constitutes an abuse of authority.

 

[NB: the following 23 lines of English form one sentence in the Arabic original; (no paragraph space between the last and next sentence in the Arabic original)]

 

[II] During this court’s session of 11.5.98 [,] the plaintiff’s representative Ihab Abu Gosh [,] repeated his pleadings and presented his evidence [.] [This] consisted [firstly] of the testimonies of the first plaintiff and of the witness Ahmad Uthman Faraah Kuran and [secondly] of the documents [in/labelled] A/1 to A/5 [Annexes] [.]  [O]n the basis of this evidence he requested  that an initial decision be taken [requiring the] stating of  the reasons preventing the immediate release of the mentioned detainees [.]

 

[Paragraph spacing added]

 

[III] [O]n that [same] date [,] it was proved to us through the evidence presented in the oral and written pleadings that many attempts had been made by their [now appointed] lawyers to visit the detainees in order to be assigned by them [and that] each time [they were] refused [access] [.] [This] led the wife of the first plaintiff and the mother of the second to assign the lawyers [.] [Consequently] this complaint was lodged, [constituting] a valid assignment and authorises the representative to appear before the court to represent the detainees [.]  [This is reinforced] through the decisions of this court in similar complaints [.] [A]s an example, the High Court of Justice, in case number 38/97 and in a subsequent session held [End of page 11, Arabic version] on the mentioned date, this Court [,] supported by the presented evidence [,] decided by a majority and working according to the provisions of Article 257 of the Court Laws to order the defendants to show the reasons [firstly] for the arrest of the mentioned detainees and [secondly] for the refusal to release them [.] [In addition, it was decided that] in case of objections, the Court should proceed [through invoking] the provisions of Article 258 of the same law which provide for counter-pleadings within 10 days [,] starting from the date of notice given of the complaint pleading [,] of its Annexes and of the initial decision issued in it.

 

[IV] On 4.6.98 [,] the Attorney General’s assistant [,] in his position as the defendants’ representatives [,] presented his counter-pleading which included the following [arguments]:

 

Firstly- The complaint should be dismissed for lack of jurisdiction [.] [T]he High Court of Justice does not have jurisdiction to review judicial decisions [in this case], [firstly] because the Penal Law has specified formal mechanisms to review these decisions, and [secondly because] the detention orders were issued by the Military Prosecutor General who investigated the charges made against the plaintiffs [.] [A]s a result [,] the case should be transferred to the State Security Court which according to the law and [its’] [“] principles [”] [“ossowl”] has jurisdiction to hear this complaint.

 

[The following 11 lines of English form one sentence in the Arabic original]

 

Secondly - The complaint should be dismissed for lack of locus standi, as  the  other party to the conflict in the claim for annulment is the party that issued the administrative decision [.] [T]he first defendant [in this case] cannot be considered the other party to the conflict as he did not issue the decision to arrest [the detainee] [.] [Instead] it was issued by a judicial body with jurisdiction [.] [Furthermore], the complaint was filed by an individual who does not have the right to file [the complaint][,] as it has been proved by [“] jurisprudence [”] [fiqih] and the [“] judiciary [”] that applications and pleadings presented to the High Court of Justice with a view to annulling the decision under review are not admissible unless the application [is made] by the person [claiming to have been] unjustly treated by the decision [that is the object of] the complaint.

 

Thirdly - The complaint should be dismissed for lack of locus standi because it has not been

lodged by the plaintiffs but by others [,] [namely] the wife of the first and the mother of the

second [plaintiff].

 

Fourthly - The complaint should be dismissed for lack of legal bases and reasoning.

 

Fifthly- The complaint should be rejected for its [“] ignorance [”] [“al-Jahalah”] and for

violating [“] law and fact [”].

 

[V] Consequently [,] the Attorney General’s assistant has requested that this complaint be dismissed and that the [first instance] decision of 11.5.98. be dismissed.

 

[VI] On 8.7.98 [,] the plaintiffs’ representatives announced that [“] Luai Koran [”] had been released and requested that only the first plaintiff’s complaint should proceed [.] [This] was accepted by the court as it decided to reject the second plaintiff’s complaint and decided to proceed only with the first plaintiff’s complaint, [namely that of the] wife of the detainee Maruan Moussa.

 

[The following ten lines of English were one sentence in the Arabic original]

 

[VII] At the hearing on 12.7.98 [,] the Attorney General’s assistant presented his evidence [,] which consisted of two documents [,] N/1 and N/2 [Annexes] [,] with which he concluded his evidence [.] [H]e then presented his written pleadings [,] at the end of which he requested that the complaint be rejected and that the plaintiff’s party pay for the [legal] costs and that the initial decision issued by our court on 11.5.98 should be annulled [.] [Arguing the contrary,] the representative of the first plaintiff presented his written pleadings in which he requested that [firstly] the initial decision be enforced [,] [secondly] an order for the immediate release of the detainee Maruan [be issued] and [thirdly] defendant’s party be committed to pay all expenses [,] costs and legal fees. [End of page 12, Arabic version]

 

[The following nine lines in English from one sentence in the Arabic original]

 

[VIII] [The court] has to [begin by] responding to the defense issues raised by the Attorney General’s assistant in his counter-pleading and in his pleadings before [this court] [.] [I]n so doing it becomes clear that what the complaint application requests is the issuing of an order for the release of the illegally detained detainee [.] [It also becomes clear that] the [“] detention was ordered [”] by a non-judicial body [.] [P]aragraph 3(c) of Article 10 of  the Law establishing the Systematical Courts, [( number 26 of 1952)], provides that the High Court of Justice has jurisdiction to issue release orders in favour of people illegally detained by non-judicial bodies [.] [Consequently] the repeated claim [,] made by the Attorney General’s assistant [,] that this court lacks jurisdiction is invalid [for the purposes of] the present case and we [therefore] decide to reject it. 

 

[IX] Regarding the [defendant’s] second [line of] defense, the complaint is [to be] dismissed for lack of locus standi on the grounds that the first defendant cannot be considered to be the party opposing the plaintiff because he did not issue the original administrative decision for arrest [.] [R]ather [,] [this] was issued by a judicial body with [due] jurisdiction [.] [A]ssuming that [the court] can accept that what [has just been] stated is correct [,] the rejection of the second defendant’s [,] the Attorney General[’s] [,] complaint cannot be justified [for the following reasons].

 

 [The following 17 lines form one sentence in the Arabic original; no paragraph spacing in the original]

 

[X] In addition to being the representative of the party [responsible for the] starting of the procedure leading to the complaint [(] procedure [)] before this court [,] he is simultaneously a [“] real opposing party [”] to the complaint and [therefore?] distinct from the party that [was responsible for] starting the procedures under review [.] [This argument also flows from the fact that] the arrest procedure set in motion his legal responsibility as Head of the Attorney General’s office [which] according to the law [identifies him/her as] the party with jurisdiction to issue detention and arrest orders as well as with jurisdiction to monitor the application and execution of the law [.] [T]his is one part [of the argument] [.] [In addition,]  a review of documents A/1 and A/2 show that the representative of the detainee Maruan sent two letters to the Head of the PSS [,] Colonel Jebril Rejub [,] in which he clearly referred to the aforementioned Maruan [and made clear] that he [Maruan] was arrested at his house in al-Bireh on the morning of 2.4.98 by a Security Force related to the PSS [.] [H]e [the representative] received no response from the Security Force [that might have shown that the Security Force] did not arrest his client [.] [I]n addition [,] the request made by the PSS to extend the detention of the detainee proves that he was arrested by it [the PSS] [.]  [C]onsequently we have decided to reject this [line of] defense.

 

[The following 18 lines of English form one sentence in the Arabic original]

 

[XI] [In its third line of argument, the Attorney General’s] defense claims that the complaint should be rejected for lack of locus standi [and] claims that the [present] application and pleadings lodged before the High Court of Justice, asking for the annulment of the reviewed decision [i.e. of the PSS decision to arrest and detain] should not be heard [.] [He claims that, firstly,] only the person who has been treated unjustly [through the consequences of] the decision under review can make such a complaint and [secondly] that the complaint was not lodged by the detainees but [rather] by others [, namely] the wife of the first and the mother of the second [.] This court has dealt with this issue in detail in previous complaints [and] we cite a couple of these [:] complaint number 26/96 and complaint number 38/97 [.] [In these cases the court] decided that the lodging of an application requesting the issuing of a release order in favour of a person who claims to have been illegally detained, such as in the present complaint, is acceptable and is justified by the rules of justice [.] [Such an application also] has a legal and historical basis and our court draws on the reasoning [“] issued [”] by the Jordanian High Court of Justice in complaint number 16/53 [which in that case was] lodged by the plaintiff’s wife [,] [the plaintiff being] detained in al-Jaffa prison in Jordan [,] with a view to [securing] his release [.] Flowing from the fact that this [line of] defense is invalid [,] we have decided to reject it.

 

[XII] Regarding the [fourth line of] defense which argues that the complaint should be rejected for lack of legal basis and reasoning [,] [the Court] finds that the complaint is based on the [claim] that the detainees were illegally arrested on 2.4.98 by the PSS and [that the] complaint requests the issuing of a release order in their favour [.] [This request is based on] the provisions of Article 10(2)(c) of the law establishing the Systematic Courts [,] number 26 of 1952 [.] [T]his means that the complaint is supported by legal reasoning and [that] this line of defense is not well founded [.] [W]e therefore decide to reject it.

 

[XIII] Regarding the fifth and final line of defence [, namely] that the complaint should be rejected for lack of clarity and for contradicting the law and the facts [,] we find it unfounded as we have found no lack of clarity in the pleading and we have not found anything contradicting the law [.] [A]ccordingly we have decided to reject this argument. [End of page 13, Arabic version]

 

[The following 14 lines form one sentence in the Arabic original]

 

[XIV] We turn to address the subject of the complaint [.] As it is forbidden to detain any person unless [existing] arrest procedures are [“] right [”]  [“saleemah”] [it is our conclusion that] the detention orders and the warrant which were issued on the same subject cannot be legal unless they were preceded by legal arrest procedures as provided for by law [.] [These procedures] are [to be found] in Article 102 of the Penal Law [which provides that] “it is forbidden to arrest any person or to imprison him unless according to an order from authorities with legal jurisdiction” [.] [This court] could not find anything in the complaint file indicating that this procedure had been followed [.] [C]onsequently [,] the decisions [authorising] detention and extension of detention [,] which are documents N/1 and N/2 signed by “the legal department” of the PSS and [containing] explanatory comments by the General Prosecutor of the General Security [,] are illegal as they are based on arrest procedures [executed] without  an order [issued by] a legal authority with [due] jurisdiction [.] [They] therefore they violate the law.

 

[XV] [In addition] [,] Article 100 of the aforementioned law provides that [when arresting a person] the party with legal jurisdiction must immediately listen to what that person has to say and [must] send him to the General Prosecutor with jurisdiction within 48 hours [.] [The latter] should [then] interrogate him within 24 hours and should order his detention or his release.

 

[The following 25 lines form one sentence in the Arabic original]

 

[XVI] Applying these provisions to the facts in this complaint, [the court] finds that the defendant’s representative did not present any evidence to prove [that] the issuing of the decision to arrest the arestee Marwan Moussa [was executed] by the authority with legal jurisdiction, and it was not proven that the party which signed documents N/1 and N/2 [,] the documents of detention and extension of detention [had the] legal jurisdiction to issue these decisions [.]

 

[Paragraph spacing added]

 

[XVII] [The court has also] found that the charges related to the detained arrestee and mentioned in the aforementioned documents do not necessarily mean that the State Security Court has the jurisdiction to review it [the charges?] because it is [to be] considered a [“] specialised [”] [“mokhtasah” – sui generis?] court [.]

 

[Paragraph spacing added]

 

[XVIII] [T]he General Prosecutor of the General Security [Force?] who signed the aforementioned  documents has jurisdiction to order a detention and its extension because according to the law it is possible to be [“] specialised [”] in reviewing these charges held in the ordinary judiciary [.]

 

[The translators had problems with this last part of the sentence; (no paragraph spacing here in the original)]

 

[XIX] [T]he defendant’s party did not present any evidence that [might otherwise have] indicated that the State Security Court or that the General Prosecutor of the General Security [Force?] had [“] judicial and legal jurisdiction [”] to review the case of the aforementioned detainee [.] [I]n addition [the court] did not find in the file [,] and  [despite] the Attorney Generals assistant’s insistence as to their jurisdiction [,] anything indicating [“] at a distance [”] that the General Prosecutor of the General Security [Force?] or of the State Security Court followed any legal procedure [during the detention of] the detained arrestee since his arrest on 2.4.998 [which has lasted] until present [(] a period of about five months [)] [.] [The court therefore concludes] that his detention during this period does not have a legal basis and [that it] is not justified in any way.

 

[XX] From what has been presented above [,] we conclude that the Attorney General’s assistant [,] as the representative of the defendant’s party [,] did not present any evidence [which might otherwise have] indicated that the arrest of the detainee Marwan Juma’a Imran Abu Moussa was carried out [firstly] in a legal manner [,] [secondly] according to the provisions of the Penal Law [,] number 9 for the year 1961 [,] and [thirdly according to] the procedures that are supposed to be respected following [and during?] the arrest [,] detention and interrogation of an individual [.] [H]e [also] failed to prove that the party making the arrest and [maintaining the] detention followed any procedures [for the purposes of] interrogation or legal questioning of the mentioned detainee [,] [proof that might otherwise have] provided a justification for continuing his detention until present.

 

[XXI] Consequently we have decided to accept this complaint [,] to uphold the temporary decision issued in [“]it [”] [,] to order the annulling of the detainee’s [(] Maruan Moussa [)] arrest procedures and to order his immediate release.

 

[XXII] This decision was issued and announced in open court in the name of the Palestinian people and in the presence of the plaintiff’s representative and of the defendant’s representative, the Attorney General’s assistant, and was delivered on 19.9.98.

 

 

President                                            Judge                                                  Judge  

 

 

 

B. Commentary

 

Judges                                                Sami Samsur (President), Masri Ahwad and Imahn Anaser Deen

 

Mr. Moussa’s lawyers                        Ihab Abu Ghosh and Muhammad Ayyoub

 

I.     Points 1 to 8 refer to the pleadings presented by Mr. Moussa’s lawyers

 

1.      Pages 1 to 10 of the Arabic original (pages 1 to 8 of the English translation) are the pleadings of Mr. Moussa’s lawyers before the High Court. These pleadings do not mention the date on which they were submitted to the court but the court’s first hearing took place on 11.5.98, 39 days after the date of Mr. Moussa’s arrest on 2.4.98. Presumably therefore they were submitted to the court at some point during the month of April. Despite exceeding the timeframes for detention provided for by the 1961 Criminal Code, compared with other cases, 39 days is a very short period of time to have elapsed before Mr. Moussa’s case came before a court of law

 

2.      It should also be  stressed that the  pleadings in Mr. Moussa’ s case are without  doubt  the most thorough and - as far as structure is concerned – the clearest pleadings submitted in any of the 13 High Court cases from Gaza and the West Bank that PHRMG has translated. These pleadings are written in an Arabic that is difficult to understand, with a linguistic structure that is at times seemingly impossible to understand, with an imprecision in the use of legal terminology that leads to ambiguity and contradiction in parts and with methodological lack of clarity such as separation of the facts of the case from applicable legal provisions law. Nonetheless, they invoke and fully quote specific parts of applicable criminal procedural law, deal step by step with “arguments” submitted by the Attorney General, deal with at least some of the  issues related to the High Court’s jurisdiction and effectively do most of the work for the court which can adopt at least parts of Mr. Moussa’s lawyers’ structure and argumentation. These pleadings are therefore the closest any of the lawyers either in Gaza or in the West Bank have come to dealing exhaustively and systematically with the legal issues at hand in these detention cases.

 

3.   The first point in the pleadings (page 1 English, page 2 Arabic)  mentions the following:

 

        ·          no arrest warrant was presented at the time of Mr. Moussa’s arrest on 2.4.98. [The pleadings do not make reference, for example to Article 103 of 1961 to show that this violates specific provisions].

 

        ·          Mr. Moussa  was not  brought before  the General  Prosecutor, [violating Article 100 of 1961.]

 

        ·           No detention warrant was presented to the detainee. [The pleadings do not make reference to Article 117 of 1961, which is thereby violated].

 

        ·          Mr. Moussa’s lawyers  were  refused  access  to Mr.  Moussa. [The pleadings do not  mention the applicable Articles 63 and 66 of 1961: this also violates Article 54 of the 1998 Prison law].

 

        ·          Mr. Moussa’s lawyers did not receive responses from the Head of the PSS nor from the Attorney General to their questions concerning “the reasons for” Mr. Moussa’s detention and the length of detention that had been authorised. [The pleadings fail to make reference to which provisions of 1961 are thereby violated. The lack of response from the detaining authorities directly violates Article 108 of 1961 and indirectly violates a plethora of procedural obligations incumbent on the authorities under 1961].

 

 

Mr. Moussa’s lawyers fail to refer systematically to many other relevant procedural obligations incumbent on the defendants relating to the manner in which Mr. Moussa was detained following his arrest. Notable is the lack of reference here to the strictly limited time periods during which Mr. Moussa could be detained before being charged and committed to trial.

 

4.      The second point in the pleadings (page 2 English, pages 3 and 4 Arabic) refers to oral and written evidence substantiating the points made under point 1.

 

5.      The third point in the pleadings (page 3 English and pages 3, 4 and 5 Arabic) refer to  specific legal provisions and proceeds in the following manner:

 

        ·          It states that the “continued detention of [Mr. Moussa] in the aforementioned manner [i.e. point 1 of the pleadings] “violates the law” and that the pleadings “will focus on the following”. The methodology of this section is thus a general assertion that the arrest was illegal and that it generally violated the provisions that will then be cited. It would appear that a more clear approach would involve stipulating, every time a legal provision is mentioned, how (in the case of Mr. Moussa’s arrest and detention) the provision was violated.

 

Under “point 1”, Mr Moussa’s lawyers present the following:

 

·         Article 7 of 1961 is cited. [Employees  of the penal  justice system  are responsible for

investigating crimes, collecting evidence, arresting offenders and bringing them before the courts with due punitive jurisdiction.]. No comment is made as to how specifically this provision has been violated.

 

        ·          Article 8 of 1961 is cited. [Duties within the penal justice system are executed according to specific legal provisions by the General Prosecutor, by his assistants and, in Districts without General Prosecutors, by Magistrates]. No comment is made as to how specifically this provision has been violated.

 

        ·          Article 9 of 1961 is paraphrased. [The General Prosecutor’s assistants execute their work within the limits of the jurisdiction given to them under 1961 and other related laws]. No comment is made as to how specifically this provision has been violated.

 

        ·          Following the citation of Articles 7 – 9, Mr. Moussa’s lawyers state that these three provisions show that the PSS does not have jurisdiction to arrest and detain Mr. Moussa. This is not explained or reasoned in any greater detail. Firstly, Mr. Moussa’s lawyer could make reference to the fact that the PSS is a security force which, for the purposes of criminal prosecution, acts as employees of the State Security Court which has, according to its founding decree, criminal jurisdiction over security cases. If the 1961 procedures apply to the State Security Court (and Mr. Moussa’s lawyer does not deal with the issue of other procedures applying), then arguably the PSS does have jurisdiction to arrest and detain suspects. However, once the arrest has been executed, then concerning interrogation procedures and detention procedures, the General Prosecutor and Magistrates must be involved and must fulfil their functions under the 1961 procedures. It is therefore too black and white a statement to say that the Preventative Security Service’s arrest and detention of Mr. Moussa was illegal per se. Rather, it is the way in which the arrest and detention were executed that violates applicable provisions.

 

 

Under “point 2”, Mr Moussa’s lawyers present the following:

 

        ·           Mr. Moussa’s lawyers begin point 2 with the words “and alternatively”. It is not clear why applying Articles 7-9 of 1961 and applying Article 100 of 1961, the Article referred to under point 2, are alternatives. It appears that they are cumulative and can be pleaded together. In other words, arrest and detention procedures are capable of violating both Articles 7-9 as well as Article 100.

 

·         Article 100 of 1961 is cited. [An official  of the judicial  police shall  listen immediately to 

what the[“] arrested accused [”] has to say and if he is not thereby convinced, he shall send him within 48 hours to the General Prosecutor with jurisdiction [.] The General Prosecutor shall interrogate him within 24 hours and shall then either decide to detain or release him.]. Mr. Moussa’s lawyers state that Mr. Moussa was not detained according to this provision and that the General Prosecutor did not interrogate him. In fact there is no evidence of this, because according to the pleadings, the General Prosecutor did not reply to Mr. Moussa’s lawyers questions concerning which interrogation and procedures were followed. There may be a presumption that this provision was not followed, but precisely because the General Prosecutor has not cooperated with Mr. Moussa’s lawyers, there is no evidence. Mr. Moussa’s lawyers should therefore focus on the failure of the General Prosecutor to give allow access to Mr. Moussa [violating Articles 63 and 66 of 1961] and on his failure to inform Mr. Moussa’s lawyers as to which charges had been made and as to when detention orders had been issued [violating numerous provisions of 1961, see above!].

