Nullity in Criminal Procedures (Comparative Study) | International Journal of Law And Criminology

Authors

Dr. Abdul Hadi Rahman Mohammed Mahmoud

The Islamic University, Diwania Campus, Department of Law, Iraq

DOI:

https://doi.org/10.37547/ijlc/Volume05Issue07-06

Keywords:

Legal Doctrine Subjective Doctrine and Mandatory

Abstract

Since nullity encompasses a broad scope in the law and raises complex legal issues, it is essential to examine and study them to find the necessary solutions to ensure the smooth operation of the criminal justice system. This is particularly true given that the majority of criminal jurisprudence believes that nullity is the key to constructing every law and the best guarantee for the proper application of the law. The law cannot be applied without the validity of correct procedural actions. This means that it requires the validity of criminal procedures. Therefore, the nullity of these procedures affects the validity of the judicial decision. Consequently, it has become an absolute duty to find appropriate solutions to ensure the proper functioning of the criminal justice system, especially after the scope of issues has expanded. Criminal procedures have evolved in response to theto the progress and development of societies, enablingenabling them to address issuesaddress related issues related to the diverse interests that courtscourts consider. Things have turned to establishing a penalty for violating general legal rules, so that they become binding. The best of this is the theory of invalidity, and the basis of this theory is based on the principle of punishment for defective legal action. Therefore, most criminal legislation has tended to regulate cases of invalidity with texts in its laws. However, the Iraqi legislator did not specify this theory in the texts regulating it in the Code of Criminal Procedure; instead, it was scattered throughout the texts without being unified by a single purpose. Therefore, we consider it an essential and unavoidable duty to address the issue of invalid criminal procedures and the consequences and penalties that result from their violation.

Consequently, we have embarked on writing this research to demonstrate the role and importance of invalidity in criminal procedures, as outlined in a research plan consisting of two sections. In the first section, we will address the nature of invalidity in criminal procedures, and in three subsequent sections. In the first section, we will explain the definition of invalidity, and in the second, we will examine the basis of criminal protection for invalidity. We will devote the third section to distinguishing invalidity from similar concepts in other legal systems. The second section is dedicated to invalidity, its types, and causes, and in three sections, we will explain the doctrines of invalidity in the first section, and the second will address the kinds of invalidity. In the third section, we will examine the causes of invalidity, addressing them sequentially according to the plan prepared for this purpose, as follows. This is the summary of the research, and success comes from God.

References

First: The Holy Quran

Second: Dictionaries

Abu al-Hasan Ahmad ibn Faris ibn Zakariya, Dictionary of Language Standards, 2nd ed., al-Jabal, Beirut, 2012.

Gerard Cornu, Dictionary of Legal Terms, 2nd ed., University Foundation for Publishing, Beirut, 2009.

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-----------, Academy of the Language of Jurists, Dar al-Nafayes, Beirut, 1996.

Third: Legal Books

Dr. Ahmad Fathi Sorour, The Theory of Nullity in the Criminal Procedure Code, Egyptian Renaissance Library, Cairo, 1959.

Dr. Ahmed Kamel Abu Al-Saud, The Golden Code, The Theory of Invalidity of Judgments in Criminal Legislation, Al-Intifaa Press, Alexandria, 1992.

Dr. Elias Abu Eid, Procedural Defenses in Criminal and Civil Procedure, Zain Legal Library, Lebanon, 2004.

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Fourth: Laws

Iraqi Code of Criminal Procedure No. 13 of 1971, as amended.

Egyptian Code of Criminal Procedure No. 57 of 1959, as amended.

Lebanese Code of Criminal Procedure No. 328 of 2001, as amended.

Algerian Code of Criminal Procedure No. 66 of 1996, as amended.

Saudi Code of Criminal Procedure No. 21 of 2001, as amended.

Libyan Criminal Procedure Code No. 150 of 1950, as amended.

Fifth: Decisions

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Lebanese Cassation, No. 2, Decision 71, dated October 25, 1994 (N.C.L.), Issue 10 of 1994.

Egyptian Criminal Cassation, May 29, 1951, Collection of Cassation Rulings, Volume 2, No. 433.

Arabic References

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Majd Al-Din Muhammad ibn Ya'qub Al-Fayruzabadi, Al-Qamus Al-Muhit, 7th ed., Al-Risala Foundation, Beirut, 2012, p. 966.

Surah Saba': Verse 49

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Muhammad Rawas Qala'ji, Academy of the Language of Jurists, Dar Al-Nafa'is, Beirut, 1996, p. 88.

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Gérard Cornu, Dictionary of Legal Terms, 2nd ed., University Publishing Foundation, Beirut, 2009, pp. 26-27.

Dr. Raouf Obeid, Principles of Criminal Procedure in Egyptian Law No. 150 of 1950, Cairo, 1979, p. 20, Article 331.

Muhammad Kamil Ibrahim, The General Theory of Nullity in the Criminal Procedure Code, Dar Al-Nahda Al-Arabiya, Cairo, 1989.

Dr. Abdel Hamid Al-Shawarbi, Procedural and Substantive Civil Nullity, Mansha'at Al-Maaref, Alexandria, 1991, p. 9.

Dr. Abdel Fattah Mustafa Al-Saifi, Explanation of the Lebanese Code of Criminal Procedure, Lectures for Fourth-Year Law Students at the Faculty of Law, Beirut Arab University, p. 299.

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