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VOLUME
Vol.05 Issue07 2025
PAGE NO.
25-36
10.37547/ijlc/Volume05Issue07-06
Nullity in Criminal Procedures (Comparative Study)
Dr. Abdul Hadi Rahman Mohammed Mahmoud
The Islamic University, Diwania Campus, Department of Law, Iraq
Received:
22 May 2025;
Accepted:
18 June 2025;
Published:
20 July 2025
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.
Keywords:
Legal Doctrine, Subjective Doctrine, and Mandatory.
Introduction:
Voidance occupies a broad scope in the
law, as it raises complex legal problems that require the
judiciary to resolve with a just ruling. It has also been
said that nullity is "the key to the construction of all
law" (1), and that it is the best guarantee for the correct
application of the law. The importance of nullity
emerged after societies advanced and criminal
procedures developed. This was due to the expansion
of the scope of topics they encompassed, which
acquired varying degrees of importance to enable them
to address the multiple hypotheses related to diverse
interests, leading to the multiplication of cases before
the courts, a significant number of which are
considered.
Therefore, thought has turned to establishing a penalty
for violating important legal rules, thus establishing a
binding formula. The best example of this is the theory
of nullity, as this theory is based primarily on the
principle of punishment for defective legal action. The
importance of this theory is highlighted in the Code of
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Criminal Procedure. Criminal legislators in most
countries have tended to regulate cases of nullity with
provisions in their laws to leave no room for doubt, and
to inform the person conducting the procedure in
advance of the fate that their action may face, thus
observing the relevant provisions. The Iraqi legislator
did not specifically address the theory of invalidity in
the Iraqi Code of Criminal Procedure. Rather, some of
the provisions on invalidity were scattered throughout
the aforementioned law without a unified purpose. The
Iraqi legislator left the assessment of invalidity
provisions to the discretion of the judge, who would
identify the defect in the procedural action and then
assess the seriousness of the violation.
In reality, the issue of invalidity in criminal procedures
is of paramount importance in the correct application
of the law, achieving justice and ensuring security and
peace of mind, a goal that every human being aspires
to achieve. The theory of invalidity in the Code of
Criminal Procedure is of paramount importance in
regulating criminal litigation, leading to the imposition
of punishment on the offender. Thus, interests clash,
and sufficient guarantees for individual freedoms must
be provided. First: The Importance of the Research
The importance of this research lies in the paramount
importance of procedural law, whether it be the Code
of Criminal Procedure, as some criminal legislation,
including Iraqi criminal legislation, calls it, or the Code
of Criminal Procedure, as some criminal legislation,
such as Egyptian criminal legislation, calls it. Whatever
the name, it is an extremely important law, as it relates
to criminal litigation. The state regulates criminal
litigation to the point of imposing punishment on the
offender. In this litigation, the state's supreme interest
in exacting retribution against the offender conflicts
with the interest of the accused. The need to reconcile
these two interests and provide sufficient guarantees
for individual freedoms appears to be important and
urgent, with the aim of ensuring a fair trial. The rules
and guarantees established by the legislature are of no
importance if they are ignored or not observed. Here,
the role of invalidity becomes apparent as a procedural
sanction that represents the binding nature of the
procedural rule. This leads to the demolition of the
defective procedural act, the nullification of its legal
effects, and the consequent, extremely important
consequences, the most serious of which is the
criminal's escape from punishment if his conviction is
based on invalid evidence.
Second: The Problem of Research
Despite the great importance of the topic of invalidity
in criminal litigation, it has not received sufficient
attention and the necessary fundamental study to
address the problem, which branches into several
problems. These problems revolve around the validity
and legitimacy of the procedure, the consequences
that can result from the absence of its legal
components, the penalty imposed on the defective
procedure, and whether it affects the procedure itself
in the lawsuit or the ruling as one of its procedures.
These problems highlight the importance of research in
its theoretical and practical aspects, and this is what we
will address in this research. Third: Scientific Research
Methodology
The analytical inductive method was adopted, as we
examine the general principles of the theory of
invalidity, especially since the theory of invalidity is one
of the general theories in law, with its principles and
applications in various branches. This theory is based
on an induction of the opinions of jurists in various legal
schools, as well as an examination of the manner in
which this theory is applied in various legislations,
enabling us to assess invalidity in criminal procedures
through the advantages and disadvantages revealed by
practical application. This is the primary objective of
this research, which is to present an analytical study to
answer the research problem.
Fourth: Research Methodology
The research will be conducted according to the
research plan prepared for it, which consists of two
sections. In the first section, we will address the nature
of invalidity in criminal procedures. In the first section,
we will define invalidity in four sections. In the second
section, we will examine the basis of criminal
protection for invalidity. The third section is devoted to
distinguishing invalidity from similar legal systems in
four sections. The second section is dedicated to
invalidity, including its types and causes. It will cover
three sections. In the first section, we will explain the
doctrines of invalidity in four sections. The second
section will address the types of invalidity in two
sections. In the third section, we will examine the
causes of invalidity. This is what we will address
sequentially according to the plan prepared for it, as
follows:
Section One
The Nature of Invalidity in Criminal Procedure
Requirement One
Definition of Invalidity in Criminal Procedure
We will clarify this in four sections. The first section is
devoted to defining criminal principles, the second to
defining invalidity in language, and the third to defining
invalidity in The fourth term defines invalidity in
criminal procedures in criminal jurisprudence, as
follows:
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First Section
Definition of Criminal Procedure
There is no definition of the Code of Criminal Procedure
in Iraqi legislation. This has been left to criminal
jurisprudence, which defines the Code of Criminal
Procedure as "a set of legal rules that must be followed
to regulate the course of procedures for investigating
crimes and criminalizing their perpetrators, as well as
defining the jurisdiction of the authorities and agencies
responsible for implementing these rules."
