Ramallah – February 8, 2016 – Al-Quds.com – Walid Abu Sarhan
Acting Attorney General Dr. Ahmad Barrak stressed that there is no organized crime in the Palestinian territories. He clarified that the crime rate in Palestine is less than that in neighboring Arab countries. He also stressed that the internal division has negatively affected unity in the Palestinian public prosecution's work in the West Bank and Gaza Strip. He also addressed the public prosecution's role and mandate, describing it as the society's conscience. Moreover, he addressed the steps taken by the judicial system in Palestine.
Following is the lengthy conversation Al-Quds had with Dr. Barrak in his office:
* How do you perceive the judicial system in Palestine?
- First of all, we must focus on the importance of continued coordination and complementary work between all institutions in the justice sector, particularly the key role of the Bar Association as well as civil society organizations, in order to reach recommendations that would contribute to drafting policies and strategies to prevent crime and duly implement the law on all.
I believe we have moved forward in this regard; we now have a qualified High Judicial Council, a public prosecution, a ministry of justice, supporting agencies for the justice sector such as forensic medicine and technical experts not to forget the vital role of judicial police (law enforcement agencies). We have taken a quantum leap in the past 20 years in both Gaza Strip and the West Bank. There are countries that have not yet reached the level we are at now. Therefore, I can honestly say that we have an efficient and well respected judicial system, which has strategic plans that are developed continuously. Using modern technology in storing, printing and archiving files is proof of the advance level we have reached. Thus, we are in a process of continued development, and we benefit from the Arab countries who provide us with continued support in developing the judicial system. It is worth noting that there is strong political will from H.E. President Mahmoud Abbas to promote the rule of law principle, and to support all components of the judicial authority.
* There are accusations to the public prosecution that its youth and inexperience have contributed to the loss of many citizens rights. How would you respond?
- The public prosecution is part of the judicial authority and one of its components, it represents the society in order to maintain its security and safety and to defend it, combat and investigate crime, and prosecute perpetrators and refer them to the courts. The public prosecution is also responsible for representing public right before the judiciary, and the right to file and conduct a penal action is vested exclusively in the Public Prosecution. It follows-up on cases before courts until a final decision is made (a final decision that may not be appealed) and monitors the enforcement of such decisions. Therefore, the public prosecution has the power to investigate, charge and enforce decisions, which makes its role unique compared to other prosecutions in neighboring countries. However, important procedures that affect freedom are supervised by the judiciary.
Given the prosecutors judicial work and mandate, they are part of the judicial authority as the law gives them the same status as judges. Prosecutors' powers are given by the law. The relation between the public prosecution and the executive authority is strong since it supervises the work of judicial police. The public prosecution practices the mandates provided for in the law, and it supervises prisons, detention centers and the enforcement of penal decisions. It also receives and investigates complaints, and it refers the accused to the judiciary in accordance with its mandate. The public prosecution works towards achieving a set of objectives in accordance with its mandate and in furtherance of its mission.
Accordingly, the public prosecution has a broad scope of powers in Palestine that give prosecutors a pure judicial task to guarantee integrity, impartiality and transparency.
Going back to your question, we have highly experienced prosecutors who have years of accumulated experience and who have received trainings locally and abroad. Being an honest adversary in trials, there is no harm in losing cases and in the acquittal of the accused. We are obligated to preserve cases should there be insufficient evidence, and we ask the court for the acquittal of the accused if our evidence is not accurate.
* With whom does the Public Prosecution deal?
- The public prosecution represents public right in criminal cases, and it also represents the government in civil cases filed by or against the government. It also represents the government in administrative cases, i.e. in should there be an administrative decisions issued by the government against persons, institutions or civil servants, the public prosecution represents the government in cases filed by or against the government with relation to such decisions. Therefore, the public prosecution deals with persons who have interest, thus I cannot decide from this perspective, I can only decide though the public prosecution's application of the criminal policy in the country in combating crime and respecting the rule of law principle. In other words, we ask ourselves the question whether the public prosecution applies the rule of law principle without discrimination to gender, color, etc.? this matter needs to be measured objectively through the rule of law principle, which the public prosecution applies fairly given that all are equal before the law. Everyone must respect this principle, and whoever violates it is violating the law in the first place and violating the rights the public in the second place.
