10:09pm , Monday 20th August 2018

Compromised Innocence

21 September 2016

By Manar Hafez

Amman, Jordan, (7iber.com) – When Jordan’s Criminal Court exonerated Zakaria from the charge 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 did not comfort him.
His memory went back to the day when his family announced the disappearance of his sister, who was married to an Arab national. Although fifteen years have passed since this incident, its details and ramifications still haunt Zakaria.
Zakaria, then was 27, recalled how a police station in the city of Russeifa rang “my home and told my father that they found my missing sister. But they did not tell him that she was found murdered”.
As soon as the father arrived at the police station to collect his daughter, he was arrested. Days later, the father was released and Zakaria was arrested and jailed by the homicide investigation section at the city of Jerash and charged with the murder of his sister. After ten days in custody, he faced the public prosecutor, said his lawyer, Rami Al Hamawi.
When Zakaria was exonerated, the court said in its ruling that it suspected his admittance of guilt to police, and added that it was not satisfied with the procedures followed by the police. The court said it believed he confessed under duress, including beatings and torture. The court said that it negated all what the public prosecutor’s witnesses have said during the trial pertaining to the confessions and the procedures that were followed. Therefore, the court saw no proof that tied the accused to the charges against him.
Zakaria recalled the scene when he stood stunned, listening to the death sentences being read to those who were sentenced 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 court room. He only accepted the truth when a police man told him: “What is wrong with you? Rejoice man, you have been exonerated”.

Behind bars prior to sentencing:
The case of Zakaria is not different from cases of other people who were subjected to arrest and later faced unsubstantial charges before being acquitted. Those people remain outside the justice parameter because Jordanian laws do not include financial and moral compensation provisions for time falsely spent in jail.
Lawyers and Human Rights Commissions believe that the government does not abide by the pertinent rules of international treaties it has ratified. Repeated demands and parliamentary proposals to amend the law regulating criminal procedures to include an explicit provision to compensate the prejudiced has not materialized yet.
The Jordanian law lacks a provision to compensate those who are wrongfully arrested and later acquitted. But lawyers base their defense of those victims on article #256 of the Jordanian Civil Law in addition to articles in international treaties.
Many of those prejudiced refrain from demanding their rights, either because they are ignorant of the procedures they need to follow or because they have lost hope in getting compensated in the absence of legislative provisions for compensation. Others give up simply because they do not wish to go to court again, according to lawyers and victims.
Zakaria knocked on the doors of officials and of the National Center for Human Rights (NCHR) but 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 his dilemma turned into a personal complex and delayed his ambition to get married until he found the right girl.
Detention is the Rule
A study carried out in 2012, by the Justice Center for Legal Aid (JCLA) showed that “more than one third (28.6%) of detainees do not get convicted for charges laid upon them. They also do not get compensated for their time in detention”. Worse, one in every five held had their confinement duration longer than the duration of their final court sentence.
In conjunction, this reporter documented 13 similar cases for persons who were exonerated by the courts after they were held on charges ranging between murder, rape, embezzlement and attempted rape. Their detention duration ranged between days and months and in some cases one and a half years. In one case, a school principal filed a compensation case after she was detained for 17 days. This ended in her exoneration.
This reporter, in accordance with the Right to Access Information Law (RAIL), asked the Ministry of Justice for figures on the number of judicial detainees, the type of cases and those who were found innocent and not who were acquitted. In addition, the reporter asked for the number of definite innocent decisions issued by the Ordinary Courts since 2011. The Ministry did not reply within the month deadline set in the law.
The following table elucidates the time specified by the law for detention according to type of crime:

detention according to type of crime:

type of crime penalty Detention
Contravention Fine and/or imprisonment 24 hours to a week. Not allowed.
Misdemeanor   Imprisonment from one week to three years. Seven days. The judge or public prosecutor may extend it for a period of no more than 1 month. No detention for crimes of less than 2 years imprisonment except in a limited number of                                    misdemeanor.
Felony Imprisonment for more than three years. Fifteen days. Can be extended for no more than 3 months for felonies with temporary punishments, and for period of no more than 6 months in other felonies.

The original purpose is detention and release on bail is  allowed in certain cases.