Second Section
Definition of Invalidity Linguistically
Invalidity means that it is the opposite of truth. This is
evident in the Almighty's statement: "Falsehood can
neither originate nor restore." It is also said of
everything that it is "falsehood," "falsehood," and
"falsehood." The plural is "falsehoods." A vain man is
one with falsehood, and they are vain among
themselves. God Almighty also says: "Indeed, those are
[in] ruined, and falsehood is [their] conduct." What
they were doing. Invalidity comes from the word
"batil," which means the invalidity of something, and
everything that cannot be relied upon or recourse to.
This includes the corruption of something or the lapse
of its ruling(2). This means the disappearance of
something and its illegitimacy from its very beginning
(3).
Third Section
Invalidity in Terminology
From the Latin word "abolito," meaning to cancel or
nullify, as well as to nullify a legal status (4).
Fourth Section
Invalidity in Law and Jurisprudence
Invalidity is defined as "a penalty resulting from failure
to comply with the provisions of the law relating to any
substantive procedure" (5). It is also described as "a
procedural penalty resulting from the lack of the
necessary elements for the validity of a legal act" (6). It
is also defined as "a penalty imposed by the legislator
or ruled by the court without a text if the legal act lacks
one of the formal conditions required for its legal
validity, and this procedure leads to the ineffectiveness
of the legal act and its loss of the legal value assumed
for it if it were valid" (7). The researcher believes that
nullity is (a penalty imposed by the legislator in legal
texts or decided by the court in the absence of a text, if
the legal act lacks one of the formal conditions for its
validity, and this leads to the loss of its supposed legal
value), and in all cases, nullity is a penalty for the failure
of all or some of the conditions for the validity of the
criminal procedure. It results in the procedure not
producing its usual legal effects.
The Second Section
The Basis of Criminal Protection
Given the importance of the issue of the invalidity of
criminal procedures, it is necessary to understand the
basis of criminal protection for criminal procedures so
that we can understand the invalidity of criminal
procedures and ensure sound legal procedures and a
fair trial. Therefore, this section will consist of two
sections. In the first section, we will explain the legal
basis for the invalidity of criminal procedures, and in
the second, we will discuss the importance of the
invalidity of criminal procedures, as follows:
The First Section
The Legal Basis of Criminal Procedure
The legal basis for criminal procedures is the legal text.
The legislator places broad procedural powers between
the authorities of investigation, prosecution, trial, and
execution of judgments, the application of which may
affect individuals' freedoms, persons, secrets, and
assets. Therefore, the legislator must strike a balance
between the right of authorities to exercise their
powers and the interests of individuals. This prevents
those exercising these powers from deviating from
their authority and from their arbitrariness, or at least
from neglecting essential procedures that directly
relate to the interests of the group or the interests of
the parties. The substantive and procedural penal laws
stipulate penalties for those who carry out procedural
actions or for the procedural action itself (8). Criminal
legislation has set several penalties that affect
procedural action, including disciplinary penalties, i.e.,
behavioral penalties. These penalties are imposed by
the administrative authority to which the person who
carried out the illegal action belongs, as stated in
Articles (16-48-403) of the Lebanese Code of Criminal
Procedure, as well as criminal penalties, which
represent the most severe type of penalties and target
the person who carried out the illegal action for
criminal punishment. This is what is stipulated in
Articles (42/2 - 48-53) of the Lebanese Code of Criminal
Procedure due to the disclosure of the confidentiality
of the investigation and the violation of the procedures
followed in detention, as well as Articles (367-368-369-
370) of the same law for violating arrest and search
procedures. There is also a civil penalty, which
stipulates the right to compensation for the person
who suffered harm from the person who carried out
the illegal action. The provisions of the law, as well as
the procedural penalty (nullity), do not affect those
performing the procedural action, but rather the
procedural action itself. This is the penalty we are
concerned with in this research. The importance of this
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penalty lies in the fact that the penal procedure is not
an abstract act, but rather a purposeful act through
which the law requires the achievement of a specific
goal. If the procedure lacks the conditions imposed by
the law, it loses its legal value, which entails its nullity.
Since the rules of the Code of Criminal Procedure are
the procedural rules of criminal law, they are the legal
rules that establish the procedures to be followed
when a crime occurs, including all evidence regarding
it, investigation, trial of the perpetrator, and imposition
of a just penalty upon him after it has been proven that
he committed it and is responsible for it. These rules
entail achieving two fundamental interests: the
interest of society, whose security has been disrupted,
and the interest of individuals in ensuring their
freedoms. Since this is the case, its legal basis is the
legal text, which stipulates the penalty for those who
violate these procedures. Criminal procedure rules are
generally legal rules. A legal rule is distinguished from
other rules that govern the activity of individuals by the
element of penalty. Without the element of penalty,
the rule is stripped of its binding nature and becomes
merely advice or guidance. Criminal procedure rules
are distinguished from substantive law rules in that
they contain penalties of a special nature, which are
procedural penalties, in addition to other penalties.
These penalties, which protect criminal procedural
rules, aim to properly administer justice and achieve
the purpose of the dispute, which is to impose
punishment on the offender. All of these penalties
constitute a general theory in procedural law, which is
the theory of penalty.
One of its most important applications is procedural
penalties, which are the theory of invalidity, forfeiture,
and non-acceptance. Procedural penalties differ from
other penalties, and are characterized by their
objective effect, as they do not affect the person who
carried out the procedural action, but instead affect the
action itself, unlike other penalties, which are personal
in effect, meaning they affect the person who carried
out the procedural action, whether in his person or his
property. Procedural penalties also lead to the
procedural action being deprived of its legal effects,
unlike other procedures that involve the element of
pain and compensation (9), for all of the above, criminal
procedures are based on legal texts, as legal rules
stipulated by the legislator, which serve as procedural
(formal) legal rules.
