16/2/2016

7/2016

ICHR expresses its concern over increasing cases of detention of citizens for opinion expression and media profession or because of a complaint submitted against them for comments or writings attributed to them. The number of such cases noticeably increased over the past times in violation of the right to freedom of opinion and press.

Despite ICHR's non-interference with the function of the judiciary or the authority of discretion bestowed on the judge and the Public Prosecution, it maintains that provisional detention related to issues of defamation and slander as well as other issues of freedom of opinion and expression can't be justified.

ICHR confirms that the authority of discretion shouldn't be exercised in regard to cases of freedom of opinion, except for maintaining the security of person of the citizens in conformance to General Comment No. 34 of 2012 of the United Nations Committee on Human Rights regarding Article 19 of the International Covenant on Civil and Political Rights. It states that "restrictions must not be overbroad. The Committee observed in this general comment that "restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected...The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law". Thus, the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant.

Clause 47 of the said General Comment states that "the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.

Considering that, ICHR calls for:

Reconsidering effective legislations pertinent to the freedom of opinion and expression, including penal laws and the law of printed materials and publication. They should be amended to be allied with the obligations of the State of Palestine under the international conventions it acceded to. The penalty of imprisonment or any other penalty involving restriction of freedom of press should be abolished and replaced with alternative penalty.
Pending legislations, the judicial and public prosecution shouldn't broadly exercise their discretion authority for provisional detention. It should be restricted to most serious of cases that can't be inhibited without implementing provisional detention which at the same time shouldn't be used as a penal instrument or a restrictive measure for restricting freedom of opinion and expression as well as imposing gag order.