 

Under “point 3”, Mr. Moussa’s lawyers present the following:

 

        ·          Articles 104 [detention centres are organised according to the law] and 105 [suspects shall be “imprisoned” in the appropriate prison” – NB: imprisonment only follows conviction whilst detention precedes conviction; is Article 105 therefore applicable?] of 1961 are cited after the pleadings state that the way in which Mr. Moussa was arrested violated these provisions. There is no elaboration as to which part of the facts show that either or both of these provisions have been violated.

 

Under “point 4”, Mr. Moussa’s lawyers present the following:

 

        ·          Mr. Moussa’s lawyers cite Article 108 of 1961 [when the Attorney General has been informed of the detention of a person in an unofficial place of detention, he shall conduct an investigation into that place, shall order the detainee’s release and shall write a report on the matter] after stating that the Attorney General failed to exercise his duties contained in Article 108 in the case of Mr. Moussa’s arrest and detention. In light of the written evidence produced and in light of the Attorney General’s failure to respond to Mr. Moussa’s lawyers, this allegation is well founded.

 

6.      The fourth point in the pleadings (pages 4 - 8 English, pages 6 - 10 Arabic) appears to be split up into two parts. It was considerably more difficult to translate this section, written in linguistically complicated, imprecise and ambiguous terms. The first (a.) (pages 4-5 English, pages 6-7 Arabic) deals with evidence presented by the defendants whilst the second (pages 5-8 English, pages 7-10 Arabic) deals with the details of the defendant’s counter-pleading. This second part (b.) is in itself split up into two parts, namely the issue of the Court’s jurisdiction (pages 5-7 English, pages 7- 9 Arabic) and the issue of Mr. Moussa’s wife’s locus standi before the court (pages 7 and 8 English, page 10 Arabic).

 

 

 

7.      Part 1 (a.) (pages 4-5 English, pages 6-7 Arabic) of Mr. Moussa’s lawyers’ fourth point deals with the evidence presented by the defendants.

 

Mr. Moussa’s lawyers assert that the Attorney General’s “evidence” is “illegal”.  Presumably, this means that the documents presented are indicative of the fact that the procedures followed were illegal. The evidence itself is admissible before the court and is therefore not in itself illegal.

 

This evidence includes

 

           ·        detention order issued by the security forces.  This, according to Mr. Moussa’s lawyers, is in itself illegal because the orders were not issued by “the civilian police force”.

 

Nowhere in the pleadings do Mr. Moussa’s lawyers give their legal opinion as to which procedures apply in State Security Court cases. Admittedly, the Attorney General does not deal with this issue either and arguably it is not up to Mr. Moussa’s lawyers to argue the case for the Attorney General.

 

But to clarify matters, Mr. Moussa’s lawyers should state that in the absence of the Attorney General arguing that State Security Cases are regulated by specific identifiable legal procedures, there is an assumption that the State Security Court is bound to apply the provisions of the 1961 Law and that consequently it must respect the delays and mechanisms for extending detention provided for in that law. On this basis, the detention orders issued by the SSC might be said to be illegal. It is not sufficient to deal with such orders by stating that they are per se illegal because the existence of the SSC is a legal fact (however deplorable and legally questionable its existence may be).

 

In addition it should be pointed out that even under 1961 it is not “the civilian police force” that issues detention orders but rather the General Prosecutor;

 

        ·           the fact that the arrest was made by the security forces. [The pleadings do not mention which provision of the law is thereby violated.];

 

        ·          the fact that the Military General Prosecutor authorised arrest and detention procedures after the event and that his role was therefor limited to “rendering legal” and to “giving judicial form” to [illegal] procedures [this is what PHRMG has understood from the Arabic text which is not very clear on this issue]. Whilst, through looking at the date of arrest and the authority’s behaviour, this is no doubt true, there is no reference to evidence or dates that proves this assertion;

 

        ·          the fact that the arrest and detention was based on an administrative decision which was taken and executed by the PSS. There is no reference to evidence that proves this assertion. It may be concluded that the failure of the Attorney General to produce evidence of a judicial order/judgment is enough to justify this assertion.

 

Finally, Mr. Moussa’s lawyers argue that the Military General Prosecutor “has no jurisdiction to follow any case related to” Mr. Moussa.

 

This, as in the case of the issue of the detention orders issued by the SSC, is a question of jurisdiction. Again, Mr. Moussa’s lawyers do not comment on where High Court jurisdiction ends and where SSC jurisdiction begins and they do not comment on the legal provisions governing the jurisdiction of the Military General Prosecutor. Once again, maybe this is not their role and maybe it is up to the Attorney General to refer to such legal provisions when trying to convince the High Court that it does not have jurisdiction in Mr. Moussa’s case.

 

But Mr. Moussa’s lawyers should be more precise on this issue: it is not that the Military General Prosecutor has no jurisdiction to follow “any case related to’ Mr. Moussa. Rather, the Military General Prosecutor has jurisdiction over cases specified in specific laws and that jurisdiction must be exercised with due regard for specific procedures provided for by law. Mr. Moussa’s lawyers could make this point and then argue that if the Attorney General fails to identify these legal provisions governing the Military General Prosecutor’s jurisdiction, it must be presumed that the 1961 provisions apply. And if these provisions apply, then the way in which Mr. Moussa was arrested and detained can be shown (as above) to have violated these provisions.

 

Mr. Moussa’s lawyers conclude their arguments on the defendant’s evidence with two points.

 

        ·          They state that “the evidence is not supported by proof”. Presumably “the evidence” is that referred to above and refers therefore to the criticised detention orders. It is therefore difficult to understand the phrase “the evidence is not supported by proof”.

 

        ·           They state that the defendants did not present or refer to the evidence until asked to do so by the court in their counter-pleading and that the fact that the defendants failed to provide Mr. Moussa’s lawyers with this evidence prior to the case being heard in court is evidence that they implicitly “denied the existence of these warrants” [presumably this means that they implicitly admitted that the warrants did not exist]. Here it would be instructive if Mr. Moussa’s lawyers referred to legal provisions clarifying the right for Mr. Moussa to be seen by his lawyers [Articles 63 and 66 of 1961 ]and the right of those lawyers to be present at all stages during the interrogation procedure and during the procedure issuing the detention orders [ibid]. Such an approach would clearly identify in which way the defendants’ actions can be held to account by the court.

 

8.      Part 2 (pages 5-8 English, pages 7-10 Arabic) of Mr. Moussa’s lawyers fourth point deals with the details of the defendant’s counter-pleading.

 

(1) The first part of this section (pages 5-7 English, pages 7- 9 Arabic) deals with the issue of the court’s jurisdiction:

 

Mr. Moussa’s lawyers begin this section by stating that the defendants have argued that the detention orders were issued by the Military General Prosecutor [NB: above Mr. Moussa’s lawyers state that they were issued by the “Security Forces”] and that the defendants therefore conclude that the case falls under the jurisdiction of the State Security Court. This is criticised by Mr. Moussa’s lawyers on the following grounds:

 

a.  Charges

 

Mr. Moussa’s arrest was not based on specific charges. An arrest does not have to be based on charges but only on suspicion: the charges then have to be made within stipulated time limits after the arrest.

 

b.  Arrest warrants

 

Mr. Moussa’s arrest was not executed pursuant to “arrest warrants” [warrantS is plural in the Arabic] issued “by the General Prosecutor with jurisdiction”. Here Mr. Moussa’s lawyers correctly point out that the defendant “did not prove”, firstly, that the State Security Court has jurisdiction over Mr. Moussa and secondly that the Military General Prosecutor “has legal power to issue a detention or arrest warrant against civilians”.

 

This is a crucial point and it is perhaps not made as explicitly as it could be. Mr. Moussa’s lawyers are in effect saying that if the State Security Court is to have jurisdiction over a case, then it must prove the following to the High Court reviewing a detention claim:  firstly the circumstances under which it has jurisdiction; secondly over which classification of individuals; and thirdly under which legal provisions it deals with arrest and detention procedure. In the absence of the defendants proving this to the court, the court must assume that the State Security Court does not have jurisdiction and that the High Court does have jurisdiction to review the case.

 

 Mr. Moussa’s lawyers appear to make this point indirectly through pointing out that the defendants did not “raise any … defensive arguments” in order to reject Mr. Moussa’s arguments.

 

c.  Administrative decision-making

 

           ·        The documents issued by the Preventative Security Service relating to Mr. Moussa’s detention show that the “arrest procedure” was “an administrative procedure”. On this basis, the case of Mr. Moussa falls within the jurisdiction of the High Court. [This argument might be based on the fact that administrative decisions are subject to judicial review by a judicial body. The following, however, does not argue the point in this way] Mr. Moussa’s lawyers justify this assertion that the High Court ahs jurisdiction over such decisions in the following way:

 

They refer to an Egyptian academic’s publication “The Administrative Judiciary…” whose quoted paragraphs, when translated, are somewhat obscure.[It is somewhat surprising that Mr. Moussa’s lawyers do not explain the relevance of an Egyptian academic’s writing in the current case.]

 

The essential parts of the first quoted passages state that “actions relating to complaint procedures” do not fall under the authority of administrative courts and that “judicial actions, such as arrest and detention.. fall under the jurisdiction of the judicial authority if they are … of a judicial nature”. In “other cases”, the “administrative courts” have jurisdiction. This, it seems, does not help to clarify matters in the present case.

 

It appears that the second passage quoted by Mr. Moussa’s lawyers, is not much clearer. The essential part refers to the notion of “orders and decisions … issued by … police officers working in the judiciary” being qualified as either “judicial orders” or as “administrative decisions”. The latter arise when such police take decisions “outside matters falling under their judicial jurisdiction and outside matters over which the law gives them authority”. These, the author says, “can be monitored by [“] the [”] court”.

 

Thus Mr. Moussa’s lawyers conclude that “administrative decisions” masquerading in “judicial form do not fall outside the jurisdiction of the administrative court”. This, they say (repeating the final hypothesis in the second passage), is particularly the case when “the decisions have been issued outside any judicial jurisdiction [provided for] by the law”.

 

In essence therefore, Mr. Moussa’s lawyers are arguing that if detention orders were issued by the Military General Prosecutor, his actions must be evaluated, for the purposes of review, under these principles referring to police officers. The conclusion: in cases in which decisions by police officers have been taken pursuant to jurisdiction provided for by the law and in cases in which such decisions have not been taken pursuant to jurisdiction provided for by law, the High Court has jurisdiction to review.

 

 

 

This argumentation is somewhat unclear. It does not appear to invoke a simple legal provision resolving much of the issue and fails to base itself on the requirements of the 1961 law. An alternative way of proceeding might be the following:

 

If the decision to detain (be it administrative or judicial in nature) is argued by the

defendants to have been taken pursuant to legal provisions,  then

 

Ø      the Court must insist that the defendants present the legal basis for such a decision to the court.

Ø      If that legal basis provides for another jurisdiction to review the actions taken and the court assures itself that applicable procedures have been and will be followed by that court, the court can decide that it does not have jurisdiction.

Ø      If the court reviews the actions taken against the specific provisions of the law and decides that the invoked provisions have been violated and/or that the court with jurisdiction is not fulfilling the duties of its jurisdiction, the court can decide that it has jurisdiction. In cases involving administrative decisions to detain, it can do so on the basis of Article 10(30(c) of the 1952 Court Laws.

Ø      If the legal provision provides for discretion to be exercised, the court must review the exercise of such discretion under principles of judicial review.

 

If, on the other hand, the decision to detain (be it administrative or judicial in nature) has been taken “outside any judicial jurisdiction [provided for] by the law”, then

 

Ø      clearly the court, having identified the fact that there was no jurisdiction under the law to take the decision, has jurisdiction, as High Court in all civilian cases, to decide that the decision was illegal. 

 

        ·           Mr. Moussa’s lawyers continue their analysis of this issue of administrative decisions by stating that “the law does not give the role of implementing judicial decisions to the Preventative Security Service, nor does it give [such an] absolute right to the Military General Prosecutor.”

 

This considerably confuses the issue and appears to show confusion on the part of Mr. Moussa’s lawyers. Mr. Moussa’s lawyers have established that the detention orders were issued by the Military General Prosecutor, and not by a judicial authority. They have argued that it was an “administrative decision” on the basis that it was an “order …. issued outside matters falling under” the “jurisdiction” of the police (on the basis of the above-quoted passage by the Egyptian academic). We are therefore not talking about the Military General Prosecutor or the PSS executing a judicial decision. We are talking about the Military General Prosecutor taking a decision, which is supposed to form the basis for the State Security Court’s jurisdiction in the cases and not visa versa.

 

The question should be dealt with in the following manner.

 

If the State Security Court is shown, through evidence, to have jurisdiction in the case - again an issue which Mr. Moussa’s lawyers do not address in detail (they refer to “the law” not giving jurisdiction to the Preventative Security Service) - then the Military General Prosecutor and the Preventative Security Service may have jurisdiction to implement the decision, as long as the Attorney General can present the relevant legal provisions (providing for this) to the court.

 

 

 

 

 

If the State Security Court does not have jurisdiction over specific case, either because (a) the Attorney General fails to prove to the High Court that the State Security Court does or (b) because the State Security Court is failing to implement its internal procedures and relevant detention procedures, then it is clear that the Military General Prosecutor and the PSS never had (a) or no longer have (b)  jurisdiction.

 

        ·           Mr. Moussa’s lawyers then state that it can “therefore be concluded that the Military General Prosecutor “unjustly tried to render legal” an “administrative procedure”.

 

        ·          This summarises the resulting confusion of the above paragraphs. If we are talking about an administrative decision then we should stick to this phrase. If we are talking about “administrative procedure” then we are talking about something else. Administrative procedure is legal when it does not exceed the limits given to by the administrative decision. Therefore, the phrase “rendering legal an administrative procedure” is somewhat difficult to substantiate and evaluate if Mr. Moussa’s lawyers fail to explain who took the original administrative decision, what the legal basis is to that decision and what the procedural limits are when executing that decision.

 

        ·           Mr. Moussa’s lawyers continue the discussion on administrative decision-making by making reference to case law of the Jordanian High Court which, briefly summarised, decided that in a  specific case (167/92), the decisions and procedures used the Military Attorney General and the State Security Court’s General Prosecutor had “lost their judicial validity because in reality they constituted General Intelligence Department decisions and procedures” and because the General Intelligence Department  could “not be considered [to be] a judicial authority”. Mr. Moussa’s lawyers add that they have proved beyond doubt that Mr. Moussa’s detention was based on “PSS decisions and procedures which do not have judicial validity” and that consequently the High Court has jurisdiction.

 

Again, all that Mr. Moussa’s lawyers need to have said is that the defendants have failed to present the court with the scope of the State Security Court’s jurisdiction and with the procedural law regulating State Security Court decisions and administrative decisions in State Security Court cases. It is not a question of whether the Preventative Security Service is a valid judicial authority. It may in fact be a valid administrative authority. But its authority must be proven to the High Court through reference to applicable law regulating that authority.

 

Finally, it is worth pointing to the fact that in its final judgment the court refuses to entertain the notion of any form of administrative detention being legal by invoking Article 10(3)(c) of the 1952 Court Laws which provide that the High Court has jurisdiction to hear detention cases in cases in which the detention was ordered by a non-judicial body.

 

d.  The High Court as “an alternative review mechanism”

 

Mr. Moussa’s lawyers continue by stating that the defendant’s argument is based on the idea that “the law [always provides] specific mechanisms to review judicial decisions”. But in this case, they go on to say, “the law has not provided for an [“] alternative [”] mechanism for review and the “withdrawing of the ordinary judiciary’s jurisdiction” is not dealt with by a law stipulating whether there is a “right of defense or the right to judicial review”.

 

 

 

 

 

        ·          This gives rise to a number of points.

 

Firstly, Mr. Moussa’s lawyers are returning to the idea that the detention orders were issued by a JUDICIAL authority. The inconsistency with previous assertions concerning an administrative decision being the basis for these orders results in some confusion as to how Mr. Moussa’s lawyers view the detention orders.

 

Secondly, if they speak of an “alternative” mechanism for review, then what is the original or first mechanism for review that is being implied? Are they referring to the State Security Court? If so, then is this court supposed to be reviewing a judicial decision or an administrative decision in this case? Again, the confusion results from Mr. Moussa’s lawyers not asking the Attorney General to explain to them the scope and nature of the State Security Court’s jurisdiction.

 

Finally, it appears that the last point is saying that the establishment of the State Security Court, which withdrew cases from the High Court’s jurisdiction, was not accompanied by a law that guarantees the right to legal defense and judicial review of a case when the State Security Court fails to exercise its jurisdiction over an individual. If this is the case, then the assertion that the law has not provided for “an alternative mechanism for review” is well founded and there is a lacuna in Jordanian jurisdictional law. It is possible that the State Security Court may be classified as a non-judicial body and that in effect its decisions are administrative in nature. In this case article 10(3)(c) of the 1952 Court Laws could apply. But is appears that under Jordanian Law there is no explicit equivalent to article 43 of the 1922 British Order in Council which, as we have seen, in effect provides that when the State Security Court fails to respect its own procedures as a judicial body, the High Court has jurisdiction over the individual who is in effect without a court.

 

        ·           Concluding their arguments on the issue of the High Court’s jurisdiction and following up the last point, Mr. Moussa’s lawyers assert that “the hand of the [High] court’s original jurisdiction” has been “tied” and that this “violates the basic right guaranteed by the ConstituionS forming the basis of the laws of” the West Bank and Gaza. They point out this basic “right’ is also guaranteed in the Draft Basic law which the Palestinian Authority committed itself to respect when it committed itself to implement “all international agreements related to human rights”. They conclude by stating that “individuals and citizens have the right to [legal] defense and the right to go to court to defend the rights guaranteed to them under the law.”

 

Thus Mr. Moussa’s lawyers are arguing that the setting up of the State Security Court, coupled with the potentially real above-mentioned lacuna in Jordanian law, means that (presumably) the 1962 Constitution adopted in Gaza (see above, section *** of the report) is being violated. (Presumably Mr. Moussa’s lawyers are referring to a number of relevant “rights” guaranteed within this Constitution and not to just one (unidentified) “right”.  The sentence concerning the Draft Basic Law is unclear for obvious reasons.  Essentially what Mr. Moussa’s lawyers are saying is that the Palestinian Authority is bound to guarantee a legal defense and an appearance before a court of law to all individuals, that it is bound to do so under the 1962 Constitution, under international agreements (to which the PA has committed itself) and under the as yet unsigned Draft Basic Law and that it is the High Court that, having the original jurisdiction over criminal cases involving civilians, is now the guardian of these basic procedural rights if the State Security Court fails to respect them.

 

 

 

 

 

(2) The second part of this section (pages 7-8 English, page 10 Arabic) deals with the issue of Mr. Moussa’s wife’s locus standi before the court.

 

Their argument rests on the claim that the defendants’ argument (stating that Mrs. Moussa does not have locus standi on behalf of her detained husband) is unacceptable on the grounds that if accepted by the court, the defendants would benefit from failing to respect the law which provides that Mr. Moussa has a right to be seen by his lawyers. As before, Mr. Moussa’s lawyers fail to identify the legal provisions guaranteeing such a right to Mr. Moussa [Articles 63 and 66 of 1961 and now Article 54 of the 1998 Prison Law]. They also point out that accepting the defendants’ argument would involve setting a new legal precedent, reversing previous decisions of the West Bank and Jordanian High Courts of Justice in similar cases. In addition, Mr. Moussa’s lawyers point out that the fact that the High Court accepted the lodging of Mr. Moussa’s complaint during its first hearing of 11.5.98 indicates that his wife, who lodged the complaint, has locus standi before the court on behalf of her detained husband.

 

II.  Points 9 to  21 refer to the final judgment of the High Court

 

9.      According to  the judgment, the court’s second  hearing took place  on 4.6.98 after, in its first hearing of 11.5.98, the court had given the Attorney General 10 days to present a counter-pleading. Why did a 10-day delay turn into a 25-day delay?

 

10.  On 4.6.98 the Attorney General presented his counter-pleading. In its final judgment the court does not comment on this hearing and, in paragraph VI of the judgment, simply jumps to the fact that there was a third hearing on 12.7.98, 38 days after the second hearing and thus 63 days after the first hearing.

 

11.  Again the court does not comment on its decision during the third hearing of 12.7.98 and, in paragraph VIII of the judgment, jumps to its response during the fourth and final hearing on 19.9.98,  69 days after the third hearing and 132 days after the first hearing.

 

Why is there no explanation from the court as to why it took 132 days from the date of the first hearing and 171 days from the date of Mr. Moussa’s arrest for the court to pass judgment in a detention case?