According to article #114 of the Criminal Procedures Law, the defendant should be released after serving these periods, “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 (a quarter) of the imprisonment period”.
Hadeel Abdulaziz, Director of the Justice Center for Legal Aid, said that the original reason for detaining the suspect is that he/she might endanger the lives of others, fear of him/her disrupting the investigation and preventing justice through escaping or he/she might be able to influence the witnesses or the evidence.
Abdulaziz insisted that it is imperative to justify explicitly the decision to detain someone, pointing that, justifying the detaining of any person because it is in the interest of the investigation is considered a general justification but 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”.
Noor Al Imam, a lawyer and a jurist, said the objective of detaining someone is not to lose evidence. But the process should have its justification and criteria otherwise it will be considered a punishment.
The annual number of detainees continue to move upwards and down wards, according to the National Center for Human Rights (NCHR). Pundits said the numbers are still big.
The chart below shows the number of judicial detainees between 2011 and 2015, according to NCHR statistics.

capture

NHCR reports also showed a rise in the number of judicial detainees compared to those who are sentenced, in spite of the amendments made to the Criminal Procedures Law #19 of 2009 on crimes that require detention and the conditions required to detain.
The acting commissioner for protection at NCHR, Nisreen Zureiqat, confirmed that the major reason behind the rise in the number of judicial detainees is due to the expansion or increase in the number of detention orders by the public prosecutors. The latter order detention at early stages of investigation due to slow trial procedures, sluggishness in summoning witnesses, or due to the 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 the decision of the Public Prosecutor, thus the detained loses his/her chance to be bailed in the absence of a secondary reference.
This reporter questioned 20 lawyers. Eight of them stated that they dealt with one to five cases of detention of over two months but added that all cases were acquitted. Five lawyers stated that they have dealt with five and more similar cases, while seven lawyers said they have never dealt with such cases.

At the State Security Court (SSC)

Despair of getting compensation deepens when cases are being adjudicated by the State Security Court, according to many cases documented by this reporter.
Ahmad * was detained for more than eight months before he was put on trial by the SSC on charges of “carrying out activities that would disturb the general order and expose the safety of society and its security”. Ahmad said that legal consultants told him that the Jordanian Law lacks any compensation provision which would guarantee him some sort of compensation.
Ahmad asserted that the first night in detention was the hardest, since he never went to jail. “My twin babies were in the prematurity room at the hospital, their mother was tired, and I couldn’t look after them”, he recalled.
In spite of his joy for his not guilty verdict, Ahmad cannot forget his psychological suffering while in detention. He said he believed he was freed with the least losses possible damage when he compares his case others, some of whom have lost their jobs while others were shunned by the society.
Lawyer Salah Ja’abbir, a specialist in criminal cases, documented cases were detention periods exceeded two years before the accused were exonerated.
Lawyer Hikmat Al Rawashdeh, said that in one case the duration of detention for a person almost reached two years.

What about compensation?
Seventeen days in detention was sufficient to topple the life of a school headmistress upside down after twenty years in service. Mona*said, she was referred to the public prosecutor on charges of misusing her position, complacency and embezzlement. But at the end she was acquitted on all charges She added: “After I reached top positions with many achievements put on my record, even my fellow district residents asked me to run for parliament, suddenly I found myself at the lowest of positions and behind bars”.
Mona talked about her mother who suffered a brain clot after she was apprehended: “She was always proud of me. She died after I was acquitted, but she was not aware of what was going around her as a consequence of her illness “.
Though she received a definite innocence verdict five years ago, Mona says I still dread facing society who did not exonerate me. I was absent from work for three years, then they retired me a short while after going back to work.
Mona lost her compensation case leveled against the Jordanian government before the Amman Magistrate Court on the Dec. 19, 2012 with assistance from Mizan Center for Human Rights (MCHR). She is now waiting for the adjudication by the Cassation Court. Her lawyers leant on article 9 and article (2/3) of the International Covenant on Civil and Political Rights (ICCPR) pertaining international agreements, and also on 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 over rule the guaranty to compensate. Therefore the plaintiff has lost its argument and the case is lawfully rejected”.
Lawyer Leen Al Khayat, remembered the joy of one of the detainees after being released. A colleague drank a full can of s soda after missing its taste.
Khayat said: “The original purpose for detaining a person is just a precautionary action, and is exceptionally considered as a restraint on freedom”. But there are cases when the accused is innocent and is assaulted after assuming he was the aggressor. According to Al Khayat, who warns that the effect of detention on the detained hasn’t any kind of reformation, instead, it may create a state of rebellion and distrust among them. She wondered: “how much money was needed to compensate persons who were acquitted two years after their arrest and detention?
According to clause #4 under article 101 in the Jordanian Constitution, “the accused is innocent until he is decisively proven guilty”. This doctrine still holds even if the accused has admitted to committing the crime, because his admittance does not destroy the presumption of his innocence, unless a final judicial ruling is issued by a specialized judicial panel with all what is needed of guarantees within the law to conduct a proper trial.
The lawyer and former judge, Ahmad Al Najdawi, cited the basic doctrine: “For one hundred criminals to be acquitted is better than condemning one innocent person”. He considers detaining the accused before issuing the judgment, may be a fault or injustice in the investigation and trial procedures, which will sometimes lead to cause the detainee, his family and his reputation great harm.

