Public Law

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The Legal Protection to the Delinquent Juveniles in the Palestinian Legistlations
(2007) Mohammad Zeead Mohammad Abdelrahman; Dr. Nail Taha
This research cares about the future, not at the scientific level or the cultural fascination that the scientists and the renewal seekers look at. We deal with an accurate material thing that we can't program it or calculate it as what scientists of mathematics and the physics do, and we can't mix it with chemical substances then this interaction produces what we want from the pure gold. The material that we are talking about is a rare kind that we should study precisely and carefully. They are the nucleus of the society, the basis of the progress of the nations and the peoples. They are the young’s as we call them by our language or the juveniles as the jurists like us want to call them. The axis of this study is the ability of protecting them and revealing the reasons that make them other than that we want from them or other than that the society wants from them, and sometimes the society wants sticking to them but the result is without a good effect, not as the society or experts want. Therefore there was no escape from summarizing the better solutions by following the legal ways. Since the law has a significant importance in the peoples life, because it directs their matters in a form that achieves them a kind of justice and equality and it returns their lost rights, the law has been the solution to the young cases, the social inspirer and the propulsive guide to the straight path and towards a better society. There was no escape from studying this condition in order and with care, starting from the meaning and the definition of the juvenile. The juvenile in the linguistic side in Arabic is a word means the modernism and the modernism in everything, and the intended juvenile is the new the human beings or the young. As for the psychologists were different from the language scientists in it is not in the youngness idea but in the estimation of the age of the young, then the psychological and social considered that the arrogance includes the amount of the psychological maturity and not basically the age, and that the age is nothing but a time census. For the Islamic Sharia, it was estimating the age of the young or the juvenile physically, that is the age of the juvenile is determined at the maturity namely at the puberty. Thereafter the Islam treated that who attains the puberty as a matured ,and consequently Islam did not allow the negligence with that one about all of his sustenance and his actions and even his thinking. As for the law, it has its special consideration and special thinking and sometimes its makers differed or met on its bases or its texts or even on defining the age of the juvenile. The Palestinian law considered the definition of the juvenile regardless of age of the young or the juvenile, and many legislations are with the Palestinian lawmaker in this naming and definition. When we want to discuss the responsibility of the juvenile in every stage of his age, we can’t neglect criminal liability whose basis has been the product of many theories. Some of their theories believe that the basis of the criminal liability comes from the one’s own choice, other theories believe in another principle called the obligation ,which means the that the natural, social, psychological and environmental circumstances control the behaviors of the juvenile, consequently the external factors push the individual or the juvenile to commit crimes or violate the law. But both of the choice and the obligation theories didn’t seem to be satisfying to many jurists, and here comes the agreement theory that mixes between both theories and believes that the actions of the juvenile result from his choice for doing them, but without neglecting the external factors namely the social and psychological factor and the environmental ones that push the juvenile to commit a crime. Although this theory is the more suitable, the Palestinian law took hold of the choice theory exclusively. From the legal aspect, the criminal liability differs from an age to an another, and so do its legal responsibilities. The lawmaker has decided the non-presence of responsibility or abstention of criminal liability to the juvenile from the beginning of his birth and before he reaches the age of seven, thereby the law does not recognize any action resulting from a juvenile that did not reach the age of seven years, The lesson from that are that the doer is a person who isn't capable to realize the validity of his actions. As for the one who reached the age of seven and until twelve, the law punishes him for his criminal actions and made the punishment by putting the precautionary measures and the reformatory arrangements to prevent the juvenile from committing new criminal actions. The law has emphasized the measures that are taken in the juvenile whose exceeds twelve and before he completes the age of fifteen, by putting reforming and precautionary measures, But with the possibility of putting the juvenile in a reformatory. For the delinquent juveniles who did not reach the age of eighteen and their ages arent less than fifteen, the lawmakers have assumed for this category the availability of the incomplete penal capacity, but with deciding a necessary diluted excuse, and that in case of committing crime weather was a felony or a misdemeanor or a violation. And at the same time they allow some precautionary measures working to this category according to specific cases. The measures of the pursuit and investigation related to the juvenile have different rules from what have been explained about the laws and rules dealing with the delinquent juveniles , that is because of the non the presence delinquent of laws specialized in juvenile pans. The law has given the power to the policemen for pursuing the delinquent juveniles with the adult criminals, and the commissioners of the judicial seizing undertake the search and the investigation about the crimes, their perpetrators and the collection of evidences that are necessary for the investigation. The law did not require a special competent authority to the follow-up of a special category like the juveniles for collecting the information and evidences, and that have been complementary to what came in the juvenile reform law applied in The West Bank And the criminals law for the young applied in Gaza Strip. The treatment and the measures that are taken against the juveniles in the primary investigation are different from those that are taken with the adults considering that the lawmaker tries to treat the juveniles and not to punish them on their actions, nevertheless the lawmaker did not differentiate in the taken measures against the delinquent juveniles. The applied legal rules in Palestine regarding to the delinquent juveniles didn’t treat the subject of the primary investigation whether that was in the side that possesses the authorities of the investigation with the juveniles or in the measures whose taking is necessary in this subject. However it has put special rules that guarantee a protection to the juveniles and between these rules what is related to the detaining or what it expresses by the provisional detention. As for the detention, the law has allowed detaining the juvenile, then the accused juvenile can be released with commitment signed by his ruler or guardian, but from the right of the commissioner of the judicial seizing arresting him until he is taken to the prosecution in the felonies or the juvenile interest requires that or that releasing the juvenile may lead to a disorder in the issue courses. The most important measures that are taken against any person whether he is an adult or a juvenile is judgment, and the law did not create competent courts for the juveniles, but the law gave the specialization to the subject courts, and so the juvenile courts are formed from the ordinary courts that have been formed for the ordinary justice as the specialization owner court, taking into consideration some of the matters including its creation place, its formation time, the secrecy quality in the judgments that are being held for the juveniles, with the clarification of the possibility of stopping the sentence execution and what are the reasons leading to the non-ability of the execution. The sentence execution in most of the time takes place by sheltering the delinquent juvenile in a place specified for him for spending a period outside the society that he lives in, in order to let the juvenile move according to a new and regular way to polish his behaviors again. It is known that there are houses for the delinquent juveniles, and there are a few in the Palestinian Authority regions, that work under the supervision of the Ministry of Social Affairs. One of these houses is Al Rabee institution, this institution serves in the governorates of Gaza receives delinquent juvenile between the age of 12-18 whether they are sentenced or detained. Another institution is The hope House for the observation and the social welfare, and this institution works at the service of the northern governorates ( The West Bank ) and Jerusalem suburbs and shelters delinquent juvenile whose ages are between 12-18 whether they are sentenced or detained. These institutions are specified for sheltering the male juveniles and not the females, therefore a house specified for the delinquent and homeless females called The Girls Care House, and it works for the service of Gaza Strip, the northern governorates ( The West Bank ) and Jerusalem suburbs. The delinquent juvenile or who represents him has the right to object or appeal the judgment if he a believes that the issued judgment against him isn't right and isn’t accurate. Therefore the lawmaker created a way to the accused juvenile to express his rejection to the judgment, and he law gave him the right in the re- judgment or even in the appealing in the issued judgments against the delinquent juveniles by appealing in all of the final issued judgments in the subject. One important rule that is considered from the general law order is the prescription .It’s a right that the sentenced can’t give up, because it’s a part of the general law and the complete system. The measures that are followed in the prescription, interruption and the stopping in addition to other measures that followed in dealing with accused adults are also used.
