Compromised Innocence

Reporter: Manar Hafez

When Jordan’s Criminal Court exonerated Zakaria of killing his sister, who was later found to be alive, he was not thrilled.

The decision was made a year and a half after his arrest, but it brought him no comfort. He remembered the day his family announced the disappearance of his sister, who was married to an Arab national. Fifteen years have passed since then, but the details and ramifications still haunt him.

Zakaria, then 27, recalled how a police station in the city of Russeifa called and told their father that they found his missing sister. They did not tell him that she was found murdered. As soon as the father arrived at the station to collect his daughter, he was arrested. He was released days later but Zakaria was then jailed in Jerash and charged with his sister’s murder. After 10 days in custody, he faced the public prosecutor, said his lawyer, Rami Al Hamawi.

In exonerating Zakaria, the court’s raised suspicion that he had confessed to police only under duress. Without the confession there was no proof linking him to the charges.  

Zakaria remembers standing stunned, listening to the death sentences being read to those who were tried before him for other cases. His ordeal ended suddenly when his father began shouting “Allah Akbar” (God Is Great) accompanied by lots of noises from those present in the courtroom. He only accepted the truth when a policeman told him: “What is wrong with you? Rejoice, man, you have been exonerated.”

Behind Bars Prior to Sentencing:

Zakaria’s case, subjected to arrest and later facing unsubstantial charges before being acquitted. is not unique. Jordanian laws do not include financial and moral compensation for false imprisonment either.

Lawyers and Human Rights Commissions believe that the government does not abide by the rules of international treaties it has ratified. The Jordanian law lacks a provision to compensate those wrongfully arrested and later acquitted. Repeated demands and proposals to parliament for such a provision have been in vain. However, lawyers base their defense of those victims on article #256 of the Jordanian Civil Law in addition to articles in international treaties.

Many don’t even demand their rights, either because they are unaware of the procedures they need to follow or because they have lost hope of getting compensated. Lawyers and victims say some simply want to avoid any court ever again.

Zakaria knocked on the doors of officials and of the National Center for Human Rights  to no avail. “Though I was acquitted, and in spite of my family’s joy, people did not stop accusing me as they continue to believe that there is no smoke without fire.” Zakaria said he developed a complex over the situation and he has put off getting married.

Detention is the Rule

A 2012 study carried out by the Justice Center for Legal Aid showed that about one third of detainees do not get convicted for charges laid upon them, yet they get no compensation for  time in detention. Moreover, one in every five individuals’ detention period prior to their court ruling ends up being longer than the duration of their final court sentence.

This reporter documented 13 similar cases for persons exonerated by the courts after they were held on charges including murder, rape, embezzlement and attempted rape. Their detention period ranged from days to as long as one and a half years. In one case, a school principal filed a compensation case after she was detained for 17 days which ended with her exoneration.

Under the Right to Access Information Law a request was filed for the number of judicial detainees, the types of cases and those who were found innocent and guilty and the final number of definite innocent decisions issued by the Ordinary Courts since 2011 with the Ministry of Justice.

No reply was received within the one-month deadline.

According to article #114 of the Criminal Procedures Law, “Unless the imprisonment period is extended by an order of the special court on demand by the public prosecutor, if the case hasn’t been referred yet to the court, and if there is an interest which requires more detention. The period of detention and extension in misdemeanor cases should not exceed four months, and in felony cases, it should not exceed one fourth of the imprisonment period.”

Hadeel Abdulaziz, director of the Justice Center for Legal Aid, said suspects are detained out of fear that they might endanger the lives of others or they have disrupted investigations by tampering with evidence or with witnesses or fear they will run away. Abdulaziz insisted that it is imperative to justify explicitly the decision to detain someone, and although detention in the  interest of an investigation is considered a general justification it is not enough. She criticized certain practices, such as “detaining those who cause a traffic accident in line with the social custom to cool the anger of the family of the person who was injured in that accident.”

Lawyer Noor Al Imam said the objective of detaining someone is to preserve evidence. However, without justification and criteria it can be viewed as punishment. The annual number of detainees continue to fluctuate according to the National Center for Human Rights (NCHR). Pundits said the numbers are still high. The chart below shows the number of judicial detainees between 2011 and 2015, according to NCHR.