 

12.  In paragraph III of the judgment, the High Court accepts Mr. Moussa’s lawyers arguments pertaining to Mr. Moussa’s wife’s locus standi  before the court on behalf of her detained husband. [It should be noted that there is a somewhat confusing point in this paragraph when the court switches from referring to precedents pertaining to this issue to the 10 days given to the Attorney General to present counter-pleadings in the present case].

 

13.  In paragraph IV of the judgment the court summarises the five arguments presented by the Attorney General in his counter-pleadings.

 

The first argument appears to contain a contradiction, namely that the High Court does not have jurisdiction to review the “judicial decisions” in this case, inter alia, because the detention orders were issued by the Military General Prosecutor. If they were issued by the Military General Prosecutor then they are not a “judicial decision”.

 

The second argument, relating to the issue of the defendant’s locus standi [locus standi as defendants?], appears to be somewhat unclear. It begins by saying that “the other party” in the claim “is the party that issued the administrative decision”. It then says that the first defendant [not the Head of the PSS but, as becomes more clear later in the judgment, the Attorney General] in this case cannot be considered a party to the conflict because he did not issue the decision to arrest Mr. Moussa and that this decision was issued by a judicial body. Firstly, what does the Attorney General’s role have to do with an issue of locus standi before the High Court? Secondly, is this argument about an “administrative decision” (first sentence) or about a “judicial decision” (second sentence)?

 

The third argument makes the assertion that Mrs. Moussa does not have locus standi to appear before the court on behalf of her detained husband.

 

The fourth and fifth arguments are general assertions concerning the questionable factual and legal foundations of Mr. Moussa’s lawyer’s pleadings.

 

15. The court rejects the Attorney General’s arguments in paragraphs VIII – XIII of the judgment.

 

In paragraph VIII, it rejects the first argument that the court has no jurisdiction over Mr. Moussa’s case by concluding that “the detention order was issued by a [“] non-judicial [”]  body and that Article 10(3)(c) of the 1952 law establishing the Systematical Courts provides that the High Court has jurisdiction to issue release orders in favour of illegally detained individuals who have been detained under orders issued by non-judicial bodies.

 

In paragraph IX and X, the court rejects the second argument that there is a lack of locus standi to bring the case [on the part of whom?] on the grounds that the first defendant did not issue the “original administrative order”. Before the court rejects this argument it states “assuming that the court can accept what has been stated as being correct”. This is possibly referring to the claim that the Attorney General did not issue an order. It would have been helpful for the court to be more precise as to what it is referring to here. The context does not clarify this statement.

 

The court then makes two arguments.

 

Firstly, it engages the Attorney General’s responsibility on the basis that the very fact of arrest “set in motion his legal responsibility as Head of the Attorney General’s office [which identifies him] as the party with jurisdiction to issue detention and arrest orders [i.e. arrest warrants and detention orders] as well as with jurisdiction to monitor the application and execution of the law”. Whilst this is legally correct,  it would have been instructive for the court to cite the detailed applicable legal provisions to substantiate this conclusion [Articles 130-135, 203 of 1961.

 

Secondly, the court refers to evidence proving that the Preventative Security Service arrested Mr. Moussa. It is not clear in which way this is relevant to an argument relating to an issue of locus standi.

 

It appears that the issue in this argument is not one of locus standi, but rather on of involvement in the case by the two defendants. If this is the case, then the subject matter of this argument is not an argument: rather it is a substantive part of the case, relevant to the culpability of the two defendants.

 

In paragraph XI, the court rejects the third argument which claims that Mrs. Moussa does not have locus standi to lodge a complaint before the High Court in behalf of her detained husband. In agreeing with the submissions of Mr. Moussa’s lawyers to the contrary, the court recalls its own jurisprudence and that of the Jordanian High Court of Justice.

 

In paragraph XII, the court rejects the fourth argument that Mr. Moussa’s lawyer’s arguments are legally unfounded and badly reasoned, by stating that the complaint is validly based on Article 10(2)(c) of the Law establishing the Systematic Courts.

 

In paragraph XIII, the court rejects the fifth argument that Mr. Moussa’s lawyer’s pleadings are unclear and that they “contradict the law and facts”, by stating that the court disagrees with this evaluation of the pleadings. It might have been instructive, for both sides, if the court had stated that it cannot entertain objections to pleadings if the side objecting does not back up its statements with legal reasoning. This would encourage in particular the Attorney General’s office to take its legal responsibilities both during detention procedures and during legal cases more seriously.

 

16.  In paragraph XIV, the court turns to “the subject of the complaint”.

 

The court states that it is forbidden to detain a person “unless arrest procedures are [“] right [”]” [presumably this means unless they are followed]. It then states that detention orders and “the warrant” [presumably arrest warrant] cannot be legal “unless they are preceded by legal arrest procedures provided for by law”. The court then states that these procedures are to be found in “Article 102 of the Penal Law” [that is the Penal Law of 1961] which stipulates that a person may only be “arrested and imprisoned” under “an order from the authorities with legal jurisdiction”.[This is contained in Article 103, not Article 102] The court does not identify who these authorities are, nor does it discuss the possibility that Members of the Security Forces may cooperate with the relevant authorities in a case supposedly falling under the jurisdiction of the State Security Court. It avoids addressing the issue. Neither does it entertain the possibility of other laws, such as the 1970 PLO Code, applying to arrest and detention procedures. Again it avoids the issue and appears to decide, without explicitly saying so, that all arrest and detention cases, whether claimed by the Preventative Security Service and State Security Court or not, fall under the procedures of the 1961 Code.

 

Thus the court decides that because only the 1961 provisions apply, the detention orders signed by the Preventative Security Service are illegal: the PSS cannot be considered to be “a legal authority with due jurisdiction”.

 

17.  In paragraph XV the court them turns to Article 100 [of the 1961 Code], as cited by Mr. Moussa’s lawyers. The court does not apply dates to these strict provisions, which would be helpful in order to establish that Mr. Moussa first had his procedural rights violated 171 days prior to the judgment of the court.

 

18.  In paragraph XVI, the court repeats its assertions concerning the fact that the detention orders were not issued by the party with due legal jurisdiction to do so.

 

19.  In paragraph XVII, the  court states that “the charges  related to” [made against? this is  not

clear from the facts of the case as summarised in the pleadings or in the judgment] Mr. Moussa “do not mean that the State Security Court has the jurisdiction to review [“] it [”] ” [presumably the charges]. This, according to the court, is because the State Security Court “is to be considered a specialised court”. Nowhere in the judgment is there an explanation for this statement and it would be instructive if the court were to make reference to the scope of jurisdiction of the State Security Court and the procedures under which the High Court believes the State Security Court to be bound. 

 

20.  In paragraph XVIII, the court then makes a somewhat confusing assertion: “the General Prosecutor of the General Security [Force] who signed [the detention orders] has jurisdiction to order a detention and its extension because according to the law it is possible to be specialised in reviewing these charges held in the ordinary judiciary”. PHRMG has not been able to establish what the court is trying to say in this sentence.

 

 

 

 

 

 

21. In paragraph XIX, the court  makes two interesting  assertions.

 

Firstly, it states that the defendants failed to prove to the court that either the Security Court or the General Prosecutor of the General Security Force had “judicial and legal jurisdiction” to “review” Mr. Moussa’s case. This is in line with Mr. Moussa’s lawyers’ pleadings (see above, point 8b.). This is of interest because in paragraph XIV of the judgment the court appeared to have concluded that the Preventative Security Service could not be considered as “a legal authority with due jurisdiction”. Here, the court appears to accept that the defendants might have made an attempt at proving that the Preventative Security Service did have “judicial and legal jurisdiction”. The result is that the judgment does not clarify whether the High Court believes that the Preventative Security Service or the State Security Court could qualify as “legal authorities with due jurisdiction”.

 

Secondly, the court states that it has concluded that the General Prosecutor of the General Security Force did not follow “any legal procedure” in detaining Mr. Moussa. On this basis the court concludes that the “detention [did] not have a legal basis”. This language leaves room for doubt as to whether the court thinks that it is only the 1961 procedure by which the Preventative Security Service and State Security Court would be bound if they were to have jurisdiction over an individual. The language used allows for the possibility that a different set of procedures might be invoked in relation to a detainee under the jurisdiction of the State Security Court. Again, it would appear that a more unequivocal and systematic approach by the court concerning the State Security Court’s jurisdiction is desirable. The court once again makes  no attempt to make clear statements pertaining to the two court’s jurisdiction but simply decides that in the present case neither 1961 procedures nor apparently any other procedures were followed.

 

21.   The ambiguity referred to under point 19 is continued by the court in its final substantive paragraph, paragraph XX. The court reiterates the fact that firstly, the arrest was not carried out “in a legal manner”, secondly, the arrest was not carried out according to 1961 procedures [is there a difference between firstly and secondly?] and that thirdly the “procedures that are supposed to be respected following arrest, detention and interrogation” were not respected [no reference to which procedures, presumably therefore those of 1961].

 

The court finishes with the assertion that the defendants “also failed to prove that the party making the arrest and detention followed any procedures for interrogation and legal questioning” which could otherwise have “provided a justification for continuing his detention until present”. This last assertion raises a couple of issues.

 

Firstly, how does the third issue mentioned in the paragraph above differ from the issue dealt with in this sentence? It appears to be another repetition.

 

Secondly, when this repetition is placed side by side with the last phrase, the result is somewhat worrying. If the procedures referred to are the 1961 procedures then as we have seen, under no circumstances could a detention up to 171 days after the date of arrest be considered to be legal. And yet the court states here that had procedures been followed then these might have “provided a justification for continuing his detention until present”. Which procedures allow the Preventative Security Service to detain an individual without charge and trial for 171 days?

 

22.  Why does the High Court not award damages to Mr. Moussa and apply the 1960 legal provisions providing for officials who have violated their duties to be punished? Why did Mr. Moussa’s lawyers fail to invoke the applicable provisions?

 

 

 

 

VI. Sai’id Othman Ibrahim Sa’adeh

A. Documents

[Document 1: Pleadings submitted to the High Court]

 

In the name of the Merciful

and Compassionate God

The High Court of Justice in Ramallah

Case number 57/98

1.      The plaintiff           Sai’id Othman Ibrahim Sa’adeh – ID 942270950 – represented

                                    by Attorney Nader Tawfiq Kharaz

2.      The defendants     1.     The respected General Prosecutor in Jericho

2.    The respected General Prosecutor in Nablus – both represented  by the Attorney General

3.      Subject                  1. Issuing a preliminary order committing the defendants to clarify

 the reasons for the arrest and detention of the defendant [i.e. the 

 plaintiff]

                              2. Issuing an order to release [the plaintiff].

 

Details of the complaint:

 

1.       The plaintiff has been detained since 21.6.95 on suspicion of [“] having participated in many charges [”] [i.e. of having committed many offences provided for by law].

 

2.       Since [21.6.95], [“] my client [”] has not been presented before a court of law and no charges have been made against him. His case does not have a file and [“] this [”] [presumably all the points made under point 2] violates [“] all the laws followed by the court [”].

 

3.       We filed a request with the General Prosecutor in Jericho, Mr. Ashraf Ereiqat [,] with the Prosecutor General in Nablus, Mr. Ibrahim Amer and with Mr. Iyyad Taim [.] [None of them took a] decision on this case, justifying their refusal on the fact that the plaintiff is in custody pursuant to an order [issued by] the Attorney General.

 

4.       We were [subsequently] directed to the former Attorney General Khaled al-Qidreh [,] but to-date he has not responded nor presented any reason [for this lack of response] [.] [W]e can prove this.

 

5.       [“] Detention is not a punishment [”] and a suspect is innocent until proven guilty.

 

6.       The charges made against my client [contrast point 2] are [“] untrue [”] [.] [They are] contradict[ed] by my client’s testimony [which mentions specific]  individuals who were interrogated by the authority’s security forces and who were subsequently released. This [fact] proves that the [plaintiff’s] confession was made under [“] violence [”] [i.e. torture] [.] [The idea being that once he was forced to confess, the authorities were able to releases the other detainees]. [T]his is [evidenced] on my client’s body. [End of page 1, Arabic version]

 

7.       The plaintiff is an [“] honourable struggler [”] who has spent many years in [Israeli] prison [.] [Of this] we have evidence.

 

8.       Consequently [,] I request th[at] justice [be done through] releasing my client on bail.

With respect

On 19.12.97

Plaintiff’s representative

Attorney Nader Tawfiq Kharaz  [End of page 2, Arabic version]

[Document 2: The High Court’s first hearing:]

 

High Justice

57/97

In the name of the Merciful and Compassionate God

 

The High Court of Justice in Ramallah

 

Plaintiff                        Sai’id Othman Ibrahim Sa’adeh

                                    His representative Attorney Nader Kharaz from Nablus

Defendants                  The Jericho Prosecutor General

                                    The Nablus Prosecutor General

                                    Represented by the Attorney General

The Court                   Judge Sami Sarsur

and Judges Zuheir Khalil and Iman Nasser Eddine

 

Decision

 

This complaint was presented by the defendants [i.e.  by the plaintiff] in order to annul the decisions [leading to] the plaintiff’s detention and to his arrest [,] [an arrest] made on the basis of no charge against him [.] [These procedures] contradict [“] the provisions [”] of the law.

 

The complaint is based on the claim that the plaintiff has been detained since 21.6.95 without any charges having been made against him and without having been brought before a court [of law] [.] [D]espite this application [,] the defendants reached no decision on the subject of the [plaintiff’s] detention [,] claiming [instead] that the plaintiff was detained by the Attorney General.

 

[T]he plaintiff’s representative has reiterated his pleadings before today’s court and has presented his evidence [,] consisting [firstly] of A/1 [Annex 1] and  [secondly of] the testimony of two witnesses, [namely] the plaintiff’s father Othman Ibrahim Sa’adeh and his mother Subhiyyeh Rashid Abdul Haq [.] [H]e concluded his evidence and requested that an initial decision be issued [,] [obliging] the defendants to clarify the reasons justifying the plaintiff’s detention and [the decision] not to release him.

 

Having reviewed the testimonies of the [plaintiff’s] father and mother [,] we have decided [,] according to Article 257 of the Penal Law [,] to require the defendants to present the reasons preventing them from annulling the decision [“] that is requested to be annulled [”] [.] [I]n the case of objection thereto, [the court orders that] a counter-pleading shall be presented within 15 days of the date on which [the defendants] are informed of the pleadings, their annexes, attachments and of [this] initial [court] decision.

 

Decision issued and declared in the name of the Palestinian people and in the presence of the plaintiff‘s representative on 7.1.98.

 

Judge                                                                Judge                                        President

 

[End of page 3, Arabic version]

 

 

 

 

 

 

 

 [Document 3: The Attorney General’s counter-pleading:]

 

The PNA

Ministry of Justice

Attorney General’s Office

North Districts

22.3.98

 

Case # 57/97

 

The High Court of Justice in Ramallah

 

Plaintiff                        Sai’id Ibrahim Sa’adeh

                                    Represented by Attorney Nader Kharaz

 

Defendants                  The Jericho Prosecutor General

                                    The Nablus Prosecutor General

 

Counter-pleading

 

Presented by the defendants,

represented by the Attorney General

 

=====================================

 

As the defendants’ representative [,] the Attorney General’s office is honoured to present [,] within the legal time limit [,] the following counter-pleading to your respected court:

 

The plaintiff’s complaint should be rejected [on the following grounds]:

 

1.       Lack of jurisdiction              [presumably of the High Court, not of the complaint]

2.       Lack of locus standi             [presumably of the plaintiff, not of the complaint]

3.      Lack of reasons                  [presumably this means the plaintiff’s complaint is

factually unfounded]

4.       Lack of basis                      [presumably lack of legal basis in the complaint]

5.       [“] Not being heard [”]        [i.e. the plaintiff should not be listened to]

6.       Ignorance                           [within the complaint]

7.       Contradicting all legal provisions [i.e. the complaint is mistaken in its legal claims]

8.       Contradiction between facts and the pleading [i.e. the complaint is factually mistaken,

  presumably this is the same as point 3]

 

9.       [Number 9 should not be a number but rather a separate paragraph]

Consequently [,on the basis of what your respected court has heard,] the defendants request that the plaintiff’s complaint be rejected and that [the plaintiff] be made to pay expenses and costs [.] [In addition it requests the court to] annul [its] initial decision of 7.1.98.

 

The defendants retain their right to present any [further] documents when presenting their evidence.

 

Signed by the Attorney General’s assistant

 

[End of page 4, Arabic version]

 

 

[Document 4: The High Court’s final judgment]

In the name of the Merciful and Compassionate God

 

The High Court of Justice in Ramallah

Case number 57/98

 

The plaintiff                 Sai’id Othman Ibrahim Sa’adeh – ID 942270950 – represented by

Attorney Nader Tawfiq Kharaz

 

The defendants           1. The respected General Prosecutor in Jericho

2. The respected General Prosecutor in Nablus – both represented  

                                    by the Attorney General

 

The court                    Judge Sami Sarsur (President) and judges Nassry ‘Awwad and Iman

                        Nasser Eddine

 

The Decision

 

[I] This complaint is made against the defendants in order to challenge the decision to [“] detain and arrest [”] the plaintiff, without any charge having been made against him [.] [T]his [procedure] violates the law.

 

[II] This complaint is based on the claim that the plaintiff has been detained since 21.6.95 without any charges having been made against him and without having been brought before a court [.] [D]espite the applications [i.e. the inquiries made] [,] the defendants did not decide on the issue of the plaintiff’s detention [,] justifying this [by stating that] that the plaintiff is being detained  [“] by the Attorney General [”].

 

[III] In the current [i.e. initial] [“] trial [”] [“mohaqamah”] on 7.1.98 [,] [the court] decided [,]  on the basis of the evidence presented by the plaintiff’s representative and according to Article 257 of the Court Laws [,] to [request] the defendants to clarify the reasons preventing them from annulling the challenged procedure [.] [I]n case of objection to this [request,] [the court requested them to] present a counter-pleading within 15 days of the date on which they were informed of the pleading [,] the Annexes and of the initial decision [of 7.1.98].

 

[IV] The Attorney General’s assistant presented his counter-pleading within the legal period of time [.] [I]n [it] he requested that the complaint  be rejected [, firstly] for lack of jurisdiction [on the part of the court] [, secondly] for lack of locus standi on the [part of the plaintiff] [, thirdly] because it was not supported [by] or based [on] legal [reasoning] and [finally] for [“] ignorance [”] and for [“] violating the law and its principles [”] [.] [C]onsequently [,] [he requested that] the initial [court] decision [of 7.1.98] be annulled [.] [He then] announced that he [“] did not like to [”] [“la yaarghab”] present any evidence [.] [F]inally[,] he requested that the complaint be rejected [.] [I]n his pleading [,] the plaintiff’s representative requested that all of the defenses invoked by the Attorney General’s assistant be rejected and that his client be released.

 

[V] Reviewing the presented evidence and referring to Annex A/1 we discovered that a list of charges [,] issued by the Military Prosecution of the Israeli Occupying Authorities dated 30.3.92 [,] were made against the plaintiff [.] [The list] consisted of eleven charges.

[End of page 5, Arabic version]

 

[VI] We discovered from his parent’s testimony that [the plaintiff] is [being held] in Nablus Central Prison and that without [being informed of] the charge under which he was being detained [,] he was arrested by the PSS in the Qualqilyah region [.] [T]o-date he has not been brought before a court [of law].

 

[VII] The details of the complaint mention that the plaintiff was detained on 21.6.95 on the basis of having [“] participated in many charges [”] [i.e. committed a number of offences] [.] [S]ince then he has not been brought before a court [,] nor were there any charges listed against him [.] [H]is representative was directed to the General Prosecutor in Jericho and to the General Prosecutor in Nablus [.] [These in turn] – according to what he claims – referred him to the then Attorney General Khaled al-Quidrah [.] [The latter] did not respond in any manner [presumably to the lawyer’s inquiries].

 

[VIII] Concerning the counter-pleading presented by the Attorney General’s assistant [,] [the court] finds no denial of the claims made in the [plaintiff’s] pleading [.]  [I]n other words the defendants has not denied [firstly] that the plaintiff has been detained since 21.6.95 [,secondly that] since that date he has not been brought before a court [of law] and [thirdly that] no charges were listed against him [.] [A]ccordingly [,] this lack of denial is attributed to the defendants and the provisions of Article 55 of the Court Laws apply [.] [These] state that

 

“any [factually proven] claim mentioned in a complaint pleading is to be accepted [by the court] if it is not  explicitly or implicitly denied or if the opposing party fails to state that he does not accept [the claim] [.] [This applies] unless [the claim is made] against [a defendant??] [this appears to be ambiguous in the Arabic] who is  [“faqid al-ahliah”] [“mentally incapacitated?”]”. 