* Dr. Barrak, what is the public prosecution's mandate?
- The Palestinian public prosecution's mandate is similar to that of many Arab systems such as Egypt and Jordan, and many European systems such as Germany and France. That being said, the public prosecution is responsible for public cases and it is the society's conscience, meaning that it represents the society whose security has been affected by crime. Moreover, it maintains the rights of the victim through several methods, most importantly through achieving justice by penalizing the perpetrators, which is the first mandate. The second mandate is that the public prosecution represents the government in civil cases filed by or against it. And the third mandate is that the public prosecution handles administrative and constitutional cases. Accordingly, the public prosecution has a broad scope of powers in Palestine that give prosecutors a pure judicial task to guarantee integrity, impartiality and transparency.
* You mentioned that the public prosecution is the society's conscience, is our society's conscience independent in its work without any involvement from here and there?
- There is independence. The public prosecution is independent in its work from any intervention by the executive, legislative or judicial authorities. This embodies the judiciary independence concept, as the prosecution is part of the judicial authority and its work is judicial and not administrative. This is why the Palestinian legislator has put the public prosecution at the same level with the judiciary in the basic law under the judicial authority and not the executive authority. There is, however, a problem that the public prosecution's identity is not identified, namely in the law in the judicial authority; is it a pure judicial authority, thus falls under the high judicial council? Or is it an executive authority making it part of the Ministry of Justice? Or is it a mixture of both? The law on the judicial authority and other laws in force indicate that the public prosecution in Palestine is closer to the judicial authority than it is to the executive authority. We hope that the law on the judicial authority is amended to clearly state that the prosecution is part of the judicial authority, as is the case in other countries such as Jordan and Egypt, in order to maintain its independence. Thus we can see an international approach to give the public prosecution complete independence through issuing a special law for it, Qatar comes as an example as it has developed a special law for the public prosecution setting it on the right path through giving it independence.
There are a set of challenges that faced and still face the public prosecutions. Such challenges need to be addressed by governmental bodies from outside the public prosecution, these challenges are as follows:
First: the withdrawal of several donor projects that currently fund specialists and experts as well as several programs and activities at the public prosecution.
Second: the shortcoming in the public prosecution's structure which cannot currently absorb a number of positions that were created after the structure was adopted, and the organizational structure needs to be amended to include the new sections such as the Monitoring and Evaluation Unit and the Gender Unit under the Planning Department.
Third: despite providing the public prosecution with a number of administrative staff, there still remains a shortage in administrative staff at the public prosecution. the Public Prosecution statistics show that the existing number of staff does not meet the workload at district prosecution.
Fourth: the political challenge imposed by the general conditions in Palestine, including the Israeli occupation practices and the internal division which affect the public prosecution.
* A new specialized prosecution was recently established at the Attorney General Office to handle government cases, why was it established? And are there other new prosecution offices on the way?
- Yes, after reviewing the Law on Government Cases No. 25 of 1958 and its relevant legal amendments, a specialized prosecution to handle government cases at the Attorney General Office was established on 26 January 2016. This prosecution is responsible for supervising all cases and claims received by the Attorney General Office or District Prosecutions, courts, ministries, and other relevant Palestinian institutions. Prosecutors who are appointed by the Attorney General upon the recommendation of chief prosecutors at district prosecutions will handle such cases before courts. All ministries are to be addressed with relation to government cases through the government cases prosecution on behalf of the AG and through his signature, and a special registry will be opened to register incoming and outgoing correspondences of this prosecution.
