His Excellency the Head of Judicial Inspection, Adviser. Zias Thabet/ Gaza
Subject: "Court Appointed lawyers" Is one Of the Fair Trial Guarantees
MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its warmest greetings to your excellency, noting that through its monitoring visits to the official justice system, implemented by its representatives and friends in the field, MUSAWA recorder a false application of the Court Appointed Lawyers’ service by the judge ……… and …….. under the chairmanship of Judge ……….. in the presence of the public prosecutor ……….. Noting that the court-appointed lawyer was defending the defendants ………. and ……….., who were accused of kidnapping and illegal possession of a firearm.
The court found the defendants guilty after asking them about hiring a lawyer to defend them in the crime they are accused of, as their answer indicated that they admit committing the mentioned crime and that the dispute between them and the victim was settled. Afterward, the court asked the hearing attendants if any of them would like to stand for defending them, then chose lawyer …………, but ended up pleading on the behalf of the silent lawyer, concluding that the defendants confessed guilt and ask the court for mercy”.
However, the court has continued on completing the litigation’s proceedings and delivered its Judgment in the case (The court sentenced the two defendants to a 3 years of suspended imprisonment, a fine of 700 NIS, confiscating of their weapons, paying 100 NIS as attorney's fees, while gracing them a period of 15 days to pay the fine), the defendants in their turn, turned to the court to ask for reducing the fine and attorney's fees, thus, the lawyer asked the court to consider him as a volunteer, which was well received by the court that thanked and asked God to bless him.
MUSAWA believes that the mentioned application of the “Court Appointed Lawyers” service, which recurrences in different levels of court when defendants do not have the ability to hire a lawyer to defend them, is an unlawful application that contradicts with the legislation governing it, as the court should have to make sure that the lawyer meets the time period provided by law, and to give him the right to study the case file and plead for the defendants, instead of the formulaic application of the right of defense.
MUSAWA points out that the Penal Procedure Law, under the section of prosecution protocols at the Courts of First Instance, especially article (244), which provides for “The court asks the accused if he has chosen a defense counsel and, if he has not done so because of the paucity of his financial resources, the president of the court appoints one for him from among the lawyers who have practiced at the bar for at least five years or who, before being admitted to the bar, worked in the Public Prosecution or in the judiciary for not less than two years, by this text, the court shall not take any action or proceed with the case before hiring a lawyer and enabling him to meet the defendant, prepare his plead and arguments duly, which makes reading out the charges and convicting the detainee before hiring a layer a violation of the fair trial guarantees and a restriction of the right of defense, which contradicts with the purpose of this service.
Concerning the attorney’s fees, article (245) of the Penal Procedure Law provides for “The court determines the fees of the council appointed pursuant to the preceding article and disburses them from the court registry”, as a way for reducing the financial burden on the defendants.
Based on the mentioned articles, and comparing them to the actual application of the “court-appointed lawyer” as a guarantee of a fair trial that is untied to the financial capacity, MUSAWA stresses on the importance of ascertaining the years of service required for court-appointed lawyers and to apply the core of this provision by giving the court-appointed lawyer the chance to study the case and defend the defendant based on the lawyer’s own jurisprudence, not the court’s, and to ensure the right application of this service as one of the most essential guarantee among the fair trial guarantees by paying the attorney’s fees from the court treasury, rather than imposing it as a judgment against the defendant that was in need for it, who would not have appeared before the court without the court if he/ she had the financial capacity.
Thus, we ask your Excellency to take the needed legal action and to keep us updated with the legal actions taken by your side to address the components of our memo duly.
With All Due Respect
Issued on 23/6/2019