Position Paper: Issues and Obstacles Affecting Citizens' Right to Access to Justice Must be Addressed Immediately
In the framework of the oversight role played by MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession, the center used to send memos to the Attorney General in Gaza, Adviser, Diaa Al-deen Al-Madhoun, asking his Excellency to take the suitable legal action to account the perpetrators of violations that affect the citizens’ rights to access to justice, equality before the law and the judiciary, and enjoying the guarantees of a fair trial, and to take the legal action concerning the Police’s adherence to the limits of its competences and powers, its dependence on the Public Prosecution, and holding its officers accountable in case they act beyond their competences or violate the constitutional rights of citizens.
According to the sent complaints, memos, and the follow-up, there are legislative issues and obstacles caused by issuing and enforcing the Code of Military Justice No 4 of 2008 in the southern governorates, which, in article three of its 63rd article, has subjected the civilian police to the military judiciary in case any of its officers committed violations or crimes within their functional capacity, the thing that contradicts with the provisions of article 54 of the Code of Criminal Procedure No 3 of 2001, which limits the power to file and proceed with criminal proceedings against public employees to the Attorney General or one of his/her assistants, especially in the case of violations or crimes committed by an officer of the judicial police according to the clearly stated provisions of article 54 of the mentioned code, noting that the Code of Criminal Procedure No 4 of 2008 has repealed this article without a constitutional enrichment.
This repeal raised a number of issues and obstacles that impede ensuring the citizens’ right to equality, access to justice, and holding their rights’ violators accountable on several counts. The most prominent issue among all is subjecting the civil police to the competences and powers of the military judiciary, in addition to considering its civil function as military, in contradiction with the law and the reality on the ground, as well as excluding it from the jurisdiction of the civilian Attorney General and deepening the police’s duplication of work as it is done under the supervision of the Attorney General, but the power of accountability over their work was referred to the military judiciary, amid the absence of an authoritative background to rule on the conflict of jurisdiction between the military and civil prosecutions, and amid the complexities in the proceedings and the variation in the legislation governing the civilians’ behavior, and those governing the militaries’ behavior, which would pave the way to impunity and would impersonate a contradiction in references, the thing that negatively affects the performance of the civil public prosecution and the formal judicial system, and thus directly affects the litigators’ right to enjoy the guarantees of a fair trial and the right to access to justice.
Risks resulting from such issues and obstacles also include releasing the police from its dependency on the Public Prosecution, which means acting by its own vision, and deepening the contradiction in the applications of the military judiciary’s competences, especially that the litigators, who might complain about misuses or abuses of authority by the judicial police, are civilians, and the subjects of their complaints are related to civil matters caused by police members while performing their civic duty, noting that adjudicating and ruling on such matters is the formal judiciary’s competence, according to the provisions of article 4 and 6 of the Code of Military Justice.
Facing these issues, obstacles, and threats on domestic peace and community stabilization, and their effects on the rule of law principle, and ensuring the enforcement of the accountability principle, and protecting the right to access to justice, and empowering and activating the role of the civil public prosecution, MUSAWA asks all the competent bodies to take the necessary legal and administrative actions to ensure the judicial police’s dependence on the civil public prosecution, and to ensure that it sticks to the limits of its authorities, and to account the police officers for any legal or administrative infringements, which shall be carried out by the public prosecution or the civil judiciary. MUSAWA also calls all civil society organizations, the Palestinian Bar’s Association, all the rights activists and academics, the Supreme Council of Justice, the Public Prosecution, and any persons concerned, related, or interested, to join our call in the interest of justice and in order to safeguard the rule of law principle.
Issued on 17/3/2019