Proposed Legislative solutions to Adopt the Community Service Sentence in the Iraqi Criminal legislation Comparative Study
DOI:
https://doi.org/10.35246/jols.v37i1.454Keywords:
Alternatives short-term, custodial sentences, community service, Iraqi penal code, Proposed Legislative solutionsAbstract
The community service in its various forms topped up the alternative short term custodial sentence in some crimes, and experience has shown the success of this alternative in sparing the convicted negative effects of custodial sentences in all social, psychological and even economic aspects and on the other hand addressing the problem of overcrowding prisons. This penalty consists of requiring the convicted person to work certain hours in specific areas and within a certain period determined by the legislator. Through comparative analytical studies between Western and Arab legislation, we found there are such major differences in the ways in which [community service] has been worked out that it is impossible, indeed irresponsible, to transpose the experiences of one country upon another, providing for it as an original punishment sometimes or an alternative custodial sentences for imprisonment for
certain crimes or alternative to physical coercion, under which legislation has set the maximum penalty for the deprivation of liberty that the court may replace in exchange for the imposition of community service for specific hours determined by the provision unpaid in certain quarters determined by the legislator or the decision issued under it, taking into account certain controls in The most important of these is the consent of the convict and not to harm his dignity. In line with the modern punitive policy, we have proposed to the Iraqi legislator to amend some of the provisions of the Penal Code to allow the adoption of this punishment in its various forms, either as an original punishment for crimes of violations and misdemeanours or by replacing community service instead of some of the punishments that are causes negative consequences for the freedom prescribed for some crimes of misdemeanours and violations or alternative to physical coercion, in accordance with certain controls derived from comparative legislation, with the introduction of judicial oversight that will apply it in accordance with its purposes, which seek to qualify sentenced away from the walls of the penal facility.
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References
First: Arabic Resources
A. Books
i. Mansour, Ishaq Ibrahim, 1991, Brief on Criminology and Punishment, 2nd Edition, Dewan Al-Matebouat Al-Jamaia, Algeria.
ii. Al-Zayni, Ayman Ramadan, 2003, Short-Term Freedom-Negating Penalties and Their Alternatives, (a comparative study), 1st Edition.
iii. Al-Mousa, Muhammad, Alternative Punishments in The Juvenile Justice System, a Case Study for Egypt, Jordan and Yemen, a Study Published in Arabic from The International Penal Reform Organization, Middle East and North Africa Office, Amman, Jordan.
iv. El-Aouji, Mustafa, 1991, Criminal and Punitive Reforms for the Social Reintegration of Persons Convicted of Criminal Punishments, a research published within the proceedings of the Arab-African Symposium on Criminal Justice and Prison Reforms organized by the Arab Institute for Human Rights, the Tunisian League for the Defense of Human Rights and the International Organization for Penal Reform–Tunisia, 1st Edition, Arab Institute for Human Rights, November 29-December 2.
v. Hater, Mustafa Abdel-Majid, 1987, Prison as a Social Institution, a Study on the Repetition Phenomenon, Dar Al-Nacher Belmerkz Al-Arabi Lldrasat Al-Amenia Waltdrep, Riyadh.
B: Research
i. Khawaldeh, Ahmed Ali, 2015, Alternatives to Short-Term Imprisonment in Jordanian Law, Journal of Studies in Sharia Science and Law, University of Jordan, Amman, Jordan, Volume 42, Issue 3.
ii. Adam, Behzad Ali, The Concept of Alternative Punishments, Research Published in Al-Hiwar Al-Motamaden - Issue: 3873 - 2012/10/7 - 22:39, Axis: Legal Studies and Research -Available at: https://www.ahewar.org/debat/show.art.asp?aid=327319
iii. Otani, Safaa, Work for the Public Benefit in Contemporary Punitive Policy, a Comparative Study, Research Published in Damascus University Journal of Economics and Legal Sciences, Volume 25, Issue 2.
iv. Al-Shayeb, Tayel Mahmoud, and Hussein, Salama Rashid, 2019, Community Service Punishment “Working for the Public Benefit” in Jordanian and Emirati Legislation Between Reality and Hope, Research published in the Journal of Sciences Sharia Sciences and Law, Volume 46, Issue 4.
v. Abd Al-Mohsen, Anoud Muhammad, 2020, Modern Concepts in Alternative Punishments for Punishment Sentences, Research Published in The Journal of King Abd Al-Aziz University, Arts and Human Sciences, Volume 28, No. 3.
vi. Al-Kasasbeh, Fahd Yousef, 2013, Suggested Legislative Solutions to Adopt Alternative Punishments in the Jordanian Penal System, research published in the Journal of Studies Sharia Sciences and Law, Volume 40, Issue 2.
vii. Abd Al-Ghani, Magda Muhammad, 2000, Predicting the possibility of Affecting the Family Relationship as a Result of Short-Term Imprisonment on The Convict and His Family, Research Published in The National Criminal Journal, Publisher: National Center for Social and Criminal Research, Volume 43, Issue 3.
viii. Azraf, Muhammad, 2018, Judicial Supervision of the Execution of Physical Coercion, Research published in Legal Books Journal, Criminal Records Series, Issue 3.
ix. Faisal, Nasaigha, 2017, Alternatives to Short-Term Criminal Penalties as a Mechanism of Reform and Rehabilitation in Light of Contemporary Criminal Policy, Research Published in The Journal of The Kuwait International Law College, Special Supplement, Issue 2, Part 2, November.