Section Two
The Importance of the Invalidity of Criminal
Procedures
The importance of invalidity emerged after societies
advanced and criminal procedures developed, as a
result of the expansion of the scope of topics they
encompassed. They acquired levels of varying degrees
of importance, enabling them to address the multiple
hypotheses related to diverse interests, in addition to
the multiplication of cases heard by courts, and a
significant number of which, after investigation and
discussion, were found to be based on flawed reasons,
thus wasting considerable time and effort to no avail.
And also to enable the judiciary to focus its research on
the claims supported by sound legal justifications, and
on the other hand to prevent the transgression of what
the legislation includes of provisions that must be
followed as interests of concern to society and the
individual alike, therefore thinking turned to avoiding
those harmful results by establishing a penalty that
results from violating important legal rules to become
binding, and the theory of invalidity was established,
which is basically based on the principle of penalty for
defective legal work, and the importance of this theory
increased until it became one of the general theories in
the law with its principles and applications in its various
branches, and the importance and danger of the theory
of invalidity appears doubled in the Code of Criminal
Procedure, as the state regulates the criminal dispute
to reach the imposition of punishment on the offender,
and in this dispute the higher interest in retribution
from the offender conflicts with the interest of the
accused, and the need appears urgent to reconcile the
two interests and provide sufficient guarantees for
individual freedoms in order to establish a fair trial,
mainly since most legislations regulated cases of
invalidity in their laws and did not leave room for doubt
and for the person carrying out the procedure to know
in advance the fate that may The Iraqi legislator did not
specifically address the theory of nullity in the Code of
Criminal Procedure. Instead, the nullity provisions were
distributed throughout the law above, leaving other
nullity provisions that were not explicitly provided for
to the judge's discretion to determine the defect in the
procedural act and assess the seriousness of the
violation. This is known as the "doctrine of intrinsic
nullity." One of the criticisms of this doctrine is that it
leads to conflicting opinions and instability in
judgments. From the above, it becomes clear that the
importance of nullity provisions lies in the correct
application of the law, thereby achieving justice so that
security and peace prevailprevail in society, which is
the ultimate goal that humanity strives to achieve.
The Third Section
Distinguishing Nullity from Similar Legal Systems
To distinguish nullity in criminal procedures from
similar legal systems, we must divide this section into
four sections. In the first, we explain nullity, in the
second, inadmissibility, in the third, nullity, and the
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fourth, the position of Islamic law on nullity, as follows:
The First Section
Vulnerability and Nullity
Vulnerability is defined as a procedural penalty
resulting from failure to exercise the right to undertake
a specific procedural act within the period specified by
the legal system. This period is determined either by a
particular date or by a particular incident. Nullity is the
prevention of undertaking an act or group of criminal
acts due to failure to observe the specified deadlines.
In other words, nullity is a procedural penalty that
deprives an individual of the right to undertake a
specific action. The difference between nullity and
nullity is that nullity applies to the act itself, while
nullity applies to the nature of the act. Specifically,
nullity can be corrected in certain circumstances, while
lapse is never correctable. A judgment or order
primarily determines nullity, while lapse is by force of
law.
Section Two
Voidness and Inadmissibility
Inadmissibility is defined as "not a procedural sanction
directed at a specific procedure, but rather a refusal to
adjudicate on the subject of a specific request.
Therefore, it does not address a procedure as much as
it addresses the procedural relationship as a whole or
at one of its stages."
It is noted from the definition that nullity and
inadmissibility are almost identical in the underlying
cause. In both cases, there is a defective procedural
action caused by a mismatch between the actual
procedure and its legally prescribed model. This means
that the procedure lacks one of its substantive
components or lacks one of the forms that ensure its
validity (10).
This means that the plea of inadmissibility is the plea
that aims to challenge the lack of the necessary
conditions for hearing a case, namely, standing,
interest, and the right to file a lawsuit as a right
independent of the right for which it is filed, requesting
its establishment, such as the lack of a right to file a
lawsuit (11).
As for nullity, it is a penalty imposed by the legislator or
decided by the judge for the failure of a specific
procedure. The point of disagreement between them is
that inadmissibility often affects procedural aspects of
public order, i.e., those aspects that the judge may raise
on his own initiative, such as the failure of the
prosecution to receive a complaint from the injured
party, in legal systems that adopt the public
prosecution system, such as Egypt, for example. As for
Iraq, it adopts the investigative judge system. In this
case, the judge has the right to rule that the public
lawsuit is inadmissible due to the absence of a
complaint, without waiting for the injured party to
submit a plea in this regard. This means that the judge
has the right to reject the lawsuit due to the absence of
a complaint from the injured party. Section Three
Voidness and Nullity
Voidness is defined as "a penalty imposed on a
procedure for violating the law or regulation in a
manner that strips it of all its statutory or legal value"
(12). This means that its absence in the absence of a
procedural act is its nonexistence, and the
manifestation of its nonexistence is its invalidity. Nullity
results from a defect in the legal act, without affecting
the existence of the legal act. The procedural act is
considered legally void if the law does not permit it,
such as the interrogation of the accused by a person
who does not have the legal capacity to interrogate
him, or if the interrogation takes place before the
criminal dispute arises. In this case, the procedural act
is considered legally void. It differs from nullity in that
nullity cannot be corrected due to its nonexistence in
the legal world, while nullity can be corrected, and any
party to the criminal case, and the court may, on its
own initiative, raise nullity. Nullity, on the other hand,
is specifically raised by the investigating judge and
some parties in specific cases.
Section Four
The Position of Islamic Law on Invalidity
Islamic law views invalidity (and its adoption) with a
comprehensive and moderate approach. The basis of
the theory of invalidity in Islamic law is the violation of
the commands and prohibitions contained in the legal
texts of the Holy Qur'an and the Prophetic Sunnah,
which are definitively proven. Islamic law adopts the
theory of invalidity and the principle that "whatever is
built on falsehood is itself false." This principle has also
been clearly and directly indicated in the Qur'an, as God
Almighty says in His Noble Book: "O you who have
believed, obey Allah and obey the Messenger and
those in authority among you. And if you disagree over
anything, refer it to Allah and the Messenger."
