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Al-Haq Calls on Authorities to Respect Fair Trial Guarantees
08، Feb 2016

dr-abed-sattar-qasemAl-Haq has been worryingly following the case of Abd Al-Sattar Qasem, a political science professor at Al-Najah University, who was arbitrarily detained following a televised interview on 27 January 2016. Al-Haq is particularly concerned that the Attorney General and the procedures taken by the judiciary against Qasem were not in line with the Palestinian Basic Law, various legislation or international standards relevant to fair trial, as well as freedom of expression and opinion.

This case comes after Palestine’s accession to various international treaties and conventions, without reservations, including the International Covenant on Civil and Political Rights (ICCPR). This requires the State to adhere to international obligations within the context of its legislation and policies. As such, the State is required to provide information in its official reports on these conventions to demonstrate domestic remedies and their effectiveness in implementing rights and public freedoms.

The United Nations Working Group on Arbitrary Detention affirms in Fact Sheet No. 26, that deprivation of liberty is arbitrary in several instances: when arrest or detention allowed by domestic law is arbitrary according to international standards; when domestic law is ambiguous or too broad; or if the detention results from the exercise of other human rights such as freedom of speech, expression, belief or assembly. It is also considered arbitrary when the non-observance of international norms to a right to fair trial is of such seriousness as to give the deprivation of liberty an arbitrary nature.

Based on Al-Haq’s documentation and follow up, Abd Al-Sattar Qasem was accused of broadcasting false information against the State, verbally assaulting “higher statuses”, targeting the President of the State, slandering the public authority, and inciting and provoking conflict between sects. In light of this, and with all due respect to the independence of the judiciary, Al-Haq would like to provide comments on fair trial guarantees in the course of criminal proceedings, as follows:

  1. On Tuesday 2 February 2016 at 12:41 pm, three members of the Palestinian police arrested Dr. Abd Al-Sattar Qasem, 67, from his house in Nablus. Looking at Qasem’s home surveillance footage, the arrest process lasted less than two minutes.
  2. After authenticating and inspecting the surveillance footage, it is unclear whether the police officers presented an arrest warrant from the Attorney General to Qasem at the time. Article 112 of the Code of Criminal Procedures (3) 2001 states that the person carrying out the arrest process must present the detainee with the arrest warrant and inform him/her of its content. Otherwise, it is a breach of Article 11(2) of the Basic Law which states that “it is unlawful to arrest except by judicial order in accordance with the provisions of the law”. While this procedure is relevant to guarantees provided in the Basic Law, Code of Criminal Procedure and international standards of human rights before trial, law enforcement officers are also subject to the Attorney General’s control and supervision as per Article 20 of the Code of Criminal Procedure. In this sense, Al-Haq demands that the Attorney General ensures the implementation of this procedure and pursue necessary legal action in order to guarantee effective remedies.
  3. In her affidavit, Amal Al-Ahmad, Qasem’s wife, confirms that she was absent at the time of the arrest. Once she returned home and saw the surveillance footage, she asked her 28-year-old son Faisal to go to the Nablus police station to inquire about his father, Qasem. Upon arrival, Faisal was told that his father was not there and to open an “abduction file”. Ms. Amal also confirms that Qasem was not allowed to use his cell phone at the time of arrest, as seen in the same surveillance footage. She also stated that after several phone calls, a 5:30pm of the same day, the head of the Nablus police station, confirmed that Qasem was in fact being detained at the Nablus police station.
  4. Qasem was not allowed to contact his lawyer, or inform his family of the location of his arrest, in violation of constitutional rights and guarantees of the detainee as stipulated in Article 12 of the Basic Law, which provides that “every arrested or detained person shall be informed of the reason of their arrest or detention and shall have the right to contact a lawyer and be tried before a court without delay”. The Convention Against Torture, which the State of Palestine acceded to without reservations, also provides that upon arrest, the person must be informed of his/her right to contact relatives and hire a lawyer. This is also confirmed in ICCPR’s comments and Article 13 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Clearly, there were breaches of the Basic Law and international standards of human rights, including the Code of Conduct for Law Enforcement Officials of 1979. Since law enforcement officers are subject to the Attorney General’s control and supervision as per Article 20 of the Code of Criminal Procedure, Al-Haq demands that the Attorney General ensures the implementation of this procedure and pursues necessary legal action in order to guarantee effective remedies.
  5. Article 106 of the Criminal Penal Code confirms that: “1. the Attorney General must issue a summoning order for the accused for investigations. 2. If the person fails to appear or it is thought that he/she would escape, the Attorney General canan arrest warrant”. The Attorney General issued an arrest warrant for Qasem's arrest without first summoning him for investigation or considering whether Qasem, a well-known professor, would escape. According to the Basic Law and international standards, personal freedom is a right, and arrest is an exceptional procedure that limits that personal freedom. The right to a fair trial is also a basic human right and is the cornerstone of the international human rights system. In light of this, Al-Haq calls on the Attorney General to review Qasem's arrest procedure and examine whether Article 106 was implemented in a way that guarantees effective remedies. Al-Haq also hopes that necessary action is taken to refer the file to “judicial inspection” according to the procedures set forth in Resolution (2) 2006 on the Statute for “judiciary inspection” by the Attorney General and Resolution (3) 2006 on the works of “judiciary inspection” by the Attorney General.
  6. Al-Haq is gravely concerned with the proceedings that took place at the Magistrate Court of Nablus on 4 February 2016, in which a request (no. 51/2016) to “extend the arrest and the release” Abd Al-Sattar Qasem was examined. The Court decided, without opening an investigative file, to extend the arrest of Qasem upon the request of the Attorney General for a maximum of 15 days, and refused a request submitted by Qasem’s lawyer to release him. It is important to note that personal freedom is essential; arrest is exceptional to the norm and is a precautionary measure rather than a punishment. The absence of an investigative file breaches rights and guarantees of a fair trial. As such, Al-Haq trust that Qasem’s file will be referred to “judiciary inspection” in accordance with the procedures of the Supreme Judicial Council (4) 2006.

Every criminal trial reflects the extent to which a State respects its obligations toward human rights and fair trial guarantees.

On 7 February 2016, Qasem was released on bail until court proceedings are finalized and a court order is issued.