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Concerns

Notwithstanding these remarkable developments in the Juvenile Protection Law, three major issues remain a matter of concern: the absence of executive legislation; vague provisions; and the allocation of human, logistical, and financial resources.[1]

The Law has been adopted without its enforcement secondary legislation (regulations, instructions, and orders). Article 66 empowered the Council of Ministers to enact such executive regulations and delegated the Minister of Social Development to adopt instructions and orders that give effect to the Law. However, past experience shows that, without fixing specific date for enacting executive legislation, laws might face standstill.[2] The Law ought to have been enacted along with its regulations and the necessary instructions to apply many of its non-self-executing provisions. Police officers, prosecutors, judges, and child protection officers would not know how to execute certain stipulations without having specific procedures in place.

Here are some examples. How a convicted child might enjoy “periodical and limited vacation,”[3] and for how long, without an executive legislation? The Law requires that child cases to be decided promptly;[4] yet how long “promptly” might take? Although the basis of legal assistance was set forth in Article 10, the application of assistance’s modality remains imprecise. Article 13 on the child’s right to education needs executive order to give effect to the juveniles held in social care institutions to complete their schooling. Similarly, how the child protection officers would be able to prepare reports to the prosecution and to courts without having fixed procedures on such report’s format, length, content, and timing? What are the mechanisms to enforce the measure of warning for the child to refrain from reoffending,[5] to refer the child to an alternative family,[6] and to conduct judicial examination?[7] The delay in enacting executive legislation may not block the implementation of the Law entirely, but it is expected to create confusion and different procedures in dealing with children from one place of the country to another and from one judge or prosecutor to the next; that might, in turn, infringe the respect of the principles of fairness and equality.[8]

The second problem stems from the vague language of a number of the Law’s provisions. Whereas it prohibits torture and ill treatment, Article 7 does not introduce penalties against torturers. Nowhere in Palestinian law can one find explicit penalty against torture perpetrators,[9] notwithstanding its prohibition in the Basic Law and Palestine’s accession, on 2 April 2014,[10] to the International Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment of 10 December 1984.[11] Such a vague ban might create impunity for those who torture or mistreat children. It further stipulated that the arrested child should undergo medical check,[12] without saying what would happen if such a measure is not conducted.[13]

Moreover, the Law stipulated that “the juvenile’s guardian and lawyer shall be notified of every procedure and decision that the child should be notified of”[14] but there is no answer on who should notify such persons and what the consequences in case of nonnotification. Article 28 authorized the Ministry of Social Development to create “Social Defense Office that incorporates socio-psychological specialists alongside child protection officers” but it did not oblige the Ministry to establish such an office and did not mention the type and number of sociologists or psychologists who may be employed. Lastly, Article 60 did not specify a timetable for creating specialized juvenile courts. It rather opened the possibility of assigning judges to juvenile matters.[15] That means that children will continue to be brought “temporarily” before ordinary judges until such an indefinite time on which separate courts would commence. Such vague stipulations pose the risk of turning the Law into a superfluous document, if no measures are expeditiously undertaken in this respect.

Apparently, the Law has been adopted without allocating the necessary financial, logistical, human, institutional resources, or infrastructure. One district chief prosecutor, for example, explained that he assigned two prosecutors to handle juvenile cases from the already inadequate number of existing prosecutors who are barely able to deal with other cases.[16] The same applies to judges whose number is not enough even to face the already overwhelming caseload.[17] Assigning judges to juvenile cases from existing judges without appointing new ones to exclusively oversee juvenile cases puts extra burden on courts, lawyers, children, and their families.[18]

The Law, likewise, established a series of obligations on child protection officers (below), including accompanying juveniles at police stations, prosecution’s investigation, court hearings, preparing reports on the child’s family, health, education, psychology, and monitoring him while staying at the social or medical institutions. Ms. Lubna Anani, Head of the Ministry of Social Development’s office in the south of the West Bank, complained that “in Yatta [a city with over 170,000 inhabitants] alone, there are over 500 cases of various social issues and there is only one employee. How that person may work on dozens of juvenile cases with the due care specified in the law on the top of hundreds of cases that she deals with? It is just impossible!”[19] Juvenile care institutions need to be founded to absorb the growing number of children in conflict with the law. Currently, there is only one juvenile institution in the West Bank (Dar Al-Amal in Ramallah). Without opening at least two additional institutions, one in the north and another in the south of the West Bank, it remains hard to imagine how the Law would be properly applied (see later).

