Jurisprudence - In the Application of Human Rights Standards In Arab Countries 1 Jurisprudence In the Application of Human Rights Standards In Arab Courts ALGERIA | IRAQ | JORDAN | MOROCCO | PALESTINE Samia Bourouba Associate Professor at the Higher School of Magistracy in Algeria All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Raoul Wallenberg Institute. ISBN: 978-91-86910-86-0 Stora Gråbrödersgatan 17 B | P.O. Box 1155 SE-221 05 Lund, Sweden | Phone +46 46 222 12 00 | www.rwi.lu.se Jurisprudence - In the Application of Human Rights Standards In Arab Countries 3 Jurisprudence In the Application of Human Rights Standards In Arab Courts ALGERIA | IRAQ | JORDAN | MOROCCO | PALESTINE Executed in cooperation with: Higher School of Magistracy – Algeria. Judicial Institute of Jordan. Supreme Council of the Judiciary – Iraq. Iraqi Judicial Institute. Higher Institute of the Judiciary – Morocco. Palestinian Judicial Institute. Prepared by: Samia Bourouba Associate Professor at the Higher School of Magistracy in Algeria 4 Jurisprudence - In the Application of Human Rights Standards In Arab Countries Index Acknowledgements 14 Preamble 15 List of Abbreviations 16 Abstract 17 Introduction 19 Chapter One: Status of International Human Rights Treaties in Arab Constitutions 22 1) Monist Constitutions Enshrining Expressly the Principle of Supremacy of Treaties 24 1. Algerian Constitution 24 a- Constitutional Provisions 24 b- Conclusion and Ratification Steps 25 c- Judicial Applications of the Principle of Supremacy 26 2. Moroccan Constitution 28 a- Constitutional Provisions 28 b- Conclusion and Ratification Steps 28 c- Judicial Applications of the Principle of Supremacy 29 2) Constitutions Enshrining the Treaties without Determining their Status (Dominant Dualist Trend with Monist Tendency) 30 1. Jordanian Constitution 30 a- Constitutional Provisions 30 b- Conclusion and Ratification Steps 31 c- Judicial Applications of the Principle of Supremacy 32 2. Iraqi Constitution 37 a- Constitutional Provisions 37 b- Conclusion and Ratification Steps 38 c- Judicial Applications of the Principle of Supremacy 39 3. Palestinian Constitution 41 a- Constitutional Provisions 41 b- Conclusion and Ratification Steps 42 c- Judicial Applications of the Principle of Supremacy 42 3) Position of Other Arab Constitutions 42 1. Constitutions Enshrining the Principle of Supremacy of Treaties 42 2. Constitutions Granting Treaties a Status Equal to That of the Law 43 3. Constitutions Not Having Determined the Status of Treaties 44 Jurisprudence - In the Application of Human Rights Standards In Arab Countries 5 Chapter Two: Judicial Application of International Human Rights Treaties in Arab Courts 46 1) Judicial Applications of Civil and Political Human Rights 47 1. Right to Obtain and Retain a Nationality 47 - Decision No. 105 of the Jordanian High Court of Justice 47 - Summary of Facts 47 - Legal Issue 47 - Comment 48 - Decision No. 115 of the Jordanian High Court of Justice 48 - Summary of Facts 48 - Legal Issue 49 - Comment 49 - Decision No. 212 of the Jordanian High Court of Justice 49 - Summary of Facts 49 - Legal Issue 50 - Comment 50 - Decision No. 4 of the Iraqi Federal Supreme Court 50 - Summary of Facts 50 - Legal Issue 51 - Comment 51 - Decisions No. 2, 18 and 30 of the Iraqi Federal Supreme Court 52 - Summary of Facts 52 - Legal Issue 52 - Comment 52 2. Right to Privacy 53 - Decision No. 10874/11 of the Court of Constantine, Algeria 53 - Summary of the Facts (Case of “B. L.” Against “T. M.”) 53 - Legal Issue 53 - Comment 55 3. Right to Freedom of Movement and Travel 56 - Decision No. 34 of the Iraqi Federal Supreme Court 56 - Summary of Facts (Case of “M. J. A” Against “President of C. R.”) 56 - Legal Issue 57 - Comment 57 - Decision No. 243 of the Jordanian High Court of Justice 58 - Summary of Facts 58 - Legal Issue 59 - Comment 59 4. Non-Discrimination of Minorities 60 6 Jurisprudence - In the Application of Human Rights Standards In Arab Countries - Decisions No. 9/Federal/2008, No. 15/Federal/2008 and No. 72/Federal/2009 of the Federal Supreme Court 60 - Summary of Facts 60 - Legal Issue 60 - Comment 61 5. Right to Freedom of Expression 62 - Decision No. 45694/2009 of