PCHR Organizes Workshop on Death Penalty and Fair Trial Guarantees in Palestine
On Sunday, 11 October 2015, the Palestinian Centre for Human Rights (PCHR) organized a workshop on “Death Penalty and Fair Trial Guarantees in Palestine” in Lighthouse Restaurant in Gaza City. Legal experts, representatives of civil society organizations and political factions attended the workshop.
Major Rami ‘Ashour from the military judiciary, talked about the Palestinian Authority’s (PA) commitment to the judicial guarantees and measures in case a death sentence issued by the military courts. He divided the guarantees into two sections:
The first section was about the guarantees of investigation, inquiry and trial before military courts. He addressed these guarantees in general according to the 1979 Revolutionary Penal Code. He talked about the immediate hearing of the accused person by the judicial enforcement officer, the right of the accused to appear before the judge, the right to hire a lawyer and write down all his statements in an official record, except in case of necessity and urgency as the Military Prosecutor has the right to question him without the lawyer’s presence; Voluntary confession; equality between opponents, defense and military prosecution; and publicity of hearings. Major ‘Ashour also noted that a death sentence is unanimously issued, and the accused person has the right by the force of law to appeal the sentence before the High Court.
Major ‘Ashour discussed in the second section the offenses punishable by the death penalty. He said that it is each offense related to the security of the state according to the 1979 Revolutionary Penal Code, which is in force, before the military courts in both the West Bank and Gaza Strip in addition to the crimes of collaboration and armed insurrection and whatever incites people against the revolution. He also added that only juvenile accused persons, pregnant women and mentally disordered persons are the only ones excluded from death penalty.
Major ‘Ashour also addressed in this section the criteria of applying death penalty in the crimes of collaboration and involvement in a premeditated murder in general. The most important of which is that the person should explicitly confess committing murder and support it with material evidence; carrying a weapon and joining the enemy; collaborating and seriousness of information provided in this context; and causing physical damage to military buildings and installations.
At the end of his intervention, Major ‘Ashour emphasized that existence of such standards leads to issuance of a death penalty according to strong and clear evidence leaving no room for doubt and interpretation regarding issuing a death sentence. Executing of a death sentence must take in consideration public morals and the sentence must not be executed in public places. In the end, he stressed that he supports the death penalty, which is consistent with Islamic Sharia, the reality and the existence of Israeli occupation in the Gaza Strip.
Mohammed Fahmi al-Najjar talked about his practical experience regarding the cases followed by the military judiciary. He empathized that there are many legal loopholes giving an example from his cases that are considered by the military court about a person who was arrested and accused of murder and collaboration with a hostile entity in violation of law. He added that during the investigation, the accused person was subject to torture for more than once and then transferred to the hospital. In the beginning of the hearings before the military court, his client denied all the charges against him, and the trial process continued for more than three years. Moreover, in the last hearing, the court issued a decision to open the pleading to clarify the facts of the charge. Before issuing the sentence, the Israeli forces carried out their latest offensive on the Gaza Strip in 2014, and the aforementioned defendant was executed in violation of law.
Lawyer al-Najjar called upon the court in the first hearing held after the defendant was executed to open an investigation into his execution, but the court issued it decision to close the case due to the death of the accused person.
Al-Najjar stressed that there are a lot of legal gaps in this case especially that the defendant is civilian who was tried before a military court and he denied all the charges against him. He added that the investigation procedures were inadequate.
Chancellor Ashraf Nassrallah, Judge at Gaza High Court, talked about the fair trial guarantees in litigation. He highlighted the significance of applying these guarantees according to the international conventions and laws because they guarantee human rights, including the right to life that is one of the most prominent ones. The accused person should feel that his trial is fair enough through his charges. Nasrallah stressed that the fair trial conditions are achieved when people say they are fair and when they are applied within the framework of an independent judicial authority. Moreover, the fair trial guarantees do not start by filing the lawsuit, but by the beginning of the pre-trial that includes the arrest, search, investigation and confession. He explained that the slowness of the court proceedings relevant to death penalty is attributed to the small number of judges, lack of criminal laboratories and enhanced forensic medicine that precisely identifies the material evidences, and physical conditions of courts including, the buildings and locations.
Lawyer Sobhiya Jom’a, director of Documentation and Complaints Unit at the Independent Commission for Human Rights (ICHR), addressed the fair trial guarantees relevant to the death penalty, explaining that the world remains divided between supporters and opponents for and to the death penalty. However, the world in genera; is working on the abolition of death penalty.
Lawyer Jom’a added that ICHR has received about 1,197 complaints relative to the fair trial guarantees; 547 of which are in the Gaza Strip and 650 ones are in the West Bank. These complaints referred to trying civilians before military courts, the nullity of arrest and house searching procedures, preventing lawyers and families from contacting the detainees, and torture and degrading treatment during interrogation. Moreover, ICHR documented about 163 death sentences from 1994 until 2015; 133 of which were in the Gaza Strip and the 30 others were in the West Bank. In addition, from 2007 to 2015, the military courts in the Gaza Strip issued 69 death sentences, 14 of which were in absentia, and 20 death sentences were executed in violation of the law and without the President’s ratification.
Lawyer Jom’a eventually emphasized that all death sentences violate the law for the unconstitutionality of the Revolutionary Penal Code 1979. She demanded the President not to ratify death sentences and the judicial system to observe conditions in jails.
Lawyer Ibrahim Sourani, from PCHR’s Legal Aid Unit, facilitated the workshop that was organized to shed light on the judicial guarantees that ensures the accused person’s right to defense in crimes whose penalty can amount to death in every stage starting with the preliminary investigations and evidence collection to the issuance and application of the judgment, because the preliminary investigations play a major role in the issuance and execution of the death penalty.
At the end of the workshop, there was a long discussion on the death penalty between the supports and opponents.
PCHR demanded the participants by the end of the workshop to exert joint efforts to re-consider the death penalty because it harms the human dignity and inflicts serious negative impact when applied in view of the severe lack of potentials needed for precise criminal investigation.
PCHR explained its position from the death penalty and the fair trial guarantees and stressed the following:
- The importance of issuing a Presidential decree to abolish the death penalty before the Palestinian courts until the Palestinian Legislative Council (PLC) is convened and annulling the death penalty by regular legislative means;
- The PA must comply with its obligations stipulated in the International Covenant on Civil and Political rights with its capacity as a State Party to the Covenant by amending its legislation and taking necessary measures to guarantee that, especially those related to the application of the death penalty;
- The Public Prosecution must investigate the crimes of the extra-judicial executions and prosecute the perpetrators. The Military Prosecution must also immediately stop referring civilians to military courts;
- We call upon the PA, until the PLC convenes, to abolish the 1936 Penal Code, 1960 Penal Code and the 1979 Revolutionary Penal Code and replacing them with a new unified penal code that is in conformity with the international standards and does not apply the death penalty; and
- We call upon the PA to sign on the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
It should be mentioned that this workshop is part of a project implemented by PCHR in cooperation with the Representative Office of the Federal Republic of Germany to the Palestinian Authority.