In the absence of a legal text permitting compensation
Judges and lawyers draw upon constitutions, international and Arab laws which guarantee compensation after exoneration.
Judges (who preferred to stay anonymous), said that the state should obligate itself to compensating those who were harmed because of their arrest, since the state is concerned with security of its citizens and also the security of the economy of the country.
A female judge added: “In Egypt, it’s imperative to compensate the harmed citizen in case a grave mistake was done which should lead to 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 (HRW), informed this reporter that “international criteria specify the rights of the person to demand compensation in case of an arbitrary arrest or a wrongful procedure during trial or investigation.

_mg_0271Lawyer Salah Ja’abbir insisted that Jordan is obliged to compensate the prejudiced based on the rules and articles of the international accords, the Universal Declaration of Human Rights and the ICCPR, which Jordan has ratified. Ja’abbir pointed to article 9 of the ICCPR where 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.
On the other hand, jurist Hadeel Abdalaziz complained that international treaties are no longer sufficient to guaranty the victims compensation in the absence of a clear legislation in the laws of Jordan. She argues that since there are no consequences on the wrongful decision to detain, it is easily ordered, citing the machinery of preparing the judges in Germany, where all future judges spend a night at the detention center to experience the agony of the detainees.
Article #33 in the Jordanian Constitution does not specify the position or standing of international treaties in relation to the national legislation, whether the treaties are superior to the constitution or lower, or superior to the legislation or equal to it. But in a number of decisions, the Court of Cassation has has confirmed that international treaties come ahead of national legislation, in case of a conflict.
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), Dr. Nofan Al Ajarmah, sees that this matter needs a special legislation. Whereas, a judge (preferred to be anonymous) points to the possibility of adding a clause on compensation to other clauses in the Civil Law. While lawyer Al Kaabneh, said he believed that the compensation clause might better 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 of the Criminal Procedures Law (CPL) number 9 of the year 1961. Her suggestion was to grant detainee and the prejudiced, the right to demand oral and financial compensation for the duration of the wrongful detention. The suggestion was referred to the Parliamentary Legal Committee (the concerned committee), but it 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, pointing to the fact that the government had prepared an draft amendment to the CPL in order to discuss it when the next elected parliament convenes.
The website of the LOB has published the amendments to the CPL for the year 2016, but nowhere in the amended draft did it include any amendment pertaining to the moral and financial compensation to the exonerated detainees.
Official governmental sources have admitted that “the absence of explicit legislative text that enforces the compensation to the exonerated detainees. However, the same sources assert the possibility of leaning on the general basics for compensation, among them those that are included in the Civil Law.
Governmental sources mentioned few compensation cases that occurred amongst them a case when a detainee without any charges directed against him became ill while in custody. His lawyer took the Directorate of General Security (DGS) to court on the detainee’s behalf demanding compensation. The court ordered a compensation of JOD 2,000 for the plaintiff. But these sources did not mention any compensation cases for detention victims who were later acquitted.

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The Comprehensive National Plan for Human Rights (2016 – 2025) (CNPHR) stipulated the state’s guarantee to the rights of the victims of the criminal justice system in receiving compensation and reparation, wherewith including the reviewing of all pertinent legislation and suggesting amendments.
The Head of the Directorate of Human Rights at the Ministry of Justice, Mohammad Al Nsour, said that compensation is not denied on the general level but a fund for compensation is needed. To establish the fund, a law is required within the CPL. Al Nsour draws the attention to the fact that the CNPHR for 2015 mentioned the necessity to combine national legislation with international binding criteria si ratified by Jordan.
However, the draft CPL has not included any mention of compensating the victims of confinement. Also, this subject was not raised by the ad hoc committee which concentrated on the procedures to shorten the duration of litigation but never broached on financial matters.
In front of these examples of Arab and international practices of justice towards persons unlawfully held, many Jordanians who sustained harm are still waiting for legislations that will compensate them for their moral suffering before the financial compensation.

* (Not the real name).

This investigation was completed with the support of the Arab Reporters for Investigative Journalism (ARIJ) –www.arij.net – and coached by Yaha Shuqair.

 


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