Legal Problems of Penal Reconciliation in Gaza Strip
“Legal Problems of Penal Reconciliation in Gaza Strip”
Gaza – On Tuesday 17th of November 2020, the Institute of Law (IoL) at Birzeit University organised an online legal encounter via Zoom Platform on “Legal Problems of Penal Reconciliation in Gaza Strip“, which was held in partnership with Konrad Adenauer Stiftung-Palestinian Territories. During this encounter Dr. Sami Ghonaim and Dr. Saher Al Waleed, professors in the College of Law at Al Azhar University, took part in the presentation, as a number of law students from the aforementioned College, jurists and interested individuals also participated.
The encounter was firstly introduced by Lina Al Tunisi, coordinator of the Institute's work in Gaza, whom welcomed the attendees and presented a brief description of the Birzeit Legal Encounters Programme.
Subsequently, Dr. Sami Ghonaim had begun his speech by clarifying the concept of Penal Reconciliation and its theoretical contour, which is considered to be an embodiment of the concept of alternatives to the criminal case procedures that emerged of the traditional criminal justice system crisis, as Penal Reconciliation also aims to achieve a balance between social interests and the punishment of the perpetrator, which represents a special deterrent to the criminal and the application of the idea of general deterrence to those addressing the provisions of the law.
Dr. Ghonaim reviewed the legal aspect of the Penal Reconciliation, as he indicated that countries tend to administer criminal justice through alternatives to the criminal case, which began to make its way in the legal systems, alongside the public lawsuit. Dr. Ghoneim also added that the legislator’s regulation for the Penal Reconciliation in Gaza Strip included many legal difficulties which led to the demand for its amendment, even by its supporters and those who implement it, as many criminals had return to committing crimes, sometimes more serious crimes, which demonstrates the failure of the concept of the perpetrator’s deterrence. Moreover, the rate of crimes in general is on increase, which calls into question the utility of the concept of general deterrence. Besides, the increase in legislative intervention to criminalize new acts, had led to an increase in the number of convicts, and thus an increase in the number of prisoners, which ultimately leads to overcrowding in prisons, and an increase in the financial burden on the state’s shoulders.
In his part, Dr. Saher Al Waleed revised the procedures followed in the enforcement of the Penal Reconciliation Law’s in Gaza Strip, where he explained the concepts of reconciliation and conciliation and the difference between them, and their role in the termination of a lawsuit, in addition to the society’s need for them. In addition, Dr. Al Waleed revised the concept of reconciliation in the Palestinian Criminal Procedures Law, specifically articles 16, 17 and 18, indicating that its impractical as the legislator imposed this concept for violations in general, and misdemeanours punishable with fines, excluding misdemeanours punishable by imprisonment; which is considered impractical as the society desperately needs an expansion in the circle of reconciliation. Meanwhile, the Penal Reconciliation Law of 2017, which is applied in Gaza Strip, has expanded the scope of reconciliation, which includes misdemeanours punishable by imprisonment for no longer than 6 months.
Dr. Al Waleed also addressed the criminal justice crisis between the public lawsuit and its alternatives, as he indicated that the legislator in the Penal Reconciliation Law for 2017 has made a distinction between accepting the reconciliation before the stage of filing the lawsuit and going to trial, and the stage after filing it. Dr. Al Waleed also emphasized that a distinction must be made between the civil and criminal cases.
At the end of the encounter, a discussion between the attendees was present, which included many interventions and recommendations, highlighting the necessity to change the legislator’s philosophy in drafting the law, as it moves away from the ethical view and includes only the utilitarian view, in addition to the importance of applying the law in some cases, such as tax crimes, and the impossibility of applying it on other crimes, such as theft. In addition, the fact that this law is inconsistent with social justice was also highlighted, as it biases with the rich against the poor, while legislations must reflect the societal condition, and prevail over the public interest.