Section Two
To complete the research, this section is devoted to
explaining the doctrines of invalidity, its types, and
causes. Therefore, we must divide this section into
three sections. The first will be devoted to the doctrines
of invalidity. In the second, we will discuss the types of
invalidity, and in the third, we will devote the causes of
invalidity. This is what we will discuss in turn, as follows:
Section One
Doctrines of Invalidity
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The system of invalidity in criminal procedures requires
that it be governed by rules that fulfill the purpose for
which the law enacted this penalty. Invalidity, as a
procedural penalty, is the tool by which the law proves
its will, obligates persons to observe its rules, and
achieves the guarantees it intended to provide in
litigation. Thus, the rules of invalidity fulfill the purpose
upon which the penalty of invalidity is based.
Therefore, they must be based on stability and
specificity so that procedural persons know their rights
and obligations. This is what the nature of the penalty
leads to. The circumstances of invalidity must be
defined without excess or negligence, so as not to lead
to the waste of evidence for the most trivial reasons
and enable the accused, which is something that
contradicts the nature of The litigation is an attempt to
escape punishment, in addition to the complexity of
the procedures and the prolongation of the criminal
litigation that aims to achieve social defense by
imposing punishment on the offender and protecting
individual freedoms (13). We will explain these
doctrines briefly in four branches as follows:
Section One
The Doctrine of Legal Nullity
The implication of this doctrine is that nullity can only
be established by explicit legal text (there is no nullity
without a text). If the legislature does not stipulate a
penalty for nullity, the action taken is considered valid
even if it is not carried out within the limits stipulated
by the law. The legislature alone has the authority to
impose a penalty in this regard. A judge does not have
the power to rule on nullity as long as the legislature
does not stipulate it, nor does he have the power to
refrain from ruling on it when the text does. The flaw in
this doctrine is that it is based on the legislature's
prediction in advance of the circumstances of nullity,
even though it is impossible for the legislature to agree
on the specific circumstances of nullity in a university
free of excess or negligence. In short, this doctrine
relies on the text of the legislature. Second Section
The Doctrine of Intrinsic Nullity
In this doctrine of nullity, the legislator does not specify
specific cases of nullity, as in legal nullity. Rather, nullity
results from a violation of any fundamental or essential
rule, and the judge is responsible for determining it. He
may impose nullity on a violation of a rule he deems
essential, even if the legislator does not stipulate nullity
as a penalty. This doctrine of nullity is sometimes called
fundamental or essential nullity. The advantage of this
doctrine is that the legislator cannot pre-limit the
circumstances of nullity, and for fear of the
consequences of such limitation, he leaves the matter
to the judiciary to assess the seriousness of the
violation. This doctrine does not rely on rigid texts,
seeing a serious defect in the procedural action before
it and being unable to take action simply because the
law omitted to stipulate nullity as a penalty for this
defect. This doctrine raises a major problem, namely
the problem between essential and non-essential
actions. This problem lies at the heart of the flaws of
this doctrine. This doctrine has been adopted by
Egyptian and Iraqi law. Section Three
The Doctrine of Mandatory (Absolute) Nullity
Also called the formalist doctrine, it stipulates that
nullity results from a violation of all procedural rules
governing litigation proceedings. The basis of this
doctrine is that the law only requires consideration of
formalities due to their importance and the role of
litigation. Therefore, nullity must be declared as a
penalty for failure to comply with all of them.
This system was known in Roman law and the feudal
era, where procedures were subject to specific
formalities, the violation of which affected the subject
matter of the lawsuit itself. The advantage of this
doctrine is its clarity in defining the circumstances of
nullity. However, it is marred by the defect of excessive
adherence to formalities, which leads to excessive
nullity and the predominance of form over substance
(14).
Section Four
The Doctrine of Nullity in Iraqi Law
The Iraqi legislator did not include in the Baghdad
Criminal Procedure Code (repealed) any provision
relating to nullity. The explanatory memorandum to
the appendix to the Baghdad Criminal Procedure Code
No. 63 of 1950 states the following: "It has been proven
from the application of this law that it is a practical law
devoid of formalities, allowing the judge to act with
complete freedom without his procedures being
marred by nullity, provided that the rights of defense
are not violated."
As for the current Criminal Procedure Code, Article
249/Paragraph 1 states: "The Public Prosecution, the
accused, the complainant, the civil plaintiff, and the
civil defendant may appeal to the Court of Cassation
the rulings, decisions, and measures issued by the
Misdemeanor Court or the Criminal Court in a
misdemeanor or felony case if they were based on a
violation of the law or an error in its application or
interpretation, or if a fundamental error occurred in the
procedural procedures, the assessment of evidence, or
the assessment of the penalty, and the error affected
the ruling."
This is evident from the phrase "fundamental error in
the procedures." The above article states that the
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legislator has adopted the principle of intrinsic nullity,
as it is inconceivable that there is no procedural penalty
for violating the basic rules of criminal procedure, as
these rules are useless unless there is a penalty for
violating them. This penalty is decided by the court to
which the appeal against the decision of the
investigating authority or the judgment is brought (15).
However, criminal jurisprudence in Iraq has differed
regarding the nullity of a search. Some have held that a
search conducted by the investigating authorities
outside the conditions stipulated by law is considered
absolutely null and void, and that the contents of the
search report or the criminal items and exhibits
discovered therein may not be relied upon, nor may the
court rely on them in its ruling. As for the person who
conducted the invalid search, his testimony regarding
that search may not be relied upon, nor may the
procedures or statements he provided in his report or
investigation of that invalid search be relied upon.
