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حماية الحقوق الثقافية للاقليات في القانون الدولي العام == Protection of Cultural Rights of Minorities in the Public International LaW

اسم المؤلف: علي عدنان عبد الحكيم
اسم المشرف: علي جبار كريدي القاضي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: القانون الدولي الانساني
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: he religious, linguistic, nationalist and ethnic variations are agreed upon and real, and such variations exist in most groups. In most countries around the world, there are human groups having its own characteristics which are different from the dominant majority. Most groups are trying to prove its existence and differentiation through its cultural heritage .As the cultural rights for the people of minorities of language, religion and education are responsible for keeping their distinctiveness from other members of community, hence such cultural rights are necessary to protect the existence of minorities as a distinguished group having its own culture. There is a possibility that such minorities practice other civil, political, economic and social rights, therefore the problem of minorities is considered common for most countries around the world, and this problem is renewable and subject to different variables.This problem once was addressed in accordance with internal laws, however, nowadays this problem is considered one of the issues that concern the international community because of its impact on states stability internally and externally. People of minorities enjoy all human rights stipulated by international conventions and treaties related to human rights as well as enjoying their own rights helping them maintain their own characteristics. And this is what some states included in their constitutions and internal laws.For the importance of human rights in general and minorities' rights in particular, there are many international mechanisms and means to protect these rights and practice international control which urges respect of such rights.Thus, the respect for cultural diversity and the granting of minorities their rights, stipulated in the international law including cultural rights of would help maintain the stability of states, and ensure that international peace and security are not exposed to jeopardy. Enjoying minorities these rights is an evidence that the state is on the right track,maintaining majority and minority's rights indiscriminately alike

المسؤولية الجزائية لعضو مجلس النواب عن جرائم القذف والسب في التشريع العراقي : دراسة مقارنة == The Criminal Responsibilities of a Parliament Member for Defamation and Insults in the Iraqi Laws A comparative study

اسم المؤلف: هناء عبد الجواد علوان
اسم المشرف: هدى هاتف مظهر الزبيدي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: القانون الدستوري
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: Studying the subject of the criminal responsibilities of the Parliament Member (P.M.) about the crimes of defamation and insults is of great importance as the (P.M.) is regarded as a representative of the people and expresses their wishes and desires in addition to the other tasks ; something like enacting laws ,oversight over the works of other authorities . He has other responsibilities entrusted to him according to the law. The (P.M.) enjoys many privileges. One of these is the parliament immunity, which turns his criminal responsibilities differ fromthose of ordinary people particularly those which are related to crimes of defamation and insults. Enjoying the substantive immunity prevents the ability to make him accountable for his speeches that include defamation and insults. Also enjoying the procedural immunity hinders taking any criminal procedures against him.Via our study we have come up with the following results ; the most important are : As the (P.M.) enjoys substantive immunity , he is not questioned about his opinions that contain defamation and insults in the limits that the Constitution explains , that is, the opinions given should be within the parliamentary work and because of it and his opinions during holding the parliamentary sessions - in the Parliament or in the parliament committees. The person who shares with him the crime of defamation and insult cannot make use of this immunity as it is personal immunitythat can take effect on the (P.M.) only .The media and media men cannot make use of this immunity, either. They are protected by their own special laws.As for the criminal responsibility for the crimes of defamation and insults in the field of procedural immunity, it does not protect him from investigating his responsibility for the crime, but it prevents the authority from taking any criminal procedures that may touch or harm his freedom during enjoying his being a member of the Parliament, because such crimes are looked upon as a misdemeanor , which theConstitution does not permit any procedures to take effect on the (P.M.), if he commits it whether it is witnessed or not ; and a procedure can be taken after his membership ends.Through our study of this subject, we have got the following recommendations : We recommend the legislature to amend the Iraqi constitution and rules of procedure of the Iraqi Parliament making the possibility of taking punitive action against the PM in the case of committing attested misdemeanor crimes because of the possibility of the malicious prospect in remarkable crimes. And also the legislature is recommended to make the possibility of asking for permission to take punitive action against P.M. who commits a misdemeanor which is unattested.We recommend legislature to organize the issue an authorization request to take punitive measures in the case of a member of the House of Representatives has committed an unattested felony, and determine a period of thirty days to decide on the application, otherwise request is deemed acceptable. We recommend legislature to consider membership status as an aggravating circumstance for the purpose of more severe punishment against the P.M.. Besides, we call for an exception to opinions contained the meaning of insults from views covered by immunity to the lack of justification for the coverage of immunity.We call on the legislature to amend the rules of procedure of the Iraqi Parliament, including determining the spatial scale of the objective immunity more specific and clearer providing for inclusion of the spatial scale of the objective immunity, wherever the P.M. practices duties and missions, so as to cover the Parliament and a place where committees held, even when held outside the dome of Parliament as well as any place where the P.M. exercises his/her duties. This in order to grant a P.M. a wide range of practicing to his/her duty without fear of being held accountable as a result of his views made by the occasion of performing their work outside the Parliament.