 

[IX] According to the evidence presented by the plaintiff’s representative and according to what has been mentioned in the [plaintiff’s] pleading [,] [claims denying] the plaintiff’s claims have not been [“] proven [”] [substantiated with evidence] [.] [Instead,] according to what was presented previously [,] [the plaintiff’s claims should be] considered as valid [.]  [T]he plaintiff has been detained  for a long period of time [,] [that is to say] since 21.6.95 [,] without any charges having been made against him and without having been brought before a court [of law] [.] [T]his  violates and [“] contradicts [”] the provisions of the Penal Law [,] [“] as stated [”] in the Articles mentioned in Chapters I and II of this law [which] concern the procedures [applicable to] arrested persons [,] [to] arresting and detaining them and [to] [“] the plaintiff’s detention [”] [.] [O]n this basis, [the decisions to arrest and detain] should be annulled as [they] contradict the law.

 

[X] According to the above [,] and to the legally unfounded arguments invoked by the Attorney General’s assistant [,] [it has been] shown to [this court] that [“] it [”] [i.e. the decision to arrest and detain the plaintiff] [“] contradicts [”] [i.e. violates] the applicable [legal] procedure [.] [W]e have [therefore] decided to accept the complaint [,] to uphold the initial decision and [to order] the plaintiff’s immediate release.

 

[This] decision [was] issued and declared in the name of the Palestinian People and announced in the presence of the plaintiff’s representative and the Attorney General’ s assistant on 28.10.98.

 

President                                              Judge                                                    Judge

 

[End of page 6, Arabic version]

  

 

 

 

 

 

 

 

 

[Document 5: Mr. Saadeh’s lawyer’s letter to the General Prosecutor following the High Court’s decision]

 

In the name of the Merciful and Compassionate God

 

To the respected  General Prosecutor in Nablus

 

1.      The plaintiff           Sai’id Othman Ibrahim Sa’adeh, from Nablus and the Attorney

                                    General’s representative

2.      The subject           Request for releasing my client on bail

 

Reasons for the application

 

1 The plaintiff has been detained since 21.6.95 on suspicion of [“] having participated in many charges [”] [i.e. of having committed many offences].

 

2. The plaintiff was interrogated [,] the interrogation took place over for a long period of time and to-date he has not been brought before a court of law.

 

3. Releasing the plaintiff [“] does not affect interrogation procedures [”] [.] [Nor] does [his release] threaten public security or public order because the plaintiff’s address has been known since the release of his colleagues who had been charged with the same [offence] as [the plaintiff].

 

4. My client’s release was ordered by the High Court of Justice [,] case no. 57/97 [,] on 28.10.98.

 

5. [D]etention is not a [form of] punishment [provided for by law] and a suspect is innocent until proven guilty.

 

6. The plaintiff is the breadwinner of a big family and every delay [to his release] causes grave damage to him and to his family.

 

7. The plaintiff is one of the persons released in a [prisoner exchange] [the 1985 Israeli release of 1200 Palestinians in return for two Israeli soldiers taken hostage in South Lebanon in 1983].

 

8. The plaintiff has been detained for interrogation for more than 46 months [.] [H]e has not been brought before a court and no[ne of the applicable] legal procedures have been followed [in his case] [.] [This] violates procedural law.

 

9. If my client had been [“] convicted [”] of the charges made against him [,] he would not have remained in prison for this length of time.

 

3.      On  the basis of  the above  [,] I request  that justice  [be done and that on the basis firstly,

that] his partner [was released, secondly of] his social circumstances [and thirdly of] his long struggle [,] my client be released on bail with a third party guarantor.

 

With respect, written on 30.10.98

The plaintiff’s representative

The Attorney

Nader Tawfiq Kharaz

 

[End of page 7, Arabic version]

B. Commentary

 

Judges                                Sami Sarsur (President), Zuheir Khalil and Iman Nasser Eddine

 

Mr. Saadeh’s             

Lawyer                 Nawder Tawfiq Kharaz

           

1.      Mr. Saadeh was arrested on 21.6.95. Having attempted to contact a number of General Prosecutors and the Attorney General, Mr. Saadeh’s lawyer’s first pleadings were submitted to the High Court on 19.12.97, 911 days after his arrest.

 

Why did it take 911 days before Mr. Saadeh’s case received effective legal attention? Why does the court not comment upon this in its final judgment?

 

2.      The structure and legal content of Mr. Saadeh’s pleadings can be seen on page 1 of the English translation. The issue shrouded in most confusion, and which his lawyer fails – amongst other things - to clarify, is whether Mr. Saadeh was specifically charged with an offence or not. [The High Court later clarifies that the Mr. Saadeh claims that no charges have been made against him]

 

3.      The High Court held its first hearing on 7.1.98, 19 days after Mr. Saadeh submitted his pleadings to the court and 930 days after Mr. Saadeh’s arrest. The court then gave the Attorney General 15 days to present a counter-pleading.

 

Despite this relatively short time-delay, why did it take 19 days for a detention case to be heard in court?

 

4.      The counter-pleadings presented to the court by the Attorney General can be seen on page

3 of the translation. Given that they are written by the Attorney General’s office, the quality of the legal reasoning and detail of these counter-pleadings appears to require some attention on the part of those wanting to reform the justice system.

 

The counter-pleadings are dated 22.3.98. The hearing during which the court gave the Attorney General 15 days to present the counter-pleadings took place on 7.1.98. Therefore, the counter-pleadings were written 74 days after the hearing of 7.1.98, that is to say 59 days after the 15-day period granted by the court had expired. Why, therefore, does the court begin paragraph IV of its final judgment with the phrase, “the Attorney General’s assistant presented his counter-pleading within the legal period of time”? In its final judgment the court does not say when these counter-pleadings were presented to the court. There is therefore considerable confusion, generated by the drafting of the High Court, as to which procedures and time-delays were followed and permitted by the  High Court.

 

5.      The final hearing of the court took place on 28.10.98. The court mentions no other hearings having taken place between the first hearing on 7.1.98 and the final hearing on 28.10.98. Why did a 15-day delay turn into a 294-day delay? Why did the court’s final decision take place 311 days after Mr. Saadeh’s pleadings had first been submitted to the court? Why does the court not comment upon the fact that its final judgment is taking place 1224 days after the date of Mr. Saadeh’s arrest?

 

6.      Paragraphs I to IV of the judgment refer to Mr. Saadeh’s complaint, to the hearing of 7.1.98 and to the Attorney General’s counter-pleadings.

 

7.      Paragraph V of the judgment refers, without comment, to a “list of  … eleven … charges issued by the Military Prosecution of the Israeli Occupying Authorities”, dated 30.2.92, that had been made against Mr. Saadeh.

 

8.      Paragraph VII of the judgment refers to the fact that Mr. Saadeh

 

Ø      was not charged, [violating, for example, Articles 115, 116 and 202 of 1961] 

Ø      not brought before a court of law [violating, for example, any one or more of Articles 130(c), 131, 132, 133(2) and 133(5) of 1961] 

 

and that neither of the General Prosecutors  nor the Attorney General Khaled al-Quidrah responded to questions put to them by Mr. Saadeh’s lawyer [notably violating Article 108(1) and 108(2) of 1961, the latter making the General Prosecutor and the attorney general accomplices to Mr. Saadeh’s illegal detention].

 

Why does the court not comment upon these omissions and failures in light of the noted applicable legal provisions? Why does Mr. Saadeh’s lawyer not invoke the provisions that provide for the punishment of such failures under the 1960 provisions?

 

9.      In  paragraph VIII  the court states  that the  Attorney General’s  counter-pleadings  do

not deny the claims (detention since 21.6.95; no charges made; failure to be brought before a court,) made by Mr. Saadeh. It appears however that the pleadings, despite their total failure to substantiate any of the claims they make, do challenge the veracity of Mr. Saadeh’s claims (see pleadings at points 3 and 8). It may well be that the court’s statement is an indirect way of saying that the Attorney General’s counter-pleadings are without any value.

 

It is on this basis that the court concludes that Article 55 of the Court Laws apply. Article 55 stipulates that the court may accept the veracity of one side’s account of the facts if the other side does not deny those facts. The court thus avoids dealing directly with the way in which Mr. Saadeh’s detention has violated the 1961 provisions, preferring to seek refuge in its (questionable) opinion that  the Attorney General has not denied Mr. Saadeh’s claims.

 

10.  In paragraph IX the  court reiterates, somewhat  incomprehensibly, the effect of Article

55 in this case and refers to the fact that the way in which Mr. Saadeh has been treated “contradicts the provisions of the Penal Law as stated in the Articles mentioned in Chapters I and II of this law which [concern] the procedures [applicable to] arrested persons, [to] arresting and detaining them  and [to] the plaintiff’s detention”.

 

Thus, like Mr. Saadeh’s lawyer, the court does not refer to specific provisions of the 1961 law. It does not apply the dates of the case to the applicable procedural delays contained in the 1961 procedures and fails to comment on both the defendant’s direct responsibility for Mr. Saadeh’s illegal detention and on applicable provisions of the 1960 Penal law providing for the defendant’s punishment.

 

 

 

 

 

 

 

 

 

VII. Commentary on the case of Sheikh Mahmoud Musleh

 

 

 

 

 

 

 

 

 

Sheikh Mahmoud Musleh, the leader of Hamas in Ramallah, was arrested from his workplace on 4.9.97 by the Palestinian General Intelligence (GI). It appears that the arrest was carried out without following due process: no arrest warrant was issued and Mr. Musleh was denied the right to legal counsel.

 

On 23.9.97 LAW submitted a writ of habeas corpus in the case of Mr. Mahmoud Musleh to the High Court in Ramallah.

 

During the first hearing on 23.9.97, Mr. Musleh’s lawyer Mr. Shkirat, focused on the following:

 

1.   He had not been given access to Mr. Musleh.

2.   Mr. Musleh’s detention violated “his natural and human rights and his [“] detention without charge [”]” [i.e. failing to charge Mr. Musleh violated these rights].

 

He consequently requested the court to seek an explanation for Mr. Musleh’s arrest and continued detention and to order his immediate release if an explanation was not provided. The three judge court, by a majority of two to one, decided:

 

1.   That Mr. Musleh did not personally have to appoint his attorney in order for Mr. Musleh to have locus standi before the court.

2.   The Attorney General should be given 15 days to charge Mr. Musleh with an offence. If this should not occur, the court would rule in Mr. Musleh’s case.

 

On 23.10.97, 30 days after the first hearing, the Attorney General filed a response containing the following “arguments” supporting a rejection of Mr. Musleh’s complaint:

 

1.    The President of the PNA is not the Minister of the Interior. There is not evidence that the President ordered Mr. Musleh’s detention.

2.    The complaint is not based on a violation of Mr. Musleh’s legal rights having been violated.

3.    Mr. Musleh’s legal counsel does not have power of attorney because Mr. Musleh’s signature is needed for an attorney to represent him before a court of law.

4.    The High Court does not have jurisdiction over Mr. Musleh’s case.

 

Mr. Musleh’s lawyer submitted the following facts and arguments to the court:

 

1.      Mr. Musleh was arrested on 4.9.97 and detained at the GI Centre, Ramallah.

2.      Mr. Musleh was being illegally detained.

3.      Mr. Musleh’s detention constituted “an abuse of power”.

4.      Mr. Musleh’s continued detention “jeopardised” [i.e. “violated”] his natural and legal rights and “seriously damaged his psychological” state of mind [i.e. constituted a form of mental torture?].

 

On 30.11.97 in a complaint lodged against the President of the PNA in his capacity of Minister of the Interior, three High Court judges, Sami Sarsour (President), Nasreer Aswad and Hisham Al Hatoo, held their second and final hearing in order to consider the above “arguments”. It is not clear from the way in which LAW published details of the case whether the following arguments are the arguments of the High Court or not, but it will be presumed that they are.

 

The High Court based its order of 30.11.97 to release Mr. Musleh on the following:

 

1.     The High Court has jurisdiction to hear the case on the basis of Article 10(3)(c) of the Court Laws of 1952.

2.     The security services are not legally authorised to issue detention orders and that in fact “it was customary for the High Court to issue release orders for people who have not been charged or who are detained for no apparent reason”.

3.     Detainees are legally entitled to apply for their release if they are not charged.

4.     The court’s job, as a defender of human rights, is to promote the rule of law.

5.     In 1953, the Jordanian High Court ordered the release of an individual (whose wife appealed on his behalf) who had not been charged.

6.     The prison administration has acted unlawfully and prevented the defendant from “proceeding with his legal rights”.

7.     The Attorney General is the party responsible for the issuing of arrest warrants.

8.     The Deputy Attorney General failed to demonstrate “alternative jurisdiction” to the court.

9.     Mr. Musleh’s lawyer has been informed [informally] that Mr. Musleh’s detention was based on the 1945 Emergency Laws.

10.Mr. Musleh’s detention violates “the legal provisions of existing laws and regulations of the Statute Court Law of 1961” [i.e. of the Jordanian Penal Law of 1961] which require that “legal procedures” are complied with during detention and prohibits the detention of any person without an arrest warrant having been issued by an authority with due jurisdiction”.

 

11.There has been no evidence of an arrest warrant or a charge having been issued.

 

Sheikh Mahmoud Musleh was released on 9.12.97 and re-arrested by Palestinian General Intelligence later that day and has not been released since.

 

Whether the above is LAW’s direct quotation from the judgment or not is not clear from LAW’s publications and it is therefore difficult to comment on this case. If this is as detailed a commentary by LAW as possible of both the pleadings and the court’s judgment, then there is clearly a lot to be commented upon. Reference to other commentaries in this Annex give an indication of where the principle shortcomings of both the pleadings and the judgment lie.

                                                                                  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Articles from 1962 Gaza Constitution relevant to the rights of detainees

 

Article 3

[Article 9, Draft Basic Law]

 

All Palestinians are equal before the law. They are equal in their rights and in their duties and there shall be no discrimination on the grounds of ethnic origin, race or religion.

 

Article 5

 

All crimes and punishments are to be based on the law [….]

 

 

 

 

 

 

 

 

 

Article 8

 

It is forbidden to physically or morally hurt an accused person.

 

Article 11

[Article 18, Draft Basic Law]

 

Freedom of [religious] belief is absolute … except if it conflicts with public order or public morals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Article 52

[Article 89, Draft Basic Law]

 

The law governs the judiciary and defines its powers.

 

 

 

 

 

 

 

 

 

 

 

 

 

Article 59

[basis for State Security Court]

 

Military tribunals are established by decision of the Governor General to review crimes relating to internal or external security or to the security and well-being of military forces. Their judgments are applied after ratification by the Governor General.

 

Article 69

[Article 109, Draft Basic Law]

 

Everything that has been decided by Palestinian organisations, legislative laws, regulations and orders remains in force as long as it does not contradict the provisions of this Constitution. [This also applies to] the laws, orders, publications and instructions published by the Minister of War or by the person in charge of the Armed Forces or by any other authority with jurisdiction in this region since the arrival of the Egyptian military on 15.5.1948.

 

Article 70

 

The laws are applicable in the Gaza Strip 30 days after their publication in the Official Bulletin of the Gaza Strip. This time period may be shortened or lengthened by a clear provision mentioned in the [relevant] law.

 

 

Article 73

[Article 106, Draft Basic Law]

 

In awaiting that a permanent constitution for the State of Palestine be published, the provisions of this constitutional system are applicable in the Gaza Strip. The Governor General as well as the Legislative Counsel have the right to propose amendments to this system to the President of the United Arab Republic.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Provisions from the

1998 Law on Centres of Reformation and Rehabilitation (Prisons)

 relevant to the procedural rights of detainees

 

Admission procedures

 

Surveillance and inspection of centres

 

Article 10

 

1. Ministers of the Interior and Justice or any person mandated by either of them shall have the right to enter any centre for the purpose of inspecting [the centre].Their observations and suggestions must be documented in a special register.

 

Article 11

 

The General Prosecutor and his staff as well as governors and judges of the High Court and of each Central District Court shall have access to all detention centres without restriction for the purpose of inspecting the following:

 

1.      the state of registers and of administrative documents …

3.   the application of laws and regulations. The above-mentioned individuals shall take all

necessary measures in the case [of such laws] having been violated.

4.   the presence of a resident without legal basis.

5.      The implementation of judicial orders. These orders shall be implemented in a transparent

manner…

 

Notification of judicial documents to residents

 

Article 17

 

As soon as such documents have been received by the centre’s administration, the centre’s director, or his delegate, shall pass on to the resident all judicial documents and all other matters concerning the resident and the director shall register their receipt in the official register.

 

 

 

 

 

Article 18

 

The resident has the right to lodge complaints or to make requests in the following manner:

 

1.      the complaint or request is presented through a form especially reserved for such a purpose.

2.      the complaint or request is registered in a special register before being communicated to the party concerned. The complainant is informed of the reply as soon as it arrives.

 

Transfer of residents

 

Article 39

 

Documents … belonging to the resident are transferred with him in case of transfer [from one centre to another].

 

Visits

 

Article 52

 

The resident may receive visits on a regular basis… The first visit must take place at the end of his interrogation or one month after his date of arrest, depending on which is the earlier date.

 

Article 53

 

The resident has the right to send letters to his family and to his friends and to receive letters from them…

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Provisions of the 1979 PLO Revolutionary Code procedures,

applicable in military cases of arrest and detention

 

 [This English translation is based on a French translation

that has not attempted to translate the original Arabic into accurate legal French]

 

Investigation procedures

Article 49

 

a.       The  accused,  …  the victim’s  lawyer and  his [not  clear whether  “his” refers  to  the

accused or not] representatives have the right to participate in all stages of the interrogation procedures, except in the questioning of witnesses. They have a right to see a written copy of the questioning that has taken place in their absence.

 

b.      The prosecutor has the right to decide to continue interrogation procedures in the absence

of the parties referred to [in paragraph a] if he is under time constraints or if he considers it necessary in order to establish the truth. His decision may not be challenged but he shall inform the affected parties as soon as this procedure is completed.

 

Article 50

 

The prosecutor has the right to prevent all access to the accused for a maximum of ten days, a period of time that may be renewed according to [applicable] legal procedures.

 

Arresting the accused

 

Article 78

 

Any member of the law enforcement agencies may arrest a suspect caught in the act of committing a crime against whom there is sufficient proof for making a [criminal] charge …

 

 

 

 

 

 

 

 

 

 

 

Judicial documents

 

 

 

 

 

 

 

 

 

 

 

 

 

Article 84

 

Article 84

 

a.       The  documents [referred  to in  Article 83] shall be signed by the prosecutor  or tribunal

issuing them, stamped with the District’s identification and shall make reference to the identity of the suspect, the charge as well as the date and place of [the order’s] issuing. The detention order shall also include details of the [suspected] offense, the nature of the offense, the legal provisions [defining the offense] as well as the length of detention [permitted by the order].

 

b.       Individuals who are referred to in these documents shall receive a copy.

 

Article 85

 

a.       Judicial documents are applicable in the [“] districts and services [”] of the revolution and

in the [“] Palestinian areas [”].

 

b.       Heads of Units, members of the military police and of the general security [forces]

… are bound to apply judicial documents within the framework of their competences.

 

The arrest

 

Article 86

 

a.       If, on  questioning the  suspect, there  is enough  evidence against  him  or  if there  is a 

fear that he might abscond and the offense in question may lead to a prison sentence of at least three months, the prosecutor may detain the suspect in a place of detention.

 

Article 87

 

The prosecutor may arrest the suspect at any time during the [above] procedure.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Release

 

Article 90

 

a.       If he judges it to be necessary, the prosecutor may decide to release the accused detainee

on bail.

 

b.       Similarly, after the matter has been submitted to it, a tribunal may also decide to order

such a release.

 

Article 92

 

Requests for release on bail for serious offenses are made

 

a.       to the prosecutor if the interrogation over which he presides has not yet been completed;

b.       to the court that has judged the suspect if judicial proceedings have been completed; or

c.       to the Court that has passed judgment or to the Appeal Court.

 

Article 93

 

The perpetrator [i.e. suspect?] of a crime punishable by death, hard labour or by life imprisonment cannot be released on bail.

 

Article 94

 

The tribunal may, under special circumstances, release on bail the perpetrator [i.e. suspect?] of a crime if it considers that this will not influence the continuation of the questioning in any way, the [final] judgment nor that it will threaten national security. This may only be done with the authorisation of the [“]President of the Judicial Department [”]. The request is made:

 

a.       to the  tribunal by  whom the suspect  has been judged, [“]regardless  of whether it has

reviewed the case or not [”].

 

b.       to the tribunal that has passed sentence or to the Court of Appeal if a sentence has been

passed and if an appeals procedure has been lodged against that sentence.

 

Article 96

 

The prosecutor or the tribunal receiving the request for release on bail may accept or reject the request or, depending on the circumstances, may change their previous decision.

 

Decisions taken by the General Prosecutor on completing the investigation

 

[see also Articles 130 – 133 of the 1961 Jordanian Penal Code]

 

Article 103

 

a. If it appears  to the prosecutor  that the act [of which the suspect has been accused] does not

constitute a crime or that there is not enough evidence that the suspect is the perpetrator of the crime … he prohibits … the suspect from being judged, drops public charges and immediately transfers the file to the General Prosecutor.

