Prof. Omar Fakhri Al-Hadithi
Professor of Criminal Law
College of Law, Kingdom University
Kingdom of Bahrain

Abstract:

This research paper deals with the subject of the historical and theoretical development of the criminal Proceeding, with a study and analysis of a number of contemporary alternative methods and applications adopted by the Bahraini legislator in the recent period, within the framework of criminal policy reviews. It has become recognized that the concepts of criminal justice are no longer confined in our current reality to the necessity of confrontation between opponents, nor to the imposition of penalties that would achieve deterrence, restraint and pain giving more scope to restorative justice, whether between the opponents themselves, or between them and the investigative and judicial authorities. In the context of achieving these goals, the Bahraini legislator has enacted several new amendments in the criminal Proceeding management in the Code of Criminal Procedure, without prejudice to the considerations of criminal responsibility, in accordance with the constitutional constants and without prejudice to the guarantees established for the parties to the criminal Proceeding, nor with the state’s right to punishment.
The importance of this topic is reflected in identifying the historical roots and the legislative rooting in Islamic law of alternatives to criminal proceedings, as well as in highlighting the modern procedural policy of the Bahraini legislator according to the new amendments in the Code of Criminal Procedures in 2019 and 2020, regarding the development of many alternatives to criminal Proceeding that were required to facilitate procedures, reduce pressure and burden on criminal courts, which saves effort and time in ending criminal cases. In this we have relied on the descriptive-analytical approach, through historical and objective reading, and in-depth analysis of the position of Islamic law, leading to a statement of the position of the Bahraini legislator in the Code of Criminal Procedure in determining alternative modern means of criminal action, where the scope of our research was devoted to clarifying the position of Islamic law and the Bahraini legislator in the statement of those means. We decided to divide the research into two parts, in the first of which we dealt with the alternative means of criminal action – a historical view and legislative rooting. As for the second topic, we devoted it to examining the modern procedural policy of the Bahraini legislator’s search for alternatives to the criminal Proceeding.
The research paper concluded with several important results, among which is that the criminal justice crisis was the reason for thinking about the development of alternative ways to resolve disputes in criminal Proceedings, especially since it has proven its success and flexibility in the field of private law branches, and it was unanimously agreed upon by jurists, given that responding to the zeitgeist and as an effective filter that prevents a certain number of issues from turning into disputes. The repercussions of the criminal justice crisis, the backlog of cases, the slowness of the procedures and other reasons mentioned above have prompted the Bahraini legislator to create and nurture and develop the spirit of restorative justice through the amendments he made to the Code of Criminal Procedure, by introducing criminal mediation and conciliation systems, as well as expedited trial in exchange for the accused’s confession, as well as developing rules of the criminal matter by expanding its provisions and applications.
The research paper recommended the need that the Bahraini legislator should stipulate the cessation of the statute of limitations for the criminal Proceedings during the mediation or conciliation procedures so that the victim is not harmed by the accusations of the accused, and to prolong their period until the criminal Proceeding expires with the statute of limitations, as well as the need to expressly stipulate that it is not possible to benefit from mediation, conciliation, or an urgent trial in exchange for confession in the event of a recurrence of the crime, because it may be a justification for encouraging some perpetrators to commit crimes repeatedly, in order to benefit from these alternative means of criminal action, which results in their liberation from criminal offenses provided for by law.

Keywords: reconciliatory justice, alternatives to criminal action, procedural policy, criminal justice crisis, criminal procedures.

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