الدفوع الشكلية في قانون الإجراءات الجزائية الفلسطيني رقم 3 لسنة 2001 بين النص والتطبيق: دراسة مقارنة
Date
2020-12-19
Authors
مأمون جميل أحمد مصطفى
Mamoun Jamil Ahmad Mutafa
Journal Title
Journal ISSN
Volume Title
Publisher
Al-Quds University
Abstract
The thesis dealt with the issue of formal defenses in the Palestinian Criminal Procedures Law compared to the Egyptian Criminal Procedures Law, because of the importance of the right to defend it takes priority over the rest of the guarantees and privileges granted to the accused, as it is the means of the accused in facing the prosecution authority, and this inherent right is expanded before the independent judiciary. Its importance appears on one hand, through the creation of a balance between the power of the state in the human and material potential it possesses, and the accused as the weak party, on the other.
The researcher began the study by dividing the research into two chapters; the first dealt with the legal rationale low for formal defenses and through it the general rules for the defenses. Therefore, it was necessary to detail the legal framework for formal defenses throughout the highlighting of the issue which based on its concept, its essence, and its distinction from other objective defenses and non-objective ones, in addition to that, the examining of its legal nature which is discussed in the first part of the chapter. The second part of the chapter dealt with the special framework for formal defenses, with the intention of moving from the public to the private, this is done by studying the general and special conditions that must meet in the advance defense; so that it is adhered to by the stakeholder and the time required to raise the burden which has to be proved. Thus, in the second part of the chapter, we dealt with cases of the formal defenses in terms of the defenses related to placing the court’s hand on the lawsuit and it is related to the defenses that relate to the validity of the court’s contact with the case in terms of jurisdiction, jurisdiction, indictment, engagement, notifications and the defenses which are related to the invalidity of the filing procedures. The case is also discussed in terms of the invalidity of the referral order and the existence of a restriction on the public prosecution in initiating the criminal case and the defenses which is related to the engaged parties. Moreover, the lack of capacity for the plaintiff of the case and the defense of the prosecution authority to initiate the lawsuit which is already expired has been also taken in consideration.
As for the second chapter of this study, and in light of the researcher’s review of all aspects of the issue from the theoretical standpoint, the research had to shed lights on the theoretical side to meet the practical one. In order to do that, the researcher discussed in chapter two the authority of the subject court to confront formal defenses and the legal basis for the judge’s authority which is studied with bearing in mind the formal defenses. Thereafter, an explanation has been given to the basis of the authority in the Palestinian Criminal Procedures Law, thus, we dealt with the formal defenses that must be raised before the trial court, whether related to the public order or not, such as the invalidation of arrest, search and interrogation. Subsequently, the second section of this chapter dealt with the verdict in the formal defense which got acquainted in the previous verdicts which determines the matter and its types, then, the researcher explained the effect of the issuers of the judgment in the formal defense and the contents of the judgment and the language that the judge must use and write in the formulation of his judgment followed by his conclusion, findings and recommendations.