The scope of criminal examination, which is one of the most important stages of criminal procedure, covers all lawful measures taken to establish the truth.
The importance of criminal examination lies in the fact that it ensures that no case is referred to the judicial authority without sufficient evidence to merit a conviction. In addition to saving time and effort on the part of the Judiciary, this spares the accused the indignity of appearing before a court of law if the evidence is inadequate. Hence, as an expression of its concern for criminal examination, and in keeping with its developmental trend in all fields, the Kingdom of Saudi Arabia promulgated Decree No. M/56 24/10/1409 H,corresponding to AD May 29, 1989, establishing an independent authority, known as the Public Investigation and Prosecution Department, to investigate and prosecute offences. This Department, which is a branch of the judicial authority and forms part of the Kingdom's system of criminal justice, functions in a fully independent manner in accordance with article 5 of its Statutes, which stipulates that: "The members of the Department shall enjoy full independence and, in their work, shall be subject only to the provisions of the Islamic Shariah and the regulations in force. No one shall have the right to interfere in their work".
In order to guarantee the independence of the members of the Department, the Department's Statutes stipulate that its members shall be appointed and transferred under the terms of a Royal Decree based on a decision by the Department's Administrative Board. The Statutes further stipulate that no member of the Department may combine his post with engagement in commerce or any occupation or work that is incompatible with the Department's professional independence and dignity. The Department's Administrative Board is empowered to prohibit any member of the Department from engaging in any activity that it considers to be inconsistent with his official duties. Members of the Department can be prosecuted only in accordance with the rules and conditions concerning their liability to disciplinary sanctions (arts. 7, 10 and 14 of the Statutes).
The independence and immunity of the members of the Department are basic guarantees of their impartiality and of the protection of human rights and freedoms.
The Public Investigation and Prosecution Department consists of a Director, Deputy Directors, Heads and Deputy Heads of Divisions and Examiners and Assistant Examiners. It is divided into the following divisions, the tasks and functions of which are determined in the light of its operational needs and requirements:
The Department is administered by an Administrative Board, consisting of members of the Department, the functions of which are as follows:
a) To review indictments in which the penalty sought by the prosecution is death or amputation, since the maximum safeguards are required in trials involving such serious offences.
b) To study matters relating to- public investigation and prosecution.
c) To prepare the Departments annual report containing its observations and proposals concerning the progress of its work and the regulations and procedures that it is applying.
d) To discipline any member of the Department accused of contravening or disregarding the professional code of ethics.
Since the task of the Public Investigation and Prosecution Department is to promote the triumph of justice and the public interest, its members endeavor to conduct their investigations in an impartial manner with the sole aim of establishing the truth. In public prosecutions, although they are considered to be the adversaries of the accused, they are honest adversaries who are just as eager to ensure the acquittal of an innocent person as they are to secure the conviction of a guilty person since, in accordance with the principles of the Islamic Shariah, it is better to acquit the guilty than to convict the innocent because the conviction of an innocent person allows the guilty one to escape and, at the same time, leads to the punishment of the innocent person while, on the other hand, acquittal for lack of evidence leads only to the escape of the guilty person, which is the lesser of the two evils.
Accordingly, if members of the Public Investigation and Prosecution Department are aware that the evidence that they have against an accused person was obtained by unlawful means constituting a violation of the human rights of that accused person, they regard such evidence as inadmissible and take the necessary measures to ensure that the person responsible for such violation is brought to justice since the Kingdom has issued strict instructions prohibiting the ill-treatment or harassment of accused persons and stipulating that investigations must be conducted in a meticulous and proper manner. Internal committees have been established to investigate allegations concerning the use of torture or other forms of cruel, inhuman or degrading treatment or punishment against any person during his arrest, detention or interrogation.
The Department is responsible for investigating offences and deciding whether to institute proceedings or close the case in accordance with the regulations. It conducts prosecutions before judicial bodies, lodges appeals against judgements, supervises the enforcement of penal judgements, controls and inspects prisons, detention centers and any places in which penal judgements are enforced, hears the complaints of prisoners and detainees, verifies the legality of their imprisonment or detention, ensures that they are not retained in prison or detention beyond the stipulated period, takes the necessary measures to secure the release of anyone who is imprisoned or detained unlawfully and takes the legally required action against the persons responsible for such unlawful imprisonment or detention.
