إجراءات التوقيف والإفراج بالكفالة دراسة مقارنة
غالب عبد الله محمود ياسين
Ghaleb Abdallah mahmoud yasin
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Detention is one of the most important subjects that set in the laws of criminal procedures since it affect individuals liberties who are subject to such laws. It is hard to strip individuals their freedom of movement for along time which is considered to be a violation of the rules of human rights. This study of detention procedures raises numerous problems because of ambiguity in formal and practical rules that should be operative. Further, criminal laws, which were examined, are insufficient in arranging and identifying such rules and conditions. In addition, solutions set forth in the legislations are often ambiguous and insufficient and limit disadvantages of detention. The importance of this study arises from the fact that detention is the most dangerous procedure of primary investigation that may encounter a suspect. Accordingly, studying the guarantees that shall be available for individuals is key since there are too many complications that face lawyers and judges. The study followed the analytical research methodology which depends on exploring legal texts that regulate this subject and then analyze them with focus on precedents an jurists opinions. Basically, the scope of the study is restricted to three legislations which are the Palestinian Criminal Procedures Law No. 3 of 2001, Jordanian Criminal Procedures Law No.9 of 1961 and the Egyptian Criminal Procedures Law No. 50 of 1950 and it amendments with an eye on foreign laws mainly the French Law and its amendments for a few cases that does not exist in the compared laws. The reason why this study is restricted to these laws is because these laws form the historical reference for Palestinian laws. In addition, these laws were applicable in Palestine before the Palestinian Authority take over Palestine. This study concluded several results such as that the Palestinian Legislature was not fortunate to arrange the provisions of detention. The provisions of detention are spread over more than one chapter which made it difficult to research such provisions. Further, these provisions related to detention epically those linked to extension of detention are insufficient and contradicted. The study also concluded that the Palestinian Legislature consolidated the authorities of prosecution and investigation in contrast of other compared laws. This study will indicate to the disadvantages of such consolidation. In addition, there are numerous deficiencies concerning bail release of suspects in identifying the agency that should receive the bail amount after breach of bail terms. Furthermore, the Palestinian Legislature set forth extraordinary procedure to appeal release orders which is the reconsidering procedure which is considered to be unusual appeal procedure. In light of this study results, there are several recommendations presented to the Palestinian Legislature that provide reasonable solutions for deficiencies in the Palestinian Law. The most important recommendation was the necessity to rearrange and organize provisions related to detention and bail release and to clear ambiguity in these provisions. In addition, this study recommended the separation between prosecution and investigation authorities since it gives guarantees for suspect and strengthening control over investigation. Also, this study recommended that several provisions shall be reconsidered epically those related to extension of detention because of contradiction among these provisions. Finally, the study recommended that the reconsideration procedure in release orders shall be revocated since it is too complicated which make appeal process slow and harmful for individuals.
- Law