Others believe that a search conducted without
observing these provisions is tainted by relative nullity,
given that the legislator has established the general
provisions relating to searches and made them
obligatory. The courts are not exempted from applying
this principle on the grounds that there is no specific
text regulating invalidity in a matter that affects
people’s public freedoms that are protected by the
Constitution and other laws, especially since the rules
of the Code of Criminal Procedure are formal rules, the
purpose of which is to ensure the proper
administration of justice and to guarantee the public
interest in criminal justice, which does not prevent the
court from adopting the broad interpretation and the
principle of intended inference a fortiori (16). The Iraqi
legislator did not include in the Code of Criminal
Procedure a text that clarifies for us the general rule in
the invalidity of criminal procedures that stipulate their
invalidity for violating the stipulated conditions and
forms, and that he left the matter to the judiciary until
it assesses the seriousness of the violation.
The Second Requirement
Types of Invalidity
There are two types of invalidity: absolute invalidity
and relative invalidity. The rulings for each of these two
types of invalidity differ from one another, and Islamic
jurisprudence has established this distinction (17).
Although some do not permit it (18), they even reject
dividing invalidity into absolute and relative invalidity
(19). Those who reject this idea proceed from the view
that its basis is a traditional distinction in civil law
jurisprudence and is inconsistent with the rules of
procedural law. This rejection appears to be based on a
distinction between absolute invalidity and procedures
related to public order (20), or it may be based on the
ambiguity of the concept of absolute and relative
invalidity. To clarify, it is preferable to replace them
with another distinction based on the public interest
and the private interest (21). We will explain this in two
sections. In the first, we will discuss absolute invalidity
and devote the second to relative invalidity, as follows:
The First Section
Absolute invalidity
This is the invalidity whose provisions apply when
essential procedures that protect the public interest
are violated due to their connection to public order. We
will explain its status and provisions as follows:
A - Cases of absolute invalidity
Absolute invalidity can be summarized as violating the
rules related to the formation of the court, its
jurisdiction to adjudicate the case, and its subject-
matter jurisdiction (22), as well as if the violation is
directed at Procedural invalidity is defined as the
absence of one of the procedural elements due to a
failure to observe procedural formalities in a manner
that undermines the proper administration of justice
(such as not conducting the trial in public, not observing
the oral nature of the proceedings, not providing
reasons for the rulings, or replacing one investigating
judge with another without observing legal principles).
This constitutes a fundamental violation of public order
and is therefore absolutely null and void.
B - Provisions of Absolute Nullity
The provisions or characteristics of absolute nullity are
embodied in the following:
1- It may be invoked at any stage of the trial.
2- The court may rule on it of its own accord without a
request from any of the parties.
3- It may be invoked before the Court of Cassation.
4- It may be invoked by any interested party in their
report.
These rulings are based on a basic idea, which is that
invalidity is established for the benefit of society,
whether it is a direct interest of society or a private
interest of the accused, which has risen in importance
to the level of a direct interest of society. Accordingly,
it is not possible to explicitly waive the invocation of it,
nor through it by an implicit waiver inferred from not
invoking it in some stages of the lawsuit (23).
Section Two
Relative Invalidity
Relative invalidity is not related to public order, and
therefore its cases are not among the cases of absolute
invalidity. Relative invalidity is invalidity that affects a
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procedure that violates a rule protecting an interest
that the judiciary deems less important than absolute
invalidity (24). I will outline the most important
provisions and conditions of this invalidity as follows:
A- Provisions of Relative Invalidity
1- Relative invalidity is not established for the benefit
of society, but rather for the private interest of the
litigants or one of them. Therefore, its invocation is
limited to the party concerned by the violation of the
legal rule, and invalidity may only be invoked by the
person for whose benefit it was established (25). For
example, the rules of search are only available for the
accused whose home or person was the subject of a
search. Therefore, the defense of this invalidity may
only be invoked by him, not the other accused. 2- Since
relative invalidity is the responsibility of the interested
party, he may raise the plea of invalidity of the
procedure within his right not to need it, and he also
has the right to waive the right to raise it explicitly or
implicitly, and implicit means not raising it in the stages
of the lawsuit (26).
3- If the interested party does not raise the plea of
relative invalidity, the court does not have the right to
raise it (27). If the interested party does not raise the
plea of relative invalidity in the early stages of the
lawsuit, he does not have the right to raise it before the
Court of Cassation. That is, when the interested party
does not raise the plea of relative invalidity in the first
stage of the lawsuit, he does not have the right to raise
the plea of relative invalidity before the Court of
Cassation for the first time in a plea that he had not
previously raised. B- Conditions for Relative Invalidity
There are three conditions for the validity of a claim of
relative invalidity:
1- The party claiming it must have a direct interest in
the procedural rules and their failure to comply with
them (28).
2- The party must not have caused or contributed to
the invalidity of the procedure, whether intentionally
or unintentionally. For example, if the accused is absent
during a search due to not being summoned, then the
procedure is invalid. However, his refusal to appear is
not considered a reason for the invalidity of the
procedure, and he is not permitted to claim its
invalidity (29).
By invalidity (30).
3- Relative invalidity must be pleaded before discussing
the subject matter of the lawsuit (31). Therefore, it was
ruled that "the invalidity of the request paper must be
requested for not including a statement of the
accusation before entering into the subject matter of
the lawsuit, otherwise the right to it is forfeited" (32).
Third Requirement
Reasons for invalidity
The criminal procedural act is, in essence, a legal act.
The reasons for invalidity depend on examining the
elements of this criminal procedural act as a legal act.
For every legal act, the existence of the will and
capacity to carry it out, as well as the subject matter
and cause, in addition to the forms, with respect to
formal legal acts, for whose validity the law requires
that they be formulated in the form it regulates. These
are the elements that must be present for the validity
of the legal act. At the same time, these elements
represent the basis upon which the reasons for
invalidity are based (33), namely the lack of the
necessary elements for the validity of the legal act.
