Criminalization of Graft in Palestinian Legislation between Constitutional Legitimacy and Procedural Necessity

A Comparative Study

Authors

  • dr. Ahmad Husni Al-Ashqar Arab American University /Faculty of Graduate Studies
  • dr.Isam Husni Al-Atrash Alistiqlal University /Faculty of Law

DOI:

https://doi.org/10.35246/jols.v37i2.546

Keywords:

Palestinian Legislation, criminilization, graft, constitutional legitmacy

Abstract

This study aimed to identify the extent of the constitutionality of proving the crime of graft regarding transferring the burden of proof to the accused and its violation of the presumption of innocence. The presumption of innocence, unlike the Kuwaiti legislator, who did not shift the burden of proof in the crimes of illegitimate gain, and that the proof of the crimes of illegitimate gain according to the Palestinian and Jordanian legislators are linked to two forms: actual exploitation and judgmental or presumed exploitation, while the Kuwaiti legislator has limited proof of illegitimate gain crimes in the form of The study recommended a set of recommendations for an amendment to the text of Article 3 of Decree Law No. 37 of 2018 regarding the amendment of Anti-Corruption Law No. 1 of 2005 that the burden of proof in graft crimes is entrusted to the authority of accusation in accordance with the rules the public.

Downloads

Download data is not yet available.

References

First: Books

i. Ahmed Jabib Al-Sammak, 1997, The Presumption of Innocence and Its Consequences, Journal of Law and Economics, Faculty of Law, Cairo University, Issue 67.

ii. Ahmed Fathi Sorour, 2006, Constitutional Criminal Law, Dar Al-Shorouk for Publishing and Distribution, Cairo.

iii. Ismail Khalfi, 1997, Explanation of the Law of Illicit Gain, Cometh Library, Cairo.

iv. Hassan Sadeq Al-Marsafawy, 1983, Al-Marsafawy in the Law of Illicit Gain, Manshaat Al-Maarif, Alexandria.

v. Abdel Tawab, Walid Ramadan, 1996, Explanation of the Law of Illicit Gain, Dar Misr, the Cultural Office and Dar Al Samah, Cairo, 2005

vi. Abdel-Hamid Al-Shawarbi, Financial and Commercial Crimes, Manshaat Al-Maarif, Alexandria.

vii. Abdul Rahman Tawfiq Ahmed, 2022, Explanation of the Penal Code, General Section, Dar Al Thaqafa for Publishing and Distribution, Amman.

viii. Kamel Al-Saeed, 2022, Explanation of the General Provisions of the Penal Code, Dar Al-Thaqafa for Publishing and Distribution, Amman.

ix. Mustafa Majdi Harjah, 1997, Rulings of Defenses in Interrogation and Confession, dar alkotb alqanonya, Cairo.

x. Majali Nizam, 2020, Explanation of the Penal Code, General Section, Dar Al Thaqafa for Publishing and Distribution, Amman.

Secondly: Research

i. Osama Hassanein Ebeid, 2018, Criminal Policy in Illicit Gain, A Comparative Study, Journal of Law and Economics, Cairo University, Egypt.

ii. Anwar Muhammad Sidqi Al-Musada, 2018, Journal of the Kuwaiti International College of Law, sixth year, issue 3, September.

iii. Khaled Hadir Dahham, 2015, Criminalizing Illicit Gain and the Principle of Innocence, A Comparative Study, Risala al-Haqooq Journal, Year 7, Issue 2.

iv. Larbi Boubakry, 2015, Criminalizing Illegal Enrichment: An Essential Basis for Fighting Financial Corruption in Morocco, Moroccan Journal of Criminal Law and Criminal Sciences, No. 2.

v. Mabrouk Nasreddin, 2004, The Burden of Evidence in Criminal Matters, Arab Journal of Jurisprudence and Judiciary, Rabat.

vi. Noura Taha Abdul Latif Al-Aoumi, 2015, The Crime of Illegal Gain: An Analytical Comparative Study of Decree-Law No. (24) of 2012 Establishing the Public Authority for Combating Corruption and Provisions for Financial Disclosure, Law Journal, Kuwait University - Academic Publishing Council, Vol. 39.

vii. Hisham Mallati, 2016, Criminalizing the act of illicit enrichment between the assumption of the presumption of innocence and the application of the principle of overturning the burden of proof, Moroccan Journal of Legal and Judicial Studies.

viii. Farid Allouach, 2016, Illegal Enrichment According to the Prevention and Combating of Corruption Law, Journal of Rights and Freedoms, University of Mohamed Kheidar Biskra - Faculty of Law and Political Science - Laboratory of Rights and Freedoms in Comparative Systems.

Third: Theses

i. Rasha Amarneh, 2019, The Crime of Illegal Gain in the Palestinian Penal System and its Compatibility with the UN Convention Against Corruption, Master Thesis, Birzeit University, Palestine.

ii. Faisal bin Abdul Rahman Al-Obaid, 2013, Criminal Responsibility for Illicit Gain in the Saudi System, A Comparative Fundamental Study, Master Thesis, Naif Arab University for Security Sciences, Riyadh.

iii. Karima Khattab, 2014-2015, Presumption of Innocence, (PhD thesis), Faculty of Law, University of Algiers 1.

Fourth: Legislation

i. Palestinian Criminal Procedures Law No. 3 of 2001

ii. Palestinian Illegal Gain Law No. 1 of 2005

iii. Jordanian Illicit Earning Law No. 21 of 2014

iv. Egyptian Illicit Gain Law No. 192 of 1951

v. Law No. 2 of 2016 regarding the establishment of the Public Authority for Combating Corruption and the provisions relating to financial disclosure

vi. Jordanian Civil Law No. 43 of 1976

vii. The Palestinian Basic Law of 2003

viii. Decree-Law No. 37 of 2018 amending Anti-Corruption Law No. 1 of 2005 and its amendments

ix. The Universal Declaration of Human Rights promulgated in 1948

x. European Convention on Human Rights of 1950

xi. The Arab Charter on Human Rights of 2004

xii. African Charter on Human and Peoples' Rights of 1981

Fifth: Websites

i. Nofan Al-Ajarmah, Legal Opinions on the Constitutionality of the Illegal Gain Bill, an article published on the website https://www.mohamah.net/law/%D8%A3%D8%B1%D8%A7%D8%A1- date of publication 6 /12/2016 date of entry 6/10/2022 at 12:56 am

Downloads

Published

2022-12-24 — Updated on 2023-01-04

Versions

How to Cite

Al-Ashqar, Ahmad, and Isam Al-Atrash. (2022) 2023. “Criminalization of Graft in Palestinian Legislation Between Constitutional Legitimacy and Procedural Necessity : A Comparative Study ”. Journal of Legal Sciences 37 (2): 160-92. https://doi.org/10.35246/jols.v37i2.546.

Similar Articles

1-10 of 163

You may also start an advanced similarity search for this article.