Deprivation of Fair Trial Guarantees During Detention

2017-01-23

Gaza

Gaza / Core Program 2016-2019

His Excellency Public Prosecutor, Dr. Ismail Jaber


Subject: Deprivation of Fair Trial Guarantees During Detention


MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a complaint in writing, lodged by a citizen named Khader Mohammad Mahmoud Mas’oud, who was detained in Jabalia’s police station since 27/12/2016.


In his complaint, submitted to MUSAWA on 08/01/2017, the complainant states that he was detained in Al-Sissi prison of Jabalia’s police station for interrogation regarding his daughter-in-law’s complaint. During the interrogation, he became in a very bad health condition due to an alteration in his body’s sugar level. The police officer who was doing the interrogation, Abu Anas Abu-Aidah, rejected his transfer to a hospital for immediate treatment. The officer also refused to give him water and sugar, and he said shouting, “This is all acting. We have seen it before plenty of times”. The complainant remained lying on the floor for a long period of time.


The complainant added that the Head of Jabalia’s police station, Abdul Nasser Al-Makadmah, refused to receive any complaints from the aforementioned complainant against his daughter-in-law. He also prevented the complainant’s lawyer from attending the interrogation, and he kept the complainant waiting for hours for interrogation even though the complainant appeared at the station in person upon being summoned.


According to Article (14) of the Basic Law, “An accused person is considered innocent until proven guilty in a court of law that guarantees the accused the right to a defense. Any person accused in a criminal case shall be represented by a lawyer”.


As evident in the summons, attached to the complaint, there is no mention of the reasons why the complainant has to come to Jabalia’s police station. The only justification was: “for an issue urgent to us”. This represents a violation of the law, particularly Article (12) of the Basic Law, which states that “Every arrested or detained person shall be informed of the reason for their arrest or detention. They shall be promptly informed, in a language they understand, of the nature of the charges brought against them. They shall have the right to contact a lawyer and to be tried before a court without delay”. This was also stressed in Article (123) of the Penal Procedure Law No. (3) for the year 2001, which states that “Every detainee is entitled to contact his family and to consult with his counsel”, and Article (110) of the same law which mentions that writs of summons, attachment and detention should include the following: 1- The surname, given names and description of the accused whose attachment is required. 2-The crime with which he is charged and the applicable articles of the law. 3- His address in full and the period of detention, if any. The aforementioned writ of summons does not mention any of these elements.


By analogy with Article (114) of the Penal Procedure Law which mentions the investigator’s duty towards the accused in case he was in a poor medical condition: “If the health condition of the accused does not allow for his attachment, the deputy prosecutor conducts the investigation at his domicile and may order him moved to hospital for treatment when necessary, while placing him under guard if he decides to detain him”.  Also, Article (116) of the same law states clearly that “The officer in charge of the police station which receives the arrestee without a writ of attachment shall immediately investigate the reasons for the arrest”.


Article (127) of the Penal Procedure Law says that “every detainee or inmate is entitled to present a written or oral complaint”. Moreover, the failure to do what ought to be done by the officer in charge of the investigation towards the complainant given his health condition is a violation of Article (32) of the Basic Law, which states that “criminal and civil cases resulting from such violations may not be subject to any statute of limitations. The National Authority shall guarantee a fair remedy to those who suffer from such damage”.


We, MUSAWA, ask your Excellency to activate your oversight role regarding what happens in detention and interrogation centers and police stations to ensure that detainees can exercise their right to fair trial guarantees. Furthermore, we kindly ask you to examine and look into the contents of the complaint, while providing the complainant with fair trial guarantees by making him aware of the reasons behind the complaint lodged against him; interrogating him immediately while offering him the necessary medical attention; taking any oral or written complaint from him; allowing his counsel to be present during his interrogation; ensuring that his counsel has information about the interrogation notes; and announcing any actions taken by you regarding the matter. MUSAWA hopes that this memo is handled with seriousness and looks forward to your response, as appropriate.


With all due respect,


Issued on 23/01/2017

MUSAWA

 

 
Attachments:
-    A copy of the writ of summons
-    Medical report


Copy to:
-    Head of Jabalia’s police station
-    Directorate of Correction and Rehabilitation Centers
-    High Judicial Council

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