Guarantees of Disciplinary Questioning of the Public Servant, Contrastive Study
(2007) Amjad Jihad Nafe' Ayyash; Dr. Ahmad Mubarak Al-Khaldi
This study investigated the guarantees of disciplinary questioning of the public servant. In this study, I investigated these guarantees in the light of each of the Palestinian, Jordanian and Egyptian systems. In the first chapter, I approached the guarantees that precede the implementation of the disciplinary penalty. I demonstrated the confrontation of the worker with the violations alleged to him. I dealt with the concept of confrontation and the legal basis on which it is based. I found out that confrontation aims at putting the worker in the image of the accusations attributed to him. Although jurisprudence is in not in agreement in determining the basis of confrontation in case of lack of text between the ideas of penalty and hearing the other party, there is agreement about considering it a core procedure. Upon studying the confrontation details, I demonstrated the idea of informing the public servant of the accusations attributed to him, and his right of seeing the disciplinary file. I also studied the guarantee of the public servant to practise his right of defence. I found out that there is some discrepancy and absurdity in the definition of defence right and its relationship with other guarantees. I also discussed the procedures of defence practices regarding oral or written defence, freedom of defence, the employee's right of cross questioning witnesses and using them as witnesses, his right of having the assistance of a lawyer. I found out that the right of defence is one of the general principles that should be respected even in the absence of text. However, there are limits and restrictions that should be respected. I also discussed the jurisprudence disagreement regarding the burden of proof. I found out that some attributed this burden on the prosecution party taking in consideration the principle "the accused is innocent until proven guilty" which is applied in the criminal field. Others believe, based on the idea of the accuracy of administrative procedures, that the very idea of accusing the employee makes the employee guilty and he carries the burden of proving his innocence. Since confrontation of the employee with the charge attributed to him, and granting him with the right of practicing defence shall not be useful, and shall not realize the targeted purpose unless there is a guarantee of objectivity, I discussed the definition of objectivity. Some legislators restrict its range so that it is limited to the idea of not joining between the authority of investigation and verdict while others consider it an extension of defence right. I discussed this guarantee during the stage of investigation in addition to the stage of penalty implementation. I reached the conclusion that the objectivity guarantee finds complete application in the judicial disciplinary system while it is applied more weakly in the quasi-judicial disciplinary system, and it is hardly available in presidential discipline. In dealing with the means of fulfilling the objectivity guarantee, I discussed the reasons of rejection, withdrawal, and non-competence, in addition to the regulations of response and non-competence. I found out that the difference between the reasons of non-competence and the reasons of rejection lies in the following: the first nullifies the sentence or verdict even if the opponents are in agreement because the case is related to public order while opponents can disregard the rejection request or concede it after its application, and so the verdict becomes correct even if the reasons are available.</p> The second chapter is dedicated to the guarantees of disciplinary questioning related to the controls of disciplinary penalty. As I discussed the principle of legality, I found out that the application of this principle in the disciplinary field is inadequate since it includes the legality of penalty while it does not include the legality of the violation. In addition, there are no penalty lists that link between the violation and its corresponding penalty since this is left to the competent disciplinary authority. I also discussed the procedures of commitment to the legality principle concerning the commitment to the legally-recognized limits of penalty, and narrow interpretation of penalty texts, and non-application of disguised penalty. Then I discussed the principle of disciplinary penalty character. I found out that this principle does not allow punishing the employee unless he has committed a violation or contributed to it. Otherwise, the penalty verdict would lack one of its basic foundations which is the reason foundation. Following this, I discussed the unity of the disciplinary penalty stating that the employee shall not undergo more than one original disciplinary penalty for committing one violation. I discussed the stipulations for such multitude. Among the important guarantees that I investigated in this study is the principle of proportion between the violation and the disciplinary penalty. I found out that the administrative judiciary acknowledges as a general principle for the concerned disciplinary authorities the liberty of estimating the proper penalty for the committed violation provided that such estimation shall not be excessive. I discussed the jurisprudence disagreement about the judiciary supervision of proportion. I found out that the application of such principle contradicts with what the legislations used to do in providing penalty lists related to some categories of high-ranking employees. I also discussed the principle of causation in penalty, stating its importance, its place in contrastive legislation, and the rule of such causation when the text is not available. I found out that this rule differs among systems based on administrative nature of discipline (Jordan and Palestine) and the systems based on judicial nature of discipline (Egypt). I also discussed the elements of causation restricted by facts that require penalty, the legal basis of incrimination, and the employee's response regarding defence. I demonstrated the stipulations of correct causation that require that causation should be stated in the main part of the verdict, and that the causation must be proper, coordinated and clear. The third chapter is dedicated to study the judicial appeal against the disciplinary penalty. I discussed the competent party of seeing the appeal in Egypt, Jordan and Palestine. I found out that the disciplinary penalty in Egypt may be issued by administrative circles in addition to judicial parties. Therefore, I distinguished between the competent parties investigating the appeal against the disciplinary penalty according to the part issuing the verdict. I also criticized the Palestinian administrative judiciary for its suffering from having one degree of judiciary, and the inadequacy of one court in looking into all the administrative cases. I also dealt with the two stipulations of interest and dates. I identified what is meant by interest and the judiciary stands of the jurisprudence and judiciary that it is necessary to have it, and the criteria of its identification. I also discussed the dates of submitting appeals against the disciplinary penalty at both administrative and judiciary levels. I found out that such dates are not applicable on the executed verdict. I discussed the regulation of injustice before submitting the appeal and the reasons of appeal. I found out that the disciplinary verdict as an administrative verdict is based on five bases: competence, form, cause, locus, and purpose. Therefore, I confined the appeal causes at the bases that may affect the administrative verdict in one of its bases. As for the appeal causes of the disciplinary verdict, I discussed what is stated in the Egyptian State Board Law that restricts such causes in that the appealed verdict shall be based on law violation, error in its application or interpretation, nullification of the verdict or the procedures taken following the verdict, or issuing the verdict in contrary with a former verdict that exceeded the power of the sentenced case. I also discussed the impact rising from abolishing the disciplinary verdict. It was found out that the abolishment verdict shall execute the administrative verdict retrospectively from the date of its issuance. However, the abolishment verdict has the power of absolute authority regarding the locus but it does not prevent the disciplinary authorities from re-questioning the employee disciplinarily in accordance with the reason of abolishment.
Personal Criminal Liability of War Criminals, Massacres of Jenin Refugee Camp and the Old City of Nablus as a Model
(2007) Hani Adel Ahmad Awad; Prof. Ahmad Alkaldy
The importance of this study springs from its being a methodological research attempt to trace the measures of the Israeli occupation forces and classifying them as war crimes. The study emphasized the horrible acts committed by the Israeli forces during the incursions of the Jenin Refugee Camp and the Old City of Nablus in the year 2002 in order to shed legal lights on the principles and regulations of the international law that govern the personal criminal liability of committing war crimes. At the beginning, international liability has been accompanied by big developments that have affected its legal nature, basic origin, and the necessary requirements for its application, in order to reach its consequences and impacts. During the two world wars, many events took place that resulted in severe violations of human values and principles proved that some illegal acts of the individual such as violations of war laws and committing international crimes may threaten international peace and security. Consequently, the principle of personal legal liability had come into existence which later on was adopted. Essentially, it was applied through holding responsibility of many war criminals following the First and Second World Wars. For that purpose, several trials were administered such as the Leipzig, Nuremberg and Tokyo martial courts. More recently, war crimes courts were held to prosecute war criminals from Yugoslavia and Rwanda. The illegal acts committed by the Israeli occupation forces in April 2002 during the incursions of the Jenin Refugee Camp and the Old City of Nablus are characterized as war crimes. Such illegal acts included aggression against the rights of life, physical safety, and personal security represented by targeting Palestinian civilians, executions outside law, using Palestinian civilians as human shields, targeting medical staff and hospitals, hindering the transference of wounded and corpses of the killed people, severe treatment of civilians and degradation of people dignity, in addition to other war crimes. Knowing the regulations of the criminal international law, it should be noticed that there are many legal procedures that allow the possibility of prosecuting the Israeli war criminals. Such procedures may take the form of issuing a resolution by the UN Security Council to establish a special court to prosecute the Israeli war criminals, or prosecuting them at the national courts of states that signed the Fourth Geneva Charter, and other procedures. In anticipation of prosecuting the Israeli war criminals when the international opportunity becomes possible, the Palestinian Ministry of Justice and the concerned civil community bodies must document the continuous Israeli war crimes against the Palestinian people so as to use them as evidence to indict those who are responsible for such crimes. The right of prosecution the Israeli war criminals must not by no means be affected when resuming political negotiations between the Palestinian and Israeli sides in the future so that justice will not be sacrificed at the altar of political interests
The Questioning in the Parliamentary System, A Comparing Study Palestine and Egypt
(2007) Ahmad Nabeel Ahmad Sous; Dr. Ghazi Dweikat
The parliamentary system is considered the right image, and the model expressing the principle of the separation between the authorities, hence the basis of this system is the balance between the legislative and executive authorities. As a general origin, all of the authorities stand in this system equally without one following or controlling the other. The parliamentary system did not arise as a single upturn, but its rules have consisted due to a long historic development, and the tradition has contributed to a big share in this development until the bases of this system crystallized and its origins settled gradually, where that it did not consist and arises on a specific ideological basis but its emergence came related to specific historic developments, especially in England which considered the cradle of the parliamentary system. The parliamentary system passed by several stages from the development until its basic elements crystallized and its pillars appeared, and the success that the parliamentary system achieved in its original homeland England had a great effect at many of the world countries that quoted its parliamentary system from there. The outwards of the parliamentary system have appeared in the constitutions of many countries and their main laws, from these countries are the Arab Republic of Egypt and Palestine. There is no escape from stating the pillars that the parliamentary system depends on. The first pillar is the presence of an elected parliamentary council, which fulfills all of its basic elements, one of these most important conditions is exercising the actual authority of the parliament, a second condition is that the parliament has to be elected for a specific a renewable period, a third condition is the parliament being independent from its voters during the legislative separation, and that the parliament member represents all of the nation. And the second pillar that the parliamentary system depends on is the duality of the executive authority, where that the parliamentary system depends on the basis of the separation between the presidency of country and prime ministry, so that the president is not responsible, assuming that the complete political responsibility falls upon the ministry in a joint way between the ministries and their organs, namely that the parliamentary system based on the duality of the executive system. The third pillar that the parliamentary system depends on is the cooperation and the supervision between the legislative authority and the executive authority where that the cooperation depends in its nature on the intervention of the executive authority in some legislative authority works. The most prominent aspect of this relation is the participation of parliament with the government in some of their specializations, such as: the choice of president, the choice of Prime Minister, the exercise of the president tasks temporarily, the approval on the treaties that the president holds, the president's performance of the oath that is held in front of the parliament, and the approval of the general budget and the final accounts. The second aspect of the cooperation between the executive and the legislative authorities appears in the participation of the government with the parliament in some of its specializations, such as: starting the parliament sessions, works related to the legislation and the inclusion of the membership in the parliament and the ministry. The second part of this feature is the supervision between the legislative and executive authorities, where that the appearances of the supervision of the executive authority to the legislative authority are: the call of parliament for the holding the session, refusing the holding of the session and postponing the parliament meeting. As for the appearances of the supervision of the legislative authority to the executive authority including: the questioning, the right of holding an investigation, and the political ministerial responsibility. The most important tool of the supervision granted to the legislative authority for watching the works of the executive authority is the interrogation right. Most of the parliamentary countries constitutions stated the right of a member or a group of members in the parliament of the interrogation of a specific minister or the interrogation of the government about the internal matters in their specialization, among the countries that use the interrogation right Egypt and Palestine. The parliamentary interrogation whether in Egypt or in Palestine has elements which are: offering the interrogation to the parliament, answering the interrogation that the minister or the government carries out, and finally the vote of confidence in government or one of the ministers in case of their carelessness in their work was proved or if some of the parliament members requested the withdrawal of confidence. The interrogation being a kind of discussion is divided into two parts, the first is the discussion that targets the political responsibility, and second is the discussion that targets taking suggestions not the political responsibility. The interrogation whether it is in Egypt or Palestine has three results. The first one is that the discussion shows that the government or the minister has carried out their duty perfectly, or the discussion shows that the government didn’t make mistakes or its mistake was very simple that we can pass over. The last expected result of the interrogation is issuing a decision with the condemnation of government or with the condemnation of some of its members.
