H.E. Hisham al-Tall
Minister of Justice
Hashemite Kingdom of Jordan
Human Rights Watch writes to urge you to review the routine practice of prosecutors to remand criminal suspects in pre-trial custody without conducting a fair and individual assessment of each suspect's circumstances warranting detention.
We are concerned that this practice of pre-trial detention violates the right to liberty and undermines the right of presumed innocence prior to a court's determination of guilt or innocence. This injustice is compounded by the fact that there is no practical ability for detainees to challenge the lawfulness of their detention in court, and that detainees are not brought promptly before a judge as international law requires. Currently, prosecutors retain the power to decide on pre-trial release, at least in the initial phases of detention, without any form of judicial review.
Routine pre-trial detention and a lack of court review of detentions are features of both the civilian and the mixed military-civilian justice systems, such as the State Security Court (SSC) as well as by prosecutors attached to the General Intelligence Department (GID).
Prosecutors should not automatically detain criminal suspects regardless of the charge, but individually determine whether pre-trial detention is necessary.
We recommend legislative change in addition to a review of current practices. Our view is that the law should vest independent judges, not prosecutors, with the power to issue arrest and detention warrants, and give judges authority to hear challenges to the lawfulness of a detainee's detention.
Below we present recent cases and outline areas where Jordanian law falls short of international standards for pre-trial detention, challenging the lawfulness of detention, and the role of prosecutors.
In one recent case of seemingly unwarranted pre-trial detention, the prosecutor for South Amman on August 5, 2010 remanded Ruba Nuri to custody. Nuri, who faced a relatively minor charge of fraud, was gravely ill at the time and had surgery scheduled for that same date, August 5.
Nuri did not have a court hearing until October 28, almost three months after her initial detention. The judge at that point released her on condition of her providing a financial guarantee, which she did.
Dr. Iyad al-Qunaibi
In another ongoing case, this one involving the military prosecutor at the General Intelligence Department (GID), Dr. Iyad al-Qunaibi remains in pre-trial detention since his arrest on September 22, 2010 by GID officers. Dr. al-Qunaibi has had no possibility of a court review of the lawfulness of his detention.
The GID-based military prosecutor charged al-Qunaibi under article 118 of the penal code, and articles 3 and 24 of the Law to Combat Money Laundering and Financing of Terrorism. Article 118 criminalizes acts, including speech, that "exposes the kingdom to the danger of enemy actions, or disturbs its relations with a foreign country, or exposes Jordanians to acts of revenge against them or their property," and sets a minimum sentence of five years in prison. Articles 3 and 24 prohibit knowingly financing terrorism, a charge punishable by at least 10 years in prison with hard labor.
While these are serious crimes, the prosecutor apparently did not consider the fact that Dr. al-Qunaibi was a well-known member of the community and had family and a stable employment as a lecturer in pharmacology at the University of Applied Sciences in Jordan. The act in question, al-Qunaibi's lawyer, Hikmat al-Rawashda, told Human Rights Watch, involved around 1800 Jordanian dinars (US$) al-Qunaibi allegedly gave to a person to send to orphans of members of the Taliban in Afghanistan. The person said to have received the monies is also in custody.
Al-Qunaibi has not had the opportunity to present to a judge reasons why his release pending trial, even under certain conditions, would not constitute a risk to society or to the proper course of justice.
Al-Qunaibi's lawyer told Human Rights Watch twice in November that the prosecutor had not given him copies of the evidence against his client, and that he had not been able to attend interrogations, which ended on October 5. He said that petitioning the State Security Court for a review of the lawfulness of detention was not possible in cases involving the GID. Al-Qunaibi's brother Murad told Human Rights Watch that before his transfer from the GID detention center to Juwaida prison on November 21, al-Qunaibi had been in solitary confinement with family visits only once per week.
The broad areas of SSC jurisdiction cover not only all matters of internal and external security, but also numerous articles of the penal code criminalizing different types of expression.