التنظيم الدستوري والقانوني للقيود الواردة على ممارسة الموظف العام للحقوق السياسية في العراق : دراسة مقارنة == Constitutional and legal regulations Of The current restrictions prevented public servant of practicing the political rights in the Iraq Comparative study)

اسم المؤلف: عبد الله جبار رضيو
اسم المشرف: جعفر عبد السادة بهير الدراجي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: القانون الدستوري
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: Political rights considered a central pillar of democracy system, which enable the citizen by it to participate in making general policy of the country and express his opinions freely, so these rights have international interests represented in writing down them most international & regional conventions and treaties, also most states cared to legislate these rights in their constitutions, but legislating these rights in international conventions and constitutions don't mean at any way they will be free of restricts or regulation that defined and clear the permissible and prohibited of them, because the absolute lead to spreading chaos in the society.The public servant as any citizen can practice his political rights, which guaranteed by constitution and current laws but his title as public servant related to the government and represent it at the same time imposes some restrictions which should he considered and commit them when practicing these rights.Most states adopted the civil service principles, like office neutrality belief and the belief of working public utilities regularly and the group of positive and negative duties of the office, adopted that as a reason to restrict these rights to find a balance point between practicing public servant to his political rights as a citizen and the state right to operate public utilities smoothly without affecting with the political affairs in the country, and from another side to ensure getting all citizens these services without distinguishing based on their political loyalties.These restricts have many faces and they may restrict the public servant during expressing his opinion or electing or nominating or founding a political party or involving with one, in the field of expressing his opinion, the public servant commitment with a general role of not attacking current government policy or calumniating it or the field he works in and that called duty of preservation, also commit with loyal to the government and prevent backing up the separation claims or insulting the national occasions, but he is not obligated to be loyal to the government except the ones with a higher positions which political considerations play a role in choosing them. in the field of election, most states allow the public servant to elect his representatives except some states who exclude some groups of employees like military people in Egypt, and to observe the public job neutralism most job regulations agree to exclude some groups of employees from nomination right, and prevent the employee of exploiting the state resources or his job title during election publicity, and prevent complaining between job title and parliament membership.In the field of belonging to political parties, most states in general forbidden the employee to establish or belong to illegal parties and forbidden some categories of employees to belonging to political parties because of job sensitivity they occupied and prevent the employee practicing political work inside state institutions. These restricts don't make any problem to the public servant if he commit them during practicing his political rights, but the problem begin when the public servant break one of these restricts and the legal responsibility rises and the responsibility will differ according to the nature of action he commit, because breaking some restricts require the disciplinary responsibility and then impose one of the disciplinary penalties, also it may raise the crimination responsibility of the public servant if the action lead to a crime text in the criminal code or its complementary laws, and the criminal action effect will not stop by the original sentence but continue to eliminate the employee job independency or complementary, also the civil responsibility of the employee realized if it's elements verified as cause and damage and the relation between them.We reached, through making comparison between the restricts on public servants in France and Egypt and the current situation in Iraq, that there are a actual need to block the legislative hole through restrict some political rights of some categories of the employees to achieve balance between practicing political rights of the public servant as a genuine rights and restrict them as an exception

