The Judicial Intervention in the Implementation of the Criminal Penalty in Algerian Legislation
Prof. Tachour Abdel Hafeez
Professor of Criminal Law – School of Law- University of Mentouri – Constantine – Algeria
The rapid expansion of the rights and liberties movement prompted the Algerian legislator to adopt the system of judicial intervention in the implementation of the criminal penalty in 1972 and its amendment in 2005.
This modern approach is related to the basic concepts related to the state and its relation to the individual, the concept of justice and its function, and the judge’s role in the protection of the principles of justice and the freedoms of individuals.
All this adds to the fact that the basis of the State’s authority in imposing punishment has long been academically and practically stable. In addition, the disclosure of the role of the judge in society is crucial in a world in which the power of the judge is subject to controls that have been enacted in order to protect the rights of individuals. For this purpose, his activities have to be subject to various forms of control, which may sometimes lead to limiting his liability.
The Penal Reform and Rehabilitation of Algerian Prisoners Act defines the general role assigned to the magistrate in the implementation of penal provisions and limited it to the following tasks: the diagnosis of sanctions in the implementation stage, the identification of treatment types and the monitoring of the application of the diagnosis of the types of punishment and treatment.
Even though the birth of the magistrate system (execution of penal provisions ) confirms the recognition of some rights for the benefit of the convicted, it reflects, in the academic and practical aspects, the recognition of the new goal set by the legislator of the criminal penalty, which is reform of the convicted through social rehabilitation and ensuring the protection of basic rights during the implementation of the criminal penalty.
The mission of the judge responsible for the execution of penal provisions (magistrate), whose activity falls between the administrative and the judicial fields, is truly a complex task. It continues to become more complex if we take into consideration that the text is devoid of any reference to his legal status, such as whether he is an independent judicial body or whether he belongs to the sitting judiciary or to the prosecution. The texts of 2005 did not specify the legal nature of his status within the judicial system, and it was devoid of any reference to the legal nature of his decisions, ie whether these decisions are judicial or administrative.
The lawmaker is aware of the seriousness of the legislator’s silence on these aspects, and the person familiar with the procedural issues is well aware of the importance of this issue, and the extent of their impact on the activity of the judge on the one hand, and on the other on the legal status of the convicted in regards to the decisions taken.
In order to answer these and other questions, we will first define the powers of this judge, and then in a later stage try to reveal his status within the criminal justice. This is done through the following topics: the powers of the judge to apply the judicial decisions, and the status of the judge to apply the penal provisions in the criminal justice system .