The jurisdiction of the Public Investigation and Prosecution Department covers all offences committed in the territory of the Kingdom of Saudi Arabia with the exception of those exempted by law or by regulations promulgated by the Council of Ministers. Its jurisdiction also covers any offences committed outside the Kingdom if the Kingdom's judiciary is competent to hear them in accordance with the regulations or treaties to which the Kingdom is a party (art. 1, para 2, of the Schedule).
The examiner must personally investigate serious offences (all of which are currently listed in article 10 of the Regulations governing arrest) and offences the investigation of which necessitates the remand in custody of the accused until the case can be heard by the court. The examiner must also personally investigate all allegations made against criminal investigation officers and any major incidents that occur in prisons. The examiner may personally investigate other offences if they have highly detrimental consequences or if, in the examiner's opinion, the situation of the accused or of the victims or other circumstances so require (art. 16, para. 3, of the Schedule).
(a) The characteristics of criminal examination
The Kingdom's criminal examination procedures are of concern to every member of society, whether innocent or guilty, since society seeks the truth and, while not wishing to see a guilty person escape punishment, would be sorry to see an innocent person unjustly condemned.
Society's right to punish the guilty must be reconciled with the need to safeguard the freedom and dignity of the accused and their right to defend themselves. The truth should be established through simple and clearly defined procedures which limit the authority of the State and through rapid procedures which ensure that an innocent person is not held as a suspect for a lengthy period of time but which also ensure that a guilty person is punished without delay while at the same time, allowing an adequate opportunity for completion of the examination procedures.
The special characteristics of the Kingdom's criminal examination procedures can be summarized as follows:
The examination proceedings must be recorded in writing by a clerk. If the examiner feels that the proper conduct of the examination might be prejudiced if he availed himself of the services of a particular clerk, he can assign another one. The record must be drawn up in clear handwriting without deletion, erasure or insertion and without leaving any gaps. If an addition needs to be made to a statement, it must be written in the margin and initialed by the examiner, the clerk and the person who made the statement. The examiner dictates to the clerk the wording of the question and the reply thereto, which must be expressed in a clear and unambiguous manner reflecting the actual words of the speaker rather than the examiner's interpretation thereof. The statements are recorded in the first person and in the presence of the person who made them, who has the right to comment on any wording that is inconsistent with what he wished to say. A record drawn up by the examiner i In person, without a clerk being present, is deemed to be a record of presumptive evidence. The services of an interpreter may be used whenever necessary.
Examination proceedings and the outcome thereof are regarded as confidential and must not be divulged. The examiner is not allowed to establish any fact or corroborate any act in the light of his personal knowledge, nor is he allowed to invoke the need to conduct or complete an investigation as a reason for preventing aid from reaching persons injured in an accident (art.s 11 and 12 of the Schedule).
The adverse parties have the right to submit to the Director of the Public Investigation and Prosecution Department a substantiated request, which the Director may accept or reject, to disqualify an examiner from investigating a case before or during the basic examination proceedings. Likewise, if an examiner has reason to feel ill at ease in a particular case, he has the right to submit a substantiated memorandum to his superior, which the latter may accept or reject, requesting his removal from the case. An examiner is not permitted to examine, prepare, or take a decision in, a case involving an offence committed against him personally, a case to which his spouse or any of his relatives, by blood or marriage to the fourth degree, are parties, a case involving parties with whom he has hostile or friendly relations that might influence the course of the examination, or a case in which he has previously given testimony or acted as an expert or arbitrator (art. 13 of the Schedule).
The accused person has the right to, avail himself of the services of a lawyer or legal representative who, having attended the examination, is entitled to submit a written memorandum containing his comments, which the examiner must include in the case file. The examiner does not have the right to separate the accused person from his lawyer or legal representative during the examination (art. 14 of the Schedule).
(b) Measures affecting the human right to freedom of movement
The Schedule defines arrest as a number of temporary precautionary measures to restrict a suspect's movements in order to verify his identity and take any other action against him. Although arrest is unquestionably a violation of personal liberty, it is justified by society's need to combat crime. The Kingdom's regulations stipulate that no one may be deprived of his liberty in an unlawful or irregular manner (under article 36 of the Basic System of Government, the State has an obligation to ensure the security of its citizens and all persons residing in its territory and no one may be arrested, detained or restricted in his freedom of action except as provided by law). Article 306 of the Statutes of the Directorate of Public Security stipulate that personal liberty shall be guaranteed in accordance with the sacrosanct Islamic Shariah, it being prohibited to arrest, detain or punish any person, intrude into his home or infringe his inviolable personal rights except in the circumstances provided for by law and on the responsibility of the official carrying out such acts.
