اسم المؤلف:
سجاد حبيب داخل
اسم المشرف:
ضياء عبد الله عبود الجابر الاسدي
المستخلص:
That the possibility of wrongdoing by the judge in the judicial work of Muslim did not receive an objection or skepticism acknowledging that the error is a human infidelity not infallibility other than God of them, and because the work of the judge is based not only on the knowledge of the law, but is deeper and more comprehensive. If the correct application of the law The judge is an important and essential pillar in the search for truth. It is the ultimate goal in order to achieve justice. Since the ability of judges to understand and apply the law varies Depending on the difference in their legal culture and their scientific experience , So the difference in a particular legal issue is inevitable, so the legislator in the criminal procedural laws to prevent errors and treatment of judges, especially since the ruling is the title of truth and if it is wrong to choose the legal text applicable to the incident presented, for example, Its failure to keep up with the legislative movement, to understand or interpret the meaning of the text on a particular basis has rendered that provision defective and detrimental to the interests of society.Therefore, the methods of appeal seek to amend the content of the penal provision in order to obtain fair and legal judgments, measures and decisions. It guarantees the legitimate opponents of the case their legal rights, and preserves the legal validity and remedy the judge's error or the court's life. Since the mistakes are unintended, The Penal Code of Criminal Procedure No. 23 of 1971 in Articles 243 - 279 contained in the fourth book of the above law under the title of "Methods of Criminal Appeal" as a means of amending the provision or canceling it for violating the law in order to obtain a better judgment. Taste (Discriminatory and corrective of the discriminatory decision and retrial) and the fact that the cause of the appeal on judicial decisions, measures and decisions is to protect the victim from the mistake of the judge or the court. therefore, monitoring of the legislature of the Iraqi penal means to address this, including through the appeal against discrimination provisions and judicial measures and decisions, one of the ways to appeal the extraordinary received provisions related to Part II of the fourth book of the Code of criminal Procedure in articles (249 - 265) and the types of discrimination the Thestudy found that there is a legislative lack of some provisions of the laws that deal with the right to appeal discriminatory provisions and penal decisions, including Law No. (27) of 2016 on amnesty cases, especially what is related to the case. The abovementioned amnesty law No. (19) for the year 2008, and the provisions of the said law regarding the duration of the discriminatory appeal of the decisions issued and the consequent effect of creating a state of confusion for those affected by those Making decisions on the one hand and wasting a guarantee The study also recorded a note regarding the decision of the Revolutionary Command Council (dissolved) No. (104) for the year 1988 to distinguish cases of juvenile offenses. The study also found that the challenge of discrimination raised from them with regard to the appellant and related to other parties The case is that the rule (no harm to the appellant) stipulated in article 251 (c) of the Code of Criminal Procedure in force does not have a presence in many judicial decisions issued by the Federal Court of Cassation and the courts which have delegated its powers. Achieving justice Spyware to record the study of a number of observations on the subject of appeal Altmiiza judgments and decisions, which I found study worthy of research. And since the end of the challenge discrimination fully consistent with the positive and effective role of the Public Prosecution Baotaiarh an essential organ to monitor the legality and the proper application of the law. The study found the subject of the research (appeal discrimination in the criminal case in the light of the legal rule does not harm the appellant stabbed) of the importance of the existence of the legal principle referred to and the exception or restriction. The subject of the research is to clarify the general framework (appeal discrimination in the criminal case In light of the legal rule does not harm the appellant Btnh) and to highlight the legal roles performed in the field of Iraqi criminal law, so the scope of research will be in the provisions of this law, both substantive and procedural, compared with some other criminal laws objectively and procedurally. The study adopted the descriptive method of legal texts, legal cases and analytical texts and legal articles. A comparative study between the Iraqi law and other laws, with an emphasis on the position of the Iraqi and Arab courts.In dealing with the subject, I reached a number of conclusions and came up with a number of proposals which can be summarized as follows : 1. Judgments andjudicial decisions are the workings of the humanitarian administration and may be subject to the possibility of error, omission or ignorance sometimes. involving a judicial error in the understanding of the text, interpretation or application or estimate is illogical for evidence or punishment or error in the core procedures, so he headed the Iraqi legislature and under the Code of criminal procedure Law No. (23) of 1971, like the rest of the other penal legislation to Text on means to monitor the health of the deaf M, decisions and measures, including through discrimination, which aims to challenge him to rectify the errors of judges, but he was one of the important means to achieve justice as control over the judicial work tool. (249 / A - B) of the Code of Partial Trials referred to the reasons for the challenge of discrimination which are (violation of the law, error in its application or interpretation, error in fundamental procedures, error in estimating evidence or punishment or judgment) the study noted that the Iraqi legislature differs from other legislation with regard to the reasons for the appeal, as well as for the error in the proceedings and whether essential or not when referring to a flexible officer about it is how wrong the effect of the judgment or the accused's defense.The exceptional character of the challenge of discrimination made it described as an unusual way of challenging the criminal judgment of the argument of the jurisprudent, which was based on the officer of reasons for distinguishing between him and the methods of appeal, because these reasons are related to the role of the Court of Cassation in raising the legal truth. The freedom of the appellant is a legal restriction which makes him not free to establish his appeal according to the reasons he believes, but he complies with the reasons enumerated by the legislator under article 249 (a) (b) of the Code of Criminal Procedure. In this way, the court of Tami It is a body that monitors the legitimacy of judgments, so it is not considered a second degree of litigation. Its function is limited to scrutinizing the contested judgment, either by ruling on rejecting the appeal or by ruling on accepting it and revoking the ruling.The legal basis for this censorship, under which the Iraqi Court of Cassation exercises its function of controlling the criminal judge's power to assess evidence, is the explicit provision of Article 249 of the Criminal Procedure Code, which gave the Court of Cassation the power to censor fundamental errors in fundamentalistprocedures Or in the estimation of the evidence and this error was influential in the judgment. In addition, the Iraqi legislator emphasized that criminal judgments must be brought about, and that his understanding of the reasons is the evidence on which the judgment is based. Thus, the defects of evidence - related causes, if the criminal judgment was impaired, were the subject of the control of the Court of Cassation.As for the proposals found in the study are : 1. Lift the restriction contained in Article 249 (c) of the Criminal Procedure Law in force, as it allows the public prosecutor to challenge all decisions issued by the examining magistrate, whether or not a comma in the case. In light of the role played by the Public Prosecution in ensuring the proper application of the law and in conformity with its functions set out in the Public Prosecution Law No. (49) of 2017 as a social body, In the case in order to challenge the discrimination in order to deal with the action that he considers defective and effective The investigation also prevents the public prosecutor from resorting to the discriminatory request to continue the fact that the road mentioned in article 264 of the Code of Criminal Procedure is an exception and has set limits and can not be expanded in it.2. of the Law of the Court of Cassation, in accordance with the provisions of Article (71) In spite of the fact that the most important cases of juvenile delinquency have become the jurisdiction of the appellate courts as discriminatory, it is necessary to amend article (257) of the Code of Criminal Procedure and to make the courts of appeal in their discriminatory capacity the specialized ones. Unity of legislation and non - dispersion of legal texts