Since procedural action is a formal act, it requires both
formal and substantive conditions for its validity.(34)
Therefore, in this section, we will examine three
branches of reasons for invalidity(35) the first, for
violating the rules of jurisdiction; the second, for
violating the substantive rules; and the third, for
violating the formal rules (36). We will discuss these in
turn, as follows:
The First Branch:
The reason for invalidity is for violating the rules of
jurisdiction (37).
The rules of jurisdiction are that the court hears a case
outside its jurisdiction. These rules are three:
A. Rules of personal jurisdiction
B. Rules of subject-matter jurisdiction
C. Rules of territorial jurisdiction
A. Rules of personal jurisdiction:
The court has jurisdiction over the accused in a trial.
This means that the juvenile court has jurisdiction over
juveniles,(38) while the regular courts have jurisdiction
over non-juveniles. Otherwise, this is not permissible,
as it is not permissible to try juveniles in regular courts
or adults in the juvenile court. (39) This would lead to
the invalidity of the procedural action. B- Rules of
Subject-Matter Jurisdiction:
This means that the court has jurisdiction based on the
nature and seriousness of the crime. (40) If the crime is
a misdemeanor, the case is heard before the
Misdemeanor Court. If the crime is a felony(41) the
case is heard before the Criminal Court.
C- Rules of Local Jurisdiction
Local jurisdiction refers to the location of the crime.
There are three criteria for determining this:
1- Location of the crime.
2- Location of the accused.
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3- Location of the accused's arrest.
The reason for this is that investigating the crime scene
is intended to uncover the truth, due to the presence
of traces of the crime, exhibits, witnesses(42), and all
evidence and circumstances of the crime. Furthermore,
it serves to achieve deterrence, and Iraqi law has
adopted this procedure and approach (43).
It is worth noting that investigation procedures are not
invalidated if the investigating judge conducts an
investigation outside his jurisdiction, as they are
regulated by law based on the provisions of Article 53
of the Criminal Procedure Code No. 23 of 1971, as
amended. Section Two
Reasons for Invalidation for Violating Objective Rules
All objective rules that depend on the validity of a
procedure are considered essential, as the law requires
that the procedure be performed by a person with a
specific capacity, which is expressed as procedural
capacity. (44) This means that the absence of objective
conditions affects the purpose of the procedure and,
consequently, results in its invalidity. (45) An example
of this is a search warrant issued without a prior crime
being committed. Searching a non-accused person in
circumstances other than those stipulated by law is also
invalid. (46) A search warrant issued to search the
home of an accused person without sufficient evidence
of his guilt and without new investigations invalidates
the warrant (47).
As for defects of will, do they invalidate the procedure?
Examples of this include testimony given under duress,
a search warrant issued under the influence of error, or
filing or waiving a complaint due to a defect of will.
Opinions differ on this matter in criminal jurisprudence.
Some jurisprudence holds that the validity of a
procedure requires it to be issued from a free and
conscious will, and that the absence of this will
invalidates the procedure. The other group of
jurisprudence has gone to differentiate between the
various defects of the will and between material
coercion, and it believes that material coercion negates
the will and nullifies the procedure in its materiality,
and the reality is that the procedural action must have
a will that is free from all defects, otherwise the
procedure is invalid.
Section Three
Due to Invalidity Due to Violation of Formal Rules
Formal rules refer to those rules that the law requires
the procedure to be formulated in. They do not relate
to the substance and content of the procedure, but
rather to the form in which it should be. Examples of
these include rules about the implementation of a
search, such as the presence of the accused or
witnesses, the signature of the investigation report by
the person responsible for the investigation, the
swearing of the witness before hearing his testimony,
the mention by the investigating judge of the charges,
the description of the charge, and the name and
address of the accused in the summons and referral
order, and other formal rules. Here, it is necessary to
distinguish between substantive regulations and
regulatory rules, which are intended to provide
guidance and direction. The criterion is the legislator's
intent in stipulating the procedure. If the formalities
required by the legislator would render the procedure
ineffective in achieving its objective, then the form is
substantive. If they do not have this effect, then these
rules are guidelines and directions.
An example of this is the presence of two witnesses
during a search of the accused's home in their absence
by a judicial police officer who has not been assigned to
search. This is considered a substantive form, rendering
the procedure invalid. (Inspection), And the same
applies to the swearing of a witness before hearing him.
This form is likely to be disregarded, thus casting doubt
on the value of the testimony as evidence that the
court can rely on.
Likewise, the failure of the clerk or the minutes' editor
to sign during the session is not considered an essential
form that results in nullity, as long as it is written in the
clerk's handwriting. The failure to sign does not deprive
the minutes of their legal value as evidence of their
contents. However, the signature of the presiding judge
on the minutes of the session and the judgment is an
essential form required by the legislature for the
minutes or judgment to take effect, as it constitutes
evidence regarding their contents.
From the above, we conclude that the form of the
procedure is essential if it is linked to the purpose or
objective of its achievement, and is not necessary if it
intends to organize and guide.
CONCLUSION
After completing this study, we reached a set of
conclusions and recommendations that we deem
necessary for its completion, as follows.
First: Conclusions
1. The study clarified that nullity only applies to flawed
criminal procedures.
2- It also demonstrated that failure to comply with any
formal procedure leads to the invalidity of that criminal
procedure, and consequently, the invalidity of the legal
act.
3- It also demonstrated that invalidity is a penalty
imposed for violating formal legal rules.
4- The study demonstrated that a defect in the formal
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procedure of a legal act can often be remedied by
correcting it, which leads to the validity of the legal act
without invalidating it.
5- It also became clear that the theory of invalidity of
criminal procedures aims to correct legal action and
ensure the proper course of justice.