At a very early stage, the Kingdom took care to regulate the arresting authority of criminal investigation officers by promulgating rules and regulations specifying the circumstances in which arrest is permissible and the procedures to be followed in this regard.
These rules and regulations were subsequently amended, in accordance with contemporary social requirements and circumstances, by the following statutory instruments and directives:
Under article 1 of the Regulations governing- questioning and arrest, patrolmen and other law enforcement officers have the right to stop and question anyone acting suspiciously. Questioning does not constitute arrest since it does not involve deprivation of liberty but merely prevents a person from continuing on his way in ord6r to verify his true identity and destination and dispel any suspicions to which he might have given rise. Questioning is a fact-finding procedure that does not empower a criminal investigation officer to arrest or search a person, who can be lawfully stopped and questioned only if he acts in a suspicious manner that justifies such a measure.
Section XVIII of the Statutes of the Directorate of Public Security and article 2 of the Regulations governing questioning and arrest stipulate that a criminal investigation officer may arrest a suspect in the following circumstances:
Article 9, paragraph 2, of the Regulatory Schedule appended to the Statutes of the Investigation and Prosecution Department subsequently restricted the arresting authority of criminal investigating officers by confining it to the following situations:
Article 9, paragraph 3, of the Schedule further stipulates that, in all cases, the arrested person must be informed of the reasons for his arrest, has the right to contact anyone whom he wishes to notify and must not be subjected to degrading treatment or physical or mental harm.
In accordance with the Schedule, any criminal investigation officer who arrests a suspect must immediately notify the competent examiner, to whom he must present the arrested person, together with the report containing the presumptive evidence, for purposes of interrogation within three days from the time of his arrest. The criminal investigation officer may not retain the arrested person in custody for purposes of the collection of evidence for more than three days without a written detention order from the competent examiner. In the absence of sufficient evidence, the criminal investigation officer is instructed to complete his inquiries after releasing the suspect. The competent examiner may release the arrested person, on bail or without bail, if he sees no reason for his detention. However, if he finds that the circumstances warrant ongoing detention, he can order the suspect's remand in custody (art. 10 of the Schedule).
Article 45, paragraph 2, of the Schedule specifies the following circumstances in which the examiner can issue a warrant for the arrest and detention of a suspect:
The examiner has an obligation to interrogate the arrested suspect as soon as he appears before him and must then decide whether to order his remand in custody or his release. If the suspect cannot be interrogated, the examiner must explain the reason therefor in a memorandum ordering his remand in custody for a specified period, which must not exceed 24 hours, after which the examiner must interrogate him or order his release (art. 47 of the Schedule).
This is a temporary precautionary measure, under which a suspect is deprived of his liberty in certain circumstances and on specific conditions, to which the examiner may resort in order to ensure the proper conduct of the investigation if he fears that the suspect might attempt to evade the probable punishment, tamper with evidence for the prosecution or commit a further offence.
Article 9 of the Regulations governing questioning and arrest stipulates that a suspect may be remanded in custody if the examiner finds that there is sufficient evidence to prove that he committed a serious offence or acted as an accomplice therein. The directives stipulate that the suspect must be interrogated before he can be remanded in custody under the terms of an order issued by the examiner himself, which must specify the reasons for his remand in custody.
The person remanded in custody must be immediately informed of the reasons therefor and has the right to contact anyone whom he wishes to notify. If the person concerned is a foreigner, his country's consulate must also be notified (art. 50, para. 1, of the Schedule).
The suspect has the right to contact his lawyer or legal representative in order to exercise his right of defense and the examiner cannot prevent him from doing so (arts. 48 and 50, para. 1, of the Schedule).
Under the Regulations governing questioning and arrest, the examiner may initially order the suspect's remand in custody for a period of 21 days. If the examination cannot be completed during that period, the examiner may request an extension of the suspect's remand in custody for a period or periods, not exceeding a total of 30 days from the date of expiration of the above-mentioned initial period, during which the suspect's examination must be completed.
The suspect cannot be remanded in custody at a place in which convicted prisoners are detained and the period of his remand in custody must be deducted from the period of his sentence (art. 62 of the Prison and Detention Regulations).
There are strict directives governing the detention of juveniles, for which authorization must be obtained from a juvenile judge.
