إجراءات التوقيف والإفراج بالكفالة دراسة مقارنة
Date
2008-01-02
Authors
غالب عبد الله محمود ياسين
Ghaleb Abdallah mahmoud yasin
Journal Title
Journal ISSN
Volume Title
Publisher
AL-Quds University
جامعة القدس
جامعة القدس
Abstract
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to these laws is because these laws form the historical reference for Palestinian laws.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.
Description
Keywords
القانون , Law