التنظيم القانوني للشكوى في التشريع الجزائي الفلسطيني دراسة مقارنة
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Date
2019-07-20
Authors
خالد يوسف محمد التميمي
Khaled Yousef Mohammad Altamimi
Journal Title
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Publisher
Al-Quds University
Abstract
Moving the criminal case is the sole jurisdiction of the Public Prosecution alone, as it is considered the attorney of the public, since all legislations state this meaning by stating, “The Public Prosecution alone is specialized in filing and commencing the criminal case”.
However, the law restricts moving or commencing the criminal case by the Public Prosecution in certain cases. Such restrictions may emphasize the moving so that is shall not be possible to take any measure of the proceedings, or only emphasize filing the case, so that it shall not be possible to proceed the indictment unless they are available. Such restrictions are subject to the law, including filing the complaint by the victim in certain crimes. The ground of legislator suspends the freedom of the Public Prosecution in proceeding the criminal case for certain crimes on complaints by the victims; its objective is to protect the latter from individuals and outweighs its interest over against the interest of the group. The offender may view that overlooking a crime committed against his is less damaging to him than raising it before the judiciary.
It should be emphasized that filing a criminal case in the event of not filing a complaint by the victim in crimes as specified by the law requires the judge to reject the case on the grounds of lacking its contact conditions. The texts related to complaints are distributed between the Palestinian Penalty Act and the Criminal Procedures Act; the same case is applied in the Jordanian Acts; where the complaint regulations are distributed between the Penalty act and the Criminal Procedures Act.
The present study is divided into two main parts and several issues. In the first part we discussed discuss the concept to the complaint as a restriction that restricts the Public Prosecution from moving the criminal case; in addition, to define the complaint, aspects of agreement and disagreement between the complaints, warrant, request and notification. Further, discussion is restricted to talking about the legal nature of the complaint right. The current part is dedicated to discuss the conditions of the correctness of the complaints, and the consequences of the impacts filing the complaints. The second part of the current study discussed the interpretation of the complaint’s legal regulations through demonstrating the offences whose moving depends on the complaints by victim, as well as discusses the cases of expiry of the right to file the complaints.
Through the present study, we shall know the essence of the complaint as an example of the restrictions stated by the Criminal Procedures act and comparative Arab Acts. Consequently, the complaint restriction is an exception of the origin. The present study reached several outcomes, the most significant of which is the restriction of the freedom of the Public Prosecutor must precede the investigation. The right complaint has an objective nature rather than a procedural or mixed nature, since it is the right of the state in punishment. This is a position approached by both the Palestinian and Jordanian legislators. We recommend that the right of complaints is an original right known by the ancient legislations, and is demonstrated by the idea of individual incident. This right continued in the modern legislations that have established system of the Public Prosecution. Public Prosecution has to take all procedures for collecting evidences don’t violate the individual right and freedom. In addition, it is necessary to delimit the crime that restrict the Public Prosecution from following up and investigating them in order to sustain justice.
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Citation
التميمي، خالد يوسف. (2019). التنظيم القانوني للشكوى في التشريع الجزائي الفلسطيني دراسة مقارنة [رسالة
ماجستير منشورة، جامعة القدس، فلسطين]. المستودع الرقمي لجامعة القدس. https://arab-
scholars.com/dccb12