The Regulations governing questioning and arrest stipulate that a person remanded in custody must be released in the following circumstances:
Article 51 of the Regulatory Schedule stipulates that, if the examiner believes that the suspect cannot afford bail or if the suspect is unable to find a person willing to act as surety, the examiner may release him provided that he undertakes to present himself at a police station at times specified by the examiner, with due regard for the suspect's personal circumstances. The examiner may also make his release conditional on his residing in a place other than that in which the offence was committed or may prohibit him from frequenting a particular place and may order the suspect's return to custody if he violates those conditions.
Under the Regulations governing questioning and arrest, the person remanded in custody has the right to appeal against his detention order, or any order extending his period of detention, in a petition that is referred to a board which considers the appeal, hears the statements of the appellant and submits its recommendations in that regard (art. 20 of the Regulations).
Since the Public Investigation and Prosecution Department is responsible for the control and inspection of prisons, the Department's Statutes and their Implementing Directives empower members of the Department to pay unannounced visits to places of detention, without being bound by official working hours, to verify the correctness and legality of the detention procedures and ensure that no detainees are being held in an unlawful or irregular manner. If any person is found to be detained unlawfully, the requisite measures are taken to secure his release and ensure that the necessary legal action is taken against the person responsible for his unlawful detention.
From the above, it is evident that the Kingdom's laws and regulations concerning measures that affect the right to liberty of person contain a number of safeguards, which can be summarized as follows:
(c) Measures affecting the inviolability of persons and their homes (searches)
A search is defined as a quest for evidence pertaining to an offence and for anything that might help to establish the truth in order to prove the offence or identify its perpetrator by searching a thing, a place or a person.
The purpose of the provisions governing searches is to protect the privacy and inviolability of persons and their homes, which are guaranteed by the Kingdom's regulations since article 37 of the Basic System of Government stipulates that homes are inviolable and may not be entered without permission from their occupants, nor may they be searched except in the circumstances in which such is permitted by law.
In situations in which arrest is permissible, the person concerned, but not his home, may also be searched. The purpose of searching the arrested person is to remove anything that he might use to offer resistance or harm himself or others, and also to seize anything relating to the offence.
A search may be conducted on the basis of a written warrant issued by the examiner, in which case the warrant must specify the name of the person to be searched, as well as the duration of the warrant's validity. The search warrant, which must be substantiated by convincing reasons to believe that an offence has been committed and to suspect the person concerned, can be executed only once. If a further search is required, a new warrant must be issued (art. 36 of the Schedule).
Persons other than suspects who are found in the place to be searched under the terms of the warrant may also be searched if there is good reason to believe that they might have in their possession items that would further the investigation of the offence in connection with which the search was authorized. Depending on the circumstances, anything relating to the suspect, such as clothing and personal effects, movables, his vehicle or his place of business, are also liable to be searched. The search is carried out by, or under the supervision of, the examiner himself or by a criminal investigation officer whom he assigns. Females can be searched only by females (arts. 34, 35 and 37 of the Schedule).
The Kingdom's laws and regulations are highly circumspect in regard to the search of homes, which is subject to restrictions and safeguards designed to protect privacy. Reference has already been made to article 37 of the Basic System of Government, which stipulates that homes are inviolable and may not be entered without permission from their occupants, nor may they be searched except in the circumstances in which such is permitted by law. Article 306 of the Statutes of the Directorate of Public Security safeguards the inviolability of homes by stipulating that they may be entered only in the circumstances provided for by law. A search can be conducted only if there is sufficient proof or evidence to justify intrusion into a private dwelling and the search must be confined to a quest for items relating to the offence. The search may extend to the homes of persons who are not suspects if there is good reason to believe that they might contain items that would further the investigation (art. 36 of the Schedule).
Under the regulations, the search must be conducted by, or under the supervision of, the examiner himself or by a criminal investigation officer whom he assigns. Homes are searched in the presence of their occupant, his authorized representative or any adult member of his family living with him or, if none of these persons can attend, in the presence of the local mayor, his equivalent, or two witnesses. Homes may be entered or searched only by day, between sunrise and sunset, except in cases of flagrante delicto or an appeal for help, or if the investigation necessitates urgent action, or if the home in question is to be entered in accordance with a warrant for the arrest of a suspect (art. 35 of the Schedule).
