Jurisprudence in the Application of Human Rights Standards in Arab Courts Algeria

366 Pages·2014·2.13 MB·English

Jurisprudence - In the Application of Human Rights Standards In Arab Countries 1
Jurisprudence
In the Application of Human Rights Standards In Arab Courts
ALGERIA | IRAQ | JORDAN | MOROCCO | PALESTINE
Samia Bourouba
Associate Professor at the Higher School of Magistracy in Algeria
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Jurisprudence - In the Application of Human Rights Standards In Arab Countries 3
Jurisprudence
In the Application of Human Rights Standards In Arab Courts
ALGERIA | IRAQ | JORDAN | MOROCCO | PALESTINE
Executed in cooperation with:
Higher School of Magistracy – Algeria. Judicial Institute of Jordan.
Supreme Council of the Judiciary – Iraq. Iraqi Judicial Institute.
Higher Institute of the Judiciary – Morocco. Palestinian Judicial Institute.
Prepared by:
Samia Bourouba
Associate Professor at the Higher School of Magistracy in Algeria
4 Jurisprudence - In the Application of Human Rights Standards In Arab Countries
Index
Acknowledgements 14
Preamble 15
List of Abbreviations 16
Abstract 17
Introduction 19
Chapter One: Status of International Human Rights Treaties in Arab
Constitutions 22
1) Monist Constitutions Enshrining
Expressly the Principle of Supremacy of Treaties 24
1. Algerian Constitution 24
a- Constitutional Provisions 24
b- Conclusion and Ratification Steps 25
c- Judicial Applications of the Principle of Supremacy 26
2. Moroccan Constitution 28
a- Constitutional Provisions 28
b- Conclusion and Ratification Steps 28
c- Judicial Applications of the Principle of Supremacy 29
2) Constitutions Enshrining
the Treaties without Determining their Status
(Dominant Dualist Trend with Monist Tendency) 30
1. Jordanian Constitution 30
a- Constitutional Provisions 30
b- Conclusion and Ratification Steps 31
c- Judicial Applications of the Principle of Supremacy 32
2. Iraqi Constitution 37
a- Constitutional Provisions 37
b- Conclusion and Ratification Steps 38
c- Judicial Applications of the Principle of Supremacy 39
3. Palestinian Constitution 41
a- Constitutional Provisions 41
b- Conclusion and Ratification Steps 42
c- Judicial Applications of the Principle of Supremacy 42
3) Position of Other Arab Constitutions 42
1. Constitutions Enshrining the Principle of Supremacy of Treaties 42
2. Constitutions Granting Treaties a Status Equal to That of the Law 43
3. Constitutions Not Having Determined the Status of Treaties 44
Jurisprudence - In the Application of Human Rights Standards In Arab Countries 5
Chapter Two: Judicial Application of International Human Rights Treaties in Arab
Courts 46
1) Judicial Applications of Civil and Political Human Rights 47
1. Right to Obtain and Retain a Nationality 47
- Decision No. 105 of the Jordanian High Court of Justice 47
- Summary of Facts 47
- Legal Issue 47
- Comment 48
- Decision No. 115 of the Jordanian High Court of Justice 48
- Summary of Facts 48
- Legal Issue 49
- Comment 49
- Decision No. 212 of the Jordanian High Court of Justice 49
- Summary of Facts 49
- Legal Issue 50
- Comment 50
- Decision No. 4 of the Iraqi Federal Supreme Court 50
- Summary of Facts 50
- Legal Issue 51
- Comment 51
- Decisions No. 2, 18 and 30 of the Iraqi Federal Supreme Court 52
- Summary of Facts 52
- Legal Issue 52
- Comment 52
2. Right to Privacy 53
- Decision No. 10874/11 of the Court of Constantine, Algeria 53
- Summary of the Facts (Case of “B. L.” Against “T. M.”) 53
- Legal Issue 53
- Comment 55
3. Right to Freedom of Movement and Travel 56
- Decision No. 34 of the Iraqi Federal Supreme Court 56
- Summary of Facts (Case of “M. J. A” Against “President of C. R.”) 56
- Legal Issue 57
- Comment 57
- Decision No. 243 of the Jordanian High Court of Justice 58
- Summary of Facts 58
- Legal Issue 59
- Comment 59
4. Non-Discrimination of Minorities 60
6 Jurisprudence - In the Application of Human Rights Standards In Arab Countries
- Decisions No. 9/Federal/2008, No. 15/Federal/2008 and No. 72/Federal/2009
