Release on Bail in the Palestinian Criminal Procedure Law: A Practical Reading in Light of the Amendment to Article (137) by Decree-Law No. (17) of 2014

Prepared by: Criminal Law Department – Frihat Law Firm & Consultants

General Introduction: Personal Liberty as a Pillar of Justice

Personal liberty is among the most sacred rights guaranteed by divine laws, affirmed by constitutional principles, and prioritized within criminal law frameworks.

From this perspective, freedom is the default state of the individual, whereas detention and pretrial imprisonment are exceptions, to be employed only when necessary and to the extent required by the interests of investigation or trial, under effective judicial oversight.

Criminal jurisprudence has long expressed this principle with enduring phrases such as:
“It is better that a thousand guilty escape than that a single innocent suffer.”

This principle remains a cornerstone of modern criminal justice.

Release on Bail: A Legislative Guarantee Against Detention

The Palestinian legislator regulated release on bail under Articles (130–148) of Criminal Procedure Law No. (3) of 2001, as a legal guarantee designed to achieve the same purpose as detention: ensuring the presence of the accused and preventing flight. However, bail achieves this goal with minimal intrusion on personal liberty.

The Palestinian Court of Cassation has consistently held that release on bail does not terminate detention, but rather suspends it conditionally, and the accused remains subject to the court’s authority throughout the proceedings. This understanding confirms that bail is not a circumvention of justice, but an essential judicial tool.

“Ikhla’ al-Sabeel” (Release) as a Practical Term

In practice, the term “Ikhla’ al-Sabeel” (release) is commonly used to refer to a bail request. While legally precise terminology would emphasize that such release is conditional and secured by a guarantee, there is no substantial difference in essence as long as release occurs within the limits established by law.

Practical Observations in Court Procedures

Empirical observation shows that bail requests usually follow a relatively fixed procedural path:

1. Submission of the request to the court registry.

2. Referral to the Public Prosecution for its opinion.

In practice, the prosecution often opposes bail and grants approval only in limited cases. Courts frequently adopt the prosecution’s recommendations and rarely override them, raising legitimate questions about the practical balance between the parties and the court’s role in protecting personal liberty.

Amendment of Article (137): Legal Basis for Prosecutorial Opinion

By Decree-Law No. (17) of 2014, Article (137) was amended to read as follows:

“The court shall examine bail requests carefully after seeking the opinion of the Public Prosecution, unless the defense or prosecution requests an oral hearing and the court agrees to it.”

This amendment explicitly mandated consulting the Public Prosecution, which was not specified in the original law.

Practical Reading of the Amendment and Its Effect

While the prosecution has the right, as a public adversary, to express its opinion on bail requests, practical application revealed some issues:

• The wording “seeking the opinion of the Public Prosecution” may inadvertently give the impression that the prosecution’s position is a necessary condition or decisive factor, rather than merely one opinion within an adversarial process.

• A more precise legislative phrasing could have preserved the prosecution’s right to express its view while reinforcing the court’s independence in decision-making.

Professional Observations Warranting Attention

From practical experience and courtroom practice:

• In some cases, release is linked to the prosecution’s stance in a way that implies release will not occur without explicit “no objection.”

• Defense lawyers are occasionally advised to obtain the prosecution’s approval as a preliminary step, which risks undermining the legislative guarantee.

These observations are not intended to generalize or diminish any party’s role but rather highlight individual practices that, if continued, could dilute the protective intent of the law.

The prosecution, while respected, remains a party to the case, whereas the court is constitutionally and legally tasked with safeguarding rights and freedoms independently.

Balancing the Rights of Defense and Prosecution

Criminal justice is not about formal balance but is guided by the higher principle that:

• The right to defense is sacred,

• The presumption of innocence persists until final conviction, and

• Freedom remains the default state whenever possible.

Treating the prosecution’s opinion as a decisive factor in bail decisions can inadvertently favor the logic of accusation over the logic of justice, contrary to the spirit and purpose of the law.

Professional Recommendation

From a legal professional perspective, enhancing confidence in criminal justice requires:

1. Reaffirming that bail is the norm whenever detention is unjustified.

2. Treating the prosecution’s opinion as one view within the adversarial process, not a prerequisite.

3. Activating alternatives provided by law, such as periodic reporting or residence requirements, instead of expanding detention.

4. Considering legislative review of Article (137) to ensure both consultation with the prosecution and judicial independence are preserved.

Protecting personal liberty does not undermine justice; it strengthens it, reinforcing the conviction that the judiciary is the ultimate guardian of rights and freedoms.

Conclusion

Release on bail is not a trivial exception; it is a pillar of criminal justice. Any practice that makes it rare or conditional on prosecution approval requires careful and responsible review to preserve:

• The spirit of the law,

• Individual liberty, and

• Public confidence in the judiciary.