C. Theses and Letter
i. Al-Jader, Tamim, 1988, Alternatives to Short-Term Freedom Deprivation, Master Letter, University of Baghdad, College of Law.
ii. Al-Dhafiri, Zaid Khalaf Farajallah, 1981, Alternatives to Freedom-Depriving Penalties and The Mechanisms For Their Implementation in Sudanese, Iraqi and Jordanian legislation, comparative study, PhD Thesis, Al-Nilein University, College of Law, Sudan.
iii. Al-Tariman, Abd Al-Rahman bin Muhammad, 2013, Promoting work for the public benefit, an applied comparative study, unpublished PhD Thesis, Naif Arab University for Security Sciences, Riyadh, K.S.A..
iv. Al-Khathami, Abd Allah bin Ali, 2008, Alternatives to Freedom-Depriving Punishments between Reality and Hope, (A field study applied to a sample of experts and specialists in the Saudi judiciary in the Saudi judiciary and criminal justice), Naif Arab University for Security Sciences, Riyadh.
v. Abd Al-Moneim, Mohamed Seif El-Nasr, 2004, Alternatives to Freedom-Depriving Punishments in Modern Criminal Legislation, Ph.D. Thesis, College of Law - Cairo University.
D. Articles and Publications
i. Al-Kandari, Faisal, A Legal View of The Work System for The Government, an Article Published in Alanba newspaper, dated 11-25-2011, Kuwait, available on the website: https://www.alanba.com.kw.
ii. United Nations Congressional Publication on Crime Prevention and Criminal Justice 65 Years of Achievement, -1955-2020, Publication of the United Nations Office on Drugs and Crime, available at:
iii. https://unis.unvienna.org/pdf/2020/CrimeCongress/65-years-brochure_en.pdf.
Second: Sources in English: Foreign references
i. Robert J. Harris T. Wing Lo, Community Service: 2002, Its Use in Criminal Justice - International Journal of Offender Therapy and Comparative Criminology, 46(4), Sage Publications.
ii. Dermot Walsh LLB, BL, PhD Paul Sexton BA, 1999, An Empirical Study of community service Orders In Ireland, published by the Stationery office, Dublin. http://www.probation.ie/EN/PB/0/53D2F3277D0DA3FB802581940055B8E8/$File/An%20Empirical%20Study%20of%20Community%20Service%20Orders%20in%20Ireland.pdf.
iii. Hao Li ,, Mengnan Hu,, Shuang Liu, 2020, The need to improve the laws and regulations relevant to the outbreak of COVID-19: What might be learned from China, Journal of Global Health, June• Vol. 10 No. 1
iv. Laura Hawks, Steffie Woolhandler, Danny McCormick, 2020, COVID-19 in Prisons and Jails in the United States, JAMA Internal Medicine August 2020 Volume 180, Number 8 , April 28.
v. Kooijmans, Groenhuijsen, M.S T, and Roos, T. A. (Eds.), Fervet Opus, Community service in Belgium, the Netherlands, Scotland and Spain a comparative perspective, Special minimum sentences and community service in contemporary Dutch criminal law,: Liber Amicorum Anton van Kalmthout (pp. 89-97). Maklu Uitgevers., Apeldoorn | Antwerpen | Portland-2010.
vi. Wermink, Hilde and Blokland, Arjan, & Others Comparing the effects of community service and short-term imprisonment on recidivism: a matched samples approach, J Exp Criminol, Springerlink.com, 19 June 2
Third: Laws and Resolutions
i. Iraqi Penal Code No. 111 of 1969 amended.
ii. Qatar Penal Code No. 11 of 2004 amended by Law No. 23 of 2009.
iii. UAE Federal Penal Code No. 3 of 1987 amended by Decree of federal law No. 7/2016 dated 18 September 2016.
iv. French Penal Code of 1992 amended by Law No. 297 and Law No. 896/2014 on August 15.
v. Law No. 18 of 2017 on Bahraini sanctions and alternative measures.
vi. Kuwait's Penal Code No. 17 of 1960.
vii. Moroccan Criminal Ruler Act No. 1-22 of 2002.
viii. Law No. 1/9 dated 25 February 2009 of Algeria.
ix. Decision of the Head of the Abu Dhabi Judicial Department No. 14 for 2017.
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