 

b. If the General  Prosecutor decides that  the decision is  valid he must,  within three  days of

receiving the file, publish his concurring opinion on the decision and must order the release the accused …

 

c. If the General Prosecutor decides that it is necessary to make further inquiries on the matter, he shall order the file be sent back to the prosecutor in order to complete questioning.

 

d. If the General Prosecutor decides that the prosecutor’s decision is mistaken and that the act

constitutes a crime, he shall decide to reject the decision, shall accuse the suspect and shall send the file back to the prosecutor so that he may present the matter to the tribunal with due jurisdiction.

 

 

Article 105

 

a.   If the prosecutor decides that … there is enough proof to bring the suspect before a tribunal, he shall accuse him of the offense so that he may be judged by the tribunal with due jurisdiction. The file is sent to the General Prosecutor.

 

b.  If the Prosecutor General decides that the decision to accuse [the suspect] is justified, he shall accuse the suspect of the offense and shall sent back the file to the prosecutor so that the latter can bring [the suspect] before the tribunal with due jurisdiction within 2 days.

 

c. If the General Prosecutor decides that the questioning has not been completed and that it should be continued, he shall return the file to the prosecutor [with a view to completing questioning].

 

d.  If the General Prosecutor decides that the act does not constitute an offense, that that there is not enough evidence proving that the suspect is the perpetrator of the crime or that there is not sufficient evidence … he shall annul the prosecutor’s decision and shall prohibit judgment of the suspect…

 

e. If the General Prosecutor decides that the offense is not a common law offense but rather a

[“] serious offense [”] he shall annul the prosecutor’s decision on the grounds of mistaken information, shall accuse the suspect of the [“] serious offense [”]and shall send back the file to the prosecutor so that within two days he may bring the suspect before the tribunal with due jurisdiction.

 

Article 106

 

a. The accused’s detention order is valid as long as the prosecutor has not published his decision on the case: if his decision is to condemn the suspect or to present him before a tribunal, the order remains valid until the tribunal has passed judgment or until the accused is released.

 

b. Within five days of their pronouncement, the Prosecutor General’s decisions may be challenged in front of the [“] President of the Judicial Department [”]. The decision of the President of the Judicial Department shall be final.

 

Article 107

[see also Article 135, 1961 Jordanian Penal Code]

 

The decisions of the General Prosecutor and of the prosecutor referred to in this Chapter must specify the name of the plaintiff, the name and identity of the accused as well as the date of his detention … , a summary of the offense of which he is accused, the date [of the alleged offense], its nature and the relevant legal provisions, the evidence of his involvement in the offense and the reasons leading to the taking of the decision.

 

Evidence

 

Article 165

 

If the accused makes a statement in the absence of the prosecutor in which he confesses to having being involved in the committing of an offense, this deposition shall not be accepted unless the prosecution presents evidence concerning the conditions under which the statement was made and unless the court is convinced of the fact that the accused has made the statement voluntarily and of his own free will.

 

Revolutionary Court Procedures in Criminal Cases

 

Procedures

 

Article 198

 

a.       An individual cannot be brought before a tribunal on a criminal charge unless the General

Prosecutor, or any other person authorised to do so, has published the charge sheet accusing [the suspect of involvement in] the offense.

 

b.  The charge  sheet shall include the name of the accused, the dates of his detention, the type

offense involved, the date of the crime, the details of the charge, the legal provisions upon which the charge is based and the name of the person against whom the offense has been committed.

 

Article 199

 

The prosecutor shall give a copy of the charge sheet, .. and of the accused’s list of witnesses to the accused at the latest three days before the date of the hearing.

 

Article 200

 

[This provision guarantees legal representation in court.]

 

 

 

 

 

 

 

 

 

 

 

 

An analysis of Fair Trial Principles under the

International Covenant on Civil and Political Rights (ICCPR) directly related to pre-trial arrest and detention procedures

 

The following commentary is based on a paper written by the Lawyers Committee for Human Rights entitled “What is a Fair Trial? A Basic Guide to Legal Standards and Practice” and on the commentary by Manfred Nowak to the International Covenant on Civil and Political Rights, emitted, “UN Covenant on Civil and Political Rights, CCPR Commentary”.

 

It seeks to highlight those aspects of the ICCPR’s rights directly relevant to pre-trial arrest and detention procedures, aspects that should clearly be taken into account in the interpretation, application and development of Palestinian constitutional and criminal procedural law. Whilst space and practical reasons don’t permit a cross-referencing to applicable procedural law in Gaza and the West Bank, references are made to equivalent Articles in the 1962 Gazan Constitution and in the Palestinian Draft Basic Law.

 

1. Article 14 of the ICCPR

 

 

 

 

 

 

 

 

The Right to a Fair Trial is a right designed to protect other basic rights and freedoms of a detainee. Its fundamental importance is reflected in a proposal to include it in the non-derogable rights provided for in Article 4(2) of the ICCPR..[109]

 

Authorities for interpreting the fair trial provisions of the ICCPR are numerous. Decisions of the Human Rights Committee interpreting these provisions are authoritative and binding on the state to which they are addressed. These decisions of the Human Rights Committee serve as a precedence for other states to follow. There also exists a long list of non-binding international documents which seek to establish guidelines for fair trial standards, the relevant parts of which have been reproduced and annotated in Annexes XII of this report. The long list of documents in itself reflects the fundamental nature of this right.

 

The three principle sources of law against which to evaluate state practice relating to fair trial provisions are

 

        ·           national criminal procedure;

        ·           international human rights treaties to which the state is a party; and

        ·           norms of customary international law (this includes the Universal Declaration of

     Human Rights - in the present context  Articles 9, 10 and 11 - and is of importance if

     the country has not signed the ICCPR. As we have already seen, Yasser Arafat has 

     made public statements committing the Palestinian Authority to the provisions of

            international human rights agreements, including the ICCPR.)

 

 

A minimum list of essential texts to evaluate the fairness of a criminal procedure includes:

 

        ·           the State’s Constitution (human rights provisions and provisions on the judicial

     system);

        ·           the Penal Code and Penal Code of Procedure;

        ·           statutes on the establishment of the courts and public prosecutor’s role; and

        ·           important court decisions, such as High Court decisions.

 

2.  Articles 9, 10, 14 and 15 of the ICCPR

 

Articles 9, 10, 14 and 15 of the ICCPR are all related to the right of a detainee to benefit from  fair pre-trial procedures. This section will cite and interpret each of these provisions.

 

2.1 Article 9

 

Art. 9(1)

 

 

 

 

 

 

 “Liberty” is taken to mean freedom of bodily movement. This is interfered with when the individual is confined to a specific space, such as a prison or detention facility.

 

“Security” is taken to mean the right to be free from interference of one’s personal integrity.

 

 

 

 

 

 

 

This embodies the principle of legality which seeks to ensure that “the law” is a norm (whether in statute or in the common (judge-made law)) which is applicable and accessible to all.

 

 

 

 

 

 

 

This seeks to ensure that the law is not arbitrary. This clearly means that there must be consistency in its application to comparable cases by law enforcement agencies and by the judiciary. Nowak’s interpretation of this notion of non-arbitrary law means that

 

        ·           the deprivation of liberty permitted by law is not “manifestly unproportional, unjust or 

      unpredictable;

        ·           the specific manner in which the arrest is made must not be discriminatory;

        ·           the specific manner of the arrest must be able to be deemed appropriate and

      proportional in view of the circumstances of the case”.[110]

 

 

 

 

Article 9(2)

 

 

 

 

 

 

 

 

“Reasons for the arrest” is taken to mean the initial information given at the moment of arrest, which may be limited to a general description of the reasons for arrest. The “charges” of which the accused must be “promptly informed” must contain accusations in the legal sense.

 

Article 9(3)

 

 

 

 

 

 

 

The Human Rights Committee has interpreted “promptly” as meaning that the period of custody prior to an appearance before a judge shall not exceed “a few days”.[111]

 

 

 

 

 

 

 

It is clear that the corollary of such detention not being the general rule is that an exception to the general rule of release on bail requires exceptional levels of justification on the part of the authorities authorising the detention.

 

Article 9(4)

 

 

 

 

 

 

 

 

 

This is a translation of the ancient English common law doctrine of habeas corpus, the right of a detainee to challenge the legality of a detention before a court of law. The term “court” covers not only civilian courts but also administrative, constitutional, military and security courts. The notion of “delay” depends on the complexity and the circumstances of the case under consideration.

 

Article 9(5)

 

 

 

 

 

 

This claim for compensation arises when the arrest or detention has violated any of the above provisions of Article 9 and/or when a provision of domestic procedural law has been violated.

This is generally understood to mean that the detainee has a right o bring a civil law suit either against the state authorities or against a particular member of the authority responsible for the violation.

 

2.2   Article 10

 

Article 10(1)

 

 

 

 

 

 

This provision imposes a positive, that is to say active, obligation on states. Amongst other things, this provision seeks to ensure the respect for the detainee’s exercise of his rights whilst deprived of his or her liberty. It is designed to cover less intense forms of mistreatment than torture, inhuman or degrading treatment (Article 7 ICCPR) and therefore refers to the conditions of detention and more importantly for present purposes the provision of basic facilities including communication with family and counsel.[112]

 

2.3   Article 14

 

Article 14(1)

 

 

 

 

 

 

 

This has been interpreted to signify that all persons, without discrimination, have the right of equal access to the courts. The various prohibitions this places on state authorities includes not setting up separate courts for different groups of people, including separate courts with jurisdiction over cases involving a particular political belief. The existence of military courts has been accepted by the human Rights Committee, but this exception to the principle of all groups in society being treated equally clearly does not apply to civilians. Paragraph 5 of the Basic Principles on the Independence of the Judiciary (see Annex XII) emphasises this point: “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures”(emphasis added).

 

 

 

 

 

 

 

This sentence embodies the core principle of a detainee having the right to a fair trial. The right is considered to be invocable in most cases from the time when individual concerned is arrested and not at the later date when a specific charge is made against the individual. This flows logically from the fact that the treatment of the detainee between the moment of the arrest and the moment of charging him or her can significantly affect the way in which the subsequent investigation and trial is handled.

 

 

 

 

 

 

The notions of competence, independence and impartiality hardly need explaining: the rationale is clearly the separation of powers between the executive and the judiciary in order to avoid the arbitrariness that would arise if decisions are made by political or administrative bodies that often have a clear interest in the outcome of a given case. The courts must therefore be institutionally protected from undue influence by or interference from, in particular, the executive.

 

Whatever the form the law establishing the tribunal takes, it is agreed that the essential element is whether the details of the law, which include the procedures of the court, must be openly accessible for all see and understand. It is also the aim of this provision to assure that the court hearing a case is a well-established jurisdiction which has not been specifically created for a particular case or set of cases (“competent”). The raison d’etre of the State Security Court is a particularly clear violation of this principle.

 

Finally, the following provision of Article 14(1) is particularly applicable to the Palestinian State Security Court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[There are exceptions to this last rule in certain cases concerning of juveniles, matrimonial disputes or guardianship of children].

 

Concerning the issues of public order and national security “in a democratic society”, this phrase seeks to ensure that these notions of order and security cannot be invoked arbitrarily and without clear justification by the court.

 

Article 14(2)

 

 

 

 

 

 

 

This basic component of a fair trial seeks to ensure that the burden of proof in a criminal case lies with the prosecution, in the case of a detention this being the detaining authorities. Thus the burden is on the authorities to show that evidence of guilt exists. If it is not, then the detainee must be released: his right to liberty (and hence the presumption of innocence) trumps the authority’s right to detain him “just in case” evidence of guilt can be found at some point in the future. This principle also seeks to redress the inherent imbalance that exists between the often impecunious individual and the considerably more powerful state authorities. In cases where the detainee has little or incompetent legal defense, this inherent imbalance is aggravated. It is clear that this presumption applies throughout the pre-trial phase, that is to say from the moment of arrest.

 

Article 14(3): the minimum procedural guarantees under the Convention

 

 

 

 

 

 

 

Article 14(3)(a)

 

 

 

 

 

 

 

The duty to inform here relates firstly to an exact legal description of the offense, (the “nature of the charge”) and secondly to the facts underlying the offense (the “cause of the charge”). The rationale behind this provision is twofold: firstly to ensure that the detainee is being detained for a specific reason in relation to which the authorities have sufficient enough evidence to be able to make a charge; and secondly, (“promptly and in detail”) that sufficient time must be given to the defendant in order for him to prepare his defense.

 

Despite varied interpretations, the notion of “promptly” has generally been taken to refer to the beginning of judicial investigation procedures or from the first hearing in which it becomes clear that there is official suspicion against the arrestee.

 

Article 14(3)(b)

 

 

 

 

 

 

This right applies not only to the detainee but equally to the detainee’s defense counsel. This provision reinforces the right of the detainee to be informed of the precise nature of the charge against him so that he may prepare his defense as soon as possible. The term “facilities” has also been interpreted to mean that the accused and defense counsel must be first and foremost be granted access to appropriate information, files and documents necessary for the preparation of a defense and that the defendant must be provided with facilities enabling communication, in confidentiality, with defense counsel. This latter right “is the most scrutinised specific fair trial guarantee because it has been demonstrated to be the one that is the most often violated. It is particularly relevant in the case of pre-trial detention” (page 12 of the article).

 

Article 14(3)(c)

 

 

 

 

 

“Tried” is interpreted as a trial producing a final judgment to be executed within the delay stipulated by the court whilst the notion of “delay” refers to a period of time the length of which depends on the complexity of the case and which begins from the moment in which the detainee is informed that the authorities are taking steps to prosecute him, i.e. from the moment in which a charge has been lodged. This provision reinforces the detainee’s right o be charged strictly within the limits provided for under Article 14(3)(a).

 

Article 14(3)(d)

 

 

 

 

 

 

 

 

 

 

 

This provision includes the right to chose one’s own counsel, to be informed of the right to counsel and to receive free legal assistance though in practice the latter has been qualified by the argument that the state is only obliged to provide effective representation if the seriousness of the offence and the potential maximum punishment so requires. It is clear that this creates problems when the detainee is not charged with a particular offence, so rendering it impossible for the detainee to point to a specific maximum penalty and thus finding it impossible to invoke this provision. It is clear, however, that if the detainee has been arrested for potentially having committed a security offence, the maximum penalty will be sufficiently high to warrant immediate protection of this right. The Human Rights Committee (Final Report at p. 71) has confirmed that this right applies to all stages of criminal proceedings, including preliminary investigations and pre-trial detention. The right therefore begins to run from the moment a suspect is taken into custody, regardless of whether he or she is formally charged at that moment.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Extracts from

 

Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders

 

 [Reference: U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977)]

 

[See also 1998 Palestinian Prison Law]

 

 

 

 

 

 

 

 

 

 

 

Rule 7

[registration of detainee]

 

(1) In every place where persons are imprisoned there shall be kept a bound registration book

with numbered pages in which shall be entered in respect of each prisoner received:

              

  (a) Information concerning his identity;

               (b) The reasons for his commitment and the authority therefor;

               (c) The day and hour of his admission and release.

 

(2)  No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.

 

Rule 35

[informing prisoner of prison regime and rights]

 

(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.

 

Rule 36

[lodging complaints with director of prison]

 

(1)  Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.

 

(2)  It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.

    

(3)  Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.

 

(4)  Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.

 

 

Rule 37

[communication with family]

 

Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.

 

 

Rule 44

[communication with family]

 

(3) Every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.

 

 

Rule 55

[ inspection of prisons]

 

There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Extracts from

 

Basic Principles on the Independence of the Judiciary

 

 

[Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August to 6 September, 1985, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985); endorsed by General Assembly Resn 40/32 of 29 November 1985 and 40/146 of 13 December 1985]

 

….

Independence of the judiciary

 

 

Principle 1

 

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

 

 

Principle 2

 

The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

 

 

Principle 3

 

The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

 

 

Principle 4

 

There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.

 

 

 

 

 

 

 

 

 

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Extracts from

 

Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment, adopted by the UN General Assembly, 9.12.88

 

[Reference: G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc.

A/43/49 (1988).]

 

SCOPE OF THE BODY OF PRINCIPLES

 

These principles apply for the protection of all persons under any form of detention or imprisonment.

 

USE OF TERMS

 

For the purposes of the Body of Principles:

 

(a) "Arrest" means the act of apprehending a person for the alleged commission of an offence or by the action of an authority;

(b) "Detained person" means any person deprived of personal liberty except as a result of conviction for an offence;

(c) "Imprisoned person" means any person deprived of personal liberty as a result of conviction for an offence;

(d) "Detention" means the condition of detained persons as defined above;

(e) "Imprisonment" means the condition of imprisoned persons as defined above;

(f)  The words "a judicial or other authority" means a judicial or other authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence.

 

Principle 1

[humane treatment of detainees]

 

All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

 

 

 

 

 

 

 

 

 

Principle 4

[effective judicial control]

 

Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority.

 

Principle 7

[informing and punishing of officials’ violations of detainees rights]

 

1.       States should prohibit by law any act contrary to the rights and duties contained in these

principles, make any such act subject to appropriate sanctions and conduct impartial investigations upon complaints.

2. Officials who have reason to believe that a violation of this Body of Principles has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial powers.

 

3. Any other person who has ground to believe that a violation of this Body of Principles has occurred or is about to occur shall have the right to report the matter to the superiors of the officials involved as well as to other appropriate authorities or organs vested with reviewing or remedial powers.

 

Principle 9

[duty to respect procedural law by authorities and judicial control thereof]

 

The authorities which arrest a person, keep him under detention or investigate the case shall exercise only the powers granted to them under the law and the exercise of these powers shall be subject to recourse to a judicial or other authority.

 

Principle 10

[informing of charges]

 

Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Principle 12

[record of detainees case]

 

1. There shall be duly recorded:

 

(a)     The reasons for the arrest;

(b)     The time of the arrest and the taking of the arrested person to a place of custody as 

        well as that of his first appearance before a judicial or other authority;

             (c)   The identity of the law enforcement officials concerned;

             (d)   Precise information concerning the place of custody.

 

2. Such records shall be communicated to the detained person, or his counsel, if any, in the form prescribed by law.

 

Principle 13

[informing detainees of his or her rights]

 

Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights.

 

Principle 15

[right to communication with outside world]

 

Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.

 

 

Principle 18

[modalities of communication with legal counsel]

 

1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.

 

2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.

 

3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

 

Principle 19

[right to contact with family]

 

A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.

Principle 23

[Recording occurrence of interrogation and identity of interrogators]

 

1. The duration of any interrogation of a detained or imprisoned person and of the intervals between interrogations as well as the identity of the officials who conducted the interrogations and other persons present shall be recorded and certified in such form as may be prescribed by law.

 

2. A detained or imprisoned person, or his counsel when provided by law, shall have access to the information described in paragraph 1 of the present principle.

 

 

Principle 29

[inspection of prisons: SEE 1998 Palestinian Prison Law]

 

1. In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.

 

2. A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with paragraph 1 of the present principle, subject to reasonable conditions to ensure security and good order in such places.

 

 

 

Principle 36

[presumption of innocence]

 

1. A detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

 

2. The arrest or detention of such a person pending investigation and trial shall be carried out only for the purposes of the administration of justice on grounds and under conditions and procedures specified by law. The imposition of restrictions upon such a person which are not strictly required for the purpose of the detention or to prevent hindrance to the process of investigation or the administration of justice, or for the maintenance of security and good order in the place of detention shall be forbidden.

 

 

 

Principle 38

[trial within reasonable period of time]

 

A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.

 

Principle 39

 [right for charged detainee to be released pending trial]

 

Except in special cases provided for by law, a person detained on a criminal charge shall be entitled, unless a judicial or other authority decides otherwise in the interest of the administration of justice, to release pending trial subject to the conditions that may be imposed in accordance with the law. Such authority shall keep the necessity of detention under review.

 

General clause

 

Nothing in this Body of Principles shall be construed as restricting or derogating from any right defined in the International Covenant on Civil and Political Rights.

 

 

 

 

                                                                 

 

 

 

 

 

 

 

 

Extracts from

Guidelines on the Role of Prosecutors

 

[Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 189 (1990)]

 

Qualifications, selection and training

Guideline 1

 

Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.

Guideline 2

States shall ensure that:

 

(b) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.

 

Role in criminal proceedings

Guideline 10

 

The office of prosecutors shall be strictly separated from judicial functions.

 

Guideline 12

 

Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

 

Guideline 13

 

 In the performance of their duties, prosecutors shall:

 

(a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

(b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

 

 

 

 

 

 

 

 

 

 

 

 

 

Guideline 15

 

Guideline 16

 

When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.

 

Relations with other government agencies or institutions

 

 

 

 

 

 

 

 

 

Disciplinary proceedings

 

Guideline 21

 

Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors which allege that they acted in a manner clearly out of the range of professional standards shall be processed expeditiously and fairly under appropriate procedures. Prosecutors shall have the right to a fair hearing. The decision shall be subject to independent review.