of the Federal Supreme Court 60
- Summary of Facts 60
- Legal Issue 60
- Comment 61
5. Right to Freedom of Expression 62
- Decision No. 45694/2009 of the Jordanian Court of Appeal 63
- Summary of Facts (Case of Prosecution Against “S”) 63
- Legal Issue 63
- Comment 63
- Decision No. 13781/2009 of the Jordanian Court of Appeal 64
- Summary of Facts (Case of Prosecution Against “S. D.” and “N.”) 64
- Legal Issue 65
- Comment 65
- Decision No. 419/Civil/2009 of the Iraqi Federal Court of Cassation 66
- Summary of Facts (Case of Prosecution Against “S.”) 66
- Legal Issue 66
- Comment 66
6. Right to Equality Before the Law 67
- Decision No. 6/Federal/2010 of the Iraqi Federal Supreme Court 67
- Summary of Facts (Case of “Kh. A. R.” Against President of “C. R.”) 67
- Legal Issue 67
- Comment 68
- Decision No. 7/Federal/2010 of the Iraqi Federal Supreme Court 69
- Summary of Facts (Case of “S. J. H.” Against “The President of C. R.”) 69
- Legal Issue 69
- Comment 70
7. The Right Not to be Subjected to
Torture or to Cruel, Inhuman or Degrading Treatment or Punishment 71
- Decision of the Court of Constantine, Algeria, on 05/17/2011 71
- Summary of Facts (Case of “Kh. S.” Against “B. Z.”) 71
- Legal Issue 72
- Comment 73
8. Right not to be Subjected to Physical Coercion 74
- Decision of the Algerian Supreme Court on 12/11/2002 75
- Summary of Facts (Case of “Y. Y.” Against “Kh. B.”) 75
- Legal Issue 75
- Comment 76
- Decision of Morocco Supreme Court Council on 04/09/1997 78
- Summary of Facts (Case of “A. M.” Against “M. S.”) 78
Jurisprudence - In the Application of Human Rights Standards In Arab Countries 7
- Legal Issue 78
- Comment 78
9. Exemption of Foreigners from Payment of Guarantee 79
- Decision No. 168374 of the Algerian Supreme Court 79
- Summary of Facts (Case of “Z. K.” Against “A. A.”) 79
- Legal Issue 80
- Comment 80
2) Judicial Applications of
Economic, Social and Cultural Human Rights 81
1. Right to Own Property 81
- Decisions No. 18/Federal/ Cassation/2006 and No. 96/Federal/Cas-
sation/2009 of the Iraqi Federal Supreme Court 81
- Summary of Facts 81
- Legal Issue 81
- Comment 82
2. Right to Work 82
- Decision No. 43/1968 of the Jordanian High Court of Justice 83
- Summary of Facts 83
- Legal Issue 83
- Comment 83
- Decision No. 002111 of the Algerian State Council 83
- Summary of Facts (Case of “Y. B.” Against the Banking Commission) 83
- Legal Issue 84
- Comment 84
- Decision of Morocco Supreme Court Council 85
- Summary of facts (Case of “M.” Against the Council of the Bar Association) 85
- Legal Issue 85
- Comment 85
- Decision of the Court of Appeal in Rabat, Morocco 86
- Summary of Facts (Case of “F. K.” Against the Bar Association) 86
- Legal Issue 86
- Comment 86
3. Inadmissibility of Wrongful Termination of Employment 87
- Decision of the Moroccan Social Judiciary 87
- Summary of Facts (Case of “H.O.” Against the company “M.T.L”) 87
- Legal Issue 87
- Comment 88
3) Judicial Applications of Human Rights Related to a Group or an Issue 90
1. Judicial Applications Related to Women’s Rights 90
8 Jurisprudence - In the Application of Human Rights Standards In Arab Countries
a- Principle of Equality between Spouses 90
- Decision of Hay Al-Shaab’s Court of First Instance on 06/27/2011 and
Decision of the Court of Karrada, Iraq on 05/31/2009 91
- Summary of Facts 91
- Legal Issue 92
- Comment 92
b - Wife’s Right to Petition for Divorce 94
- Decision No. 3769 of the Iraqi Federal Court of Cassation 94
- Summary of Facts (Case of “A. K. A.” Against “A. J. A.”) 94
- Legal Issue 95
- Comment 95
- Decision No. 3549 of the Iraqi Federal Court of Cassation 96
- Summary of Facts (Case of “A. A. A.” Against “H. Kh. Kh.”) 96
- Legal Issue 96
-Comment 96
- Decision No. 3804 of the Iraqi Federal Court of Cassation 97
- Summary of Facts (Case of “A. M. K.” Against “Z. Kh. M.”) 97
- Legal Issue 97
- Comment 97
- Decision No. 3309 of the Iraqi Federal Court of Cassation 97
- Summary of Facts (Case of “B. A. R.” Against “H. A. M.”) 98