There are approaches in the near future to establish specialized departments for district prosecutions such as the human rights and international cooperation department; the technical office; the family protection department; the establishment of a specialized Juveniles Prosecution, particularly after H.E. the president adopted the law on the protection of juveniles which is in line with the international principles for the protection of children's rights; Cyber-crimes prosecution; enforcement office; and the judicial inspection office. The law on the judicial authority stipulates that the High Judicial Council is responsible for judicial inspection and we hope that a decision is made in this regard soon. A special unit, however, will be established for complaints against the prosecution. it is worth noting that we currently have specialized prosecutions such as the anti-corruption prosecution and the economic crimes prosecution.
* Is there unity in work between the public prosecution in the West Bank and Gaza Strip?
- Yes there is, but the current division was reflected on the unity in the public prosecution's work in the West Bank and Gaza Strip. This division has also affected the public prosecution staff in Gaza Strip and their work attendance. We hope that in the near future, under the consensus government, our prosecutors get back to work. However, there is complete coordination between us and public prosecutors in Gaza Strip, but there remains challenges in benefiting from the expertise and capacities of our staff in Gaza Strip and the West Bank. There are plans to provide trainings to qualify our prosecutors in Gaza strip through the Palestinian Judicial Institute in the West Bank.
* The public prosecution's mandate includes inspecting prisons and detention centers, is this done?
- The Penal Procedures Law No. 3 of 2001 in force, particularly article 126 of the law, the law on the judicial authority and the law on rehabilitation centers and correctional facilities address this matter clearly. There are instructions for chief prosecutors at secondary prosecution offices to conduct sudden visits to correctional facilities to ensure that the detention conditions are legal. Chief prosecutors receive complaints from inmates. Such complaints are looked into by chief prosecutors in accordance with article 127 of the same law. There are a number of approaches and decisions that will be taken in this regard that fall in line with human rights principles and the law with relation to conducting regular visits to such centers. In this framework, I would like to note out my appreciation to the police, security agencies and correctional facilities officers for the quantum leap in their work and for maintaining the rights of inmates and applying the law.
* There are accusations that there is arbitrary use of the prosecution's mandate, particularly in tapping communications of the accused?
- The public prosecution's mandate is identified in the law, namely the Palestinian Basic Law and the Penal Procedures Law. The public prosecution cannot violate its mandate being a protector of freedoms. Such allegations are inaccurate because the law stipulates that the Attorney General or one of his deputies must obtain a written permission to tap phone calls or record conversations of the accused with relation to a certain incident for a period of fifteen days in felonies or misdemeanors that are penalized by imprisonment for at least one year. If this procedure is not followed, any information taken is deemed null and may not be used, and those who violate such a procedure may be held accountable. Therefore, the public prosecution's mandate in this regard is clear. There are no grounds for such an allegation.
* What is the crime rate in the Palestinian territories?
- We gave no organized crime, and the crimes that take place are regular crimes such as murder, theft and fraud, which is similar to any other societies where crime rate drops and rises. Crime rate depends on the socioeconomic and political conditions in any country. Therefore, socioeconomic and political stability are very important to maintain the society's security and achieve social development.
* How do you rate the Palestinian territories in comparison with neighboring countries with relation to crime?
- Crime rate in Palestinian territories in much less than that in the Arab World and the World as a whole. However, our context is different than other contexts due to the Israeli occupation and economic instability. Social cohesion and religious beliefs have strongly supported combating crime.
* What is your message to the Palestinian public?
- My message is the mission of the public prosecution "A professional, effective and independent Public Prosecution, which is in line with the justice sector institutions, and able to ensure fair and expeditious proceedings, whereas investigation and pleading before courts are subject to standards of transparency, impartiality and neutrality. It is an honest advers ary, working for the promotion of the principle of the rule of law, equality and separation of powers in the Palestinian society." I would like to end by saying that the public prosecution represents the society within borders that we cannot overstep. Its responsibility is to apply the law. The public prosecution and the Attorney General office are always open to receiving complaints. We are looking forward to prepare and organize a public prosecution that best serves the Palestinian people, this will not be a personal effort, it will rather be the combined efforts of all prosecutors including former and future ones through the president's support towards applying the rule of law principle on all.