جرائم الكشف عن الذمة المالية في التشريع العراقي : دراسة مقارنة == Crimes of Financial Disclosure in Iraqi Legislation A comparative study

اسم المؤلف: رقية عادل حمزة علي
اسم المشرف: عماد فاضل ركاب المالكي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: القانون الدستوري
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: يعد نظام الكشف عن الذمة المالية من اهم ادوات مكافحة الفساد وقد عرف العراق هذا النظام منذ عام 1958, فبموجب هذا النظام يقوم الاشخاص الذين يحددهم القانون بتقديم استمارة للكشف عن ذممهم المالية ويلزمون بان يثبتوا فيها حقوقهم المالية وزوجهم واولادهم التابعين لهم وما عليهم من ديون محدده حصرا, وان يقدموها في موعد محدد قانونا, اذ يتم تقدميها عند تولي المنصب وبصورة دورية وعند انتهاء المنصب لاي سبب , فنظام الكشف عن الذمة المالية يعد عنصرا مهما في مكافحة الفساد ,فهو يساعد على تعزيز الثقة بمؤسسات الدولة واجهزتهوا موظفيهوا ايضا حماية نزاهة المكلف نفسه ومن ثم حماية للجمهور من ان يستغل المسؤول وظيفته للانتفاع بها على حسابهم, لذا كان لابد من وجود نظام قانوني يلزم اشخاص معينين بالكشف عما يمتلكونه من ثروات ومن ثم تدقيق ما يتم تقديمه من قبلهم للتاكد من ان ما يمتلكونه من اموال يتناسب مع ايراداتهم وان ما يملكونه تم الحصول عليه من مصادر مشروعة والا فيسالون عن كسب غير مشروع ولكي يكون هذا النظام فعالا ,يجب ان يترتب على عدم الالتزام بهذه الخطوات ومخالفتها عقوبات اي الالتزام بالكشف عن الذمة المالية للاشخاص الذين اوجب القانون عليهم ذلك وفي حالة الامتناع او التاخير في الكشف او تقديم معلومات غير صحيحة في تقرير الكشف وكذلك في حال ظهور اموال ليس لها مصدر مشروع ,فان ذلك يعد جرائم يترتب على ارتكابها عقوبات وهذه الجرائم هي ما تعرف بجرائم الكشف عن الذمة المالية اما المصلحة الجنائية المراد حمايتها في هذه الجرائم ففي جريمة الامتناع عن تقديم تقرير الكشف او التاخر في تقديمه تتمثل بضمان الالتزام بتقديم التقرير المذكور في الموعد المحدد قانونوا المصلحة المحمية في جريمة ذكر بيانات غير صحيحة في تقرير الكشف هي ضمان صحة المعلومات المدونة في التقرير اما المصلحة المحمية في جريمة الكسب غير المشروع هي حماية الوظيفة من خطر الاستغلال وحماية المال والنزاهة وتعد هيئة النزاهة هي الجهة المختصة بالتحقيق في جرائم الكشف عن الذمة المالية باعتبار ان هذه الجرائم من قضايا الفساد التي تختص هيئة النزاهة بالتحقيق فيهوا هنالك معوقات واجهت تطبيق هذا النظام منها اغفال المشرع في قانون هيئة النزاهة النص على عقوبة جريمة الامتناع او التاخير في تقديم تقرير الكشف وكذلك جريمة ذكر بيانات غير صحيحة وقد حاولنا بحث هذه الجرائم وايجاد الحلول للمعوقات التي تواجه تطبيقها من خلال بحثنا لهذه الجرائم في ثلاث فصول اذ ان عنوان الفصل الاول هو ماهية الكشف عن الذمة المالية والذي يقسم بدوره الى ثلاثة مباحث, المبحث الاول مفهوم تقرير الكشف عن الذمة المالية والمبحث الثاني الاشخاص المكلفون بالكشف عن الذمة المالية وانواع تقارير الكشف والمبحث الثالث تمييز تقرير الكشف عن الذمة المالية عما يشتبه به والفصل الثاني الذي بعنوان الاحكام الموضوعية لجرائم الكشف عن الذمة المالية ايضا يقسم الى ثلاثة مباحث ,في المبحث الاول تطرقنا الى جريمة التاخر او الامتناع عن تقديم تقرير الكشف والمبحث الثاني بعنوان جريمة ذكر بيانات غير صحيحة في تقرير الكشف اما المبحث الثالث فخصصناه