- Legal Issue 98
- Comment 98
c- The Right of the Needy Divorcee to Benefit from the Family Solidarity Fund
(Takaful) as an Alternative to Alimony 98
- Decision of the Moroccan Judiciary on 06/19/2012 99
- Summary of Facts (Case of “S. A.” Against “A. H.”) 99
- Legal Issue 99
- Comment 99
d- Women’s Right to Work with Dignity 101
- Decision of the Moroccan Court of Appeal on 05/17/2007 101
- Summary of Facts (Case of “N. A.” Against “A. H. S. Sh. M. Company”) 101
- Legal Issue 101
- Comment 102
e- Inadmissibility to Dismiss a Woman from Work Due to Pregnancy 104
- Decision of the Moroccan Court of Appeal on 01/23/2006 104
- Summary of Facts (Case of “B. S.” Against Company “M. A. A.”) 104
- Legal Issue 104
- Comment 105
2. Judicial Applications Related to the Rights of the Child 106
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a- Child’s Best Interest 106
- Decision of the Court of Constantine, Algeria, on 03/29/2011 107
- Summary of Facts (Case of “A. A.” Against “Sh. M.”) 107
- Legal Issue 107
- Comment 108
- Decision of the Iraqi Court of Personal Status on 05/13/2008 110
- Summary of Facts (Case of “A. Kh.” Against “F. Y.”) 110
- Legal Issue 110
- Comment 110
- Moroccan Judiciary 112
b- Right to Pursue Studies: 112
c- Custody of the Child 114
- Decision of the Moroccan Court of First Instance on 04/14/2010 114
- Summary of Facts (Case of “A. M.” Against “E. A.”) 114
- Legal Issue 114
- Comment 115
- Decision No. 994 of the Iraqi Federal Court of Cassation 116
- Summary of Facts (Case of “Gh. J. M.” Against “F. Gh. A.”) 116
- Legal Issue 116
- Comment 117
- Decision No. 3867 of the Iraqi Federal Court of Cassation 117
- Summary of Facts (Case of “J. A. Z.” Against “Kh. K. M.”) 117
- Legal Issue 117
- Comment 117
3. Judicial Applications Related to the Rights of Persons with Disabilities 118
- Decision of the Palestinian High Court of Justice 118
- Summary of Facts (Case of “M. J. Sh.” and “J. M.” Against “W. Sh. E.”, “W. J.
M.” and “M. W. F.”) 118
- Legal Issue 118
- Comment 119
4) Right to Resort to the Judiciary (Courts) 119
- Decision No. 1789/2006 of the Jordanian Court of Cassation 119
- Summary of Facts (Case of “J. S. M.” Against the American Company) 119
- Legal Issue 120
- Comment 120
- Decision No. 1339/2008 of the Jordanian Court of Cassation 120
- Summary of Facts (Case of “A. R.” Against “N. Kh.”) 120
- Legal Issue 121
- Comment 121
10 Jurisprudence - In the Application of Human Rights Standards In Arab Countries
- Decision No. 11646/11 of the Court of Constantine, Algeria 121
- Summary of Facts (Case of “B. S.” Against “F. A.” and “S. Y.”) 121
- Legal Issue 121
- Comment 122
5) Judicial Applications of
Human Rights in Criminal Matters 123
- Decision of the Algerian Supreme Court Issued on 02/22/2000 124
- Summary of Facts 124
- Legal Issue 124
- Comment 125
6) Right to a Fair Trial 127
a- The Presumption of Innocence 128
- Decision No. 3861/2009 of Amman Court of Appeal (Jordan) 129
- Summary of Facts (Case of Organization “S.” Against “F.”, “N.” and “D.”
Newspaper) 129
- Legal Issue 129
- Comment 130
- Decision No. 40096/2009 of the Court of Appeal in Amman, Jordan 131
- Summary of Facts (Case of “S.” Against “R. T., N.” and “S” Newspaper) 131
- Legal Issue 131
- Comment 131
- Decision No. 19735/11 of the Court of Constantine, Algeria 132
- Summary of Facts (Case of the “J.” Directorate Against “L. A.” and “R. M.”)
132
- Legal Issue 132
- Comment 132
- Decision of the Criminal Court in Missan, Iraq, Issued on 04/23/2012 134
- Summary of Facts (Case of Prosecution Against “A. R. A.” and “M. R. A.”) 134
- Legal Issue 134
- Comment 134
b- Non-Conviction Twice for the Same Crime 135
- Decision No. 10870/11 of the Criminal Court of Constantine (Algeria) 135
- Summary of Facts (Case of “S. N.” Against “T. N.”) 135
- Legal Issue 135
- Comment 136
c- Right to Appear Before a Competent
Court Duly Constituted According to the Law 137
- Decision No. 2399 of the Jordanian Court of Cassation 137
- Summary of Facts 137
- Legal Issue 137