High Court of Justice

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Observers: 
Ofra Ben-Artzi, Norah Orlow
Jan-24-2013
|
Morning

 

Translation: Marganit W.

 

Petition of Hussam Zuhadi Dahoud Zahaika (Shaheen) to the High Court of Justice – Case 7122/09

 

Petition for order nisi

 

Justices:

Hanan Melzer – presiding

Neal Handel

Uri Shoham

 

Petitioner: Hussam Zahaika

 

Respondents: The Chief Military Prosecutor and the Military Court of Appeals

 

Representing the petitioner: Atty. Feda Kawer, Atty. Michael Sfard

 

Between 2007 and 2010 we followed intently the trials of Hussam Shaheen.[See reports of the Shaheen hearings at Ofer Military Court, and especially the hearing at the MilitaryCourt of Appeals on 22.10.07]

 

Hussam Shaheen, a resident of Sawahra, is 41 years old today. He was the leader of the Shabeeba (the Fatah youth movement) as well as the liaison officer for the Fatah with youth movements in Israel and abroad.

[See Call for Solidarity with Hussam, published in “Maan”]

 

Hussam was arrested on 28.1.04 and was charged with attempted homicide and arms trading. Ofer Military court sentenced him to 18 years in jail. The Military Court of Appeals rejected his appeal.

In September 2009 a petition was submitted to the High Court of Justice to overturn the conviction – it took the HCJ more than three years to set a hearing for 24.1.13.

 

The court was filled with family members (who had entry permits) and with many friends who were asked on Facebook to attend the hearing. Representatives of the Norwegian and French Embassies were also present. Two TV stations, Al-Jazeera and Al-Arabiya filmed and interviewed the attorneys and the family.

 

Atty. Sfard insisted that Hussam be present during the hearing. There was great excitement in the crowd as soon as he was brought in, dressed in brown prison uniform, and sat down in the defendant’s stand, flanked by a guard and an interpreter.

 

The presiding judge, Hanan Melzer, opened with a comment about the court’s deliberation whether to accept the petition or reject it out of hand. The court eventually decided to accept the petition as belonging to a category of cases regarded as “exceptional”.

 

Atty. Sfard based his argument on a claim of mistaken identity: “the convicted man is not the perpetrator”. The misidentification, he claimed, is a result of inadequate investigation. Among several other omissions, there was no lineup.

 

The prosecutor admitted that there had indeed been mistakes and omissions in the investigation, but he justified the decision by the three judges of the Military Appellate Court, since it was based on their “impression, that the accused was the right man.”

 

The presiding judge wondered: how come that in handing down the sentence, the Military Court did not take into account those same omissions that he himself criticized during the hearing, “as if he forgot the criticism” he had voiced regarding the faulty investigation.

 

Atty. Sfard asked the justices to revoke Hussam’s conviction.

 

The justices conferred briefly; then the presiding judge asked the prosecutor if the procedure could be simplified: to forgo the order nisi in favor of negotiation between the sides, so that the case could be returned to the Military Court of Appeals in order to reduce the penalty. The verdict will not be changed only the penalty will be mitigated, in view of the mishandling of the investigation.

The presiding judge then added that his colleague, Justice Shoham, had “refined” the offer: the regional commander would replace the Military Court of Appeals (if necessary). Whereupon Justice Handel remarked: “A flexible military system is indeed an advantage”.

 

The result of the “negotiation” (between the petitioner’s attorneys and the Military Court) will be known in 15 days.

 

[See protocol in Hebrew]