لجريمة الكسب غير المشروع ,اما الفصل الثالث تكلمنا فيه عن الاحكام الاجرائية لجرائم الكشف عن الذمة المالية في ثلاثة مباحث, المبحث الاول بعنوان الجهة المختصة بالتحري والتحقيق في جرائم الكشف عن الذمة المالية والمبحث الثاني تطرقنا به الى تلقي الاخبار والشكوى في جرائم الكشف عن الذمة المالية, اما المبحث الثالث فخصصناه للتحري والتحقيق في جرائم الكشف عن الذمة المالية ومن ثم خاتمة الدراسة التي نضمها اهم النتائج والتوصيات التي نتوصل اليها. | The system of financial disclosure is an important anticorruption tool that has been recognized by Iraqi laws since 1958. Under this system people are committed to disclose their financial status and clear their debts for themselves and their family members when they take certain official positions. This progress should be due in specific dates and on a regular basis and it could stop when the person is removed from its position for any reason. The system of financial disclosure is considered as an important anticorruption means that helps spreading the sense of confidence among the institutions of the state and the employees and enhance the integrity of the officials. Also, this system can protect people from the exploitation of officials and their enrichment at the expense of public interests. The financial disclosure system was found to bind certain people to laws and to reveal their wealth, and help to make a balance and comparison between their earnings and expenditures in order to show whether their funds have been collected legitimately. In the case of providing wrong or inaccurate information or a late delivery, the person will be held B______________________________________________________________________________accountable as this act will be considered as a financial disclosure crime and subject to the relevant criminal law. This procedure has a significant role in the protection of public funds and the prevention of their illegal exploitation by officials. : In iraq the Integrity Commission is the specialized institution in investigating financial disclosure cases where these cases are regarded as type of corruption crimes that fall within the scope of its powers. However, one of the main obstacles facing the application of this system is the absence of evident clauses in the Law of the Integrity Commission stipulating the punishment for the refrain from disclosing the financial status or providing wrong information. In my thesis I will try to shed light on the main discussions about this type of crimes and suggest solutions for overcoming the challenges of the application of the system of financial disclosure. The research will consist of three chapters. In the first chapter I will touch upon the definition of the financial disclosure. The second chapter will be devoted to describing the substantive provisions that deal with the financial disclosure crimes. The third chapter will consider the procedural and executive provisions of these crimes.