Article 40 of the Schedule stipulates that the search report must contain the following information:
From the above, it is evident that, under the Kingdom's laws and regulations, the search of persons and homes is subject to numerous safeguards, which can be summarized as follows:
(d) Measures affecting privacy
Censorship of postal, telegraphic and telephone communications
In the Kingdom, telegraphic postal, telephone and other communications are confidential and cannot be censored, delayed, inspected or overheard except in the circumstances in which such is permitted by law (art. 40 of the Basic System of Government).
Postal, telegraphic, telephone and other communications are inviolable and cannot be inspected or tapped during their transmission except under the terms of a substantiated order and for a specific period of time if the investigation so requires (art. 41 of the Schedule).
After obtaining authorization from the Minister of the Interior, the examiner may order the seizure of postal and telegraphic communications, printed matter and parcels during their transmission, and the tapping and recording of telephone conversations while they are being made, whenever they are connected with the investigation of an offence that has actually been committed and might help to establish the truth or identify the perpetrator. In all cases, the order must be substantiated and valid for a period of no more than 10 days, renewable for one or more additional similar periods of time as required by the investigation. The examiner is empowered to inspect the letters and messages sent and listen to the recordings made, whenever possible in the presence of the suspect, the addressee or the correspondent, whose comments thereon are noted. If the inspection and analysis shows them to be relevant to the investigation, the examiner may order their inclusion in the case file or return them to their addressee. The content of letters or telegrams, or copies thereof duly certified by the examiner, may be transmitted to the suspect or the addressee, provided that this does not prejudice the investigation. The examiner and anyone who seizes postal or telecommunications, taps and records telephone conversations or obtains knowledge of their content must treat as confidential any personal secrets or information that come to his knowledge during the discharge of his duty (art. 41 of the Schedule).
Seizure of items found during a search
The Schedule contains provisions that regulate the seizure of items found during a search. Such items must be placed in a safe and sealed container and sent to the competent department to be entered in the register of seized items. If the items consist of cash or jewelry, they are deposited, against receipt, with the Central Bank. In the case of weapons, ammunition and narcotic drugs, the relevant directives are followed. Whenever items that might help to establish the truth cannot be removed and kept safe, the premises in which they are found are placed under seal, the owner of the premises having the right to appeal against the order under the terms of which the seals were placed. The seals placed on seized items may be broken by the examiner, after ascertaining their intactness, in the presence of the suspect, his authorized representative or the person in whose possession they were found. Following their inspection and any other requisite measures, they are returned to their safe container or resealed, this procedure being recorded by the examiner in a separate report. If the examination necessitates their removal from the safe container for purposes of analysis, there is no need for the suspect, his lawyer or his authorized representative to be present. Seals are removed from premises, after ascertaining their intactness, in the presence of the suspect or his lawyer. If the seized items are suspected to be explosives, an explosives expert is called to undertake their safekeeping (art. 43 of the Schedule).
The seized items may be returned to their possessor or owner before the case is considered or referred to the court unless they are needed during the hearing or are subject to confiscation. The examiner may order their return unless there is a dispute concerning their custody or ownership, in which case the matter is left to the judge. If the investigation is closed, the examiner must return any seized items the possession of which is not prohibited. Prohibited items are dealt with in the legally prescribed manner. Seized items which are perishable or the preservation of which is costly may be sold at a public auction organized by a committee, the claimant retaining the right to the price obtained. Such sales take place with the authorization of the head of the division to which the examiner belongs (art. 44 of the Schedule). From the above, it is evident that, under the Kingdom's laws and regulations, measures affecting privacy are subject to safeguards and restrictions, in the interest of the suspect, which can be summarized as follows:
(e) Interrogation and confrontation
Interrogation involves the detailed questioning of the suspect who is confronted with the evidence or with other accomplices or witnesses so that the charge against him can be corroborated or refuted.
Confrontation is equivalent to interrogation, since it is a procedure under which the evidence is presented to the suspect or the latter is brought into the presence of witnesses or other accomplices to the offence so that each of them can make statements in front of the others.
Interrogation is one of the most important investigation procedures, since the suspect may confess to his commission of the offence and his confession may be used as evidence against him. Accordingly, the Schedule stipulates that interrogations can be conducted solely by the examining authority, namely the Public Investigation and Prosecution Department.
The Schedule permits interrogations to be conducted by criminal investigation officers only in exceptional circumstances when any delay might make it impossible to establish the truth (art. 16, para. 3, of the Schedule).