Lastly, the Law lacks to preventive measures for juvenile delinquency. Such measures should be formulated as set out through minimum standards in the Riyadh Guidelines. The measures need to be included at the levels of formal procedures, social settings, families, education, and practical and academic research.[20] The Law also does not include clear arrangements for juveniles’ reintegration in their communities.[21]

  • [1] Such concerns were expressed, for instance, at a workshop on the Juvenile Protection Law organized by the Independent Commission for Human Rights (Hebron, 28 April 2016). The workshopwas attended by a juvenile judge, prosecutors, lawyers, academics, social protection offices, representatives of a number of international and local NGOs, ministries of health and education.
  • [2] One study revealed that, from 1994 until 2002, out of 60 laws that were adopted by the PalestinianAuthority, only 7 regulations were adopted. Maen Idies, Executive Regulations for the Laws(Ramallah 2002), p. 26. Even when enacted, regulations were often postponed to longer periodsthan those required by corresponding laws. Instances include Handicapped Law of 9 August 1999(regulations passed on 12 April 2004), Traffic Law of 17 September 2000 (regulations adopted on13 September 2005), and Arbitration Law of 5 April 2000 (regulations enacted on 12 April 2004).Qafisheh, “Legislative Drafting in Transitional States ... ,” supra note 15, p. 32.
  • [3] Article 4.
  • [4] Article 8.
  • [5] Article 37. This concern was expressed in a presentation by the Hebron Chief Prosecutor AshrafMisheal, Commission for Human Rights workshop, supra note 83.
  • [6] Article 38.
  • [7] Article 41.
  • [8] That might run counter to Article 40, paragraph 2(a.iv) of the CRC.
  • [9] Mutaz Qafisheh, “Human Rights Gaps in the Palestinian Criminal System: A United NationsRole?,” 16 International Journal of Human Rights 358 (2012), pp. 361-363. In fact, the prohibitionof torture in the Juvenile Protection Law is not new. The 2004 Palestinian Child Law provided inits Article 68 that “[n]o child shall be subjected to physical or moral torture ... .” Yet the mainproblem, namely the absence of penalty against torture perpetrators, persists.
  • [10] Spokesperson for the UN High Commissioner for Human Rights, supra note 2.
  • [11] 1465 UNTS 85; entry into force 26 June 1987.
  • [12] Article 22.
  • [13] Similar provision can be found in Article 32 of the Law.
  • [14] Article 29(1).
  • [15] Article 60.
  • [16] Misheal, supra note 87.
  • [17] In this connection, Juvenile Judge Mr. Mohammad Ajlouni said: “In average I oversee 25 feloniesper day. After that, I am asked to hear juvenile cases. How can I understand the state of the juvenileand child’s best interest afterwards?!” (Commission for Human Rights workshop, supra note 83).
  • [18] One lawyer from the International Legal Foundation, a New York-based criminal defense NGOwith field offices in Palestine, explained that in Hebron district, as a case in point, there are 4 magistrate courts (in Hebron city, Halhul city/north, Yatta city/south, and Dura city/west). There isonly one judge assigned to juvenile cases. If this judge has a case of one child at each of these fourcourts, the lawyer might wait for the entire day for one hearing only until the judge has the turn tocome to the court in which the lawyer (and the child) will be waiting. The judge might not have thetime to come to that particular court and that means the hearing will be postponed. Advocate ImadSalaymeh; Commission for Human Rights workshop, supra note 83.
  • [19] Commission for Human Rights workshop, supra note 83.
  • [20] Cf. Eleanor Glueck, “Predicting Juvenile Delinquency,” 2 British Journal of Delinquency 275(1952); H. English, “Prevention of Juvenile Crime,” 4 British Journal of Criminology 68 (1964);Defense for Children International, Kids Behind Bars—A study on Children in Conflict with theLaw: Towards Investing in Prevention, Stopping Incarceration and Meeting International Standards(Amsterdam 2003).
  • [21] Najah Hilo & Amneh Abuein, “The Integration and Rehabilitation of Juveniles in the PalestinianSociety,” in Buomidra & Assaf, supra note 8, pp. 74-125.
 
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