الجريمة المرورية في التشريع العراقي : دراسة مقارنة == TRAFFIC CRIME IN THE IRAQI LEGISLATION A COMPARATIVE STUDY

اسم المؤلف: جعفر عبد الرضا عبد الخالق
اسم المشرف: عماد فاضل ركاب المالكي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: القانون الجنائي
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: Traffic crime is one of the crimes that affect people's lives, safety, and properties. The results of such crimes that is; death, injuries, and damage, according to statistics, are more influential than epidemics, in addition to the traffic jam. This study sheds light on the flaws and defects of the applied Iraqi Law of Traffic No. 68, 4002, as to conviction, prevention, and punishment. This research paper is divided into three chapters. The first one deals with its concept, the second deals with symbols of traffic crimes. While, the third one deals with the punishment of the crime, its aggravated circumstances, and its mitigated excuses. One of the results of the first chapter is that the Iraqi legislator does not secure the conditions of getting a driving license; that is, drugs - free test confirmed with medical reports, and age - restricted validity of the license. These conditions are suggested to the Iraqi legislator. The second and the third chapters deal with five crimes as to their sanctions, conditions, and sedative excuses. The study concludes that the Iraqi legislation of sanctions lakes the following : - The Iraqi legislator does not criminate driving with invalid license (clause 1, Section41), yet he renders it as a misdemeanor (clause H - 00), Appendix (A) : that deals with driving law, vehicles, fees of registering vehicles, fines of traffic violation, by stating " driving and registering license cannot be renewed". The study suggested this act is to be dealt with according to (section 41) of the applied Iraqi Law of Traffic, for it is a serious crime equals those included within this section. The Iraqi legislator sets short - term sanction to such misdemeanors. Courts of law apply those sanctions with suspension to save people involved in these crimes from the bad effects, who are mostly teenagers with clean record. Accordingly, criminals get away with it, for there is no proper sanction for such a crime. It is suggested that driving with invalid license should be criminated according to theIraqi law along with a fine that should be alternative to jail, and the judiciary estimates the proper sanction. - As to Drunk Driving or Drug Driving, the Iraqi legislator does not explain the phrase "under the influence of drinks or drugs" which mislead judges, make criminals get away with their crimes, and result in misinterpretation in verdicts. The study suggested altering the phrase (section 44) to mean : "when the driver is caught having drinks or drugs, he is to be criminated pursuant to the law within this section". When a crime is committed for the second time within a year, the Iraqi legislator enacts aggravated sanction. Yet, if the crime is committed for the second time within more than one year, sanction is different. It is suggested that differentiation in forcing sanctions as to committing the crime for the first or second time should be omitted because the motive is present in either case. - In section (40) which deals with harming people or their properties because reckless driving, the Iraqi legislator has not forced the appropriate sanctions. He holds only the driver to be responsible for the crime - without mentioning the pedestrian and passengers - and when he is in the act of driving. So, the indirect doer of the crime is not hold responsible. As to the sanction, the Iraqi legislator states that extreme conditions must be present; that is, stupidity and recklessness, and those are examples of improper legislations which should not be enforced. Also, pursuant to Iraqi law, being a fugitive in such cases is not considered aggravating act, while it is the case when the crime involves causing death. The study suggested altering (section40) in order to eliminate inappropriate sanctions. - In (section 42), the Iraqi legislator has missed forcing the proper sanctions again as it is the case in (section 40). The sanction of this crime is imprisonment, which means : it is considered a felony. When reviewing the verdicts, it is noticed that those legislations are not applied and it is replaced with fine. It means that these sanctions are not proper for the given crime, so it is recommended that prison sanction is replaced with jail. - In (section 48), there are misinterpretation of the Arabic content. The right interpretation of the section 48 is that the Iraqi legislator does not provide the coppers with protection and limits it to police officers in duty. The case is the same in aggravating conditions. The study suggested protection to be provided for both police officers and coppers while in duty or because of executing it.

دور الادعاء العام في حماية المال العام في العراق : دراسة مقارنة == The Role Of General Prosecution In The Protection Of Funds In Iraq ( A Comparative Study)

