Seybold Report ISSN: 1533-9211

Abstract

PRELIMINARY INVESTIGATION PROCEDURES AND PROCEDURAL NECESSITY COMPARATIVE STUDY


Rasool Ghazi Habeeb Almajidi Alsaraj, Assist. Prof. Dr. Ahmad Mustafa Ali


Vol 18, No 7 ( 2023 )   |  Licensing: CC 4.0   |   Pg no: 133-153   |   Published on: 27-07-2023



Abstract
The procedural necessity in the Code of Procedure is for the competent person to violate the form prescribed by the law, because there is a serious and imminent danger threatening one of the interests regulated by the procedural rules, and the need for him to carry out the violating action immediately, otherwise it is not possible to carry it out afterwards, to the detriment of the interest. This is after balancing between two interests, and therefore the public interest prevails. In case of necessity and fear of not doing so, experts may be used in technical matters, and their work may be carried out without the presence of the investigator or the litigants. In addition, in case of necessity, experts who are not on the lists of experts registered with the judicial authorities may be sought if circumstances so require. This is confirmed by the French legislator in that an expert may carry out his work without the presence of the investigating judge. There was also procedural necessity when the legislator gave the investigator the right to interrogate or confront the accused with other accused persons or witnesses without the presence of a lawyer, in the event of flagrante delicto, as well as the fear of losing evidence. Based on the foregoing, the legislator must provide for a case if the person delegated is prohibited from interrogating except in the presence of his lawyer and his consent to do so, and that the interrogation shall be carried out on the basis of a case of necessity without the presence of his lawyer.


Keywords:
Preliminary investigation - procedural necessity - public international law - constitutional and criminal law



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