Guideline 22

 

Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines. Observance of the Guidelines.

 

Observance of Guidelines

 

Guideline 23

 

Prosecutors shall respect the present Guidelines. They shall also, to the best of their capability, prevent and actively oppose any violations thereof.

 

 

 

 

 

 

 

 

 

 

                                                                       

 

 

 

Excerpt from

 

United Nations Standard Minimum Rules for Non-custodial Measures

(The Tokyo Rules)

 

[Reference: G.A. res. 45/110,

Annex, 45 U.N. GAOR Supp. (No. 49A) at 197, U.N. Doc. A/45/49 (1990)]

 

 

 

Rule 6

 

Avoidance of pre-trial detention

 

6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

 

6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.

 

 

         

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Palestinian Legislative Council

Draft Basic Law Resolution

Third Reading

 Passed 2 October 1997

 

 

 

 

 

 

 

 

 

 

The Draft Basic Law

 

[Translated from Arabic]

 

Article 2

 

The Palestinian people are the source of all authority which shall be exercised through the legislative, executive and judicial authorities based on the principle basis of the separation of powers and in the manner set forth in this Basic Law.

 

 

 

 

 

 

 

 

Public Rights and Freedoms

 

Article 9

 

All Palestinians are equal under the law and before the courts, without discrimination on the grounds of race, sex, colour, religion, political opinion or disability.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Article 15

 

Punishment shall only be imposed on an individual basis. Collective punishment is prohibited. Punishment shall be imposed only pursuant to a judicial order. No one shall be found guilty of a criminal offense on account of an act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed.

 

Article 18

 

Freedom of belief and exercise of religious worship is guaranteed, provided that it does not violate public order or public morals.

 

Article 19

 

Every person shall have the right to freedom of thought, conscience and shall have the right to express and publish his opinion either orally or in writing or through art or through any other form of expression, provided that it does not violate provisions of the law.

 

Article 28

 

No Palestinian shall be deported from Palestine or be prevented or prohibited from returning to or leaving Palestine or surrendered to any foreign authority or deprived of his citizenship.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Executive Authority

 

The President

 

Article 52

 

Before taking office, the President shall take the following oath before the Legislative Council and in the presence of the President of the National Council and of President of the High Court: “I swear by Almighty God to be faithful to the Nation of Palestine and to its sacred places, to respect the constitutional system and the law and to serve the interests of the Palestinian people in full, as God is my witness”.

 

 

Article 57

 

1.       The President of the National Authority shall sign and approve [draft] laws within 30 days of their being referred to him by the Council. The President may return them to the Council within the same period, together with his comments and objections, failing which they shall be considered as having been approved and shall be published immediately in the Official Gazette.

 

2.  If the President of the National Authority returns the draft law to the Council in accordance with the period of time and conditions provided for in the previous paragraph, the Council shall reconsider the draft law. If the draft law is re-approved by a majority of two thirds, it shall be considered as having been approved and shall be published immediately in the Official Gazette.

 

 

Article 70

 

1.                                                                                                                                                                                                                                                                                                From the moment in which he is indicted, any accused Minister shall immediately be prohibited from performing his duties. The suspension of his duties shall not prevent the continuation of investigation procedures against him.

 

2.                                                                                                                                                                                                                                                                                                The Attorney General or his representative from the General Prosecution shall direct the investigation and indictment procedures. The Minister’s trial shall take place before the court with due jurisdiction, which shall apply procedures and rules contained in the Penal Code. Punishment shall be implemented.

 

3.                                                                                                                                                                                                                                                                                                The aforementioned provisions shall apply to Deputy Ministers, Ministers’ under-secretaries and to those in equivalent positions.

 

 

 

 

 Security Forces and the Police

 

Article 75

 

1.                                                                                                                                                                                                                                                                                                Security forces and the police are regular armed forces created for the protection of Palestine, for the protection of society, for the maintenance of security, public order and public morals and to serve the people. They shall perform their duties within the limits prescribed by law with full respect for rights and freedoms.

 

2.                                                                                                                                                                                                                                                                                                Security forces and the police shall be regulated by law.

 

The Judicial Authority

 

 

 

 

 

 

 

 

Article 89

 

Judges shall be independent and in the exercise of their duties shall be subjected only to the authority of the law. No other authority may interfere in the judiciary or in the administration of justice.

Article 90

 

1.                                                                                                                                                                                                                                                                                                The appointment, transfer, secondment, delegation, promotion and accountability of judges shall be provided for provided for by a law on the Independence of the Judiciary.

 

2.                                                                                                                                                                                                                                                                                                Judges may be dismissed from their duties only in accordance with the provisions of the law on the Independence of the Judiciary.

 

Article 91

 

A High Judicial Council shall be established. The law shall prescribe its structure, jurisdiction and its rules of procedure. The Council shall be consulted on draft legislation relating to the organisation of the Judicial Authority, including matters related to the General Prosecution.

 

Article 92

 

2. Military courts shall be established according to special laws. These courts shall have no jurisdiction over non-military affairs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Attorney-General and Public Prosecutions

 

Article 98

 

1.  The Attorney General shall be appointed through a decision issued by the President of the National Authority, which shall be based on a recommendation by the High Judicial Council and approval by the Legislative Council.

 

2. The Attorney General shall direct public cases in the name of the Arab Palestinian people. His jurisdiction, functions and duties shall be prescribed by law.

 

Article 99

 

1.                                                                                                                                                                                                                                                                                                The jurisdiction, functions, structure and composition of the General Prosecution shall be prescribed by law.

 

2.                                                                                                                                                                                                                                                                                                The appointment, transfer, dismissal and accountability of members of the General Prosecution shall be prescribed by law.

 

Provisions Governing the State of Emergency

 

Article 101

 

1.                                                                                                                                                                                                                                                                                                When there is a threat to national security caused by war, invasion, armed insurrection or natural disaster, the President of the National Authority may issue a decree declaring a state of emergency for a period of time not exceeding thirty (30) days.

 

2.                                                                                                                                                                                                                                                                                                On approval from a two-thirds majority of the Legislative Council, a state of emergency may be extended for an additional 30 days.

 

3.                                                                                                                                                                                                                                                                                                A decree declaring a state emergency shall state its purpose, the territory to which it applies and its duration.

 

4.                                                                                                                                                                                                                                                                                                During either the Legislative Council’s first session after the announcement of the state of emergency or during the session to extend the duration of the state of emergency, whichever comes first, the Legislative Council has the right to review some or all the measures adopted during the state of emergency and to make the necessary enquires in this regard.

 

Article 102

 

When declaring a state of emergency it is prohibited to impose restrictions on fundamental rights and freedoms, except to the extent necessary to achieve the purposes declared in the state of emergency decree.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Article 105

 

All provisions enacted in Palestine regulating a state of emergency, including those of the Defense (Emergency) Regulations 1945 of the British Mandate, shall be cancelled prior to the implementation of this Basic Law.

 

 

General and transitional provisions

 

Article 106

 

The provisions of this Basic Law shall apply during the transitional period and may be extended pending the enacting of the new constitution of the State of Palestine.

 

Article 109

 

Laws, regulations and decisions enacted in Palestine prior to this Basic Law and not conflicting with its provisions shall remain in force pending their amendment or repealing in accordance with the law.

 

Article 110

 

[“] Anything [”] conflicting with the provisions of this Basic Law shall be repealed.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Palestinian Legislative Council

Draft Judicial Authority Law

Third Reading

 Passed on 25 November 1998

 

 

 

 

 

 

 

 

Draft Judicial Authority Law

 

[translated from the Arabic: to increase the fluency and precision of the text in English, the translator has not indicated where words and phrases have been added or rephrased]

 

General Principles and Provisions

 

Article 1

 

The Judicial Authority is independent. No other authority shall interfere with the judiciary or in affairs of justice.

Article 2

 

Judges are independent and shall not be subject to any authority other than the law.

 

Article 3

 

1. The judiciary shall have an independent budget, which shall appear as a separate chapter in the annual budget of the PNA.

 

2. The High Judicial Council shall prepare the draft budget and shall refer it to the Ministry of Justice for applicable legal procedures [to take place] in accordance with the provisions of the General Budget and Financial Affairs Law.

 

3. The High Judicial Council shall monitor the implementation of the judiciary’s budget.

 

4. The judiciary’s budget shall be subject to the provisions of the Law concerning the Palestinian National Authority’s General Annual Budget.

Article 4

 

The official language used in courts shall be Arabic. The court shall listen to the statements of non-Arabic speaking defendants or witnesses through an official interpreter who has taken the oath [of the court].

 

Article 5

 

Sentences shall be issued and implemented in the name of the Palestinian people. Sentences shall include the reasons upon which they are based.

Courts

Types and Organisation of Courts

 

Article 6

 

The courts system in Palestine shall consist of the following:

 

   First:     Shari`a and religious courts, organised by the law.

    Second: A High Constitutional Court, organised by the law

    Third:    Secular courts, which shall consist of:

 

      1.    A High Court, consisting of

   a.  a  Court of Cessation

                 b.  the High Court of Justice

 

    2. The Court of Appeal

    3. Courts of First Instance

    4. Conciliation Courts

 

Each court shall consider cases submitted to it according to the law.

 

Article 7

 

The formation of courts and their jurisdiction shall be determined by law.

 

High Court

 

Article 8

 

1. The High Court shall comprise a Chief Justice, one or more Deputies and a sufficient number of judges.

 

2. The permanent seat of the High Court shall be in Jerusalem. Depending on the situation, the court shall convene temporarily in Gaza and in Ramallah.

 

Technical Office

 

Article 9

 

1. A technical office shall be established at the High Court. [This office] shall be headed by one of the High Court’s judges who shall be assisted by one of a number of judges or retired judges or senior lawyers selected by the high Judicial Council for a renewable period of two years.

 

2. The technical office shall have a sufficient number of employees.

 

Article 10

 

The technical office shall be responsible for the following:

 

1. Extracting the legal principles invoked by the High Court in its rulings, classifying them and overseeing their publication following their submission to the Chief Justice.      

 

2. Preparing necessary research       

 

3. Any other matter requested by the Chief Justice of the High Court.

 

Courts of Appeal

 

Article 11

 

1. Courts of Appeal shall be established in Jerusalem, Gaza, and Ramallah.       

 

2. Each Court of Appeal shall consist of a Chief Judge and a sufficient number of judges.

 

 

Courts of First Instance

 

Article 12

 

1. The seats of the Courts of First Instance shall be located in the centres of Districts.

 

2. Each Court of First Instance shall consist of a President and a sufficient number of judges.

 

Courts of Conciliation

 

Article 13

          

1. Within each District of a Court of First Instance and depending on the requirements, one or more Conciliation Courts shall be established. The Minister of Justice shall determine the location of the seat and the scope of its jurisdiction.        

 

2. If necessary, Courts of Conciliation may convene their sessions in any place within the District over which they have jurisdiction and may do so pursuant to a decision issued by the President of the Court of First Instance.

Jurisdiction of Courts

 

Article 14

 

Secular Courts shall examine all cases involving conflicts and crimes unless a case is excluded [from their jurisdiction] by [the provisions of] a specific text. The jurisdiction of the judiciary shall cover all individuals concerned.

Court Sessions

 

Article 15

 

1. Court hearings shall be public, unless the Court decides otherwise or unless one of the parties request that it be held behind closed doors for reasons related to public morals or in order to maintain public order. In all cases, the decision shall be pronounced in public.

          

2. During the session, the Presiding Judge is responsible for order and discipline

 

Court Judges

 

Appointment, Promotion, and Seniority of Judges

 

Article 16

 

A member of the judiciary shall fulfill the following criteria:

          

1. he must hold Palestinian nationality and have full civil status;

2. he must hold a Bachelors degree in law or Islamic Sharia from a recognised university;

3. he cannot have been ruled against by a court or disciplinary council on a matter involving a

    breach of honour, even if his honour has been reinstated or pardoned;

4. he must have shown good conduct, [achieved a good] reputation and be medically fit;    

5. upon appointment he must terminate membership of any party or political organisation;

6. he must have good command of Arabic.

 

Article 17

 

The High Judicial Council shall establish a system intended to train and prepare judges prior to their appointment.

Article 18

 

1. Judicial positions shall be filled in the following manner:

          

a. through an appointment, announced by decree and issued by the President of the National

    Authority, which is based on a nomination by the High Judicial Council;

b. through promotion based on seniority and competence;

c. through the appointment of a Public Prosecutor to a judicial position;

d. through assistance received from a neighbouring Arab country.

 

2. A judge [provided on the basis of paragraph d] shall meet all the conditions set forth in Article 16, with the exception of the criterion relating to Palestinian nationality. He must, however, be an Arab.

          

3. Appointment or promotion shall take effect on the date of the relevant decision.

 

Article 19

 

1. The following individuals may be appointed as a Judge in Conciliation Courts, Courts of First Instance, Courts of Appeal or as a member of the Public Prosecutor’s Office:

          

a. former judges and members of the Public Prosecutor's Office;

b. lawyers;

c. teaching staff from Law Faculties of Law and Sharia.

          

For the purposes of appointments to each of the levels mentioned in paragraph 1, the High Judicial Council shall determine the general rules governing the required periods of experience, as well as professional experience it judges to be equivalent to judicial work.

 

2. In order to be appointed as a presiding judge in a Court of Appeal, [the candidate] must have served a minimum of five years in the various departments of a Court of Appeal.

 

Article 20

 

 1. In order to be appointed as a High Court judge, [the candidate] must have a minimum of three years experience as a judge in a Court of Appeal or the equivalent in the Public Prosecutor's Office or must have served as a lawyer for at least fifteen years.

 

2. In order to be appointed as Chief Justice or Deputy Chief Justice in the High Court, [the candidate] must have served a minimum of three years in the various departments of the High Court or as a lawyer for at least fifteen years.

 

Article 21

          

1. Before adopting their duties, judges shall take the following oath: " I swear by the Almighty God to rule justly among the people and to respect the constitution and the law."

 

2. The Chief Justice shall take the oath from the President of the State. All other judges shall take the oath from the High Judicial Council.

 

Transfer, Secondment, and Loan of Judges

 

Article 22

          

Judges shall only be transferred, seconded or loaned [to other courts] in accordance with the provisions of the present law.

Article 23

          

1. All judges shall be transferred or seconded to perform non-judicial tasks only with their approval.

 

2. The transfer, secondment or loan of judges shall be decreed only by the High Judicial Council. The date on which the transfer, secondment or loan takes place shall be the date of notification specified in the decree.

          

3. As a derogation from [paragraphs 1 and 2], a judge may be temporarily seconded to perform judicial work in place of, or in addition to, his judicial tasks. He may also be seconded to perform legal work if a decision of the Minister of Justice, approved by the High Judicial Council, decides that the national interest so requires.

Article 24

          

According to the provisions of the present law, the High Judicial Council may undertake the following:

          

1. if necessary, temporarily second to the High Court, for a renewable period of six months, an Appeal Court judge who fulfills the necessary qualifications for work in the High Court.

 

2. second a judge from the Court of First Instance to work in another court on the same [hierarchical] level for a renewable period of six months.

Article 25

          

In the event that the position of president of the court becomes vacant or in his absence or in case of his incapacity, the most senior or the next most senior member of the court shall exercise his jurisdiction.

 

Article 26

          

1. Pursuant to a decree issued by the President of the Palestinian National Authority which is approved by

the High Judicial Council, a judge may be loaned to foreign governments or international agencies.

 

2. Unless the national interest requires otherwise, the duration of secondment or loan shall not exceed three consecutive years. A judge shall not be seconded or loaned unless he has worked during the previous four years in court departments and has favorable references.

 

Article 27

 

Non dismissability of judges

         

Judges shall only be dismissed in accordance with the provisions of the present law.

 

Duties of Judges

 

Article 28

          

1. Judges shall not engage in any commercial activities and shall not engage in any activity undermining the independence and dignity of the judiciary. The High Judicial Council may prohibit a judge from engaging in any work it deems to be in conflict with the duties of his position and its sound performance.

 

2. On his appointment, each judge shall submit a financial statement concerning himself, his wife and his minors. This shall provide details of the ownership, real estate property, transferable assets, shares, bonds, liquid capital and debts which they have inside Palestine as well as abroad. The statement shall be submitted to the Chief Justice of the High Court, who shall make the necessary arrangements to maintain the confidentiality of such information. Disclosure of such information shall be subject to the approval of the High Judicial Council.

 

Article 29

Judges are prohibited from

          

1. disclosing secrets obtained during deliberations or any confidential information which they obtain in the performance of their duties;          

 

2. engaging in political activity;

 

3. nomimating themselves as candidates for election for President of the National Authority or as members of the Legislative Council, Local Councils or Political Organisations, unless they have presented their resignation which has been accepted.

Article 30

          

1. Judges related through blood or marriage to the second degree shall not sit on a single circuit “department”.

           

2. Judges related through blood or marriage to the fourth degree with a member of the Public Prosecutor or with a representative of litigants shall not rule in such a case.

          

3. The law shall provide for the rejection of judges' rulings.

 

Article 31

       

1. Judges shall not be absent from work or discontinue work without due reason and without first notifying the president of his court.

 

2. If he has been absent from work for 15 consecutive days without having presented an acceptable explanation to the High Judicial Council, a judge shall be considered to have resigned. This shall apply even when it occurs at the end of a period of leave, loan or secondment.

 

Article 32

          

1. Salaries and allowances of all levels of judges shall be fixed in accordance with Tables 1 and 2 attached to the present law.           

 

2. Allowances provided for in the tables attached to the present law do not exclude social and administrative allowances, transport allowances and cost of living allowances which are approved for all public servants in accordance with the provisions of the Civil Service Law.

 

Article 33

 

 Resignation

          

1. A judge’s resignation shall be considered as having been accepted two weeks after the date of its submission to the Chairman of the High Judicial Council. The Minister of Justice shall issue a decree accepting the resignation as of the date on which the decree is issued.

 

2. A judge’s resignation shall not affect his entitlement to a pension or to compensation.

 

Retirement

 

Article 34

 

1.No person shall be allowed to retain the position of a judge or be appointed as such if he is older than seventy years of age. 

 

2. Pensions or compensation shall be calculated on the basis of the last salary the judge has received.

 

Leave

 

Article 35

 

1. The judiciary shall be granted annual leave from mid July to the end of August.

 

2. Judges’ leave shall not exceed 35 days.

 

3. During annual leave, courts shall continue to hear urgent cases, which shall be defined the High Judicial Council.

Article 36

 

Judges and members of the Public Prosecution may obtain sick leave in accordance with the provisions of the Civil Service Law.

 

The High Judicial Council

 

Formation of the High Judicial Council

 

Article 37

          

1.      A Judicial Council, hereinafter referred to as “the High Judicial Council”, shall be established and shall

exercise its jurisdiction in accordance with the provisions of the present law.

 

2. The High Judicial Council shall consist of the following:

           

a. The Chief Justice of the High Court as Chairman.

           b. The most senior deputy of the High Court as Deputy.

c. Two of the most experienced judges of the High Court to be selected by a High Court Panel.

           d. Presidents of Appellate Courts in Jerusalem, Gaza, and Ramallah.

           e. The Attorney General

           f. The Deputy Minister of Justice

Article 38

          

1. If the position of Chief Justice of the High Court is vacated or if he is absent or incapacitated, he shall be replaced as chairman of the High Judicial Council by the most senior deputy of the High Court. 

 

2. Only the most senior judge of a court may replace a president of an Appellate Court. The position of the General Prosecutor shall be replaced only by his Deputy or by the most senior Head of Public Prosecution.

 

3. Only the most senior member and second most senior members of their court shall replace other members of the Council.

Article 39

          

The implementation of the High Judicial Council’s decisions shall be monitored by its Chairman who shall also represent the Council in its relations with others, including with the judiciary.

 

Article 40

          

1.      The High Judicial Council shall meet at the seat of the High Court at least once a month.

 

2. If its Chairman, three of its members or the Minister of Justice so request, the High Judicial Council shall be convened.

3. The meeting shall be considered has having reached quorum upon the attendance of at least seven of the Council’s members, including the Chief Justice or, in his absence, his Deputy.  Decisions are adopted by simple majority of those present. In the event of a tie, the Chairman shall have the casting vote.

 

4. Governmental and non-governmental organizations may submit all data, documents and papers which are related to the jurisdiction of the High Judicial Council

 

Article 41

          

The High Judicial Council shall establish regulations governing the way in which it exercises its jurisdiction. It may also establish one or more committee(s), made up of its members, to which it may delegate tasks falling within the Council’s jurisdiction, with the exception of those related to appointments, promotion and transfer.

Judicial Inspection

 

Article 42

 

1. A Department of Judicial Inspection shall be established and [“] attached [”] to the High Judicial Council. It shall consist of the Chairman of the Technical Office, of a sufficient number of Appeal Court judges or of members of equivalent rank from the General Prosecutor's Office.