On July 25, 2010, Irbid police arrested Hatim al-Shuli, a student in Irbid, on charges of insulting the king and "stirring up sectarian strife" under articles 195 and 150 of the penal code. Al-Shuli's offense involved a poem he had allegedly written (which he denies) that contained insulting language against the king accusing him of selling out Palestine. The prosecutor at the SSC denied repeated requests by al-Shuli's lawyer to release him. Only after 43 days, and international attention to his case, did the prosecutor release al-Shuli.
The SSC prosecutor detained Tahir Nassar on November 27, 2010 on charges of "stirring up sectarian strife" for passages in his election manifesto as a candidate for the November 9 parliamentary elections. This was more than two weeks after the conclusion of the elections, in which Nassar failed to win a seat. He remains in detention at this writing, more than two weeks later.
International human rights standards and problems of Jordanian law
The prohibition against arbitrary arrest or detention in article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Jordan is a party, requires that deprivation of liberty, even if provided for by law, must be necessary and reasonable, predictable, and proportional to the reasons for arrest.
Once a person is charged with a crime, remand in custody should not be automatic. The ICCPR's article 9 requires that detention be the exception, not the rule, for ensuring that persons charged but not convicted are available for trial. Before remanding a suspect to detention, the judicial authority, in the case of Jordan, the prosecutor, should consider whether detention is proportionate to the alleged crime and whether bail would be a sufficient condition for release. Reasonable grounds for remand in custody generally include considerations of the likelihood of the suspect's committing another offense if released, whether he or she might flee justice, or whether he or she might interfere with the trial, for example by intimidating witnesses or destroying evidence. One way to ensure a suspect cooperates with his or her trial is to set conditions for bail, such as a cash bond.
Article 114 of the Criminal Procedure Law (CPL) vests prosecutors with the power to issue arrest warrants and, after charging a detainee, to remand him or her in custody pending trial, for renewable periods of 15 days.
Articles 122 and 123 of Jordan's CPL automatically excludes the possibility of the prosecutor granting bail to pre-trial detainees charged with crimes that carry sentences of the death penalty, hard labor, or life imprisonment. Despite giving prosecutors discretion to determine whether release should be granted to suspects facing lesser charges, with guarantees where necessary, Jordanian law fails to impose a test of the reasonableness of detention.
Challenges to detention
Article 9 of the ICCPR grants a detainee the right to challenge the lawfulness of his or her detention by petitioning an appropriate judicial authority to review whether the grounds for detention are lawful, reasonable, and necessary. It requires in any event that a person arrested or detained on a criminal charge be brought promptly before a judge.
In Jordan, it is the prosecutor, not an independent judge, who reviews the legal grounds for detention. The ICCPR requires that a competent judicial authority review the lawfulness of the detention. A Jordanian prosecutor has the authority to issue a binding order, not only a recommendation, regarding the release of the person in question; he or she has the power to review both the legality of the detention (that is, its compliance with the procedures laid down for arrest and detention), as well as the substantive grounds (necessity and reasonableness) for detention.
The powers of the prosecutor to determine and file charges without any judicial oversight deprive detainees of an essential safeguard against arbitrary arrest. Jordan's criminal procedure law does not require that evidence meet a particular standard before charges are brought against a suspect. The prosecutor brings charges and at the same time orders suspects detained for up to 15 days; in cases of serious crimes this is renewable up to six months (CPL art. 114.1). The basis for the charges is not subject to review by an independent tribunal during an ongoing investigation.
Role of prosecutors
Also at issue is the independence of a Jordanian prosecutor, which falls short of the criteria required of a competent judicial authority reviewing the lawfulness of detentions. The prosecutor in Jordan is neither independent nor impartial.
A prosecutor takes an active part in the trial of the suspect, with in interest in securing a conviction. The UN Human Rights Committee examining a case of Hungary's legal system with a similar, but in fact more limited, role for the prosecutor, stated that it was "not satisfied that the public prosecutor could be regarded as having the institutional objectivity and impartiality necessary to be considered an ‘officer authorized by law to exercise judicial power' within the meaning of article 9(3) of the Covenant."
