Ramallah, January 22, 2020—Nearly four years after the adoption of the juvenile protection law, Palestinian courts are still lacking the necessary procedures and norms to guarantee Palestinian children’s right to due process.
When the juvenile protection bill was signed into law in February 2016, the change represented a significant leap forward in legal protections for Palestinian children. Previously, the Palestinian Authority in the West Bank had relied on a Jordanian law that dated back to 1954. The new law updated the Palestinian juvenile justice system in the West Bank, bringing it in line with international standards for safeguarding children’s rights.
In the period leading up to this change, a national commission — including Defense for Children International - Palestine — had completed a draft law on juvenile protection four years earlier, in 2012. At the end of 2012, amendments to Palestinian Child Law No. 7 raised the age of criminal responsibility from 9 to 12, among other positive developments.
A further critical win for Palestinian children’s rights came in 2014 when the State of Palestine signed the UN Convention on the Rights of the Child (CRC) and its optional protocol on the involvement of children in armed conflict. In so doing, it obliged itself to advance, enhance, and prepare the legal framework of the juvenile sector and paved the way for the eventual adoption of the juvenile law.
"Having moved beyond outdated laws that do not serve children’s best interests, our task now is to ensure the new law is implemented effectively," Khaled Quzmar, General Director of DCIP said in a training workshop on the implementation of the juvenile law in 2016.
These words remain true today. Palestinian children have already won the legal rights to participate in their trials, to be heard by a specialized judge, to confidentiality, and to have speedy procedures under Palestinian law. However, current resources and procedures must rise to the law’s requirements to deliver these rights.
Case Study: Three children charged with a misdemeanor
On August 3, 2017, 13-year-old Q.B., 17-year-old H.B. and 16-year-old A.A., were arrested for damaging a school’s property. The boys had broken into the school in Nablus, in the northern West Bank, cutting wires and breaking boxes and windows. They had also ruined some cameras on the property.
On October 12, 2017, the Juvenile Prosecution’s office issued an indictment of the three teenagers for property damage, a misdemeanor. Under Palestinian law, misdemeanors are punishable with prison sentences of two to five years.
Inside a small room of the Nablus court, the three juvenile cases were heard by a nonspecialized judge. People were allowed to enter the courtroom during hearings, violating the children’s right to confidentiality. Additionally, each time they appeared for court sessions, the boys waited in a public hallway.
In March 2019, the court finally issued its verdict, finding all three boys guilty. From the time of the arrest to the trial’s completion, the process had taken 19 months. The court ordered A.A. to be placed in a social care house for one month, while the other two children were released to the custody of their families.
In the course of the three boy’s legal proceedings, four of the children’s fair trial rights were violated. Despite existing Palestinian laws to protect each of these rights, the overall procedures violated the children’s right to confidentiality, participation, a speedy resolution, and for their cases to be heard before a juvenile judge.
Speedy procedures
The juvenile protection law affirms children’s right to a speedy trial but does not set hard time limitations within which a final decision must be issued. Of 230 juvenile cases closed by DCIP between January 2016 and September 2019, 111 cases were open for more than 6 months, a period considered high, according to General Comment No. 10 of the UN Committee on the Rights of the Child.
There is no comprehensive data on the causes contributing to lengthy trial periods. However, DCIP lawyers have generally found that court delays in juvenile cases are related to a wide range of factors, including resources and workloads, jurisdiction size, the severity of the case, and procedural factors such as subpoenas.
One clear need is to increase the overall capacity of specialized judges to hear juvenile cases.
Specialized judges for juveniles
Across the entire West Bank, there is only one juvenile judge. Article 24 of the juvenile protection law states that a specialized judge should be available in each magistrate court, but in reality, this only exists in Ramallah.
With low resources allocated to transporting children under pretrial detention between detention facilities and courthouses, children in conflict with the law in other parts of the West Bank are at risk of having their case adjudicated by a judge who is not trained to handle juvenile cases.
Further, a person intimate with the Palestinian court system, who spoke to DCIP staff on the condition of anonymity, said that the juvenile judge only hears children’s cases one day per week, on average. The rest of the week, the juvenile judge is required to hear adult cases, DCIP’s source said.
Confidentiality
One of the guarantees granted for children is the confidentiality of their cases. According to the law, any session that is attended by the public can be challenged as legally invalid.
Despite this, DCIP found that out of 22 cases closed by a judicial decision in 2019, members of the general public attended the private sessions of 14 children. In 14 cases, children had no option but to wait in a public area.
In the West Bank, there are 7 courts across Ramallah, Nablus, Jenin, Tulkarem, Bethlehem, Hebron, and Qalqilya where children’s cases are heard in the same building as adult cases. As a result, children are not spared exposure to a large number of adults.
“There is a serious need to establish specialized courts away from where the ordinary courts operate and to train the full cadre of judges, prosecutors and administrative staff in how to properly handle juvenile cases,” said Sawsan Salahat, head of DCIP’s Socio-Legal Defense Unit.
In addition, in the cases where children cannot be reached to be given a confidential notice of legal actions toward them, procedural laws strip children of their right to confidentiality. Article 20 of the Civil Law Procedures of 2001 allows for the delivery of the summons to the last known home address, as well as posting the summons in public view, on the court board, and in the newspaper, when a child’s address is unknown.
Child participation and legal representation
Children have the right to participate and express their opinions, according to Article 12 of the CRC. This right extends to judicial and administrative proceedings. It also obliges duty bearers to consider children’s perspective, in the best interest of the child.
According to DCIP documentation, 36 percent of children’s opinions were not taken into consideration while deciding measures against them by judges, while 27 percent of children’s opinions were not taken into account by prosecutors.
Legal representation is a key factor in ensuring children’s right to have a voice in their trial. Article 10 of the juvenile protection law provides juveniles the right to legal representation and aid, which starts during the investigation stage and continues through the case’s resolution. According to the law, legal assistance should be available to the child at the expense of the state, if the child’s family does not assign a lawyer.
However, legal assistance is not always in place for children due to a lack of government-allocated resources. Free legal assistance is mostly provided to children through donor-funded projects to civil society organizations and international institutions operating in the Occupied Palestinian Territory. Consequently, this assistance is susceptible to funding reductions.
Recommendations
In the last decade, the State of Palestine has made great strides in advancing children’s rights in the context of juvenile justice. In keeping with the goal of depriving a child of their liberty only as a last resort, alternatives to detention are keeping many children in conflict with the law out of courts.
Between January and September 2019, DCIP closed 66 cases. Of these, 44 files were sent to mediation by the juvenile prosecutor and thus resolved without trials. Of the cases closed through judicial decisions, 86 percent of the children were handed over to their families.
Even with these strong positive indicators, more must be done to guarantee the rights of children who do face trials. The juvenile justice system must elevate its commitment to the principle of “the best interests of the child” to reduce obstacles to reintegration.
A concrete next step would be to adopt an executive regulation of the law to explain articles and end any obstacles impeding guarantees provided by the law at the level of practice.
DCIP also urges the State of Palestine to conduct regular evaluations of juvenile justice actors’ practices, measuring how effectively these practices protect children’s inherent dignity and well-being.
DCIP’s legal work with Palestinian children is funded in part by the European Union in partnership with War Child Holland under a project aimed at preventing and mitigating the harm caused to children exposed to torture and other forms of cruel, inhuman, or degrading treatment.
The information and views set out in this feature are those of DCIP and do not necessarily reflect the official opinion of the European Union or War Child. Neither the European Union institutions and bodies nor any person acting on their behalf may be held responsible for the use, which may be made of the information contained therein.