6- This study also demonstrated that most criminal
legislation does not stipulate the invalidity of criminal
procedures, leaving this matter to the discretion of the
judge in most cases. This leads to their discretion being
subject to the judge's whims.
7- This study also demonstrated that the invalidity of
criminal procedures is of paramount importance to the
course of justice.
8- It also demonstrated that the invalidity of criminal
procedures is a guarantee of the protection of the
rights of individuals and society. 9. This study
demonstrates that a flawed legal procedure must be
nullified if it relates to public order.
10. The study also clarifies that the party with an
interest in the criminal procedure may expressly or
implicitly waive the invalidity of the criminal procedure,
but this does not extend to the remaining defendants.
11. It also demonstrates that relative invalidity related
to individuals must be raised in the early stages of the
lawsuit and may not be invoked upon appeal for the
first time.
12. Procedural action is an essential legal process in
determining the validity of the procedure, and this is
what this study concluded.
13. This study demonstrates that the criminal
procedure is the primary determinant of the validity of
the criminal case, from notification to expiration and
execution.
Second: Recommendations
1. The study recommends activating the penalties for
invalidity of criminal procedures in Iraqi law.
2. Given the great importance of the issue of invalidity
in criminal procedures, the study recommends defining
the basic rules related to the invalidity of criminal
procedures in legal texts in the Iraqi Code of Criminal
Procedure under specific chapters, starting with
notification and ending with execution, provided that
all procedural legal rules are met.
3. The study recommends that all interested parties be
made aware of the invalidity of a flawed criminal
procedure by the investigator or the court during the
early stages of the case, so that they can retain their
rights upon appeal.
4. The study also recommends activating the theory of
invalidity in Iraqi law and specifying this in specific legal
texts that outline the cases of invalidity of criminal
procedures.
5. Since procedural action is the basis for achieving the
course of justice in criminal proceedings, ensuring the
rights of the individual, society, and the public interest,
the study recommends that this be specified in specific
texts.
6- The study recommends that the Iraqi legislator
define procedural action through legislation exclusively
within the Iraqi Code of Criminal Procedure.
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.
Majd al-Din Muhammad ibn Ya'qub al-Fayruzabadi, Al-
Qamus al-Muhit, 7th ed., al-Risala Foundation, Beirut,
2012.
-----------, 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.
Dr. Elias Abu Eid, Criminal Procedure: Between Text,
Ijtihad, and Jurisprudence, A Comparative Study, Vol. 2,
Al-Halabi Legal Publications, Beirut, 2003.
Jawad Al-Rahimi, Invalidity Provisions in the Criminal
Procedure Code, Legal Library, 2nd ed., Baghdad, 2006.
Dr. Raouf Obeid, Principles of Criminal Procedure in
Egyptian Law, No. 150 of 1950, Cairo, 1979.
Saad bin Muhammad bin Dhafir, Criminal Procedure in
Saudi Arabia, 1st ed., Dar Taiba, 1414 AH.
Dr. Suleiman Abdel Moneim, Principles of Criminal
Procedure in Legislation, Jurisprudence, and the
Judiciary, University Foundation, Beirut, 1997.
Dr. Saleh Abdel Zahra Al-Hassoun, Provisions of
Inspection and Its Effects in Iraqi Law, without
mentioning the place and year of publication.
Dr. Asim Shakib Saab, The Theoretical and Practical
Invalidity of Criminal Procedure, A Comparative Study,
1st ed., Al-Halabi Legal Publications, Beirut, 2007.
International Journal of Law And Criminology
35
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International Journal of Law And Criminology (ISSN: 2771-2214)
Dr. Abdel Hamid Al-Shawarbi, Procedural and
Substantive Civil Invalidity, Al-Maaref Foundation,
Alexandria, 1991.
Dr. Abdel Fattah Mustafa Al-Saifi, Explanation of the
Lebanese Code of Criminal Procedure, Faculty of Law,
Beirut Arab University, without mentioning the year of
publication.
------------, The General Theory of Criminal Procedure,
Dar Al-Bahri Brothers, Beirut, 1974.
Abdul Qader Awda, Islamic Criminal Legislation
Compared to Positive Law, 4th ed., Al-Risala
Foundation, Beirut, 1996.
Dr. Alwani Muhammad Alwani, Explanation of the
Algerian Criminal Procedure Code, Dar Al-Jamiah,
Algeria, 2003.
Dr. Fathi Wali and Dr. Ahmed Maher Zaghloul, The
Theory of Nullity in the Code of Civil Procedure, 2nd ed.,
Modern Printing House, 1997.
Dr. Fawzia Abdel Satar, Explanation of the Criminal
Procedure Code, Dar Al-Nahda Al-Arabiya, Cairo, 1986.
Dr. Mamoun Muhammad Salama, Criminal Procedure
in Libyan Legislation, Vol. 2, 1st ed., Dar Al-Kutub Press,
Beirut, 1971.
Dr. Muhammad Kamil Ibrahim, The General Theory of
Nullity in the Criminal Procedure Code, Dar Al-Nahda
Al-Arabiya, Cairo, 1989.
Dr. Mahmoud Naguib Hosni, Explanation of the
Criminal Procedure Code, 2nd ed., Dar Al-Nahda Al-
Arabiya, Cairo, 1988.
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
Lebanese Civil Cassation, No. 5, Decision 38, dated
March 29, 2001, Al-Adl Magazine, Issue 1, 2002.
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
Jawad Al-Rahimi, Provisions of Nullity in the Code of
Criminal Procedure, Legal Library, 2nd ed., Baghdad,
2006, p. 2.
Jawad Al-Rahimi, Provisions of Nullity in the Code of
Criminal Procedure, previous source, p. 9.
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
Majd Al-Din Muhammad ibn Ya'qub Al-Fayruzabadi, Al-
Qamus Al-Muhit, previous source, p. 967.