Guideline 10 of the UN Guidelines on the Role of Prosecutors stipulate that the office of prosecutors should be strictly separated from judicial functions. Jordanian prosecutors, however, do adjudicate the legality of a person's detention and remand detainees in custody as well as conduct the pre-trial investigation and the prosecution at trial. Detainees cannot appeal the prosecutor's decisions.
Military prosecutors and the State Security Court
The issue of independence and impartiality is especially acute for the military prosecutor at the State Security Court, who depends administratively on the military chain of command. The head of the Joint Chiefs of Staff appoints a military officer to serve as prosecutor, underlining the court's subordinate character. The SSC prosecutor's offices are physically located inside the central GID complex. The SCC prosecutor is the officer who issues charges against detainees and authorizes their continued detention. The SSC prosecutor who investigates the crimes of which detainees at the GID are accused is a military officer, ultimately under the same administrative authority as the intelligence officials.
The prosecutor at the SSC also answers to the Military Judicial Institution (Hay'at al-Quda al-`Askariyya). Thus, those who make determinations over who to arrest; carry out the arrests; conduct interrogations; verify the legality of detentions; prosecute the crimes; and in cases involving SCC judges adjudicate the crimes are all part of the Jordanian military establishment. A detainee consequently has little hope of gaining an independent judicial review of the legality of his detention, as Article 9.4 of the ICCPR requires. This reflects a fundamental lack of independence and impartiality of military prosecutors.
In conclusion, regarding the routine prosecutorial practice of remanding suspects to detention prior to a judicial hearing, it is difficult to fathom what benefit the detention of a person has "for the interests of the investigation," the standard official justification for these detentions, where not much more than the authenticity of a document appears to be in question. Detention appears to serve only as a tool of pressuring or punishing the criminal suspect. It does not appear to have anything to do with ensuring the safety of society or the fairness of the judicial process.
We look forward to discussing these issues with you further and thank you for your attention to this mater.
Sarah Leah Whitson
Middle East and North Africa Division
 The UN Human Rights Committee, adjudicating cases brought under the ICCPR, has set forth standards of what constitutes judicial authority. See UN Human Rights Committee, Communication No. 1100/2002, Bandajersky v. Belarus (Views adopted on April 18, 2006); UN Human Rights Committee, Communication No. 521/1992, Kulomin v. Hungary (Views adopted on March 22, 1996), Human Rights Committee, Communication No. 1218/2003, Platonov v. Russia (Views adopted on November 1, 2005); and Human Rights Committee, Communication No. /915/2000, Sulatanova v. Uzbekistan (Views adopted on April 19, 2006).
 International Commission of Jurists, "Memorandum on International Legal Framework on Administrative Detention and Counter-Terrorism," December 2005. Referring to the African Commission on Human and Peoples' Rights (ACHPR), Decision of 15 November 1999, Communication No. 153/96, Case Constitutional Rights Project v. Nigeria, para. 12., the International Commission of Jurists writes:
In a case where an act provided that the Chief of General Staff may order that a person be detained for State security reasons, without charge and established a panel consisting of Attorney-General, the Director of the Prison Service, and a representative appointed by the Inspector-General of Police plus six persons appointed by the President with the mandate to review the detention every six weeks, the Commission has stated that these detentions were incompatible with the provisions of the African Charter and that with this system, persons may be detained indefinitely. The Commission has also declared that the panel cannot be considered impartial and cannot be said to meet judicial standards, as the majority of its members are appointed by the President (the Executive) and the other three are representatives of the executive branch as well. Therefore, the ACHPR has stated that this detention was arbitrary, and therefore in violation of the right to a remedy and the right to be tried by a fair trial within a reasonable time.
 UN Human Rights Committee, Communication No. 521/1992, Kulomin v. Hungary. The Committee stated: "it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with." A European Court of Human Rights decision in 1998 clarified its understanding of the meaning of the independence required for a judicial review of detention: "the ‘officer' must be independent of the executive and the parties at the time of the decision on detention: if it appears at that time that the 'officer' may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt." European Court of Human Rights, Case of Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3298, para. 146.
 Guideline 10, Guidelines on the Role of Prosecutors, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990. It states: "The office of prosecutors shall be strictly separated from judicial functions."