THE EFFECTS OF CONSTITUTIONAL ENSHRINEMENT OF THE PRINCIPLE OF TWO DEGREES LITIGATION ON THE ALGERIAN JUDICIAL SYSTEM
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Abstract
Contemporary judicial systems are based on the principle of litigation at two degree. This principle was reinforced by 2020’s constitution shifting to a general constitutional principle to which all judicial bodies constituting the juridical system submit.
This amendment urged the legislator to undertake some modifications to the regular and administrative judicial hierarchies aiming to line them with the two instances principle.
In this context, the regular judiciary was revised regarding criminal matters resulting in the adoption of the second degree of criminal litigation. Moreover, specialized commercial courts were created as a first instance to deal with commercial conflicts pinpointed in article 536 bis in the civil and administrative procedure code.
Similarly, the administrative judicial pyramid underwent some changes. Indeed, the number of instances was expended by creating administrative courts for appeal as a second degree for administrative litigation, and limiting the state council’s power in the its constitutional functions.
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References
First : Legal texts
a-CONSTITUTION
The 2020 constitutional amended, published by Presidential Decree N°. 20-442 of 30 December 2020, concerns the promulgation of the constitutional amendment ratified in the referendum of November 2020, JORA N°. 82 of December 2020.
b-LAW
-Organic Law N°98-01 of May 30,1998, on the Organizing ,Functioning and Competencies of the State Council , JORA N° 37 of 1 June 1998, completed and modified
-Organic law N°. 17-06 of March 27, 2017, amending and supplementing Organic Law N°. 05-11 of July 17, 2005, on the organization of the judiciary, JORA N°. 20, of March 29, 2017, (repealed).
-Organic Law No. 22-10 of June 9, 2022, relating to the judicial organization, JORA N°. 41, of June 16, 2022.
-Organic Law N° 22-11of June 9, 2022 ,Amending and supplementing Organic Law N° 98-01 on the Organizing, Functioning and Competencies of the State Council, JORA N° 41 OF 16 June 2022.
-Organic Law N°. 22-19 of July 25, 2022, laying down the procedures and modalities for and referral to the constitutional court, JORA N°. 51, of July 31, 2022
-Ordinance N°. 66-154 of 8 June 1966, containing the code of civil procedure, JORA N°. 47, of 9 June 1966, (repealed).
-Law N°. 84-11 of June 1984 on the Family Code, JORA N°. 24 of 12 June 1984, amended and supplemented
-Law N°. 90-04 of 6 February 1990 one the settlement of individual disputes at work, JORA N° 06, of 7 February 1990, amended and supplemented
-Law N°. 90-11 of April 21, 1990, relating to labor relations, JORA N°. 17, of April 25, 1990, amended and supplemented by Law N°. 22-16 of July 20, 2022, JORA N° 49, of July 20, 2022
-Ordinance N°. 03-11 of August 26, 2003, on cash and loan, JORA N°. 52 of August 27, 2003.
-Law N°. 05-04, Of 06 February 2005, containing the Law on the Organization of prisons and the social Reintegration of Prisoners JORA N°. 12, of Febrary 13, 2005 amended and supplemented By Law No. 18-01 of January 30, 2018, JORA N°. 05, promulgated on 30 January 2018
-Law No. 08-09 of 25 February 2008, containing the code of Civil and Administrative procedure,
JORA N°. 21 of 23 April 2008, amended and completed.
-Law N°. 16-01 of 6 March 6 2006, amending the Constitution, JORA N°. 14, issued on March 7, 2016.
-Law N°. 17-07 of 27 March, 2017 amending and supplementing Ordinance N°. 66-155 on the Code of Criminal Procedure, JORA n°. 20, of March 29, 2017
-Law No.18-14 of July 29, 2018, amending and supplementing Ordinance No. 71-28 on the Code of Military Justice, JORA n°. 47, of August 1, 2018.
-Law No. 22-10 of May 5, 2022, containing the judicial division, JORA n°. 32 of May 14, 2022.
-Law N° 23-09 of June 21,2023 , containing the Monetary and Banking Code , JORA N ° 43,of June 27,2023
c-Executive Decree
- Executive Decree n 23-53 of January 14, 2023, defining the areas of regional jurisdiction for specialized commercial court, JORA N° 02 used on January 15, 2023.
-Executive Decree N°. 23-53 of January 14, 2023, laying down the conditions and modalities for the selection of assistants to the Specialized Commercial Court, JORA N°. 02, of January 15, 2023.
.- Executive Decree N°. 22-435 of December 11, 2022, establishing the territorial jurisdiction chambers of the Administrative courts of Appeal and Administrative courts, JORA N° .84, of 14, 2022.
Foriegn law
- code of Franch criminal procedure, www.legifrance.gouv.fr
D-Decision and rulings
Council Constitutional Decision N°. 01/ C.M.D/D.O.D./21 of 10 February 2012, JORA N°. 16, of 04 March 2021.
Constitutional Court Decision No. 02/C.M.D./D.O.D/21 of December 15, 2021, JORA n°. 04, of 15, 2022.
.
Court Constitutional Decision N°. 01/S.M.D./D.O.D/22 of 26 January 2022, JORA N°. 34, of 19 May 2022
Administrative courts were created by Law N° 98-02 Of May 30, relating to Administrative Courts, JORA N° 37, repealed by Organic Law N° 22-10, op cit.
State Council Decision N° 007304 OF 23/09/2002 against the Directorate of Education of the Batna wilaya, First Chamber : www.conseiletat.dz.
. La court administrative d’appel, ministre de justice. http://www.justice.gouv.fr
Second: In Arabic
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A :Books
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Boubchir Mohand Amakran, The Algerian Judicial System , 2nd Edition ,University Publications Office Algeria , 1994 .
Khalfi Abdelrahman , Criminal Procedures in Algerian and Comparative Law 6th Edition ,Dar Balqqis ,Algeria ,2022
Kebaili Tayab , explanation of Civil and Administrative Procedures Law : The Algerian Judicial System ,Dar Balqis , Algeria, 2022.
Muflih Awad Al-Oudah ,Fundamentals of Civil Procedure and Judicial Organization, Dar Al Thaqafa for Publishing and Distribution ,Amman ,2004.
B-Thesis:
- Bachir Mohamed ,Procedures of Litigation before the Council of State ,Doctoral Thesis in Law , University of Algiers ,2009.
C-Articles :
-Bakoche Youssef , “The Principle of Two Degrees Litigation in Criminal Cases According in the Lastest Amendement of the Criminal Procedure Law 17-07”, Ruyaa Journal of Arts Humanities, Issue 01, 2021
2- Djamal Gharab ,BDJEMADI Cherif , “Military Judiciary Law and the Principle of Fair Trial” ,Journal of Law National Development, Issue02
- Al-Harbi Ali Ziyad ,” “Legislative Organization of the Principale of Two degees Litigation” ,Arab Journal for Sceintific Publishing , , Issue 42,2022.
- Khalfi Rachid ,” Judiciary after 1996 :Judicial Reform or Mere Structural Change ?”,Al –Mowaththiq Journal , Issue 04 ,2001.
-Al –Fassi Fatima Al Zahra “,Administrative Courts of Appeal in Algeria : Foundations and Effects” ,Journal of Legal Studies ,Issue 1 ,2023.
Thirdly :French
- Lehercier Claire , Commercial Courts , in Alain Chariot ,French Employers Dictionary , Flammarion Edition ,Paris ,2010.
-Vincent Jean, Guinchard Serge, Civil Procedure, 2nd Edition, Dalloz Edition, Paris, 2001.