Predetermined Reimbursement in Civil Law Comparative Study
(2007) Tariq Mhommad Motlaq Abo Layla; Dr. Hussein A. Mashaqi
This study deals with a very important topic at the economic level in general. Predetermined reimbursement refers to previous agreement on the assessment of the required reimbursement incurred due to default of either party of his liabilities according to the contract. Predetermined reimbursement plays a vital role characterizing the contracts with obligatory qualities that help in their execution. In addition, it decreases disputes that may erupt as a result of damages and the volume of incurred reimbursement. Therefore, it prevents the necessity to recourse to arbitration and assessment whether by the judge himself or through seeking assistance of experts. In this way, it is possible to save time, costs, efforts, and money of both the contracting parties and the judicial authorities. This study plays an important role at the Palestinian legal level since it deals with the predetermined reimbursement in the proposed Palestinian civil law in contrastive analysis with the legal systems in both Jordan and Egypt. This study aims at investigating the legal value of predetermined reimbursement. It is essential to recognize the concept of the predetermined reimbursement and the conditions of its realization, in addition to the range of its application, and its discrimination of similar legal situations. Assistance of Jordanian and Egyptian jurisprudence and judicial systems will be sought to reach a clear vision of the legal effects that come up from the predetermined reimbursement and to determine its legal nature. These outcomes are extremely important at not only the commercial, economical and investment levels but also the legal advantages of those who work in both the legal professions and the economical investments. Consequently, this study is demonstrated in a preface and four chapters. In the study's preface, the study investigates the development of the predetermined reimbursement idea in various legal systems. Chapter 1 deals with the general regulations and principles of predetermined reimbursement through two parts: Part 1 deals with the concept of predetermined reimbursement which is divided into two sections: Section1 aims at recognizing the predetermined reimbursement, and its terms in various systems. Section 2 deals with the importance of predetermined reimbursement. Part 2 investigates the characteristics of predetermined reimbursement which is also divided into two sections: Section 1 deals with the quality of the contract. Section 2 deals with the quality of subordinate. Chapter 2 investigates the conditions of realizing the predetermined reimbursement and its application range, divided into two parts. Part 1 deals with the conditions of realizing the predetermined reimbursement which is in turn divided into two sections: Section 1 deals with the general terms of the verdict of the predetermined reimbursement including errors, damages and causal relationship. Section2 deals with excuses presented from the indebted to the debtor. Part 2 deals with the application range of the predetermined reimbursement which is also divided into two sections: Section 1 deals with application of the predetermined reimbursement within the range of the contract. Section 2 deals with the application of the predetermined reimbursement within the damaging act. Chapter 3 deals with the issue of selection and combination of material execution and predetermined reimbursement in addition to its discrimination from similar legal situations. Chapter 3 is also divided into two parts: Part 1 is dedicated to the issue of selection and combination between material execution and predetermined reimbursement which is in turn divided into two sections: Section1 is dedicated to the issue of selection between material execution and predetermined reimbursement. Section 2 is dedicated to the issue of combination between material execution and predetermined reimbursement. Part 2 deals with the discrimination of the predetermined reimbursement according to similar legal situations. This part is divided into five sections: Section 1 deals with the discrimination between the predetermined reimbursement and down payment. Section 2 deals with the discrimination between the predetermined reimbursement and peace-making. Section 3 deals with the discrimination between the predetermined reimbursement and material threat. Section 4 deals with the discrimination between the predetermined reimbursement and substitution commitment. Section 5 deals with the discrimination between the predetermined reimbursement and optional commitment. Chapter 4 deals with the effects of the predetermined reimbursement and to what extent its regulations are related to the general system. This chapter is divided into two parts: Part 1 deals with the judge's authority in modifying the predetermined reimbursement which is divided into two sections: Section 1 deals with the judge's authority in assigning the predetermined reimbursement. Section 2 deals with the judge's authority in increasing the predetermined reimbursement. Part 2 deals with the regulations of the predetermined reimbursement and general system which is divided into two sections: Section 1 deals with the issue of the general system. Section 2 deals with the regulations of the predetermined reimbursement and general system since the methodology of the legislator regarding this issue is a peculiar methodology in itself since the majority of laws permitted the contractors to agree upon the amount of reimbursement at the beginning of the contract and to make additions later on. This means that the legislator does not consider that the predetermined reimbursement does not contradict the regulations of the general system. However, the regulations of related to the predetermined reimbursement have violated the principle that they have adopted since they allow the judge to assign or increase the predetermined reimbursement if the amount of predetermined reimbursement is not proportional to the incurred damage, and they considered the judge's authority a part of the general system and that the predetermined reimbursement must not violate it.
Confession in the Palestinian Criminal Procedural Law, Comparative Study
(2007) Lu’ai Dawood Mohammed Dweikat; Dr. Nael Taha
This study deals with the subject of confession from the side of the accused person being considered as a proof of prosecution according to the Palestinian Criminal Procedural Law and the Comparative Law. The study consists of four chapters. The first chapter studies the conception of confession both literally and technically or legally. In addition، it talks about the different types of confession with regard to the authority before whom it takes place، the credibility it has and the shape it takes. Moreover، I have dealt with the legal nature of confession explaining how confession is considered as a legal action not a legal conduct، since law itself organizes the consequences of confession without having any interference from the side of the person who gives the confession. The second chapter talks about the conditions which make the confession valid. In this chapter، I have illustrated that for the confession to be considered valid، productive and with legal consequences، it must a bade by the following conditions: 1.it must be given by a person who has a procedural qualification. For this condition to be applied، the person must be accused of committing the crime referred to the legal value of the confession given by one accused person against another، in addition to the confession from the side of the lawyer on behalf of his client (the accused person). The accused person must also have the mental perception and consciousness at the time of giving the confession. Hence، I have explained the cases of confession given by persons who are underage، lunatic or drunken. 2.The confession must be given under a free and conscious will of the accused person. Throughout this section، I have pointed out to cases where confession is considered null and void، these cases or techniques are divided into: a. Explicit or physical، such as coercion، overburdening the accused person through very long interrogation، using police dogs، using hypnosis or anesthetic drugs. implicit or Psychological، such as promising، tempting threatening the accused person، forcing him to take an oath or using deception or artifice. 3.The confession must be compatible or agreeing with fact and logic. 4.The confession must be given by applying correct procedures. I have later on distinguished between confession، testimony and civil avowal explaining similarities، and differences between them، in order to make it easy to understand the nature and indications of each of them so that one would not confuse between them. The Third chapter deals with the credibility of confession and its consequences upon prosecution; as the credibility of the confession varies according to، and depending on، the side who issue it; i.e.، it is given by the accused person or another person. Moreover I have talked about confession division، including the cases where division is allowed، the cases where division is not allowed and the role and authority of the court in dividing the confession. In the next section of this chapter، I have illustrated the effects of confession upon prosecution. I have studied this subject from two dimensions: 1.Procedural dimension which refers to the procedures applied during the legal proceedings of a case whether it is in the stage of investigation، initial interrogation، after the Attorney General takes a decision to institute legal proceedings and after bringing the case to the court by the Public Prosecution. Besides، I have explained the consequences of the confession given before the court، the consequence of the confession given after the initial sentence and the consequences of confession given after the final sentence. 2.Objective dimension which refers to the consequences of the confession upon the criminal penalty of the crime (s) committed and confessed by the accused person. Examples of such crimes are bribery، state community crimes، the crime of instituting a group to plan and execute crimes، the crime of forging seals، banknotes or stamps; and finally the crime of perjury (false swearing) In the fourth and last chapter، I have studied the cases of Confession recantation and confession nullity، I have first referred to the ability of the accused person to recant his confession، the court authority in evaluating this recantation and its consequences and indications of such a recantation which can tell if the recantation is right or not. The second subject I have studies in this chapter is the confession nullity referring to the most important aspects or causes which make a confession null: 1.Lack of or absence of procedural qualification from the side of the accused person. 2.Absence of free will be of the person who gives the confession. 3.of agreement or compatibility between the confession and facts or logic. 4.Absence or lack of correct procedures during giving the profession. Finally، I have illustrated the effects of null confession upon the proceeding and subsequent procedures.