اسم المؤلف: ایاد جعفر علي اكبر الاسدي
اسم المشرف: هدى هاتف مظهر الزبيدي
الموضوع العام: القانون
السنة: 2016
الموضوع الدقيق: اصول المحاكمات الجزائية
الدرجة: ماجستير
اللغة: العربية
مكان الجامعة: البصرة
الصفحات الاولى:
المستخلص: The aim of thesis is to shed light on the role of the General Prosecution in protecting of public funds in Iraq and to evaluate this role, based on the objective which is stipulated in Article 1 of the General Prosecution Law No. 159 of 1979, which is effective and the purpose for which it was found, (Public interest) or public right. The General Prosecution is considered the agent and the legal deputy of the society in the defense of his legitimate interests and rights.According to the importance of public funds in the conduct of the State's activity and public facilities. And it has an effect to achieve economic, military and security stability and its reflection on the public interest, this has made the legislation seek to provide adequate legal protection for it. The protection of the General prosecution is one of the protection types, as a procedural protection is not limited to the criminal side of the power to initiate criminal action against the public right to crimes in general and corruption offenses in particular, but extends to the civil side of intervention and presence in civil proceedings to which the State is a part of it or claim civil rights arising from criminal case.These papers aimed to shed the light on this protection and its effectiveness in achieving its goal, as it became clear to us that this protection in Iraq is weak and without the level of ambition ,due to several reasons, some of them regard to the same system, and others regard to the legislation of the prosecution In addition to the fact that the law when it set the goal of preserving the state funds did not give it special or exceptional means to reach its goal and others traditional jurisdictions, and the research did not deal with its jurisdictions (Before and after the trial),which are general terms of reference for all crimes, but these papers focused on its role in Iraq and its jurisdiction in the field of criminal action in crimes of public funds.As the General Prosecutor's Office in Iraq is not alone in seeking to protect the public funds ,but there are other commissions that have been developed by the legislator, such as the( Federal Financial Supervisory Board), and new commissions that have been established after 2003 such as (the Integrity Commission, the offices of the Inspectors General and the Anti - Money Laundering Office) The relationship between the public prosecution and these agencies in the framework of protecting public funds and combating the corruption, as it has been shown that there is a close relationship between them and they are important news sources for the prosecution's office on corruption cases in addition to others. Also there are several procedural participants, including the Integrity Commission(as an investigative body works under the supervision of the investigating judge and prosecution.The studies revealed the integral role of these bodies as a legal system in which the General prosecution occupies the important role and polarization. The studies concluded that the necessity of connecting these devices technically to the General prosecutor's office in addition to some legislative amendments to the laws that were created In order to activate the role of the public prosecution in the protection of public funds. Also the thesis dealt with the guarantees that have been required by the General prosecution in order to strengthen its role in protecting public funds. The most important security guarantees were the guarantee of independence and the guarantee of specialization. The General prosecution in Iraq , theoretically andpractically, is not independent but it is subordinate to the Supreme Judicial Council and one of its formations , and this is contrary to the Iraqi Constitution, which made the General Prosecutor's Office one of the formations of the judiciary mentioned in article 89 of the 2005 Constitution, These as for the guarantee of specialization are important and needed by the public prosecution system to activate its role as the study concluded that the current structure of the public prosecution is timid and does not meet the requirements of the stage for the public prosecution system in protecting public funds, in contrast to some comparative legislations. Unlike some comparative legislation the Arab republic of Egypt, which formed several specialized bodies including the body of Egyptian public funds our study was compared to some of the legislation, which (French, Egyptian and Jordanian legislation) The comparison does not necessarily mean that such legislation is necessarily the best, but the purpose is to benefit from the experiences of these countries and determine the position of the Iraqi legislation. To choose what suits the country and its circumstances.It should be noted that the draft law of the new General prosecution for the year 2016 was not absent from the researcher where the study covered the points of positive and negative, negative aspects were more than positives, and at the end of the thesis we reached many of the results and proposals, which we mentioned above, The agency in Iraq that the legislator has made the prosecution of the public right is an optional and not obligatory, and not limited to be done by the prosecution, but made it by other agency , and its role is unclear and weak during the stage of investigation and collection of evidence and during the initial investigation stage. the thesis has identified the miscarriages and developedappropriate solutions that the researcher hopes to resonate with the higher authorities and decision makers in IraqWhere the study identified the imbalance and developed appropriate solutions that the researcher hopes to resonate with the higher authorities in Iraq and decision makers...... and last but not least, no matter how much effort, it remains a minor because the perfection of God Almighty, and This thesis is only a modest seed in the path of reform and the advancement of the status of the prosecution in Iraq and its positive effects on the path of reform in the country in general..Praise be to Allah, Lord of the Worlds