West Bank & Gaza
Position Paper: Decree-Law No. (9) Of 2018 on the High Criminal Court, and Decree-Law No. (10) Of 2018 on Cybercrime
Having stated our views on the Decree-Law No. (9) Of 2018 on the High Criminal Court, dated 03/05/2018 and which came to replace the Decree-Law No. (24) Of 2017 on the High Criminal Court, as well as the Decree-Law No. (10) Of 2018 on Cybercrime, which was issued on the same date to replace the Decree-Law No. (16) Of 2017 on Cybercrime; and having studied the position papers issued by Civil Society Organizations (CSOs), the Palestinian Bar Association (PBA), and MUSAWA, we believe that the said decree-laws fail to meet the core demands of CSOs, including MUSAWA, and they still constitute a violation of the Basic Law, the international bill of rights, the laws regulating the judiciary and the justice system, the constitutional rules regulating human rights, fair trial guarantees, and the freedom of expression and privacy. This notion can be elaborated further:
First: Decree-Law No. (9) Of 2018 on the High Criminal Court
1. The essential prerequisite of “unavoidable necessity” is not valid.
2. The lack of purpose for its issuance, given that the proposed High Criminal Court will be composed of judges of the Court of First Instance, who already have jurisdiction to deal with crimes in accordance with the law on the formation of regular courts.
3. The issuance of the decree-law on the formation of the High Criminal Court overrides the will of the Palestinian Legislative Council (PLC), which had previously decided not to pass the decree-law no. (7) Of 2006 on the High Criminal Court.
4. The establishment of the Court contradicts the memorandum of legislative policy on which the decree-law was based. The memorandum states that the problem to be regulated by issuing a decree-law on the High Criminal Court is that there are no judges specialized in dealing with serious criminal cases, knowing that it has constituted of judges sitting on the Court of First Instance and not one judge was selected from outside the said court. In addition, the memo states that the problem to be solved by the issuance of the said decree-law is transnational organized crime! According to the Jordanian Criminal Law 1960, offences against internal and external State security include weakening national sentiment, stirring up strife, destabilizing civil peace, broadcasting news to influence the morale of the nation or impair the prestige of the State, causing insults, addressing the freedom of expression, and using social media. All of this does not even amount to the so-called cross-border organized crime. Furthermore, the memo deals with the length of litigation procedures and judicial bottlenecks, which is a problem all types of courts suffer from, and whose treatment does not necessarily require the enactment of special legislation. This problem has long faced other humanitarian communities and is not an emergency, and it must be addressed without causing prejudice to fair trial guarantees or the right to two-level litigation. Moreover, the memo mentions the increasing number of serious crimes and their impact on the stability and security of the society. This argument is not consistent with the fact that such crimes have not yet turned into a phenomenon, and that the Court of First Instance can deal with them without the need for a decree-law affecting fair trial guarantees and amending several laws which are by nature complementary to the Constitution, and therefore shall be amended only by a law issued by the legislative authority, such as the Judicial Authority Law, the Law on the Formation of Regular Courts, and the Penal Procedure Law.
5. Article (4) of the decree-law is not consistent with the Penal Procedure Law, as the Public Prosecution shall be represented by a deputy-prosecutor before the Court of Appeal while in the case of a lower-level court, like the High Criminal Court, the Public Prosecution must be represented by a Chief Prosecutor.
6. The jurisdictions of the High Criminal Court, which are stipulated by Article (5), in fact overlap with those of the Court of First Instance, which makes the establishment of the High Criminal Court unnecessary. Additionally, incorporating homicide (except for manslaughter) under the jurisdiction of the High Criminal Court is an unjustified extension of jurisdiction since acts under the definition of murder are very broad and may include beating to death, abortion leading to death, burning to death, etc. Not to mention that what has been mentioned in point no. 4 of this paper regarding crimes against internal and external State security, is an example of how the decree-law uses vague language which could allow for the violation of human rights, manifesting a culture that contradicts the culture and nature of the Palestinian State; the State which abides by the Basic Law, the Declaration of Independence, and the international bill of rights (including the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social, and Cultural Rights).