         

2. The High Judicial Council shall establish regulations for the Department of Inspection, clarifying therein the committee’s jurisdiction, the rules and required measures necessary for it to perform its work as well as elements to be included in its own evaluation report. The latter shall include the results of training courses and the reasons for the cancelling, appealing against and the amending of judges’ decisions.       

 

3. Efficiency shall be evaluated according to one of the following gradings: Excellent - Very Good - Good -Average - Below Average.

Article 43

          

With the exception of High Court Justices, judges shall be inspected at least once every two years. The inspection report shall be filed with the High Judicial Council within one month of its completion. Judges shall be notified of all comments and of all other papers placed in their files of service.

 

Complaints and Appealing Decisions

 

Article 44

 

1. As soon as the department has completed the evaluation, the Chairman of the Judicial Inspection Department shall notify judges whose evaluation has been valued at Average or at Below Average. Judges have the right to appeal within 15 days of the date on which they are notified [of the evaluation].

 

2. The Chairman of the Judicial Inspection Department shall notify judges eligible for promotion but who, for reasons unrelated to their evaluation report, have not been promoted. The notification shall specify the reasons for not being promoted. Notified judges have the right to appeal within the time period provided for in paragraph 1 of this Article.

 

Article 45

 

1. A complaint shall be filed in the form of a petition. It shall be submitted to the Judicial Inspection Department, which shall transfer it to the High Judicial Council within five days of its filing.

 

2. Having reviewed the documents and having heard the statements of the complainant, the High Judicial Council shall reach a decision on the complaint. It shall issue its decision sufficiently in advance of deciding in favour of a promotion. Its decision shall be final and the concerned individual shall be notified by registered letter, [“] return receipt requested [”].

Article 46

 

1. The High Court is the only Court with jurisdiction over requests [firstly] for the annulling of decisions,  [secondly] for compensation and [thirdly] over requests submitted by the judges concerning the preventing of the implementation of judgments against administrative decisions relating to their affairs, including disputes relating to their salaries, allowances and merits including those of their inheritors.

          

2. Applications referred to in paragraph 1 shall be submitted, for no fee and through a complaint form, to the High Court and shall include a list of the names of the disputing parties, the subject of the application as well as related material.

Disciplinary Inquiries of Judges

 

Article 47

 

1. The Minister of Justice shall supervise administrative matters related to all courts. The presiding judge of every court shall supervise the work of the court and of the court’s judges.   

 

2. The presiding judge of every court shall, verbally or in writing, warn a judge if the latter commits an act in violation of his duties or of the duties of his office. If the warning is issued in writing, the judge may object to it according to the procedures referred to in Article 45. In this case the court shall either refuse the objection or consider the warning to be null and void.   

 

3. A disciplinary case shall be filed if the violation is repeated or continues after a warning has been issued.

 

The Disciplinary Council

 

Article 48

 

Disciplinary hearings of judges from all judicial levels shall be heard by a Council consisting of two of the most senior High Court judges and of the most senior judge of the Courts of Appeal. It shall not include members of the High Judicial Council. If one of the members of this Council is absent or excused, the next most senior judge from his circuit shall replace him. The Head of the Council shall be the most senior of the High Court judges. Decisions shall be taken by simple majority.

 

Disciplinary Claim

 

Article 49

          

1. A disciplinary action shall only be initiated by the Attorney General after he has been requested to do so by the Minister of Justice or by the Chief Justice of the High Court or by the President of the court to which the judge belongs.

 

2. A disciplinary action shall not be initiated, unless it is based on one of the following: a criminal investigation; an investigation carried out by a High Court judge who has been nominated for this purpose by the Chief Justice; a request by the Minister of Justice; a request by the Attorney General or a request by the President of the court to which the judge belongs. The judge delegated to carry out the investigation shall have the powers equivalent to those of a misdemeanor court in hearing those witnesses whose testimony that judge deems relevant to the investigation.  

 

3. The Public Prosecution shall be represented before the Disciplinary Council by the Attorney General or by one of his assistants.

Article 50

          

1. A disciplinary action shall be initiated through a petition, which shall include details of the charge(s) established by the investigation. The petition shall be filed at the Secretariat of the Disciplinary Council.

2. If the Disciplinary Council finds grounds for continuing the procedures, it shall summon the judge to appear [before the Council] on a date specified by the Council. The order shall contain sufficient details related to the subject of the disciplinary action and to the evidence upon which the accusation has been based. If the judge so requests, a copy of the order shall be transmitted to him free of charge at least one week before the hearing.   

 

3. The Disciplinary Council may decide to suspend the judge from his position until the action has been concluded. The Council may reconsider the decision to suspend him at any time. The judge’s suspension does not entail the discontinuing of his salary, unless the Disciplinary Council decides otherwise.

 

Article 51

 

The Disciplinary Council may carry out its own investigations in relation to whatever it deems to be lacking in the investigation or it may delegate one of its members to do so. The Council or the delegated member shall have the powers equivalent to those of a misdemeanor court in hearing witnesses whose testimony it or he deems relevant to the investigation.

 

Article 52

       

1. Sessions by the Disciplinary Council shall be held in secret, unless the accused judge requests that a session be held in public.

 

2. The judge shall appear in person before the Disciplinary Council. He has the right to present his defense in writing and to appoint a judge or a lawyer to defend him. If either of the latter fails to appear, the Council may rule in his absence, after ensuring that he has been duly notified.

 

Article 53

          

The Disciplinary Council shall issue its ruling in the disciplinary action, after hearing the arguments of the prosecution and defense. The final ruling must include all the reasons, which shall be [“] read [”] if the ruling is issued in secret. The judge and the Attorney General are entitled to appeal against the ruling in accordance with the procedures provided for in Article 45 of the present law.

 

Article 54

 

A disciplinary action is closed if the judge resigns or retires and shall have no effect on a criminal or civil action arising from the same incident.

Article 55

          

1. Disciplinary penalties that may be imposed on a judge are:

    a. a warning;

    b. a reprimand;

    c. dismissal.

          

2. To implement the penalty of a reprimand, a decree shall be issued by the Minister of Justice which shall not be published in the Official Gazette.       

 

3. The Minister of Justice shall implement the disciplinary rulings issued by the Disciplinary Council. If the ruling is dismissal, the judge is deemed to have been dismissed as of the date on which the ruling was issued. 

 

4. A ruling of dismissal shall be implemented by a decree issued by the President of the Palestinian Authority. The dismissal becomes effective on the date on which the decree is issued.

 

5. Unless the ruling decides otherwise, a ruling of dismissal shall not affect a judge’s entitlement to a pension or to compensation.

Article 56

          

1. With the exception of cases in which he has been caught in the act of committing a crime, a judge shall not be arrested or detained unless special permission has been given by the High Judicial Council.

 

2. If a judge has been caught in the act of committing a crime, the Attorney General shall present the matter to the High Judicial Council within 24 hours of the judge’s arrest. After hearing the statements of the judge, the High Judicial Council shall decide whether to release him with or without bail or whether to continue detaining the judge for a renewable period to be determined by the Council.

 

3. The judge shall be detained, and the punishment restricting his freedom shall be implemented, in a place in which he is separated from other prisoners.

 

Article 57

 

If the same case is not being heard by a penal court with due jurisdiction, the High Judicial Council shall review the judge’s detention as well as the renewal of his [“] imprisonment [”].

 

Article 58

 

A judge shall be  immediately suspended from his duties for the period of his detention. At the request of either the Minister of Justice or of the delegated judge leading the investigation, the High Judicial Council may order the judge's suspension from his duties for the duration of the investigation of a crime of which he has been accused. In such a case, the provisions of Article 50 of the present law shall be applied.

 

Article 59

          

A criminal case shall not be filed against a judge without the approval of the High Judicial Council. The Council shall designate a court to hear the case and in so doing does not have to take into consideration applicable laws governing local jurisdiction.

 

Public Prosecutor’s Office

 

Formation of the Public Prosecution

 

Article 60

 

The Public Prosecution shall consist of:

 

   1. The Public Prosecutor;          

   2. One or more Assistant Deputy General Prosecutor(s);

   3. Chief Public Prosecutors;           

   4. Prosecution Officers;

   5. Assistant Public Prosecutors.

 

Assistant Public Prosecutors

 

Article 61

          

Members of the Public Prosecution shall fulfill the criteria mentioned in Article 16 of the present law.

 

Article 62

          

1. Having sought the opinion of the Deputy Public Prosecutor with jurisdiction, the Public Prosecutor shall prepare a report on the tasks of the Public Prosecutor’s assistant, which shall include details relating to his qualifications and his suitability for judicial work. The identified individual shall be notified of the report.

2. The report and any additional written comments submitted by the concerned member shall be presented to the Minister of Justice. He shall then decide as to whether the member is suitable for appointment to the position of Deputy Public Prosecutor or whether a period not exceeding one year shall be taken for the purpose of reevaluating his qualification and suitability and his possible referral to a different suitable position.

 

Appointment of the Attorney General

 

Article 63

          

1. A successful candidate for the position of Attorney General shall fulfill the criteria provided for in Article 16 of the present law.   

 

2. The Attorney General shall be appointed pursuant to a decree issued by the President of the Palestinian National Authority following a recommendation from the High Judicial Council, from the Attorney General and approval by the Palestinian Legislative Council. The Attorney General’s duties and jurisdiction shall be determined by the law.

 

Article 64

 

 1. Officials of the Public Prosecution assuming their duties for the first time shall take the following oath:  “I swear by the name of Almighty God to respect the constitution and the law and to perform my duties with honesty and loyalty”.     

 

2. The Public Prosecutor shall take the oath before the President of the Palestinian National Authority and in the presence of the Minister of Justice.           

 

3. Other members of the Public Prosecutor’s office shall take an oath before the Minister of Justice and in the presence of the Public Prosecutor.

 

Article 65

          

1.      Designating the place of work for members of the Public Prosecutor's Office and transferring them to a

position outside the court circuit to which they have been appointed, shall be the subject of a decision issued by the Minister of Justice which in turn shall be based on a proposal from the Attorney General. Transfer of such members within the court circuit to which they have been appointed or their secondment elsewhere for a period not exceeding six months, shall be based upon a decision by the Public Prosecutor.

 

2. With the exception of the Public Prosecutor and his assistant, officials of the Public Prosecution shall not serve for a period exceeding four years, beginning from the date on which they assume their duties within their circuit.

 

Article 66

 

Officials of the Public Prosecution shall report to their superiors as a function of their grade.

 

Jurisdiction of the Public Prosecutor’s Office

 

Article 67

          

The Public Prosecutor’s Office shall exercise its jurisdiction according to the provisions of the law. Unless otherwise provided for by law, it alone has the right to initiate criminal prosecutions in cases affecting the public interest.

 

 

 

Article 68

           

1. The Public Prosecutor or any member of the Public Prosecutor's Office shall that represent his office before the courts. Public Prosecutor’s assistants shall execute the tasks assigned to them under the supervision and responsibility of their supervisors from the Public Prosecutor's office          

 

2. In event that the Public Prosecutor is absent or incapacitated or his position is vacant, his duties shall be carried out by one of his assistants who shall [execute the Public Prosecutor’s] full jurisdiction for a period not exceeding three months.          

 

3. If a member of the Public Prosecution is absent for any reason, including incapacity, the public Prosecutor shall delegate his duties to any member of the prosecution.  

        

4. The Public Prosecution shall only be represented before the High Court by the Public Prosecutor.

 

Article 69

 

Officers of the law are accountable to the Public Prosecutor's Office for their work.

 

Article 70

          

The Public Prosecutor, his deputies and judges shall have access, within the area falling under their jurisdiction, to all rehabilitation centers (prisons) at any time for the purpose of inspection and of verifying that laws are respected and that courts' rulings and decisions taken by the Public Prosecution are being implemented. Directors of such centres shall provide them with all requested information.

 

Duties of Members of the Public Prosecution

 

Article 71

 

The provisions of Chapter Three of the present law shall apply to members of the Public Prosecutor’s Office.

Disciplining Members of the Public Prosecution

 

Article 72

 

The provisions of [Article 47] (Disciplinary Inquiries of Judges), shall apply to members of the Public Prosecutor's Office. Disciplinary action shall be instituted against them by the Public Prosecutor of his own initiative or at the request of The Minister of Justice.

 

Salaries and Seniority of Members of the Public Prosecution

 

Article 73

          

Salaries and seniority of members of the Public Prosecution shall be fixed in accordance with the provisions of Article 32 of the present law.

 

Promotion and Status of Seniority

 

Article 74

 

1. The seniority of members of the Public Prosecution shall be determined in accordance with the rules establishing the seniority of judges as provided for in Article 18(3) of the present law.

 

2. The promotion of members of the Public Prosecution shall be based on principles of seniority and shall take the issue of competence into consideration, as provided for in Article 42(3) of the present law.

Assistants of the Judiciary

 

Article 75

 

Assistants of the judiciary are lawyers, experts, general secretaries, clerks, servers of summons and translators.

Article 76

 

The law shall establish the conditions required for membership of the legal profession.

 

Article 77

 

The law shall determine the experience required for the purposes of employment in the judiciary and in the Public Prosecutor’s office as well as the rights and duties of experts and the rules governing their disciplining.

Court employees

 

Article 78

 

Each court shall have a sufficient number of employees. The law shall determine their duties.

 

Article 79

 

The provisions of the Civil Service Law shall apply to court employees.

 

General and transitional provisions

 

Article 80

 

The High Judicial Council shall establish the necessary regulations for the implementation of the provisions of the present law.

Article 81

 

1. In accordance with the provisions of a decree, recommended by the Minister of Justice and issued by the President of the Palestinian National Authority, a transitional High Judicial Council shall be formed within one month of the publication of the present law in the Official Gazette. It shall consist of:

 

    a. the Chief Justice of the High Court as Chairman;

    b. four High Court judges as Deputies;

    c. Presidents of Appellate Courts in Gaza and Ramallah;

    d. the Attorney General;

    e. the Deputy Minister of Justice.

 

2. Prior to the formation of the High Judicial Council and within a maximum delay of one year following the publication of the present law in the Official Gazette, the transitional High Judicial Council shall assume the responsibilities of the High Judicial Council stipulated in the present law.

 

Article 82

 

Judicial sentences shall be binding. Failing to implement, or obstructing the implementation of, a judgment shall be considered to be a crime punishable with a term of imprisonment and, if the accused is a public servant or has been assigned public duties, dismissal from official duties. The victim immediately has the right to lodge a claim before a court with due jurisdiction and the Palestinian National Authority shall guarantee him a full compensation.

 

 

Article 83

 

Prior to the establishment of such courts and unless their duties fall within the jurisdiction of other bodies in accordance with laws already in force, the High Court shall temporarily assume all duties assigned to administrative courts and to the High Constitutional Court.

 

Article 84

 

All [“] rules [”] conflicting with the provisions of the present law shall be annulled.

 

Article 85

 

The present law shall come into force on the date of its publication in the Official Gazette.

 

Table 1

 

Official Positions, Salaries and Allowances of Judges and Members of the Public Prosecution

 

Position	Basic Salary	Work Allowance	Annual Increase Allowance	Total Salary
President of the High Court	2500	500	50	3050
Public Prosecutor and Deputies of the President of the High Court	2300	460	46	2806
High Court Judges  and Assistant Public Prosecutor	2300	460	46	2806
Presidents of Appellate Courts	1900	380	38	2318
Judges of Appellate Courts	1900	380	38	2318
Presidents of Courts of First Instance	1600	320	32	1952
Judges of Courts of First Instance	1600	320	32	1952
Judges of Conciliation Courts	1400	280	28	1708
Heads of Prosecution	1400	280	28	1708
Prosecution Deputies	1250	250	26	1526
Assistants of Prosecution	1200		24	1224

 

NB: Figures are in $ US pending their eventual replacement by official figures in  Palestinain Pounds

 

Table (2)

 

Allowances for the representation of selected judicial duties

 

Position	Amount
President of the High Court	500
Deputy President of the High Court  and the Public Prosecutor	368
President of Appeals Court	285
President of the Court of First Instance	176
The Public Prosecutor	140
Deputy Public Prosecutors	62

 

NB: Figures are in $ US pending their eventual replacement by official figures in  Palestinain Pounds

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited interview, held with Fayez al-Quidrah, 7 June 1999, Gaza

 

 

 

 

 

 

 

 

 

 

1.        Mr.  al-Quidrah  volunteers  a  lot of  information  at the beginning  of the  interview  and 

launches general principles of detention. “The High Court has jurisdiction to look into anyone’s case if that person is not detained under a detention order.”

 

2.

 

Ø         Q: Turning straight to the details of the cases, in the al-Dequis case, why was there a 53 delay between the first and second hearings?

 

Ø      A:  The original decision to grant the Attorney General 8 days to present the court with information is taken by a single judge. Only later does the case go to three High Court judges.

 

Ø      Q: But why did it take 53 days before the case came to the three judges?

 

Ø      A: There are a number of reasons. Firstly, a lack of employees and infrastructure in the courts. The High Court cannot simply be fixed on a day-by-day or week-by-week basis. Secondly and unfortunately, there is not enough respect by the Executive Authority for the law. There is little cooperation and the courts want to avoid a face-to face confrontation.

 

3.

 

Ø      Q: Is the latter explanation the only explanation as to why, in al-Dequis, there was a 116 delay between the second and third hearing?

 

Ø                                 A:  The court realises that these are long periods but it should be stressed that “at the end of the day, the correct judgment is reached.” The court knows that under the 1924 procedures a maximum of 30 days detention should lapse before the detainee must be formally charged. But the court has to cooperate with the Attorney General. Often the Attorney General has not heard of the case before the complaint is lodged in the High Court and so “he needs to be given time”.

 

Ø                                 Q:  But in the case of al-Dequis, the Attorney General had 300 days - which had passed between the date of Mr. al-Dequis’ arrest and the date of the first hearing - in addition to the 53 days that he was given prior to the second hearing in order to obtain information.

 

Ø                                 A:  I am sorry to say that there is a lack of cooperation by the Executive Authority, which includes the Attorney General’s office.  It is clearly a problem. “We want to prevent a total lack of cooperation”. During the Occupation, the judges worked as such in order to serve the community. Since the PA’s arrival, they know that there are immense problems but “we can’t just leave the scene”.

 

 

4. 

 

Ø                                 Q:  How exactly does the court gauge the tension? How does it decide in one case to issue a final judgment 1 month after the first hearing and in another case after 250 days after the first hearing?

 

Ø                                 A:  For example in Rantissi’s case, the General Prosecutor confessed after 2 months that no charges had been made. Therefore the court passed final judgment [NB: in other cases it was equally clear that no or unfounded charges had been made and the court still delayed judgment for a period of months]. In other cases the prosecutor asked for more time and “therefore” he was given more time. There is clearly no independent judiciary and so the judges have to “hold the stick from the centre” [i.e. they have to balance competing interests when deciding whether to stick to procedures in a strict manner]. “The Attorney General completely reflects the point of view of the Executive Authority”. And remember that Abu Rahmeh [Former Attorney General] resigned because he released the plaintiffs who were released and then rearrested.

 

Ø      Q: So is the Attorney General the voice of your employer?

 

Ø      A: The Attorney General, according to the law, is supposed to be above the police. But in practice, the Attorney General cannot get information from the Security Forces. The Attorney General’s representative is told to go away and this must be taken into account.

 

5.

 

Ø      Q: So may I conclude that if the Attorney General’s representative asks for time, you will postpone judgment, in violation of established procedural law and according to each case’s circumstances, whereas if the Attorney General’s representative does not ask for more time you will pass judgment as soon as is possible after the pleadings have been submitted to the court?

 

Ø      A:  The court knows that according to the law it should not do this, but as we are under “very special circumstances”, it is explicable. “Until we have an independent judiciary, no judge will decide freely”.

 

Mr. Fayez al-Quidrah then adds that he has been in the law for 43 years. If old veterans like him leave the profession, they would get a retirement salary higher than their current salary. “The only reason we stay is to serve the people”. Judges are waiting for the implementation of the Draft Judicial Law [see Annex]. And they believe that training of lawyers and judges is an important element in which they must be involved. Judges clearly feel frustrated when their decisions are not implemented. He says has spoken to the Minister of Justice about the non-implementation of judgments and the Minister has asked him to stay.  He accepted but the frustration felt is reflected in the Attorney General’s resignation when the al-Baba judgment was not implemented.

6.

 

Ø      Q: What is your opinion on the quality of the pleadings and the way in which the law is invoked and pleaded in front of your court?

 

Ø      A:  Lawyers can now appear in the High Court one day after they have passed their qualifying exam. They lack experience and do not know the details of the applicable law, including basic procedural law and court/appeals procedure.

 

Ø      Q:  Why are lawyers appearing so soon after qualifying?

 

Ø      A:  There are a lack of trainers to train them.

 

Ø      Q:  It appears from the judgments and the summary of the lawyer’s pleadings in these cases that even experienced lawyers are invoking little, and sometimes none, of the applicable law and that there pleadings are not particularly clear or logically structured. Why do you think this is?