Muhammad Rawas Qala'ji, Academy of the Language of
Jurists, Dar Al-Nafa'is, Beirut, 1996, p. 88.
Abu Al-Hasan Ahmad ibn Faris ibn Zakariya, Dictionary
of Language Standards, 2nd ed., Al-Jabal, Beirut, 2012,
p. 258.
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.
Dr. Asim Shakib Saab, Nullity of Criminal Judgments:
Theoretical and Practical: A Comparative Study, 1st ed.,
Al-Halabi Legal Publications, Beirut, 2007, p. 32. ( )
Jawad Al-Rahimi, Nullity Provisions in the Code of
Criminal Procedure, previous source, p. 28.
Dr. Ahmed Fathi Sorour, Nullity Theory in the Code of
Criminal Procedure, Al-Nahda Al-Masriya Library, Cairo,
1959, p. 2.
Jawad Al-Rahimi, Nullity Provisions in the Code of
Criminal Procedure, previous source, p. 10.
Dr. Abdel Fattah Mustafa Al-Saifi, The General Theory
of Criminal Procedural Rules, Dar Al-Bahri Ikhwan,
Beirut, 1974, p. 97.
Dr. Alwani Muhammad Alwani, Explanation of the
Algerian Code of Criminal Procedure, University House,
Algeria, 2003, p. 2596.
International Journal of Law And Criminology
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Mahmoud Naguib Hosni, Explanation of the Criminal
Procedure Code, 2nd ed., Dar Al-Nahda Al-Arabiya,
Cairo, 1988, p. 344.
Elias Abu Abd, Procedural Defenses in the Principles of
Criminal and Civil Trials, Zain Legal Library, Lebanon,
2004, p. 161.
Dr. Fawzia Abdul Sattar, Explanation of the Criminal
Procedure Code, Dar Al-Nahda Al-Arabiya, Cairo, 1986,
p. 42.
Abdul Qader Awda, Islamic Criminal Legislation
Compared to Positive Law, 4th ed., Al-Risala
Foundation, Beirut, 1996, p. 238.
Saad bin Muhammad bin Dhafir, Criminal Procedure in
Saudi Arabia, 1st ed., Dar Taiba, 1414 AH, p. 234.
Surah An-Nisa: Verse 59.
Dr. Ahmed Fathi Sorour, The Theory of Nullity in the
Criminal Procedure Code, previous source, p. 112.
Dr. Ahmed Fathi Sorour, The Theory of Nullity in the
Code of Criminal Procedure, op. cit.., p. 118.
Dr. Mamoun Muhammad Salama, Criminal Procedure
in Libyan Legislation, Vol. 2, 1st ed., Dar Al-Kutub Press,
Beirut, 1971, p. 303.
Jawad Al-Rahimi, Nullity Provisions in the Code of
Criminal Procedure, op. cit.., p. 50.
Dr. Saleh Abdul Zahra Al-Hassoun, Provisions of
Inspection and Its Effects in Iraqi Law, no year of
publication mentioned, p. 351.
Dr. Mahmoud Najib Hosni, Explanation of the Code of
Criminal Procedure, op. cit.., p. 348.
Elias Abu Eid, Principles of Criminal Procedure between
Text, Ijtihad, and Jurisprudence, A Comparative Study,
Vol. 2, Al-Halabi Legal Publications, Beirut, 2003, p. 496.
Dr. Suleiman Abdel Moneim, Principles of Criminal
Procedure in Legislation, Jurisprudence, and the
Judiciary, University Foundation, Beirut, 1997, p. 110.
Dr. Fathi Wali and Dr. Ahmed Maher Zaghloul, The
Theory of Nullity in the Code of Civil Procedure, 2nd ed.,
Modern Printing House, 1997, p. 16.
Dr. Suleiman Abdel Moneim, Principles of Criminal
Procedure in Legislation, Jurisprudence, and the
Judiciary, op. cit.., p. 138.
Text of Article 332 of the Egyptian Code of Criminal
Procedure: (These cases may arise when specific
provisions explicitly stipulated by the legislator are
violated.)
Dr. Suleiman Abdel Moneim, Principles of Criminal
Procedure in Legislation, Jurisprudence, and the
Judiciary, op. cit.., p. 139.
Dr. Elias Abu Eid, Principles of Criminal Trials between
Text, Ijtihad, and Jurisprudence, op. cit.., p. 498.
Dr. Mahmoud Naguib Hosni, Explanation of the
Criminal Procedure Code, previous source, p. 350
Dr. Mahmoud Naguib Hosni, Explanation of the
Criminal Procedure Code, previous source, p. 386
Lebanese Civil Cassation, No. 5 - Decision 38, dated
March 29, 2001, Al-Adl Magazine, Issue 1, 2002, p. 56.
Dr. Suleiman Abdel Moneim, Principles of Criminal
Procedure, previous source, p. 140.
Lebanese Cassation - No. 2 - Decision 71, dated October
25, 1994 (N.Q.L.), Issue 10 of 1994.
Dr. Ahmed Kamel Abu Al-Saud, The Golden Code / The
Theory of Invalidity of Judgments in Criminal
Legislation, Al-Intifaa Press, Alexandria, 1992, p. 105.
Dr. Ahmed Kamel Abu Al-Saud, The Golden Code / The
Theory of Invalidity of Judgments in Criminal
Legislation, previous source, p. 109.
Dr. Elias Abu Eid, Principles of Criminal Trials, previous
source, p. 502
Egyptian Criminal Cassation Court - May 29, 1951,
Collection of Cassation Rulings - Volume 2 - No. 433, p.
502
Dr. Mamoun Muhammad Salama, Criminal Procedures,
Vol. 2, previous source, pp. 302-313
Dr. Mamoun Muhammad Salama, Criminal Procedures,
Vol. 2, previous source, pp. 304-312