In spite of the amendments made to the Criminal Procedures Law #19 of 2009 specifying crimes that require detention and the conditions required to detain, NHCR reports continue to show a rise in the number of judicial detainees compared to those who are ultimately sentenced.

The acting NCHR  commissioner, Nisreen Zureiqat, confirmed that the major reason behind that rise in number is the increasing number of detention orders made by the public prosecutors. They order detention at early stages of investigation due either to  slow trial procedures and summoning of witnesses or to deliberate protraction of trials by the lawyers.

The decision of any Public Prosecutor to detain a suspect in a misdemeanor case is subject to contention before the First Instance Court which is authorized to refuse or accept bail. The First Instance Court rarely refutes a Public Prosecutor, thus the detained lose their chance for bailed in the absence of a secondary reference.

Of  20 lawyers questioned, eight said that over the space of two months, they deal with one to five cases involving detention but all cases were acquitted. Five lawyers claim they deal with five or more of these cases, while the other seven said they have never dealt with such cases.

At the State Security Court

The possibility of getting compensation lessens in cases  adjudicated by the State Security Court (SCC). Ahmad was detained for more than eight months before he was put on trial by the SSC on charges of “carrying out activities disturbing the general order and exposing the safety of society and its security.” Legal consultants told him that  Jordanian Law lacks provisions to guarantee any sort of compensation. He said that the first night in detention was the hardest. “My twin babies were in the premature room at the hospital, their mother was tired, and I couldn’t look after them,” he recalled.

While happy to be acquitted,  Ahmad could not forget his suffering in detention. He knows he is luckier than many others who lose jobs and are shunned because of being detained.

Criminal  lawyer Salah Ja’abbir documented cases where detention  exceeded two years before the accused were exonerated. Lawyer Hikmat Al Rawashdeh said that one defendant was detained for nearly two years.

What About Compensation?

Seventeen days in detention turned the life of a school headmistress upside down after 20 years of service. Mona was referred to the public prosecutor on charges of abusing her position for embezzlement. In the end, she was acquitted. She stated, “Although I gained the top position through my merit and many achievements and was even asked by my fellow district residents to run for parliament, after the incident, I suddenly found myself at the lowest of positions and behind bars.”

Mona said her mother suffered a brain clot after she was arrested.  “She was always proud of me. And although she died after I was acquitted, due to her illness she was not aware of what was happening around her.“

Five years after being acquitted, Mona says that she still dreads facing society, “I was absent from work for three years, then they retired me a short while after going back to work.” Mona lost a compensation case leveled against the Jordanian government before the Amman Magistrate Court on Dec. 19, 2012, with the assistance of Mizan Center for Human Rights (MCHR).

She is  waiting for the Cassation Court to rule in her case. Her lawyers relied on on article 9 and article (2/3) of the International Covenant on Civil and Political Rights (ICCPR) in arguing her case. These pertain to  international agreements. They also used article 256 of the Jordanian Civil Law which states: “Every harm done to others obliges the person who did the harm, even if he/she was not distinctive, to guarantee payment for the damage.”

The court ruled that “All procedures taken by the public prosecutor were within his privileges and authority, hence the legitimacy of the prosecutor’s privileges overrule the guarantee to compensate. Therefore, the plaintiff has lost its argument and the case is lawfully rejected.”

Lawyer Leen Al Khayat said that “The original purpose for detaining a person is just a precautionary action, and considered as a restraint on freedom.” But there are cases when the accused is innocent and is assaulted after assuming he was the aggressor. Al Khayat warned that detention may create a state of rebellion and distrust. She wondered how much money was needed to compensate individuals  acquitted two years after arrest and detention?

According to clause #4 of article 101 in the Jordanian Constitution, “The accused is innocent until he is decisively proven guilty.” This doctrine holds true even if the accused has admitted to the crime. The lawyer and former judge Ahmad Al Najdawi cited the basic doctrine: “For 100 criminals to be acquitted is better than condemning one innocent person.” He understands that detaining the accused before any sentence has been meted out  may be a an injustice and can sometimes cause the detainee and his family great harm.

