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Part Two:
The
Legality of Arrest and Detention
Arrest
Memo
All victims who were arrested, except for one
victim, said that they did not receive an official arrest warrant.
Among the 68 cases that this report is derived from, only 20 cases
received a written summons upon their arrest, and 8 cases were
verbally summoned either by phone or through family and friends. More
than half of the cases were arrested without written or verbal
summons. It is important to mention that all persons who were arrested
for political activism or belonging to opposition groups, did not
receive neither written nor verbal summons, except for one case.
Arrest
Procedures
Most arrests were not official according to the law.
Most arrests occurred late at night, where a large number of forces
attacked a home and placed it under siege. Sometimes, rooms in homes
were broken into without permission from the owners of the home.
Rarely did the attackers identify themselves to the victims and rarely
did they tell them the reason why they were arrested.
In other cases, some were arrested in their workplace, or through traps
set for them on the roads or near their residence. Citizen T.B. (28),
a car mechanic from Nablus, a city in the south of the West Bank,
said:
"..on my way home from
work, I was still in my work clothes when a guy named R.N. came up to
me and said that he needed me for five minutes to fix his car. I told
him that I just finished work, and I am not going to go with him.
After he insisted, I went with him. He took me to the prison in
Nablus, and then to one of the offices there. I still thought that he
needed me to fix his car. Suddenly, one of the guards led me to
another room and took away my personal belongings. I was then taken to
an underground cell, and I realized I was under arrest."
Some of the cases reported were arbitrarily arrested
by men from the security forces, especially for revenge reasons, such
as reporter D.D.D., who received a verbal summon
from Jibril Rujub, head of the PSS in the West Bank. D.D.D. met Rujub
in one of the restaurants in the middle cities. He was tortured
because he insulted Rujub in one of the report he wrote that was
published abroad.
A number of cases were initially told that they were
wanted at the force for only five minutes. It turned out that some of
them spent weeks and months under arrest. At times, the security
forces would arrest family members of the wanted person as hostages,
until he turned himself in.
A.B. (63), from one of the villages near Ramallah, was
arrested with his two sons R. (29) and R. (22), for 4 hours at night.
The twenty nine year old son was tortured until his other brother,
wanted by the PSS, turned himself in:
"..the minute I got home, I
saw members from the PSS arrest my father (63), who suffers from heart
problems and blood pressure, and my brother R. (22). They took them in
a PSS military vehicle, each in a seat under heavy guard. I was also
forced into the vehicle. We were held hostages until my brother S.
turned himself in after I was severely tortured for four hours."
Where
is the Legality of Arrests?
Is
the Accused Innocent Until Proven Guilty or is He Guilty Until Proven
Innocent?
All the cases we met were not presented with the
charges pressed against them. Most of them were released without even
being charged. None of them was even presented before a legal
authority during the first 24 hours of their detention. Some of the
cases, especially those charged for criminal or civil reasons, were
presented before a district prosecutor only to prolong their arrest
period, and take their testimonies no earlier than two weeks after
their arrest. Most of those who were arrested for political or
security reasons on the other hand, were not presented before a
prosecutor or a court of law.
The PHRMG realizes the restrictions forced in the Palestinian
Israeli agreement on not sentencing collaborators or even arresting
them. The rest of those accused, especially those charged of political
activism, were not given the charges against them, and they were not
presented before a court of law. Many of them are still under arrest.
This situation contradicts international covenants related to human
rights, especially those that determine legal bases and rights, while
applying arrest and detention orders.
Legal
Opinion in the Way Arrests and Detentions Are Carried Out
The Universal Declaration of Human Rights of 1948
and the United Nations international human rights standards which
followed it, such as the Standard Minimum Rules for the Treatment of
Prisoners, approved in 1957 by the Economic and Social Council, the
International Covenant on Civil and Political Rights, adopted in 1966,
and the Body of Principles for the Protection of All Persons Under Any
Form of Detention or Imprisonment, adopted in 1988 by the General
Assembly of the United Nations, all placed specific measures to
protect persons under any sort of arrest or detention.
Article 9 in the Universal Declaration states that:
"No one shall be subjected
to arbitrary arrest, detention, or exile."
Article 9 from the International Covenant on Civil
and Political Rights states that:
1. Everyone has the right to
liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedure as are established
by law.
2. Anyone who is arrested shall be informed, at the
time of arrest, of the reasons for his arrest and shall be promptly
informed of any other charges against him.
There are other articles related to the rightful
measures followed during arrests and detentions, such as Principles 10
and 11 from the Principles related to protecting all persons exposed
to arrests or detentions. These principles assured the importance of
the existence of an official document when arresting a person. They
also state that a person cannot be detained without the having the
right to express himself before a judicial authority. The detainee has
the right to an attorney in the way determined by the law. Also, the
detainee or his attorney have the right to be provided with complete
information on issues related to the arrest.
Principal 12 released according to a decision taken
by the General Assembly in the United Nations, states the following:
" 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."
Most cases in this report proved that the measures
followed by the various Palestinian security forces while making
arrests and detaining persons, are not in accordance with the rules
and regulations determined by the aforementioned international
covenants and charters. The security forces are even violating local
laws, such as the Jordanian Penal Code of 1961, followed in the West
Bank, and the 1924 Criminal Procedure (Arrest and Searches) Ordinance.
Article 111 (1) from the aforementioned Jordanian Law states that:
"It is sufficient for a
summon to be released by a district prosecutor, on condition that he
exchanges it with an arrest journal after interrogating the
accused."
Article 115 from the same law states that:
"The district prosecutor
should sign on all arrest memos and summons, and seal them with his
department's seal. These memos should include the name of the accused,
his profession, his distinguished descriptions, and the charge."
Article 117 states that:
"The accused should be
informed about the arrest memos and summons, and should have a copy of
them."
Article 10 (1) from the 1924 Criminal Procedure
(Arrest and Detention) Ordinance, states that:
"A person arrested by an
arrest warrant, or one arrested without an arrested warrant, need to
be presented before a judge within 48 hours of the arrest.. If that
person is not presented before a judge within the specified period of
time, he should be released."
Article 3 from the same law states that:
"Any police officer can
place a person under arrest without a search warrant in the following
situations: 1. If the order of his arrest was released by a judge 2.
If he had reasonable doubt that a crime was committed by that person
3. If that person has lately or in his presence committed a crime that
requires capital punishment or imprisonment over 6 months."
According to an order released by President Yasser
Arafat, head of police, brigadier Gazi al-Jabali, released a public
statement on 20/5/1994 stating that the laws, regulations and orders
released before 5/6/1967 are to be followed, where the 1924 Criminal
Procedure Ordinance, would be adopted in Palestinian Territories.
The Palestinian security forces violate the arrest
procedures laid down in the UN Body of Principles and in Palestinian
law. They also contravene the Palestinian Constitution on the PNA
which lays down the correct legal procedures to be followed during
arrests and procedures.
Article 12 states:
"Personal freedom is a
natural right. It is guaranteed and cannot be touched. No one shall be
arrested, searched, jailed, deprived his freedom in any way, or
prevented from moving freely, unless by an order stressing the
importance to interrogate to assure the security of the Palestinian
society. This order is to be released by a judge or the
attorney-general's office, according to the law, and the law
determines the length of extra imprisonment."
Article 14 from the same law states that:
"A person who is being
arrested or detained needs to be immediately informed, in a language
which he understands, of the charge pressed against him, and be given
enough time and facilities to call an attorney of his choice. This
person should presented before a court of law without delay."
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