Violating the Right to Access to Justice and Fair Trial Guarantees

2016-12-15

Ramallah

West Bank / Core Program 2016-2019

MUSAWA received a letter from His Excellency Public Prosecutor stating that the Public Prosecution has responded to MUSAWA’s memo by (1) giving an order to remove the announcement of Jenin’s Prosecution regarding the procedures of reviewing release requests,(2) issuing instructions for a quick handling of release-on-bail requests (on the same day), and (3) issuing an order to rehabilitate the glass partition separating the Public Prosecution’s employees and its visitors so as to ensure that visitors can communicate with the employee in an appropriate direct manner without prejudice to their dignity. The Public Prosecutor confirmed the issuance of these decisions in his meeting with MUSAWA’s Legal and Technical Adviser today morning. Moreover, Jenin’s Prosecutor spoke with a member of MUSAWA’s Board of Directors, Ghassan Massad, over the phone stating that Jenin’s Prosecution adheres to the instructions given by the Public Prosecutor in response to MUSAWA’s requests. He even invited Mr. Ghassan for another meeting to examine possible mechanisms for addressing complaints which MUSAWA sends to the Public Prosecution.


Following is MUSAWA’s memo:

 

Esteemed Public Prosecutor, Dr. Ahmad Barrak


Subject: Violation of the Right to Access to Justice and the Right to Fair Trial Guarantees


MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession would like to extend their greetings, further to the phone call you had with MUSAWA’s Legal and Technical Adviser concerning the sign Jenin’s Prosecution hung publicly in its headquarters saying, “Dear lawyers and citizens, please inquire about release requests that have been submitted to the Public Prosecution only in court”.


This action stirred negative responses among both lawyers and litigants. It reflects a prejudice to the right to access to justice and the right to fair trial guarantees. The delay in the Public Prosecution’s response regarding release requests submitted to competent courts has negative consequences, including the unlawful detention of citizens and depriving the detainee from his right to be free, granted to him by the Constitution considering that freedom is the original state while detention is an exception- not a punishment. Pursuant to the Penal Procedure Law, the legislature philosophy is founded on the principle that humans are originally free and their detention or arrest is an exception that must come from a competent judge following a careful review of the investigation file, the grounds and defenses stated by the person who is requesting the release or their representative. Furthermore, the delay in responding and referring the investigation file to the competent court obstructs the work of the lawyer and negatively affects the fulfillment of his duties to defend his clients and bring them justice in accordance with the law and as quickly as possible.

 

Speedy justice is a feature of a State of law. Originally, the accused is innocent and citizens have the right to equality before the law and the judiciary and to fair trial guarantees. The realization of these rights is in itself a fundamental intuitive right protected by the Constitution and a tool to achieve social safety and security. The aforementioned announcement contradicts with the requirements for protecting the rights of litigants and, in actual fact, represents an unjustified prolongment in the litigation process, needless to say that this action may result in the enforcement of imprisonment sentences before the guilt is determined and the final judgment is pronounced.


Esteemed Public Prosecutor: Many regular courts have handled release requests as follows: if the release request is submitted to the court’s Registrar in the morning before 12:00 PM, the Public Prosecution -including governorate prosecutions- express an opinion regarding the request, attach the investigation file to the request and refer it to court before 1:00 PM on the same day. In case the request was filed after 12:00 PM, the Prosecution expresses an opinion, attaches the file to the request and refers it to court in the morning of the following day. This indicates that the aforementioned announcement contradicts the current procedures in courts for dealing with release requests, needless to mention the negative effect this leaves on the public’s trust in the impartiality and integrity of the Prosecution and its cooperation with the citizens as a representative of the public right, justice and the rule of law.


According to what has been mentioned in detail and discussed with you over the phone, MUSAWA hopes that your Excellency would fulfill your promise to address this issue by instructing Jenin’s Prosecution to remove the aforementioned announcement immediately, to abide by the existing procedure regarding how to handle release requests, to refer the investigation files to the court according to the agreed dates between courts and governorate prosecutions without an unjustified delay or procrastination, and to deal with lawyers as well as the public as per the professional Code of Conduct. This will eventually promote the trust citizens hold for the Public Prosecution and the role it plays as an honest adversary in criminal cases.


With all due respect,

 

Issued on 15/12/2016


Chairman of the Board of Directors
          Advocate Yasser Jaber        

 

 

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