In the Absence of a Legal Text Permitting Compensation

Judges and lawyers draw upon constitutions, international and Arab laws that guarantee compensation after exoneration. Several judges (who has requested  anonymity) said the state should obligate itself to compensate those harmed because of their arrest, since the state is concerned with the security of its citizens and the economy of the country.

One judge said, “In Egypt, it’s imperative to compensate the harmed citizen in case a grave mistake was done which resulted in his/her arrest, in accordance with a law that regulates the basis of raising a court case against judges or any public prosecutors. This law is called “The Civil and Commercial Pleading Law.” The Algerian and Palestinian constitutions contain similar clauses obliging compensation.

Adam Coogle, a researcher at the Human Rights Watch,  said that “International criteria specify the rights of a person to demand compensation in case of an arbitrary arrest or a wrongful procedure carried out during trial or investigation.”

Lawyer Salah Ja’abbir insisted that Jordan must compensate affected individuals based on the rules and articles of the international legislation, the Universal Declaration of Human Rights and the ICCPR which Jordan has ratified. Ja’abbir highlights that article 9 of the ICCPR clause #5 states: “For every person, whether a victim of an arbitrary detention or unlawful arrest, the right to get a compensation is a must.”

However, jurist Hadeel Abdalaziz explains that international treaties are not sufficient to guarantee the victims compensation in the absence of a clear legislation in Jordan. She argues that since there are no consequences for the wrongful decision to detain, it is easily ordered. She noted that all  future judges in Germany are required to spend a night at the detention center to experience the agony of detainees.

Article #33 in the Jordanian Constitution does not specify the position or standing of international treaties in relation to the national legislation, or specify which has legal superiority when. But in a number of decisions, the Court of Cassation has confirmed that in cases of a conflict, international treaties come ahead of national legislation.

Lawyer Al Najdawi asserted that “whoever orders the arrest has to compensate the detainee if he was prejudiced, that is, the state is obliged to cover the cost of compensation if its official employees (the judge or investigator) have acted wrong.” The head of the Legislation and Opinion Bureau (LOB),  Nofan Al Ajarmah believes that special legislation is needed. Whereas one judge pointed to the possibility of adding a clause on compensation to other clauses in the Civil Law, lawyer Al Kaabneh believes that the compensation clause should be added to the Penalty Codes or the Civil Law.

Incomplete Parliamentary Attempts

Rula Al Huroob, a former member of parliament, said that she suggested in April 2014, when she was chair of the Parliamentary Public Liberties Committee, an amendment to the Criminal Procedures Law (CPL) number 9 of 1961. Her suggestion was to grant the detainee and the prejudiced the right to demand oral and financial compensation for the duration of their wrongful detention. The suggestion was referred to the Parliamentary Legal Committee, but was not discussed.

An ex-MP, Mustafa Amawi, who chaired the Parliamentary Juristic Committee in November 2014, confirmed that his committee has received a number of suggestions to amend laws, and the government has prepared a draft amendment to the CPL in order to discuss it when the next elected parliament convenes.

The LOB website  has published amendments to the CPL for the year 2016, but nowhere in the amended draft is there a clauses on moral and financial compensations to detainees later exonerated.

Official governmental sources have admitted to the absence of explicit legislative text on this but said detainees seeing compensation could rely on general rules including some in  the Civil Law.

Governmental sources did, however, mention a few cases where detainee were compensated. In one case, a detainee without any charges directed against him became ill while in custody. His lawyer took the Directorate of General Security (DGS) to court demanding compensation. The court ordered JOD 2,000 for the plaintiff. However, these sources did not mention any compensation cases for detention victims later acquitted.

The Comprehensive National Plan for Human Rights (2016 – 2025) (CNPHR) stipulated the state’s guarantee of the rights of the victims of the criminal justice system in receiving compensation and reparation, including review of all pertinent legislation and suggesting amendments.

The Head of the Directorate of Human Rights at the Ministry of Justice, Mohammad Al Nsour, said but a fund for compensation is needed. A law is required within the CPL to accomplish this.

However, the draft CPL has not included any mention of compensating the victims of confinement. Also,an ad hoc committee on the topic concentrated on the procedures to shorten the duration of litigation but never broached financial matters.

Aside from money, many Jordanians harmed by imprisonment are still waiting for  legislation that will compensate them for their mental suffering.