Arrested in Penal Legislation Palestinian, Comparative Study
(2007) Muhannad Arif Sawan; A. D. Mubarak Ahmad Khalidi
Thesis topic arrested in the penal legislation Palestinian Magarnhabgyerh of penal legislation of other legislation, such as Egypt and Jordan, where the British took freely rights legislation barring Bhaala prejudice in certain situations, the longer the arrest of the most urgent actions that Harrihfho limits, but Yadamhavi conditions Mainhlmakan interest safeguards prevent violations of individual freedoms and regulate the border which the authorities Alaamhassistas Bahawaadm involvement in the darkness of prisons without legal basis, without reliance on the principles, norms, rules and penal legislation, which states quite frankly the inadmissibility arrested and remanded rights Bammerman not legally competent authorities Hence the importance of this study. The researcher discussed paving the arrest by the conventions and international legislation (charters and declarations) and the arrest in legislation Arabhutenaul researcher in the first quarter definition of the law enforcement and judicial duties and powers of legislation based Alvelstineutarif criminal prosecution, powers and function of the trigger punitive and functioning as the enforcement of judicial and prosecution are the powers and functions related lawsuit punitive started from the stage to accept the complaint and the evidence gathered via MOVED criminal case and conducted by the Public Prosecutor and the researcher in the second quarter what tariffs and arrested him various aspects of jurisprudence and the judiciary to give a clear picture of each corner and then viewed it as identified through the arrest coupled relationship liberties the fact that the individual arrested symptoms, which are freedom and hence the distinction between arrest and some of the actions might like him stop and stop and physical exposure. In chapter III, a researcher with the arrest of authority law enforcement officers in the arrest and conditions of its implementation, cases and then search procedures after the arrest and then examine the elements of the crime arrests and all that through legislation compared to other legislation Palestinian, Jordanian, Egyptian and British and check these conditions and big and put it in balance with the extent of achievement of justice, fairness, freedom and human dignity. To achieve the best results, provide useful study meets the precise details must be followed researcher tried scientifically accurate and certified From this standpoint, the researcher followed the curriculum interpretative and analytical articles dealing with the Code of Criminal Procedure and Palestinian research on the topic and other punitive legislation and the gloss accurate, then followed researcher analytic method for devising what is inherent in it and then followed the comparative method by comparing the legal texts to each other and neither of them know more precisely whether the wording or meaning, which is more in line with the same researcher, and finally followed the curriculum cash to not only the interpretation, analysis and comparison, but we must all criticism a statement beauties and disadvantages and to develop appropriate texts in the run and then followed by Conclusion The research findings and recommendations.
Israeli Apartheid Wall in International Law
(2007) Reem Tayseer Al-Arda; Dr. Basel Mansor
My thesis deals with every complicated issue in Palestinians life that is, the wall which most of was constructed on the Palestinians lands. Before this in advanced chapter I have discussed the historical roofs of this wall to prove that it is not for fighting terrorism and explosive attacks inside Israel as Israel claims but the other real purposes are to create anew accomplished fact and new boarders that might not be changed. In the first chapter I have handled the legality of the wall which is the content of the subject where I present that the construction of the wall on the occupied Palestinian lands is against the international law and against all the International traditions and treaties especially the united National convention of human rights and any other related international agreements. Moreover I handeted in this chapter the united Nations attitude towards the wall's issue especially (security council and General Assembly), I have deduced that General Assembly attitude is stronger and greater than that of the security council which always restricted the right of -veto-when the attitude is for the Palestinian national interest. The second chapter is specialized to discuss the international attitudes towards the wall. I noticed an obvious difference among these attitudes, some of them agree, others disagree and third is a moderate. The states which have common interest, with Israel have attitude to those witch sympathize with the Palestinians issue. I also found that the Arabic states attitude is no more than condemning and deluging and silence. But according to the Palestinian attitude which is the stronger because some issues that are directly related to the wall when they are positive or negative in terms of Israeli attitude towards the wall they are two attitudes one the them agree the other disagree the idea to constrict the wall on the occupied Palestinians lanes. At third chapter I have deled the role of international court of Justice in Lahai in terms of which was constructed on the occupied Palestinian lands. This role was very strong since it issued a resolution to destroy the built parts of this wall, to compensate for their damages because of the wall and to stop the constructing work and this means that the resolution is for the Palestinian interest. This resolution consists of 150 pages, but I didn't discuss it in details because of the resented number of pages of thesis. I neatened only the most important points which demand from Israel to destroy the wall. In the same chapter I have discussed the authority of international court of Justice to issue such are solution in term of the wall or not because Israel and other states were against this court and they have suspected in the court authority for many reasons mentioned them in details in third section of this chapter. At the end of the third chapter I have discussed the political and legal importance of the resolution that issued by the international court of Justice which is considered as a victory to the Palestinian Nation. In the concluding section I have discussed all my general deductions on all the aspect of thesis.
Detention in Palestinian Criminal Procedure
(2007) Mohammad N. Weld Ali; Dr. Na'el Tahoa
This study deals with the preventive Detention (Detention) in the light of the Code of Palestinian Criminal Procedure and its modified articles including the articles of Remand procedure. The study discussed many subjects are contacted the main topic of this thesis. The study introduced the definition of Remand according the linguistic, scholarly, religiously and legally, despite of the differences between all of the scholarly definitions but they agreed that the main concept of Remand is: Arrest the accused person for a period of time until the end of investigation under the conditions and controls that established by the law. But because the law used the expressions of remand and arrests, the study used the Remand as the meaning of arresting the accused person for a period of time until the end of investigation under the conditions and controls that established by the law. It is preferable to use one and specific legal terminology to unify the legal procedures between Gaza Strip and West Bank. This study distinguished between the Remand and the similar procedures such as, the distinct between the administrative detention and Remand in related with the definition, authorized authority and the period. The study talked about the historical developments of the concept of Remand during the ancient Egyptian era, Roman era and Islamic law (Shareaa) which was and still the most important legislative resource in Palestine. In addition to the international treaties and legitimacy. In the chapter tow, the study discussed the legal adaptation of Remand through discussion the principle of presumption of innocence which suppose the innocence of the person until proven otherwise, by final pronounced judgment that the person is guilty, then conciliation between all of this and Remand, and the distinct between the Remand and punishment. The study introduced the justification to arrests some person without final condemnation judgment, some of these justifications are: To calm the public opinion, preventing the accused fleeing, and the preservation of evidences which it might be destroyed or covered by the accused person if he/she stayed free. In addition to the preservation of the accused from the retaliation and to implement the punishment against the accused in case of guilty. In the second part the study discussed the objective conditions of arrest which are: the Crimes that allow executing the arrest against the accused according two categories, first one takes magnitude penalty if the Crime committed a felony or a misdemeanor punishable by more than six months, the criterion of residence which allows the arrest of the offender with unknown residence. The second condition, Presented by the need for a sufficient indications and reasonable reasons for the issuance of arrest warrant. Presented in the third requirement which is the arrest period it shown the standards that explained the length of stay (Remand or arrest) In terms of setting a maximum of arrest, it indicated how long can the jurisdiction Law enforcement and The Public Prosecutor arrest the accused person, The term can Magistrate issues an order as well as the Court of first instance. It presented at third subsection the Formal conditions to issue the decision of arrest and which authorized authority can issue the warrant of arrest and the necessity of question before the arrests, causing a decision of arrests and the implementation arrest warrant during a certain period, the evidences that contained in the arrest warrant which is The name and description or the position of the issuer of the arrest warrant, the endorsement on the decision by the formal stamp, The details of the accused, The charge that attributed against the accused, The specific article of the legal charge, the period of arrests, the accused address and the Commissioning of The superintendent of the prison to imprison the accused person. In the third chapter, it presented the end of the arrests or remand by the releasing as shown the definition of release and its considerations, the specialized authority, the types of release which contains, the mandatory release that enforced by law, The Jawazi release which issues by the public prosecutor or the court upon the self initiative or upon the accused request. It explained the Suspension release with guarantee, in addition to the definition of it and its conditions and how could be evaluated. At another subsection, it presented the effects of arrests which including the Counted of arrest period from the final judgement and the opinions of scholars about this. It discussed Re-arrest the accused again but it should be conditioned with causing decision and new situations. At third subsection, it talked about Control over the legality of the arrest decision that will be by the jurisdiction initiative or upon of the accused request. It presented how the detainee treatment should be and what the rights that should be given for the detainee according the international, Palestinian principles and laws. At the conclusion, it reached for general conclusions about all this research with some proposals to modify some formulation of some Palestinian articles in the Criminal Procedure law to afford more guaranties for the human beings and individual freedom.