The importance of interrogation lies in the fact that it provides the suspect with an opportunity to defend himself and refute any evidence against him by discussing it and presenting evidence or proof to substantiate his position. Interrogation is an investigative procedure with a dual purpose, as it makes provision for both accusation and defense and aims to uncover the truth and identify the perpetrator of the offence but not to secure the suspect's conviction through the extortion of a confession.
An arrested person must be interrogated as soon as he appears before the examiner and before an order for his remand in custody is issued (art.s 16, para.3, and 47 of the Schedule).
The suspect must be interrogated in the Department's offices and may be interrogated elsewhere only in exceptional cases in which the interests of the investigation so require. When the suspect appears before him, the examiner must inform him of the charge and the evidence against him so that the suspect can present his defence and discuss the evidence against him.
The examiner then questions the suspect verbally and, if the latter confesses, records his confession in the report and then interrogates him in detail concerning the accusations made in the charge, in order to ensure that it is consistent with the facts, if the examiner is satisfied that the suspect has spoken the truth and that there is substantiating evidence against him. If the suspect denies the charge, the examiner begins by confronting him with the evidence against him, questions him thereon and hears the statements of witnesses. Care is taken to confront the suspect with the witnesses or other suspects if his statements differ from theirs. If the suspect is not familiar with the language spoken by the examiner, the services of an interpreter must be used, this being noted in the investigation report. The statements made by the suspect during his interrogation must be entered in the investigation report prepared by the clerk. The regulations emphasize the need to use the services of a clerk, since reports drawn up by the examiner himself in the absence of a clerk constitute only presumptive evidence. The examiner dictates to the clerk the wording of the question and the reply thereto, which must be expressed in a clear and unambiguous manner reflecting the actual words of the speaker rather than the examiner's interpretation thereof. The statements are recorded in the presence of the person who made them, who has the right to comment on any wording-that is inconsistent with what he wished to say (art.s 11 and 19 of the Schedule).
During his interrogation, the suspect has a guaranteed right to avail himself of the services of a lawyer or legal representative who, having attended the examination, is entitled to submit a written memorandum containing his comments, which the examiner must include in the case file. The examiner does not have the right to separate the suspect from his lawyer or legal representative during the examination. During the interrogation, the suspect or his lawyer or legal representative have the right to inspect the case file in the presence of the examiner unless it is decided otherwise for reasons explained in the report (arts. 16 and 20 of the Schedule).
The interrogations take place in circumstances that do not influence the suspect's freedom to make statements and present his defense. It is prohibited to use drugs, any apparatus or violence in order to obtain evidence against the suspect. Any evidence obtained through coercion, promises, threats or any means that paralyze the suspect's will or cause him to lose consciousness is deemed inadmissible for purposes of prosecution. Although police dogs may be used for tracking purposes, their recognition cannot be used as evidence for the prosecution (art. 19, para. 2, of the Schedule).
Article 99 of the Statutes of the Directorate of Public Security stipulates that suspects must not be handcuffed during their interrogation. Under the Kingdom's regulations, interrogations of juvenile delinquents must be conducted at the social surveillance center for male juveniles or the welfare institution for young women and must be attended by a social worker. It is prohibited to wear military uniform during such interrogations for fear that it might intimidate them.
From the above, it is evident that, under the laws and regulations, the interrogation of suspects is subject to the requisite safeguards, which-can be summarized as follows:
(f) Post-examination procedures
In accordance with the Schedule, following completion of the examination of the case, regardless of whether it was conducted by the examiner himself or by a criminal investigation officer assigned thereto, the examiner must decide whether to close the investigation or indict the suspect and request that he be put on trial.
A decision to close the investigation is taken by the examiner in any of the following circumstances:
a) If the act of which the suspect is accused does not constitute an offence.
b) If criminal prosecution is barred by any general or special statute of limitations.
c) If there is insufficient evidence of the suspect's commission of the act of which he stands accused or if the facts pertaining thereto lack credibility.
d) If the perpetrator remains unknown. In such a case, the examiner instructs the security authorities to continue their inquiries with a view to identifying the perpetrator.
A decision to close the investigation is provisional if the perpetrator remains unknown or if there is insufficient evidence of the suspect's commission of the act attributed to him. It is final if the facts lack probative value or if the commission of the offence is disproved (art. 53 of the Schedule).
