Residence Search According to the Palestinian Criminal Procedures Law, A Comparative Study

Discussion Committee: 
Dr. Nael Taha
Mohammed Ali Mustafa Ghanem
The Researcher studied Residence Search according to the Palestinian Criminal Procedures Law, after he discussed a number of related subjects to the Thesis in a preliminary chapter, where he showed the definition of Judicial Search according to a number of Law jurists, since the Palestinian Criminal Procedures Law didn’t define it. The jurists have agreed that Judicial Search and Residence Search are investigation procedures executed and/or permitted by a specialized authority which is in this case The Attorney General according to our legislations. This procedure shall not be permitted unless a crime or a misdemeanor occurred, and therefore search for criminal evidences of the suspected crime is needed. The researcher also tried to define a Residence. The researcher went through jurists opinions about defining a residence, where all agreed that the substance the residence is made of doesn’t matter. The researcher assured that possessing an ownership document of the residence is not important since the resident could be an owner or occupying it by force. The researcher discussed in preface topic the residence sanctity according to Islamic Religion. The researcher also explored a summary of residence sanctity in the International and Arabic legislations and Constitutions. The researcher specified the first chapter to discuss Residence Search and differentiate it from other types of search. He also defined Search and Residence Search and showed that there’s a difference between it and other search types, he also discussed the concept Search, its purpose and the party responsible of performing it. The researcher also explained Protective Search and its legal bases, and differentiated between entering a residence and searching it. The first topic also includes that there are some places that should be inspected through special procedures, for example medical clinics, attorneys’ offices, public stores and coffee shops, hence these places are considered as residences and treated that way. Public stores could be entered by policemen as long as its doors are opened and are receiving customers, policemen shall not inspect the desk drawers of the owner, nor they can search hotel rooms because they are protected and treated as residences. In the second topic the researcher discussed differentiating Residence Search from other procedures of seizing evidences, such as examination, interrogation and delegation of a specialist to the crime scene. The researcher explained Personal Search in details. He also commented that female personal search should be carried out by another delegated female only. In the third topic the researcher handled the nature of search carried by judicial police officers, whom are delegated by the Attorney General, and also discussed the search when arresting an accused person, because arresting an accused person in case of flagrant does not have to exclude this case from the ruling act of Article 2-11 of the Essential Law. In the second chapter the researcher discussed the objective and descriptive conditions of search, where he explained in the first topic the descriptive conditions such as attending the accused person and the witnesses the search process and the date and time of the search procedure. The researcher mentioned the effects resulting from neglecting or not applying these two descriptive conditions. The researcher also indicated that the search warrant should include the reasons for the search, those are elements from which an attorney general officer extracted enough evidences to perform search, and which is the search warrant is issued after. In the second topic the researcher discussed the objective conditions concerning residence search which determine the conditions in which the search could be performed. The study shows that anything/place that could be considered a place to keep a person secrets is a legible place to search, so it could be the person himself, and the accused person could be put to medical examination like gastric lavage, the researcher sees that this procedure is crucial to make justice and for the society’s good, and is not an offense against the accused person dignity. The researcher also specified that some places and persons are immune to this procedure for international, individual or constitutional considerations. Embassies and diplomats residencies are prohibited to be searched, so as themselves and their mail. There are also considerations and immunity given to Legislative Council Members, so no search is allowed at his luggage, house, estate or any belonging to him as long as he has legislative immunity, except if the legislator is caught committing a crime in a case of flagrant. The researcher also noted that the investigation authority cannot order investigating a Legislator residence even though a crime committed by one of his family members living in his residence, unless a warrant is issued to stop his immunity. The study also discussed Vehicle Search procedures, the researcher distinguished between private and public service vehicles, he also distinguished if the vehicle is inside a residence or outside. The researcher also showed that search is an authority of the Attorney General Officers and performed with their presence, or by delegated Judicial Officers, the researcher also talked about place and type specialty and that the Search Warrant must be confirmed by writing. The researcher discussed the effects of residence search in the third chapter, in the first topic he talked about seizing objects, which applies to physical objects like guns used in a crime, letters and estates, and nonphysical objects like spying on phone lines and recording personal conversations, these are not included within the search but follow a specific different procedure. The researcher also discussed the legitimacy of accidental seizure and how to deal with the seized objects. The seized objects could be confiscated, if needed, for the State benefit and could not be returned to their former owner. In the third topic the researcher discussed the Void of Search and Void types; the legislator himself may handle Void cases, this is called Legal Void, or the legislator can oversee a general principle for the cases that could be considered Void if the procedure not followed, this is called Auto Void, he explained that void could be decided for the benefit of the public or the System, then it’s considered as Absolute Void, or could be for the benefit of the opposing party which is called Partial Void. The researcher commented that violating Search Objective rules and conditions is a part of the Public Law and the consequences will lead to Absolute Void. The researcher also mentioned the effects of Search Void, because it’s done by a judge or juries decision, the researcher discussed the effect of Void on the procedure itself. The researcher also explained effects of procedure void on the previous procedures, whereas the effect on proceeding procedures is strict to the procedures that are based on the void procedure. The researcher commented on the possibility of repeating the void procedure and correcting it. The researcher put a conclusion where he listed the most important results along with general suggestions on most subjects of the thesis; he also suggested editing some articles of the Palestinian Criminal Procedures Law.
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