Residence Search According to the Palestinian Criminal Procedures Law, A Comparative Study
(2008) Mohammed Ali Mustafa Ghanem; Dr. Nael Taha
The Researcher studied Residence Search according to the Palestinian Criminal Procedures Law, after he discussed a number of related subjects to the Thesis in a preliminary chapter, where he showed the definition of Judicial Search according to a number of Law jurists, since the Palestinian Criminal Procedures Law didn’t define it. The jurists have agreed that Judicial Search and Residence Search are investigation procedures executed and/or permitted by a specialized authority which is in this case The Attorney General according to our legislations. This procedure shall not be permitted unless a crime or a misdemeanor occurred, and therefore search for criminal evidences of the suspected crime is needed. The researcher also tried to define a Residence. The researcher went through jurists opinions about defining a residence, where all agreed that the substance the residence is made of doesn’t matter. The researcher assured that possessing an ownership document of the residence is not important since the resident could be an owner or occupying it by force. The researcher discussed in preface topic the residence sanctity according to Islamic Religion. The researcher also explored a summary of residence sanctity in the International and Arabic legislations and Constitutions. The researcher specified the first chapter to discuss Residence Search and differentiate it from other types of search. He also defined Search and Residence Search and showed that there’s a difference between it and other search types, he also discussed the concept Search, its purpose and the party responsible of performing it. The researcher also explained Protective Search and its legal bases, and differentiated between entering a residence and searching it. The first topic also includes that there are some places that should be inspected through special procedures, for example medical clinics, attorneys’ offices, public stores and coffee shops, hence these places are considered as residences and treated that way. Public stores could be entered by policemen as long as its doors are opened and are receiving customers, policemen shall not inspect the desk drawers of the owner, nor they can search hotel rooms because they are protected and treated as residences. In the second topic the researcher discussed differentiating Residence Search from other procedures of seizing evidences, such as examination, interrogation and delegation of a specialist to the crime scene. The researcher explained Personal Search in details. He also commented that female personal search should be carried out by another delegated female only. In the third topic the researcher handled the nature of search carried by judicial police officers, whom are delegated by the Attorney General, and also discussed the search when arresting an accused person, because arresting an accused person in case of flagrant does not have to exclude this case from the ruling act of Article 2-11 of the Essential Law. In the second chapter the researcher discussed the objective and descriptive conditions of search, where he explained in the first topic the descriptive conditions such as attending the accused person and the witnesses the search process and the date and time of the search procedure. The researcher mentioned the effects resulting from neglecting or not applying these two descriptive conditions. The researcher also indicated that the search warrant should include the reasons for the search, those are elements from which an attorney general officer extracted enough evidences to perform search, and which is the search warrant is issued after. In the second topic the researcher discussed the objective conditions concerning residence search which determine the conditions in which the search could be performed. The study shows that anything/place that could be considered a place to keep a person secrets is a legible place to search, so it could be the person himself, and the accused person could be put to medical examination like gastric lavage, the researcher sees that this procedure is crucial to make justice and for the society’s good, and is not an offense against the accused person dignity. The researcher also specified that some places and persons are immune to this procedure for international, individual or constitutional considerations. Embassies and diplomats residencies are prohibited to be searched, so as themselves and their mail. There are also considerations and immunity given to Legislative Council Members, so no search is allowed at his luggage, house, estate or any belonging to him as long as he has legislative immunity, except if the legislator is caught committing a crime in a case of flagrant. The researcher also noted that the investigation authority cannot order investigating a Legislator residence even though a crime committed by one of his family members living in his residence, unless a warrant is issued to stop his immunity. The study also discussed Vehicle Search procedures, the researcher distinguished between private and public service vehicles, he also distinguished if the vehicle is inside a residence or outside. The researcher also showed that search is an authority of the Attorney General Officers and performed with their presence, or by delegated Judicial Officers, the researcher also talked about place and type specialty and that the Search Warrant must be confirmed by writing. The researcher discussed the effects of residence search in the third chapter, in the first topic he talked about seizing objects, which applies to physical objects like guns used in a crime, letters and estates, and nonphysical objects like spying on phone lines and recording personal conversations, these are not included within the search but follow a specific different procedure. The researcher also discussed the legitimacy of accidental seizure and how to deal with the seized objects. The seized objects could be confiscated, if needed, for the State benefit and could not be returned to their former owner. In the third topic the researcher discussed the Void of Search and Void types; the legislator himself may handle Void cases, this is called Legal Void, or the legislator can oversee a general principle for the cases that could be considered Void if the procedure not followed, this is called Auto Void, he explained that void could be decided for the benefit of the public or the System, then it’s considered as Absolute Void, or could be for the benefit of the opposing party which is called Partial Void. The researcher commented that violating Search Objective rules and conditions is a part of the Public Law and the consequences will lead to Absolute Void. The researcher also mentioned the effects of Search Void, because it’s done by a judge or juries decision, the researcher discussed the effect of Void on the procedure itself. The researcher also explained effects of procedure void on the previous procedures, whereas the effect on proceeding procedures is strict to the procedures that are based on the void procedure. The researcher commented on the possibility of repeating the void procedure and correcting it. The researcher put a conclusion where he listed the most important results along with general suggestions on most subjects of the thesis; he also suggested editing some articles of the Palestinian Criminal Procedures Law.
Nullification In The Palestinian Act Of Procedural Penal Procedures, Compared Study
(2008) Osama Abdullah Mohammad Zaid Kilany; Dr. Nael Taha
This study; a comparative study with Egyptian Penal Act Procedures, is scheduled to discuss the nullification at the Palestinian Penal Act Procedures. Before starting with the nullification subject, it is preferred to discuss the procedural act, is definition, and defining its juristic nature and characteristics. Taking in consideration that the Penal Act theory is of vital significance in this study, since the penal act is the core of the nullification theory, besides to its relations with the penal antagonism, relations that cannot be separated; as it exists or relinquishes constantly with it, moreover; may get intermingled with some other juristic regulations or be similar to them, as invalidity, disagreement or complete absence, as they themselves are considered to be penal procedures. The researcher preferred to distinguished between these, and to uncover the misunderstanding between such regulations, showing their characteristics, and what distinguishes each from others, the matter that made it necessary to talk about the nullification conditions through showing the types that represent it. First, the obligatory nullification system that builds nullification upon the dissent of the forms and the terms required by the act. Second, the juristic nullification system which, in particular, avoids the nullification cases, whereas; if any of its terms was fulfilled, the judge has to sentence upon it. Third, the autonomous nullification system where the judge is entitled to widen his authority on defining the dissent of any principle article even if it were not mentioned in the law. Four, the nullification without discomfiture. Five, the Egyptian nullification system which adopted the autonomous nullification system which considered the nullification is realized through neglecting or not considering any principle procedure. Six, the view of the Palestinian jurist who adopted the autonomous nullification system and that there is no nullification without a clear text, since the Palestinian jurist states that the procedure will be nullified if it was clearly mentioned in the text, or if any fault was apparent through it in a manner that cancels its purpose. It was necessary to talk about the nullification types, the abstract nullification which comes as a result of the dissent from the particular rules of the principle procedures related to the public order, as the dissent of the eligibility or the juridical regulation, this type was addressed by the Palestinian legislator, article (475) of the penal act, and the partial nullification adopted by the Palestinian legislator, article (478), realized at the dissent of the principle rules not related to the public order aiming at defending the opponents' interests. It was necessary to explain the public order idea as a standard to distinguish between the nullification types, then to talk about the importance of distinguishing between them, as this importance is shown through the terms of committing to them, expressed by the interests terms, provided that the committed to nullification is not the cause of its realization., and where there are effects of the nullification they may be expressed through making the procedure without any effects, and has no effects upon the former procedure, while it may affect those occurring after it. The researcher had dealt with the renewal of the nullified procedure, as it is not provided that the procedure may nullified, but a suspected nullification. Renewal of the nullification is preferred at the procedure nullification, the matter that requires correcting the procedure, this correction may be completed if the purpose of the nullified procedure was fulfilled, or if the legislative order had the power of the implemented order, then it cannot be nullified even if it consisted of nullified procedures.
A Critical Study in the General Assembly Resolutions 181, 194 Related to the Palestinian Issue
(2008) Ahmad Hasan Abu Ja'far; Dr. Basel Mansour
This study deals with the General Assembly resolutions 181,194 related to the Palestinian Issue. It studies the mentioned resolutions from the conditions they were issued and their effects on the region in general and particularly on the Palestinians. The researcher studies the special legal dimension of these two resolutions, the foundation of the Israeli State and the international recognition of Israel which was a result of the resolution issued by the United Nations. The introductory chapter of this study is dedicated to the Zionism, , its ideology and also Bazel conference which was held in 1897 in Switzerland. The most important resolution of Bazel conference was to establish the national homeland for the Jews in Palestine. The mentioned conference urged the Jews leaders to make the Ottoman Turks accept that request, but sultan Abdul Hameed rejected the temptations of the Jews leaders. In addition, the researcher investigates the European interference in Palestine; that interference was obviously clear through Before declaration. The study investigates the legal value of that declaration. That mentioned declaration was the strangest in the world, because George Arther Belfour, the Foreign Affairs Minister of Great Britain, promised the rich Jew, Rocheld to establish a Jewish state on the territories of Palestine. That declaration occurred in 1916 when Palestine was still under the Ottoman Turks control and Great Britain doesn’t possess Palestine. I also discuss the General Assembly resolution "3379" which considers the Zionism a kind of racism, that resolution was taken in 1975,and it was cancelled in 1991 by the General Assembly itself. In the introductory chapter, I study the discussion of the Palestine issue in the United Nations. I also discuss the transfer of the Palestine issue to the United Nations. That step was taken by Great Britain and the USA governments. The United Nations decided to send a special committee to Palestine to investigate the situation there. That committee was called UNSCO Pthe United Nations Special Committee on Palestine. The committee submitted a special report about its investigation in Palestine. I point out that the United Nations violated its convention when it issued the division resolution of Palestine, because the Arabs formed the majority of the population of Palestine in that time, and so they had the right to decide their destination. Besides, the United Nations isn’t legally entitled to impose such resolution on the Palestinian people. The first chapter is dedicated to study the different attitudes towards the General Assembly division resolution, and the legal value of such resolution. I study the Palestinian and the Arab attitudes towards that resolutions. The division resolution was rejected both by the Palestinians and the Arab Governments. The British Government was pleased when the division resolution was issued by the General Assembly, because the Palestine issue was considered a big burden on Great Britain during that period. The British mandatory in Palestine commented, ' we accept the division resolution 181, and we will do our best to implement its items. If we want to talk about the USA attitude towards the division resolution, the USA supported the division resolution at first, but after a short period, the USA Government changed its mind and suggested a temporary guardianship on Palestine. But as soon as Israel announced its independence by the Jew leader, David Bin Gurion, the USA announced its recognition of the new born state. That recognition was in sharp contrast with its previous situation. I study the effects of the division resolution on the Palestinians and the General Assembly capacity to take such decision, and also the legality of Israeli foundation. The division resolution had dangerous effects on the Palestinians, especially the immigration of the Jews to Palestine, and the dismissal of the Palestinian people from their homeland, Palestine. As for the capacity of the United Nations to take such resolution, it is obvious that article 2 from the United Nations Convention prevents the UN from interfering in the independent states internal affairs. I also study the legality of Israel foundation. Israel depended on religious and historical claims, but these claims dont give Israel the right to establish its state on the territories of Palestine. The second chapter is dedicated to the General Assembly resolution "194" related to the right of return for the Palestine refugees , the compensation for those who don’t want to return and the right to self-determination. I also study the Israeli and the Palestinian attitudes towards that right, the Palestinian refugees, the foundation of the UNRWA and the legal value of the United Nations resolutions on Palestine. The Palestinians reject to abandon that mentioned right. As for the Israeli attitude, Israel has been rejecting that right and its doesn’t depend on legal bases, but it depends on the Israeli vision which says that the return of the Palestinian refugees will threaten the survival of the Jews. The second chapter deals with the criticism of the right of return for the Palestinian refugees and the possibility to apply this right in the future. The right of return is guaranteed by the international law. Most of the legal experts say that the right of return is applicable as it depends on the rules of the international law and it won’t threaten the survival of Israel. I also study the obstacles and hardships which prevent the right of return for the Palestinian refugees from being implemented. I elaborate the recommendations to achieve the right of return for the Palestine refugees, and I believe that the right of return should be open for any Palestinian who wants that. In conclusion, I see that Israel has a historical opportunity to live in peace with the Palestinians and its neighbors in the Arab world, and Israel should catch the mentioned opportunity. But Israel can do that if it implements the international resolutions to give the coming generations the hope and the chance to live peacefully on the holy land of Palestine.
