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Draconian Arrests for Facebook Posts and Prosecution in Kangaroo Court
[5 – 11 February] - Ref.: 30/2018
21، Feb 2018

Khalid Rashad Shbeita, 39, was detained on 8 July 2017 at approximately 3:00 pm, from his home in ‘Azzoun, Qalqiliya, for expressing his opinion and criticizing the Palestinian Authority on social media. He was detained on the basis of an arrest warrant issued against him by the Preventive Security Service. The force that arrived at Khalid’s house consisted of three military patrols. Khalid was detained at the Palestinian Preventive Security headquarters in Qalqiliya, where he underwent five interrogation sessions which primarily focused on his Facebook and social media posts.

The officer interrogating Khalid told him that he is not allowed to criticize political decisions nor the political leadership. Twenty-four hours after interrogation, Khalid was presented before the Public Prosecution, where his detention was extended for another 48 hours to continue the interrogation. On 11 July 2017, Khalid was presented before the Public Prosecution for the second time in the absence of his lawyer. On that day, the prosecutor decided to extend Khalid’s detention for fifteen more days. On 20 July 2017, Khalid was released from detention at the Preventive Force headquarters. However, his personal laptop and his cell phone remained in their custody and they were not returned to him. On 24 July 2017, Khalid appeared before the Court of First Instance in Qalqiliya, where he was charged with inciting sectarianism and racial strife against the Public Authority. The judge decided to delay the case until 22 October 2017 for unspecified reasons. Then, due to Khalid’s health condition and need to undergo open heart surgery, the case was again delayed until 22 February 2018. At around 2:00 pm on 7 February 2018, Khalid received a summons issued by the High Criminal Court for a hearing on 14 February 2018. Khalid was surprised that the case was referred from the Court of First Instance to the unlawfully established High Criminal Court.

Khalid retains the right to be treated as innocent until proven otherwise, as enshrined in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR),[1] which provides that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” Moreover, according to Article 106 of the Code of Criminal Procedure No. 3 of 2001, the body authorized to issue an arrest warrant is the Public Prosecution. As such, arrest warrants issued by the Palestinian security forces, including the Preventive Security Service, are unlawful under the Palestinian law. The charges brought against Khalid, which he continuously denied during the interrogation period and insisted that they were false, are in contravention of Khalid’s right to freedom of expression and opinion stipulated in Article 19 of the Palestinian Basic Law and the ICCPR.

Khalid was referred to the High Criminal Court and the Court of First Instance, facing the same charges of inciting sectarianism and racial hatred against the Public Authority before both Courts. First, the fact that Khalid was brought before two courts facing the same charges contravenes principles enshrined in the Palestinian Law that prohibit a person being punished twice for the same crime. This is also guaranteed under international law, namely under Articles 14, 18, and 19 of the ICCPR, and Article 19 of the Universal Declaration of Human Rights. It should be noted that according to the Palestinian Penal Code, the alleged crimes against Khalid should be tried before the Court of First Instance.

Second, the establishment of the High Criminal Court, one of the Courts to which Khalid was referred, is unlawful as it is based on a Law by Decree rather than an original law. According to Article 97 of the Amended Basic Law, the original law dictating the Court’s establishment must be passed by the Legislative Council, to ensure the independence of the judicial authority and courts. Furthermore, the Law by Decree on the High Criminal Court violates the provisions of the Basic Law, the Law on Judicial Authority, the Law on the Formation of Regular Courts, the Penal Procedure Law, as well as the ICCPR. It is worth noting that in 2006, the Law by Decree on the High Criminal Court No. (7) of 2006 was rejected by the Palestinian Legislative Council, mainly for violating fair trial guarantees – also given the absence of necessity requirement, and the extensive power granted to the High Criminal Court. Furthermore, the Court is granted broad powers by virtue of Article 6 of the Law by Decree on the High Criminal Court, which allows it to examine crimes “against the internal and external security of the State,” granting it jurisdiction over crimes that fall within the Court of First Instance hence broad powers.

In addition, Article 10 of the Law by Decree on the High Criminal Court of 2017 provides that the “Prosecutor shall be entitled to interrogate the accused before his lawyer is summoned in cases of flagrante delicto, necessity, urgency and fear for the loss of evidence, provided that the requirements of urgency are included in the record. The lawyer shall be entitled to have access to the statements of the accused when the interrogation ends.” Although it is copied verbatim from Article 98 of the Penal Procedure Law, this article is inconsistent with international human rights standards. In its Resolution A/HRC/RES/13/19, the Human Rights Council highlights that all suspects and accused persons, whether in custody or otherwise, have the right to have access to and consult with a legal counsel. These must receive assistance from a legal counsel during investigation by the police or examining judge even if they exercise their right to remain silent.

One of the mechanisms used by the State to protect and promote human rights guarantees, freedoms, and democracy is the formation of the courts. The establishment of regular courts must be carried out under a law approved by the Legislative Council, i.e. under an original law, and not through an exceptional law issued by an executive authority represented by the President of the Palestinian Authority, such as a Law by Decree issued by the President. The High Criminal Court was established in 2017 following a Law by Decree No. 24 of 2017, which was ratified by the President of the Palestinian Authority on 30 December 2017, and published in the Official Gazette on 18 January 2018. Article 2 of the 2003 Amended Basic Law of Palestine explicitly states that power should be exercised through these three branches based upon the principle of separation of powers.

The principle of separation of powers requires that the legislative, executive and judicial branches of government be separated and not concentrated in one category to allow for the independent and impartial rule of law. The three branches must commit to exercising functions within their jurisdiction and not exceed their authority in order to uphold human rights standards, preserve principles of democracy, and prevent tyranny and corruption. The legislative authority is responsible for enacting laws within the state, while the executive authority administrates these laws and public policies established by the legislative authority. As for the judiciary, its function is to ensure the application of the law and that its provisions are upheld by both the legislative and executive authorities.

Al-Haq condemns the Law by Decree on the High Criminal Court of 2017 as it violates the provisions of the Basic Law, ICCPR, the Law on the Judicial Authority, the Law on the Formation of Regular Courts, and the Penal Procedure Law, the wide and vast powers given to the court and general prosecution will strangle the human rights of the Palestinian people, as well as their right to hold opinions without interference, the rights to criticize and the right to be protected against any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, as well as the right of fair trial. Such violations and repercussions are clearly demonstrated in Khalid’s case above. Al-Haq calls on President Mahmoud Abbas to take immediate necessary action to repeal the Law by Decree on the High Criminal Court of 2017, given its infringements on fair trial guarantees, among numerous other human rights standards. Al-Haq further calls on the Palestinian authorities, including the security services to protect, promote and respect human rights standards, such as those enshrined in international conventions that the State of Palestine acceded to without reservations, including the ICCPR.

[1] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (hereinafter ICCPR). See also Universal Declaration of Human Rights, UN Doc A/RES/217 (A) of 10 December 1948, Article 11 (“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”)