7. Article (6) of the decree-law grants the Public Prosecution extensive powers to take any precautionary measure it sees fit, knowing that the measures are vague and could be interpreted in many different ways. This is in addition to granting the Public Prosecution authorities which put at risk the fundamental rights of the citizens. This contradicts the law, disregards judicial control, and paves the way for the abuse of power. The said precautionary measures include but re not limited to travel bans and pre-arrival screenings, both of which may only be conducted under a judicial ruling rendered by a competent court.
8. The decree-law grants the Public Prosecution the power to keep someone in detention for four days, twice the period granted to it under the Penal Procedure Law. This wrests powers from the judiciary, violates the basic rights and freedoms of the people, amends a law that is an integral part of the Constitution (i.e. the Penal Procedure Law), and infringes Article (11/2) of the Basic Law which states that “It is unlawful to arrest, search, imprison, restrict the freedom, or prevent the movement of any person, except by judicial order”.
9. Article (16) of the decree-law is blatantly violates the two-level litigation principle in that is makes the Court of Appeal a court of law rather than a trial court. It states that appeal trials shall be held only if requested by the Attorney General or the sentenced person, which violates the internationally recognized fundamentals of litigation. Additionally, paragraph 2 of the same Article completely undermines the justice system.
10. Paragraph 3 of Article (16) of the said decree-law states that presenting evidence is not necessary in appeal trials unless the Court of Appeal decides otherwise. This is a grave violation of fair trials guarantees as it demolishes an entire level of litigation, and it puts the right to defense at risk, not to mention that it contradicts the Basic Law and the international conventions Palestine has acceded to.
11. Article (19) of the decree-law grants the High Criminal Court the power to proceed with the cases referred to it from the point at which they were left violates a judge’s conviction, which requires that the judge investigate and be presented with evidence by the judges who are meant to render a verdict in a certain case. Furthermore, it deviates from the judicial rule that has been agreed-upon among the judges of the Court of Cessation, which states that when a case is being considered by a competent court of a certain jurisdiction, and a new law is then passed stating that the subject of this case shall be transferred to a court of a different jurisdiction, this law shall not prejudice the jurisdiction of the first court which was in the process of deciding on the case.
Second: Decree-Law No. (10) Of 2018 on Cybercrime
Once again, the government has singled out the CSOs’ observations on the Cybercrime Law, exhausting the time and effort of CSOs under the pretext of having the willingness to initiate dialogue with the civil society in order to modify the said decree-law in a way that responds to the observations of CSOs and the Journalists Syndicate. The Decree Law No. (10) of 2018 on Cybercrime came devoid of the observations of the CSOs as well as of the fundamental observations set out in the correspondence between the UN Special Rapporteur. It also turned a blind eye to the observations of the CSOs, which were sent in an official letter to Dr. Hanan Ashrawi, a member of the Executive Committee of the PLO, and took the responsibility of managing a national dialogue that brought together representatives of the government and CSOs. This dialogue went on for a long time to no avail, as the Decree-Law No. (10) Of 2018 came matching in essence with the Decree-Law No. (16) Of 2017 on Cybercrime, which has received widespread community and legal opposition. Our observations on Decree Law No. (10) Of 2018 are the same as those we presented regarding the Decree-Law No. (16) Of 2017, which were submitted to the government, the PLO’s executive committee, and announced to the public.
Accordingly, in light of these hurdles and loopholes, the Decree-Law No. (9) Of 2018 on the High Criminal Court, and the Decree-Law No. (10) Of 2018 on Cybercrime, both do not respond to the demands of CSOs, which urges us to reiterate our demands to rescind the said decree-laws and ask our partner organizations, particularly the PBA and the Journalists Syndicate, to act upon them once more.
Issued on 10/05/2018