Fraud Crime, Comparative Study
(2008) Mohammed Hisham Saleh A. Fattah; Dr. Nael Taha
This study talks about one of Money Crime, which is Fraud, in the light of Punitive Law and some of Penaltive Laws, where it is contained in three chapters. The first chapter talked about the definition through identifying Fraud by Law and Prudence, and explained the aspects of Fraud Crime, as it is a money crime, with a mental nature, based upon changing reality, as it is also intentional, with a basic role for the victims will. The study looked into the common rules between Fraud, Burglary, and Mistrust, pointing also the differences between Criminal Fraud, Civil Fraud and forgery. The second chapter was allocated to talk about the elements of the Fraud Crime; it looked into the material element, and pointed out the criminal act in Fraud, through demonstrating fraud means and methods. Using false names, or false status, or using money or real estate illegally, and found that lie is the Core of Fraud, but alone it doesn’t stand, as it should be supported by external demonstrations, as being supported by a third party confirming the criminals false allegation, misuse of status, or through pretending in order to support the criminals false allegations. After explaining the methods, the purpose of these methods was presented as defined by some legislations, as it is the illusion of the presence of a false project, and the illusion of the presence of a false act, intended for raising hope in making an un-realistic profit, and also creating hope in paying back the amount seized by fraud, beside the illusion of the existence of a false or forged receipt of debt or clearance. I also explained the second method of fraud which is using false status or name, as it is a method that stands alone. Without any external appearances, I also explained the third method of fraud which is using money or real estate illegally, where it is stipulated that the money is not owned by the criminal and has no right in using it. The second element in the materialistic aspect of Fraud Crime is the criminal result in handing over the money to the criminal, where the ill-will of the victim is towards delivering the money. The cause-effect relation was also explained between the criminal act and the result, and to get this done, fraud and money delivery, fraud act has to get the victim fall in the problem, and the problem which the victim fells in, is the cause behind delivering money to the criminal, so fraud is a prerequisite for money delivery. I reached the result that if delivery did not happen, and the result not materialized, even so, criminal is not exempted from punishment, as he is considered an initiator of the crime, if he started committing one of fraud means, and delivery did not take place for a reason beyond his capacity. I clarified also the second element of fraud crime, which is the moral element, as it is in addition to the general intention of knowing about fraud, and the presence of the will to commit it, a special intention should be available as the criminals tendency for possessing the item he received from the victim, and when criminal intention is present in its aspects, the private and the public, the motive is no longer influential, as it is not any more considered a crime element, with no matter how noble the motive is behind fraud, it should not be happening. In the 3rd. chapter I looked into fraud sentence, and explained the sentence for the complete crime, and found that fraud sentence is maximized in the following circumstances; to insure a public position, upon the issue of shares and bonds, damaging the states or any public institutions interests or fraud committed by a signature authorized person. Also pointed out that in some legislations, there are conditions that minimize fraud sentence, and even conditions that exempt from the sentence, if the crime took place between very close relative, except if it was upon the victims request, while minimizing sentence could get to the half as it is in the Jordanian Law, if resulted damage or benefit intended is trivial, or damage was totally removed before the case could reach the court, and found also that most legislations did not establish sentences beyond fraud crime stipulated sentence. Also looked into the sentence for initiating fraud crime as stipulated in law, and the caliber of the sentence.
Guarantees and Rights of The Accused in The Interrogation and Detention "Preventive Detention" in The Palestinian Code of Criminal Procedures A comparative study
(2008) Ahmed Sadi Al-Ahmad; D. Mohammed Sharaqa
This thesis discussed the subject of guarantees and rights of the accused in the interrogation and detention preventive detention in accordance with the Palestinian Code of Criminal Procedures No. (3) For the year 2001, compared to other penal legislations such as the Egyptian, and the Jordanian. The Code of Criminal Procedures is considered one of the most important laws enacted by the state, it sometimes affects personal freedom And sometimes locks it, and it is enough to give our imagination of a position of accusing an individual of a crime from which he is innocent, and the procedures taken before that might plunge him in prison until right breaks, to imagine the pain and a curse for society fill himself , From this example came the importance of this study, which highlighted that these guarantees surrounding these procedures is the living expression of the force of law to resist deviation of judicial organs, and ensures the commitment of these devices to its mission to protect personal freedoms and to maintain human rights, this necessarily requires a balance between individual freedom and public interest. Added to the above, the research in this subject aware us of the range of contribution of those guarantees in providing the suitable climate for the accused to state his situation about the accuse , in addition to the role of those guarantees in facilitating the task of exposing the truth while respecting and safeguarding human freedom and dignity. For the importance of that, the researcher dealt with these guarantees related to interrogation and detention preventive detention and began his research by a preface through which he presented the historical development of the accused guarantees at the stage of preliminary investigation and focused on interrogation and detention custody as the most serious and important actions at this stage, and since the past is the Gate to the present, to determine the extent to which previous generations and civilizations contributed to the present , and because the present is the fruit of civilizations and generations ago, the researcher dealt with these guarantees in the legislation and the old community of the Nile Valley and Al-Radidain Valley, and in the Roman and the Islamic Sharea through a preface, considering that these stages have an important role in any historical study of the guarantees and rights enjoyed by the individual, and because they contain Many of the guarantees that we see today. The researcher has allocated the first chapter to talk about guarantees and rights of the accused in various procedural systems, through two parts; the first touched upon the linguistic and the terminological definitions of the accused in the first and the second sections, and the distinction between the term accused and the similar terminology in Section three , the researcher concludes the first demand by a fourth section dealt with the conditions to be met by the accused the legality of the indictment the researcher devoted the first demand to talk about the accused being the axis of the study on one hand, and because the definition of him and the determination of his conditions represents the first guarantee to know who is the accused on the other hand. And the researcher devoted the second demand to talk about guarantees and rights of the accused in light of international principles and modern constitutions , finishing the chapter with a second addressing the guarantees of the accused related to the procedures of investigation in the first demand, touching the guarantees related to the investigation itself in the first section , and the characteristics of the investigator as a guarantee to the accused in the second section, Then talking about the principle of combining and separation between the powers of prosecution and investigation in the second demand, to terminate this demand by talking about the competent authority of criminal investigation in the third demand. The second and final chapter of this thesis was devoted to talking about the accused guarantees and rights in the face of interrogation procedures in the first part, clarifying the meaning of interrogators by defining it in the first section, and talking its nature and content in the second section, and its importance and distinction of similar terms In the third section, to go after that to the second demand , speaking about the accused guarantees and rights during interrogation through nine sections within this demand, then the researcher showed the invalidity of the interrogation in the third demand in terms of what is it and its types in the first section and its effects in the second section. Then the researcher concluded with a second part allocated to talk about guarantees and rights of the accused in the face of arrest procedures preventive detention through three demands; the first discussed what the preventive detention means, and its legal nature and justifications divided into three sections ,the second discussed the accused guarantees and rights during arrest preventive detention through nine sections ,the third talked about the expiration of arrest preventive detention in the first section the researcher talked about the release of the accused , and in the second section he talked about the legality of the arrest through the judicial control , and in the third section he dealt with deducting sentence duration from the punishment, and in section four he talked about the arrest nullity. The researcher concluded his thesis by a conclusion included the most important conclusions and recommendations. In order to achieve better results and more precise recommendations and to make a thorough study with objective and comprehensive details, the researcher followed a scientific accurate approach, through using the analytical approach of the legal texts relevant to the subject of the thesis deliberating on the texts of the Code of the Palestinian Criminal Procedure No. (3) for the year (2001) and the procedural penal laws In other criminal legislation, striving to be interpreted carefully, he analyzed them to devise what is inherent in, and then he followed the comparative approach by comparing the legal texts to each other to know which was more precise in formulation and in meaning, and which was more in tune with himself, and then he used the critical approach, to demonstrate the advantages and the disadvantages of the texts to learn the best.