The Schedule permits closure of an investigation in cases involving offences punishable by a discretionary penalty, even if the commission of the criminal acts has been proved, subject to approval by the Administrative Board of the Department, in the following circumstances:
a) If the harm or danger resulting from the offence is trivial.
b) If criminal prosecution would give rise to a scandal the harmful effects of which would exceed the harm caused by the offence, its consequences or the penalty imposed in respect thereof.
c) If prosecution would aggravate the danger and increase the hostility and antagonism to an extent that might lead to the commission of further offences.
d) If the prosecuting Governmental authority believes that it would not be in its interest to continue the criminal prosecution of one of its members.
e) If the victim withdraws his complaint in cases in which public proceedings are instituted on the basis of a complaint.
f) If cases involving money or private interests are settled as a result of elimination of the effects of the offence by the accused as soon as he is required to do so.
g) If the hardship suffered by the accused as a result of the arrest and investigation procedures is deemed sufficient.
h) In order to ensure that young persons do not mingle with criminals in prisons and places of detention (art. 54 of the Schedule).
The Schedule stipulates that any decision to close an investigation must specify the compelling reasons on which it was based and must be notified to the victim and to the civil claimant, if any, or to their lawyer or legal representative or to their heirs if they are deceased.
The accused is released immediately unless he is detained for some other reason. The victim and the civil claimant have the right to lodge a substantiated written protest against the decision to close the investigation within 30 days from the date on which they are notified thereof. The protest is submitted to the examiner, who must confirm or rescind his decision, as he deems appropriate. If he confirms his decision, he must submit the protest, together with the case file, within five days of its receipt, to a panel formed for this purpose, which must take a decision on the protest within 10 days from its receipt of the file. The panel is empowered to make comments on the decision to close the investigation and may instruct the examiner to reply to its comments. It has the authority to annul the examiner's decision and, if necessary, may refer the case to another examiner in the following circumstances:
a) If the decision to close the investigation was based on an incorrect application of the provisions and rules of Islamic law, an erroneous application of the substantive regulations or a procedural defect or error.
b) If it was decided to close the investigation for pertinent reasons based on a discussion of the evidence, assumption of its insufficiency or strict application solely of the literal sense of a statutory legal rule without taking into account its spirit or purpose.
c) If the panel believes that, given the circumstances of the case, it would be inappropriate to close the investigation.
A decision to close an investigation does not- affect the right of the victim or the civil claimant to brings an action before the competent court (art. 55 of the Schedule).
If the examiner finds that the evidence presented in the case warrants indictment of the accused on the charge of committing a criminal act, he issues an order for his indictment and prosecution. The criminal record of the accused does not constitute evidence of his commission of the offence. The indictment order must specify the name of the examiner who issued it, the full name, age, place of birth, place of residence, occupation and nationality of the accused and the number date and place of issue of his identity card. It must also give an account of the facts and the acts committed, including their date, the manner in which they were committed and the role of the accused and all his accomplices in the offence, and must give details of the cogent material proof, the verbal statements and all the evidence and indications that have been deduced. The offence committed, with all its constituent elements, must also be categorized, the legal or statutory provision under which it is punishable must be specified and reference must be made to all the aggravating or mitigating circumstances and factors that might apply to the offender or any of his accomplices. The date on which the accused was first remanded in custody pending investigation and subsequently detained pending trial before the competent judicial authority must also be specified. If the indictment calls for imposition of capital punishment or a penalty of amputation, it must be submitted to the Administrative Board of the Department for review. In other cases, indictment orders are reviewed by a panel consisting of three examiners of higher rank than the examiner who issued the order, which, after reviewing the manner in which the examination was conducted, may refer the case to the judiciary, order the examiner to conduct a supplementary examination of specific points, or order closure of the investigation (art. 58 of the Schedule).
(g) Institution of public prosecution proceedings
When the examiner has issued the indictment order and it has been duly checked and reviewed, he transmits the case file to the public prosecutor so that the latter can institute public proceedings before the competent judicial authority in accordance with a bill of indictment that sets forth the established facts in the case, categorizes the offences, specifies the evidence, describes the criminal role of each accused person, refers to the applicable legal and statutory penal provisions and requests imposition of the penalties prescribed therein on the accused. This bill of indictment is based on the presumptive evidence and/or the indictment order.
In cases involving major offences, the public prosecutor is required to attend the court hearings and exercise his function therein. In other cases, he is required to attend only if the judge so requests or if the circumstances of the case necessitate his presence (art. 60 of the Schedule).
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