 

Ø      A:  In Gaza there are 500 qualified lawyers. I would say that of these 500, perhaps 10-15 know what they are doing in these cases when they appear before the High Court.

 

Ø      Q:  Are any of these 10-15 lawyers pleading before your court in these important detention cases about which we are speaking?

 

Ø      A: “No”.

 

7. 

 

Ø      Q:  What is your opinion on the need for judges to be trained?

 

Ø      A:  All veterans, that is lawyers who have been judges for 30-35 years, may refuse and may be reluctant to get involved in training. Personally, “as long as I live I am happy to learn”. NEW judges need to be trained, especially because the way in which they are appointed has become unacceptable.

 

8.

 

Ø      Q:  Do you think that the delay in deciding the cases affects the status of the judgments? Do you not think that the judiciary’s acceptance of procedural circumvention during the cases encourages a total circumvention by the Executive of the judiciary’s decisions?

 

Ø      A:  No, because we have got to a point where the Executive Authority does not care whatsoever about the judiciary’s role.

 

9.

 

Ø      Q:  Under which circumstances would you say that the State Security Court has jurisdiction? One of your colleagues has said that once a detention order and date for a session has been issued and fixed (regardless of at which point after the arrest), the State Security Court has jurisdiction. Do you agree with this legal opinion?

 

Ø      A:  Firstly, “the High Court does not monitor the work of other courts”. Secondly, the High Court cannot interfere if there is a “clear charge” and a “clearly valid detention order”. But people are being accused of charges that are not “genuine”, such as being a member of Hamas.

 

Ø      Q: As an example of a charge, in al-Maqadmeh you accepted a “charge” based on Articles 31 and 34 of the 1936 Penal Code. These Articles are not sufficient in themselves to form the basis of a charge. They must be accompanied by reference to other offences provided for by the law. Why did you accept the claim that these two Articles formed the basis of a charge against Mr. al-Maqadmeh?

Ø      A: The detention order was presented to the High Court (in a second hearing) by a single judge and the High Court does not have the powers to review such a decision to refer. [According to the law, this is not the case: the High Court can overturn any decision on law and on facts].

 

Ø      Q: So why have a second hearing at all if the High Court cannot overrule the judge?

 

Ø      A:  The High Court reviews the 1st judge’s decision if new information arises after the first hearing. In any case, “that was our decision”.

 

10.

 

Ø      Q:  When the State Security Court has jurisdiction over a detention case, which laws is it supposed to apply?

 

Ø      A: I can only say that I do not know how the State Security Court functions.

 

Ø      Q: In which case, at which moment in the procedure, i.e. how long after the moment of arrest, and on what basis can the High Court decide that it is not the State Security Court that has jurisdiction but rather the High Court? If a detention order is issued 400 days after the date of arrest and a session is fixed for 1 year later, against which procedures (which the State Security Court should be following) do you evaluate such actions?

 

Ø      A: A detention order issued by the State Security Court is clearly not enough. The detention order “must be clear”. In the past there has often just been a case number and a signature, nothing more. The principle problem with the State Security Court is that the accused person is not brought before a court and often has no access to a lawyer.

 

Ø      Q: But according to which procedures should the State Security Court be dealing with detainees?

 

Ø      A:  The detention order must contain a clear charge. Often an accused person does not appear before the court because he has had no contact with the lawyer. Only the prosecution appears and so the case is unbalanced. “The Attorney General has to approve all detention of suspects beyond the 30th day after the arrest.”

 

Ø      Q: Can one therefore conclude that because the High Court does not know which procedures the State Security Court is bound to apply, the High Court presumes that the 1924 procedures apply?

 

Ø      A:  “Previously all courts applied the 1924 procedure. Now there is no channel of communication between the High Court and the State Security Court.”

 

11.

 

Ø      Q:  If the State Security Court said that the 1945 Emergency Laws apply, what would they High Court have to say?

 

Ø      A: Even an application of the 1945 procedures would be better than what is happening now.

 

At this point Mr. al-Quidrah adds, “frankly, in the High Court we cannot do justice in these cases”.

12.

 

Ø      Q: In the case of al-Baba, why did the court even consider the value of two detention orders, one issued 253 and the other issued 505 days after Mr. al-Baba’s arrest?

 

Ø      A: In the end, the court rejected the Attorney General’s arguments, so justice was done.

 

Ø      Q: But why mention and then review their contents at all? Clearly they are outside any duly applicable procedures, be it the 1924, the 1979 or even the 1945 procedures?

 

Ø      A: The High Court mentions both sides of the story whatever the two sides present. The final judgment is what is most important.

 

13.

 

Ø      Q:  Would you say that the Palestinian Authority is in effect legally bound, under the Annex IV of the 1995 Interim Agreement, not to apply your judgments ordering the release of detainees?

 

Ø      A: The Agreement has no connection with the judiciary. The judges of the High Court have nothing to do with the “political commitments” of the PA. The PA is wrong not to base its political commitments on the law, which the Palestinian judiciary has to apply. The PA should respect the judiciary. If it accepts the judiciary’s decisions, no one would blame the PA and the PA would get more credit for its actions. The PA could justify its actions by reference to its courts. “No one would argue”. “A crime is a crime regardless of the political moods”.If there is a problem in the Peace Agreement, then it is a political and not a judicial problem.

 

Ø      Q: What do you think of the PA’s arguments that these prisoners are being detained for their own protection?

 

Ø      A: “This is the reasons why our cases are being delayed”.

 

14.

 

Ø      Q:  To what extent do you have contact with the Executive Authority during these cases?

 

Ø      A: None whatsoever. “They know my personality and so they do not communicate with me”.

 

15.

 

Ø         Q: What do you think of the idea of handling a class action on the basis that all of the hundreds of individuals currently detained have had their procedural rights under the provisions of the 1924 law violated?

 

Ø      A: In some cases we give the General Prosecutor more time than in others to obtain the relevant information. It may depend, for example, on potential transfer to Israel. The time given to the General Prosecutor plays an important role. But if the conditions of the cases are the same, then yes. The court would consider a group claim.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited Interview, held with Subhiyye Juma’a (from the PICCR), Gaza, 8 June 1999

 

 

 

 

 

 

 

 

 

 

 

1.

 

Ø      Q: In the al-Baba case by whom you were appointed defense counsel, why did the first hearing take place only 413 days after Mr. al-Baba’s date of arrest?

 

Ø      A:  We asked the Attorney General, the prosecution and the Preventative Security Service (PSS) about the reasons for Mr. al-Baba’s arrest and for any information they had pertaining to his case. The PSS only informed them that his was a serious case “involving Hamas”. Not until he was moved from the first prison to Gaza Civil Prison did they get permission from the General Prosecutor to have access to Mr. al-Baba.

 

Ø      Q: Is there an obligation to ask the Attorney General for permission before having access to a client?

 

Ø      A: No. The right to a lawyer is guaranteed by the 1924 law [NB: unfortunately this is not explicitly provided for in the 1924, but see outline in this report referring to other provisions guranteeing this right]. But in practice we need to obtain permission in order to get past the Security Services. In the newly passed 1998 Prison Law [Article 54], this right has been explicitly enshrined. Immediate access to a client is clearly one of the most important issues to be resolved.

 

 

2.

 

Ø        Q: Why was there a 138 delay between the 1^st and 2^nd hearings?

 

Ø        A: Mr. al-Baba was released under Abu Rahme’s decision before the first hearing took place. After the 1st hearing the court had a holiday for 2 months (July-September). During this period my colleague handed over the case to me. She told me that during this period the police were thinking of releasing Mr. al-Baba and consequently we did not put as much pressure on the court as we could otherwise have done. Once in September, we decided to put pressure on the court and four weeks later a hearing had been set.

 

Ø      Q: Is it necessary for lawyers to pressure a court to set a second hearing when the court has, in its first hearing, given the Attorney General 8 days to respond?

 

Ø      A: The 8-day period is a preliminary decision. The Attorney General has a right to ask for an extension and this was successfully done during the second hearing. In the most recent case, the court has given the Attorney General an absolute date [28 June 1999 – Immad Sharif – released one day later on 29.6.99]. Originally the AG was given 8 days which turned into 14 days and which brought us to 5 June. On 5 June the Court determined that the Attorney General had to present everything by 20 June with a view to a final hearing on 28 June.

 

Ø      Q: Why has the High Court only adopted this approach in the case of Mr. Sharif? Why not before in other cases?

 

Ø      A: Lawyers have noticed that things are developing and improving. Initially, the courts would not even accept jurisdiction over these cases. But now, judges listen more to the lawyers.

 

3.

 

Ø                                Q:  Would you say that in the past, these prolongations of procedures have been due to judges viewing the Attorney General as a mouthpiece of the Executive Authority and consequently their employer’s messenger rather than as an independent figure of the judiciary?

 

Ø                                A: Yes, this is very likely. The Sharif case is a clear example of executive influence. The General Prosecutor’s representative argued that the High Court had no jurisdiction. No evidence was presented to support this claim. Outside of court he apologised to me for making this claim in court, admitting that it was obviously fallacious. And to reflect this fact the court asked him in court whether there was another General Prosecutor in the system!

 

4.

 

Ø    Q: Why has the court changed its approach in the Sharif case? Is it a politically less sensitive case? Would you say it sets a precedent?

 

Ø    A: Mr. al-Sharif has been detained since March 1996. This is the main reason why the court is being firm. It has taken over three years for the first hearing to take place. As far as political sensitivity is concerned, this is one of the most sensitive cases, also involving issues connected to Hamas.

 

5.

 

Ø    Q: Does the law explicitly provide for the 8 day period given to the Attorney General and for the subsequent discretionary right to prolong this period?

 

A: It is one of the judges’ general powers, not contained explicitly in the law.

 

6.

 

Ø    Q: In the al-Baba case and in other cases, why does the court always conclude that the 1924 laws apply and yet gives the Attorney General more time to present information simply on the basis that “he has already provided some information” and this despite the fact that this information, for example in al-Baba, consists of orders issued 253 and 505 days after Mr. al-Baba’s arrest? Such documents clearly prove that the 1924 procedures have been violated? So why does the court use such documents as a reason to give more time to the Attorney General?

 

Ø    A: Within 48 hours of his arrest, an arrest order must be produced explaining a detainee’s arrest. Between his arrest and first release (under Abu Rahme’s order), there was no detention order issued. After his rearrest, an illegal detention order (the first one) claiming retroactive and prospective effect was issued…

 

Ø    Q: So why did the court, having seen this detention order and the second detention order, give the Attorney General more time if it is clear to the court that these orders violated the 1924 procedures?

 

Ø      A: …….

 

7.

 

Ø    Q: Will the Court apply its strict approach as seen in the Sharif case, in cases in which  the first hearing takes place, for example, 400 days after the date of arrest, or is this “procedural rigour” dependent on the detainee having been detained without a hearing for over 1000 days as in the case of Sharif?

 

Ø    A: Sharif was one of the 11 released under Abu Rahme’s order and he too was rearrested. He did not ask for a lawyer and only approached the PICCR in April of 1999. There is another case currently pending, the case of Khandi al-Kalud who was arrested in 1996 by the PSS. This is also a Hamas case. In this case the second hearing was fixed for 7 days after the expiry of the original 8-day period granted to the Attorney General.

 

8.

 

Ø    Q: What is your opinion on the clarity with which the court deals with the law?

 

Ø    A: It is not a secret that the judicial system is being treated unjustly by the Executive Authority. We have good judges. When a case is not influenced by the Executive Authority, judges take fair and logical decisions. Of course not all judges: a number are appointed directly by the Authority.

 

Ø    Q: So the use of logic and structure used by the judges in their judgments are affected by executive interference?

 

Ø    A: “To a certain extent, yes”.

 

9.

 

Ø    Q: In the al-Baba case, why does the court mention both the applicability of the 1924 law and the notion of an administrative decision in a single judgment? These are mutually exclusive are they not?

 

Ø    A: In the hearings, the General Prosecutor mentions the idea of an “administrative decision” having taken place.

 

Ø    Q: So why does the court not explicitly say, 1924’s provisions are applicable, therefore any detention has to be based on a judicial decision and therefore any invoking of the notion of an administrative decision underpinning a detention case is mistaken in law?

 

Ø    A: The court is addressing all the arguments put to it during the hearings [even though the court does not actually mention this as a justification in its judgments when it is going though these notions]. But more importantly, the court, especially at the beginning, was weary of issuing a final judgment ordering the detainee’s release. The Security Services are there in the wings, betting as to whether the Court will order the release or not.  After al-Baba, the judgments got shorter. Al-Baba was a precedent.

 

 

Ø    Q: So you are saying that initially the court was passing a message to the Security services arguing that maybe they had more powers, including administrative powers, than those under the 1924 laws, which made it more easy to swallow the bitter pill of having to release the prisoner in that particular case?

 

Ø    A: Yes. Contrast the final line in the Faraj judgment: “political; detention is illegal”. [In other words, after a number of cases the court is sending a confident message loudly and clearly to the Executive Authority].

 

 

Ø    Q: It seems superfluous to state that political detention is illegal. Any detention violating the 1924 provisions is illegal.

 

Ø    A: Yes. To us lawyers it is superfluous. But it is a clear message to the Authority that no form of extra-judicial detention will be tolerated. The provisions of the 1924 law apply in each and every case.

 

 

10.

 

Ø      Q: Why do you think that there are no cases prosecuting those responsible for the years of illegal detention?

 

Ø      A: The court is indirectly criticising those responsible by issuing the judgment.

 

Ø      Q: But this is not a substitute for prosecuting those responsible, is it?

 

Ø      A: Under which laws can we do this? [Interviewer points to the relevant provisions]. “It is supposed to happen but unfortunately it doesn’t”.

 

 

11.

 

Ø      Q: Are there laws providing for a right to compensation?

 

Ø      A: Yes there are. But using them is more difficult. The same reasons apply as regards the prosecution of government officials responsible.

 

 

12.

 

Ø      PHRMG has been refused copies of judgments on grounds which have nothing to do with clients’  confidentiality, but which have to do with the state of personal relations between the lawyers (including lawyers responsible for a large number of cases) and those requesting a copy of the judgment. What do you think about the accessibility of judgments?

 

Ø      Even lawyers find it difficult to get hold of judgments. Usually the secretary of the court should be able to provide anyone requesting with a copy. [In practice, this is not so straightforward].

 

 

 

 

 

 

13.

 

Ø      Q: Are you surprised that the High Court never addresses the issue of the scope of the State Security Court’s jurisdiction and the issue of which procedures it should apply when dealing with detention cases?

 

Ø      A: It is not within the High Court’ jurisdiction to comment upon this. This is the job for a Constitutional Court [NB: despite the fact that the Draft Basic Law provides that the High Court shall exercise all the powers of the Constitutional court until the latter has been established].

 

14.

 

Ø      Q: Do you think that a class action for all those currently detained in breach of the 1924 procedures is possible?

 

Ø      A: The issue is, unfortunately, not that simple. Lawyers are afraid. People ask her in the street as to whether she is not afraid in her work! Pooling the Human Rights organisations’ efforts won’t happen. There are small technical issue upon which the various organisations and lawyers cannot agree. If they were to agree, then there would be a possibility of such a case being made.

 

I would also add that before the coming of the PA, I was able to visit Palestinian prisoners in Israeli prisons. Now I am not able to visit Palestinians in PA jails.

 

 

15.

             

Ø      Q: Would you say that the Palestinian Authority is in effect legally bound, under the Annex IV of the 1995 Interim Agreement, not to apply your judgments ordering the release of detainees?

 

Ø      A:  The PA’s explanation in a number of cases has been that the detention is because of obligations vis a vis Israel and that detention is for the detainee’s own protection. This can be disproven alone by the fact that the detainees undergo torture and degrading treatment in prison. But it remains clear that if the PA did release detainees, Israel would complain and there would be renewed arrests.

 

 

16.

 

Ø      Q: Are you frustrated by the lack of implementation of these judgments?

 

Ø        A: This situation is becoming like a fact in our lives. At the very least, the law is being declared and the courts are accepting jurisdiction in these cases.

 

 

 

 

Edited Interview, held with Mohammad Ayoub, Ramallah, 21 June 1999

 

 

 

 

 

 

 

1.

Ø      Q: What do you think about the fact that the High Court never deals with the issue of the State Security Court’s jurisdiction?

 

Ø      A: The High Court refuses to answer any questions lawyers put to it on this matter. I have spoken with Sami Sarsour [President of the High Court] on this issue a number of times and the High Court simply says that it has no jurisdiction to look into this matter. It is mainly political reasons that drive this reluctance, it makes political sense not to deal with this issue and the legal argument used to justify this is that the High Court is not a constitutional court. [NB: The Judicial Authority Law provides in Article 83 that prior to the establishment of the Constitutional Court, the High Court shall exercise the powers of the Constitutional Court].

2.

 

Ø      Q: What is your opinion on the delay involved in these cases? Why does the court constantly delay hearings in these detention cases?

 

Ø      A: The Attorney General’s office in Ramallah is next to the General Prosecutor’s office. Information, if it exists, could be transferred to the Attorney General within minutes of a request being made. The only reason that procedures went relatively fast in Mr. Moussa’s case was because I had good relations with the Deputy Attorney General (Salah Manner) who put pressure on the General Prosecutor to get a response so that the case could proceed.

 

The following was the result of a number of questions and a general discussion:

 

3.      There is a  mess regarding to  the applicability  of the 1979  Revolutionary  Code or  the 1961

procedures. The issue is never dealt with openly and we know that in practice, when the State Security Council does sit, it uses the 1979 Code. The 1961 procedures stipulate that it applies to civilians and the judges don’t touch any laws other than this for political reasons. These are sensitive issues, which cannot be dealt with directly.

 

4.   The 1945 Emergency Laws have  only been used in two cases, one of which was  the Rantissi

case. The General Prosecutor pleaded the defense of “administrative detention” which is only contained in the 1945 laws. The PA clearly prefers not to invoke these laws.

 

5.   Judges   have  said  to   us  “don’t  bring  us  these  cases!”  To  the   judges, these  are  clearly

uncomfortable cases and create problems with the Executive. They would prefer for these cases to be solved extra-judicially. A judge spoke with the General Prosecutor in the Moussa case and asked him to grant access to Mr. Moussa in order to avoid having to bring his case before the court!

 

6.      The   logic   of   the  arguments  made   in   the  Moussa pleadings  and in the judgment is that administrative detention is not admissible: only judicial decisions can justify detention. The court does not explicitly state this but this is the conclusion to be reached.

7.

 

Ø      Q:  Why is it that in none of the cases you bring a prosecution against members of the security forces who violate their obligations under the 1960 and 1961 provisions?

 

Ø      A:  We have to cultivate contacts with the Security Forces in order to have any contact and cooperation whatsoever. Even one of the High Court judges dissented in Moussa because he thought that Mrs. Moussa did not have power of Attorney. He ignored the fact that neither she nor her lawyers had access to Mr. Moussa and that this was the reason why Mrs. Moussa was acting on his behalf. The judge was rewarding the failure to cooperate. If we prosecute we destroy all future cooperation.  We are in a “primitive phase of justice, trying to get anything positive for our clients and we are not in a position to ensure that people from and under the authority of the Executive Authority are justly punished. In five years things will hopefully have developed for the better…

 

8.

 

Ø      Q:  To what extent do you think that well-established Palestinian judges and lawyers need training?

 

Ø      A: Judges do not have the necessary knowledge to exercise their functions. For thirty years they were told how to fill in forms and not argue matters of substance. This killed us as lawyers. We need training of both judges and lawyers. “I desperately need training”.[NB: From the pleadings of Mr. Ayoub, it appears that (together with Subhiyye Juma’a) he is by far the most qualified lawyer who has pleaded in High Court detention cases].  Two months ago a second appeal court was set up in Ramallah. They had to transfer judges form Nablus to fill the posts and now Nablus has a judicial crisis on its hands! Sami Sarsour [NB: who has decided not to speak with human rights groups for political reasons] has effectively resigned and is not working on the basis that this new court was set up pursuant to a decree and did not await the signing of the new judicial law and follow independent procedures necessary to protect the independence of the new court and its appointees.

 

The following was the result of a number of questions and a general discussion:

 

9.   Lawyers and judges in Gaza are clearly more experienced than in the West Bank: they have

not suffered as much as in the West Bank.

 

10.  Concerning the way in which  lawyers plead  before the  judges and  present  their arguments,

“we have to feel their suffering” [i.e. lawyers cannot always insist that judges rigorously apply the law and must be flexible with procedures and arguments….]

 

11.  For Mr. Ayoub, the continued detention  is not an  opposition  crackdown issue.  Arafat could   

 do that in many ways. The issue clearly is Israeli pressure and the Interim provisions.

 

12.  Clearly Arafat does not believe in institution building. Lack  of an  effective democratically

elected Bar Association means that organised pressure on the executive by the judiciary becomes all the more difficult.