Guarantees of the Accused Before of the International Criminal Court
(2009) Alla' Basem Subhi Bane-Fadel; Dr. Nae'l Taha; Dr. Basel Mansour
The importance and aim of this study stem out from the fact that it is a methodological research attempt to track the guarantees of the accused in front of the International Criminal Court and identify these guarantees that are stated in the Rome Statute in ensuring a fair trial for the accused. At first, the guarantees of the accused developed with the development of the international criminal jurisdiction. In the pre-World War I period the accused used to face the death penalty or deportation without giving him / her any guarantees that would enable him / her to prove his / her innocence. After this period, International Law scholars began to call for giving the accused guarantees in front of the international criminal jurisdiction, in addition to having the bodies who are responsible for investigation and judgment commit themselves to these guarantees. In addition to the efforts carried out by International Law scholars, the statutes of the International Criminal Tribunals (Nuremberg, Tokyo, Yugoslavia and Rwanda) came to assure the importance of offering guarantees to the accused in front of these courts whether in the investigation or trial stages. These guarantees include: Informing the accused of the charge against him / her, give him / her enough time to prepare his / her defense, the accused must be tried without delay, the accused has the right to attend his / her trial and defend him / herself, the accused has the right to assign him / herself a lawyer and in case he / she cannot assign a lawyer due to some financial limitations the court assigns a lawyer to the accused. Anyone who is aware of the guarantees of the accused in front of the International Criminal Court which is stated in the Rome Statute can realize its rooting in the Islamic Law, the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and national legislation. After this preface, the researcher talked in details about the guarantees of the accused in front of the International Criminal Court both in the investigation and trail stages. In the first chapter the researcher talked about the guarantees of the accused in front of the International Criminal Court in the investigation stage where he discussed the authority in charge of the investigation. This authority included the Office of the Attorney General which consists of the Attorney General and his deputies who are elected independently and carry out their duties in impartiality. In addition to that, the researcher talked about the role of the Pre-trail Chamber which has a complementary role to that of the Attorney General in the investigation process. Also in this chapter, the researcher talked about the basic rules that govern the investigation process in crimes that fall within the jurisdiction of the International Criminal Court. Among the most important of these rules is the investigation codification rule and the investigation publicity rule. Finally the researcher talked in this chapter about the guarantees of the accused during the investigation procedures which include the testimony, the arrest and interrogation. In the second chapter, the researcher talked about the guarantees of the accused in front of the International Criminal Court during the trial stage. The researcher first explained the guarantees of the accused with respect to the Criminal Judge and talked about the requirements that the Criminal Judge must meet in addition to the inhibitions that prevent the Judge from considering the dispute before him. The researcher also discussed the importance of the Judge's specialization in criminal disputes. Furthermore, the researcher talked in this chapter about the guarantees of the accused that are related to the general rules of the trial which include the following: 1)The trail publicity rule: This rule provides a guarantee to protect the accused through allowing the public opinion to serve as a monitor of the judiciary practices. This guarantees the accused a fair trial that leads to the unveiling of the truth and achieving justice. It also leads to a double benefit in that it leads to the respect of the judiciary and the policy of public deterrence. 2)The oral proceedings rule: Through this rule the court can reach to a sound convincement regarding the truth about the kind of charge against the accused. This rule allows for putting all the proceedings, requests, defenses, evidences and pleadings lively in front of all the bodies involved in the case. 3)The attendance rule: This rule allows the accused to participate effectively and positively in the trial. His/her attendance at the trial allows these procedures to proceed in accordance to the set legal principles and enables the bodies involved in the case to present their statements and listen to the others' statements. This rule is very crucial in the trail stage since it represents the last chance for the accused to convince the judge of their innocence. 4) Codification of the trail's proceedings: Writing down all the proceedings indicates how much the court is committed to the procedural rules that govern the addressing of the court's hearings and how well the court enforces the law. This rule also enables the court that hears the appeals to be aware of and familiar with what occurred during the hearings of the Court of First Instance. 5)Compliance of the court with the limitations of the criminal procedures (Personal and concrete) this means that only the person who was referred to the court should be tried not anybody else, and also requires the court to commit itself to the facts stated in the referral decision. This rule is an inevitable result of the principle of the separation between the functions of judgment and prosecution. It turned out that these rules represent important and necessary guarantees to protect the rights of the accused. Finally in this chapter the researcher talked about the guarantees of the accused in front of the International Criminal Court that are related to the criminal judgment. The researcher explained that the criminal judgment must be issued based on a study of the personality of the accused. The researcher also explained that the importance of causing the criminal judgments that are issued by the Trial Chamber. Finally, it turned out that the Rome Statute allowed the accused to appeal against the sentences issued by the Trial Chamber or the Appeals Chamber if some specific conditions are met.
The Effectiveness of the Human International Law in the International and internal Armed Conflict
(2009) Qysay Mustafa Abdul- Kareem Tayem; Dr. Fady Qasem Shadeed; Dr. Muhammad Sharaqa
The purpose of this study is emerged from the necessary need for protecting the human being and meeting his survival everywhere and every time in order to make him feel safe and security . Also، to insure his freedom and dignity. The enlargement of the range of human rights is reflecting on the rules of the Human International Law which is the branch of the general international law . This law which is connected widely with the human being has contributed to the humanity by saving millions of people who respect it and follow its orders. The main aim of this law is saving people and properties during armed conflicts. Moreover، the rules of this law restrict the parties in conflicts from choosing the fighting techniques that terminate millions people as a result of using the advanced technical weapons. The above mentioned law was founded a century ago ،but the purpose in this respect was to commitment of anther the signed parties on their obligations in addition to enforcement of these rules among the parties who have already involved in several armed conflicts. Accordingly، it was necessary to define the Human International Law which is A group of international rules based on international treaties that aim to solve the human problems caused by international and non- domestic armed conflicts . Moreover ، these rules limit for humanity reasons the rights of fighting parties in using several war techniques . Or they protect affected people suffered from armed conflicts The Human International Law has a firm rules derive from the international norms and agreements، particularly (Geneva and Hague Law 1949). For achieving the study purpose, it was divided into introduction, three chapters and conclusion. The introduction emphasizes the summary of the Human International Law and its development throughout history in order to clarify the progressing of the human concepts during this development. Chapter one clarifies the kind of protection offered by the law for the benefit of the civilian، sick، wounded and war prisoners, specially , who suffer severely from the different armed conflict. Chapter two, on the other hand، deals with the right for protecting private، religious، cultural and environmental properties essential for saving lives of the civilians throughout avoiding them the effects of war. Moreover، the necessity of distinguishing between military and non- military targets which are not allowed to be targeted during the military actions. Finally، chapter three contains several important subjects like the effectiveness of enforcement the procedures of this law، the international criminal responsibility achieved by the law and the International Criminal Courts and there domains. According to the theoretical stud based on descriptive and analytical method along with several studies and documents dealing with the subject the researcher conclude that there is a shortage in enforcement of this law shouldered by the signed countries on adopting a clear mechanism for this enforcement. Also، this law needs all international support in order to achieve its purposes.
Prisoner Rehabilitation According to The Law of The Rehabilitation and Reform Centers the Palestinian (6) for The Year 1998
(2009) Tahani Rashid Mustafa Bawaqneh; Dr.Fadi Shadid; Dr.Ghazi Dwaikat
This study was presented to the subject of rehabilitation of the prisoner during the execution of punishment, in order to reach a clear and comprehensive account of the methods of rehabilitation, had to be exposure to the subject of theoretical and practical side. The study has been necessitated by the needs of research, including the statement of the meaning of the prisoner, and the methods of rehabilitation and reform, and set things right. Terminated and that the prisoner, which for this study was not detained in custody or sentenced to a fine or a precautionary measure, or events, all of whom are coming out of this into consideration. And paved the way for the subject, presented a summary of the nature of rehabilitation, and the historical development of the death of deprivation of liberty has changed since the purpose of punishment is no longer painful and torture for the purpose of punishment, but rehabilitation and reform are the desired end of the gun, and this certainly requires the need for the treatment of punitive methods to achieve this purpose, and touched on the disadvantages of the prison imprisonment and alternatives, as well as pre-trial proceedings to go before the punitive treatment. A detailed presentation was made for each of the rehabilitation of physical and moral rehabilitation of the prisoner during the execution of the sentence, and explained how the methods of rehabilitation and a statement of fundamental rights of the prisoner and the legal basis to it. Addressed the training grounds that the prisoner is a human being did not lose his humanity, and therefore the integrity of enforcement of penalties requires punitive treatment methods to help the prisoner rehabilitation and reform, to find the correct place in society after his release. The absence of these methods provides a great opportunity to commit crimes, but on the contrary, it might pay to repeat the crime. It was not necessary to enjoy the fundamental rights of the prisoner to the success of the purpose of punishment, and this does not mean - in any way curtail the right of community punishment, however, that if the state has the right to confiscate his freedom to implement the law have no right to confiscate any other work or health care or education or refinement. Community itself, which gives this right, could only be a violation of human rights does not deserve to remain on the ground presence. Accordingly, this study divided into two parts, shown in the first part of physical rehabilitation of the prisoner in terms of organization of the life of a prisoner inside the prison, especially the humane treatment of prisoners and security procedures in place, and then subjected to appropriate living conditions for prisoners, health care and work, and indicated that the prisoner of all human and, therefore, has the right to preserve his dignity and the treatment of his humanity. Turning to the second part of the moral rehabilitation of the prisoner, and dealing with the emotional care of the psychological and social prisoners, and the need to strengthen its relationship with the outside world, and the right to freedom of expression and opinion, and deviant behavior as well as to amend and refine the prepared educationally, morally, religiously, and indicated that the prisoner's mental care is reflected positively on the society, especially as the psychiatric and the impact of ignorance and illiteracy in the commission of the crime. In addition to these theoretical study, the researcher prepared the forms and interview a random sample of prisoners and put several questions to them to demonstrate the commitment of public administration and the centers mentioned in the law of the Palestinian reform and rehabilitation centers for the year 1998, in the various prisons in the West Bank prison is prison, Tulkarm and Jenin and Ramallah prison. Then attached to the forms and answers to the prisoners in the study and met for the purposes of this study. Then after I finished the study of theoretical and practical methods of rehabilitation, which the absence of the text on how to undermine the exercise of its existence and perhaps cancel this and what is happening already in prison in a study researcher. This necessarily requires the development of regulations and instructions.
Expropriation of Private Property for Public Interest in the Palestinian Legislation
(2010) Jude Isam Al Ateera; Dr. Ghazi Dweakat; Dr. Fadi Shadeed
This research attempts to discuss the regulation of expropriation of private property for the benefit of public interest based on violating the right of individual property granted by various international constitutions and charters. The concept of this regulation may be mixed with other regulations such as nationalization, confiscation, and extortion since these concepts include aggression against the right of property. However, they differ relative to the subject, objective or procedures. The expropriation of private property regulation includes only the real estates when there is a material right in the land which is to be expropriated. Therefore, the expropriation is not in effect on the material right only but on the land itself. The objective of the expropriation of private property shall not violate the benefit of public interest. Unfortunately, various laws fail to supply a specific definition of the benefit or limit its idea, leaving its assessment to the administration. When establishing a public project, the administration holds the assessment authority and the expropriation of property is carriedout by an administrative decree that contains all the legal elements represented by jurisdiction, locus, form, objective and cause. The Appropriation Law No. (2) of the year 1953 specifies the expropriation of private property regulation for specific purposes such as building hospitals with specific procedures that must be observed strictly. Otherwise, the decree may suffer from one of the legal defects. In addition, the Law of Organizing Cities, Villages and Buildings No. (79) of the year 1966 specifies expropriation of private property for purposes of constructing or widening streets, parks, public parking, or schools with procedures that differ from expropriation for other purposes. In this sense, it is not subject to the decree of the cabinet, publication and approval of the president. In addition, expropriation of (3 0%) of land is free for the purpose of achieving the benefits from such objectives. The research also discusses the guarantees granted by the law in the field of expropriation of private property whether for the capability of the prejudiced victim to challenge the administrative decree and to demand its abolishment if one of its legal elements is missing before competent courts — the Supreme Court of Justice — or to guarantee just reimbursement of expropriation of property decree. The basis of the administration responsibility is based on the foundation of risks consequences since the administration carries out a project permitted by the modified basic law of the year 2005. The appropriation law No. (2) of the year 1953 regulates the elements that must be observed by related parties when evaluating the sum of reimbursement.
The Procedures Adopted by the International Criminal Court According to Rome Basic Texts of 1998
(2010) Sana'a Oded Eed; Dr. Basel Mansour
This study aimed at analyzing the basic texts of 1998 Rome Statute of the International Criminal Court especially those related to the private aspect of investigation and trial proceedings before the court, the process of sentencing and the problems of their implementations. The international Criminal Court emerged after a long period of time following an unanimously effort that took decades; it has faced a lot of obstacles as manifested in the Rome System which entered into force in 2002 when Jordan joined it and made it possible for the basic rules to be in effect. The idea behind establishing this court was to make it a legal mechanism of deterring and violations against human rights during international or local conflicts and the crimes worldwide. It was also a supportive, historic global endeavor to previous ones, especially those trials which were held in the aftermath of World War One, which aimed at reducing the crimes. The basic texts of Rome Statute of the International Criminal Court included the pillars of how the court functions, the laws adopted, the rules of accepting members, the formation of the court itself and its departments, and the various authorities and areas of specialization of the court. Moreover, it clarified the various procedures related to the role of the court whether in investigations or in issuing sentences and implementing them. The main text, however, did not neglect the suspects rights, the trials or the implementations of decisions. The main text included a list of rules of approval and other procedures. Actually, the list did not provide major additions to the main texts, but rather some explanations only. The presence of the international court paved the way in front of trialing criminals and pursuing them for committing crimes with cold blood. the main text included some drawbacks due to conflicting strategies concerning the formulation of the basic rules. This often resulted in hindering the court from playing major roles and depriving the court from mechanisms of carrying out its decisions and sentences. Despite these drawbacks, the idea of pursuing criminals and forbidding them from escape was the main cause behind establishing the court. Consequently, it represents, nowadays, the resort for all victims, especially the Palestinians, who suffer from oppression. Although Israel has practiced various forms of oppression against the Palestinians, it never committed itself to legal rules or humanitarian ethics. Its army has been performing war crimes and countless violations to the international law. The senior officials of the Israeli army have remained safe from being tried before the court due to support by members of UN Security Council. The Palestinian dream of seeing the Israeli criminals tried before the court seems to be beyond coming true as a result of the negative impact of those members to abort the mechanisms of the court.
The Penal Responsibility of the Personal Entity about the Economic Crimes
(2010) Rami Yosef Muhamed Naser; Dr. Fady Qasem Shadeed; Dr. Ghazy Dweekat
This study aims at investigating the Penal Responsibility of the in the personal Entity Economic Crimes. For achieving the purpose of the study, it was divided into two chapters, each one is divided into several sub- sections. The first chapter includes several subjects, the accusation of the personal Entity for the penal responsibility, the jurisprudential differences about this accusation which has two sides, the first one deals with people who deny this responsibility in the economic crimes depending on some evidences. The other side supports this responsibility as a result of the development and enhancement of the activities of such persons in the recent centuries which caused hazards that effect the community safety. Consequently, most of the legislations including the Palestinian one- have adopted the accusation of the personal Entity for the penal responsibility. Moreover, the Palestinian legislation insisted this responsibility in the economic laws which accuse both the ordinary and the penal persons from this responsibility. Furthermore, this chapter includes the distinguished personal Entity who are subjected for the penal responsibility . Those persons are from different kinds like general management persons and particular ones who are- and according to this study- the only individuals who are responsible for the economic crimes . The responsibility which are shouldered by this kind of these individuals are found in the Jordanian Punishment Law( Item 2/74) valid in Palestinian courts since the year of 1960. On the other hand, the former kind of persons cannot be accused for the reason that he has no motives to commit crimes, but in contrast, his motives are for the public benefits like education, health and security. However, this kind will be charged for civil responsibility including the compensation for the damages affecting the others. Chapter two consists of two sub-sections , the first one tracks the legal system of the Penal Responsibility of the Juristic Person in the Economic Crimes and its procedures. In particular, legal system is in demand in order to carry on the punishment throughout several procedures implementing by legal Police who has several duties like inspection, searching for crimes, seizing, documents researching and sample- evidence collecting. The police individuals are responsible for proving this kind of crimes committed by personal Entity and reporting these crimes. However, the personal Entity has the right to defend himself throughout opposite reports and contradictions . The Attorney General is the only authority for establishing the lawsuit supported by the first item in the Palestinian Procedure Law (2001) and according to the Palestinian Attorney General decision No.(28/2006) which established a private prosecution dealing with this subject. On the other hand, although the Palestinian legislator has permitted the public prosecution the responsibility to establish and activate the law case, the administration has been given the choice to activate the law case and to resort on two choices. The former in the reconciliation according to the item (39) of the Palestinian Income Tax Law. The latter is the activation of the lawsuit according to the item (31) of the Palestinian Money Laundry Law. Moreover, this sub-section includes the court responsible for lawsuit, its specialization in addition to the representative of the defendant. The second sub- section includes the punishment system against the personal Entity in the Economic Crimes . Also, the objections on the verdicts and the difficulties of implementing these verdicts like imprisonment and execution are includes in this sub-section. However, and as a result of these difficulties , several verdicts have been established as an alternatives for imprisonment and execution . These verdicts are the reconciliation as an alternative to the execution, closing the firm as an alternative to the imprisonment , the fine in addition to civil economic and disciplinary punishment. The Palestinian legislator has put several intensification against the personal Entity as a result of the sever dangerous effects on the community economic and safety. Although of these intensification, the personal Entity could be treated as an ordinary person in term of completing the punishment which the Palestinian laws do not include completing the punishment . Accordingly, and for the absentees of the special account in this field, we must resort on the Palestinian Procedures Law against the personal Entity. Finally, the study conclusion has been made including several results and recommendations in this respect.

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