the Jordanian Court of Appeal 63 - Summary of Facts (Case of Prosecution Against “S”) 63 - Legal Issue 63 - Comment 63 - Decision No. 13781/2009 of the Jordanian Court of Appeal 64 - Summary of Facts (Case of Prosecution Against “S. D.” and “N.”) 64 - Legal Issue 65 - Comment 65 - Decision No. 419/Civil/2009 of the Iraqi Federal Court of Cassation 66 - Summary of Facts (Case of Prosecution Against “S.”) 66 - Legal Issue 66 - Comment 66 6. Right to Equality Before the Law 67 - Decision No. 6/Federal/2010 of the Iraqi Federal Supreme Court 67 - Summary of Facts (Case of “Kh. A. R.” Against President of “C. R.”) 67 - Legal Issue 67 - Comment 68 - Decision No. 7/Federal/2010 of the Iraqi Federal Supreme Court 69 - Summary of Facts (Case of “S. J. H.” Against “The President of C. R.”) 69 - Legal Issue 69 - Comment 70 7. The Right Not to be Subjected to Torture or to Cruel, Inhuman or Degrading Treatment or Punishment 71 - Decision of the Court of Constantine, Algeria, on 05/17/2011 71 - Summary of Facts (Case of “Kh. S.” Against “B. Z.”) 71 - Legal Issue 72 - Comment 73 8. Right not to be Subjected to Physical Coercion 74 - Decision of the Algerian Supreme Court on 12/11/2002 75 - Summary of Facts (Case of “Y. Y.” Against “Kh. B.”) 75 - Legal Issue 75 - Comment 76 - Decision of Morocco Supreme Court Council on 04/09/1997 78 - Summary of Facts (Case of “A. M.” Against “M. S.”) 78 Jurisprudence - In the Application of Human Rights Standards In Arab Countries 7 - Legal Issue 78 - Comment 78 9. Exemption of Foreigners from Payment of Guarantee 79 - Decision No. 168374 of the Algerian Supreme Court 79 - Summary of Facts (Case of “Z. K.” Against “A. A.”) 79 - Legal Issue 80 - Comment 80 2) Judicial Applications of Economic, Social and Cultural Human Rights 81 1. Right to Own Property 81 - Decisions No. 18/Federal/ Cassation/2006 and No. 96/Federal/Cas- sation/2009 of the Iraqi Federal Supreme Court 81 - Summary of Facts 81 - Legal Issue 81 - Comment 82 2. Right to Work 82 - Decision No. 43/1968 of the Jordanian High Court of Justice 83 - Summary of Facts 83 - Legal Issue 83 - Comment 83 - Decision No. 002111 of the Algerian State Council 83 - Summary of Facts (Case of “Y. B.” Against the Banking Commission) 83 - Legal Issue 84 - Comment 84 - Decision of Morocco Supreme Court Council 85 - Summary of facts (Case of “M.” Against the Council of the Bar Association) 85 - Legal Issue 85 - Comment 85 - Decision of the Court of Appeal in Rabat, Morocco 86 - Summary of Facts (Case of “F. K.” Against the Bar Association) 86 - Legal Issue 86 - Comment 86 3. Inadmissibility of Wrongful Termination of Employment 87 - Decision of the Moroccan Social Judiciary 87 - Summary of Facts (Case of “H.O.” Against the company “M.T.L”) 87 - Legal Issue 87 - Comment 88 3) Judicial Applications of Human Rights Related to a Group or an Issue 90 1. Judicial Applications Related to Women’s Rights 90 8 Jurisprudence - In the Application of Human Rights Standards In Arab Countries a- Principle of Equality between Spouses 90 - Decision of Hay Al-Shaab’s Court of First Instance on 06/27/2011 and Decision of the Court of Karrada, Iraq on 05/31/2009 91 - Summary of Facts 91 - Legal Issue 92 - Comment 92 b - Wife’s Right to Petition for Divorce 94 - Decision No. 3769 of the Iraqi Federal Court of Cassation 94 - Summary of Facts (Case of “A. K. A.” Against “A. J. A.”) 94 - Legal Issue 95 - Comment 95 - Decision No. 3549 of the Iraqi Federal Court of Cassation 96 - Summary of Facts (Case of “A. A. A.” Against “H. Kh. Kh.”) 96 - Legal Issue 96 -Comment 96 - Decision No. 3804 of the Iraqi Federal Court of Cassation 97 - Summary of Facts (Case of “A. M. K.” Against “Z. Kh. M.”) 97 - Legal Issue 97 - Comment 97 - Decision No. 3309 of the Iraqi Federal Court of Cassation 97 - Summary of Facts (Case of “B. A. R.” Against “H. A. M.”) 98 - Legal Issue 98 - Comment 98 c- The Right of the Needy Divorcee to Benefit from the Family Solidarity Fund (Takaful) as an Alternative to Alimony 98 - Decision of the Moroccan Judiciary on 06/19/2012 99 - Summary of Facts (Case of “S. A.” Against “A. H.”) 99 - Legal Issue 99 - Comment 99 d- Women’s Right to Work with Dignity 101 - Decision of the Moroccan Court of Appeal on 05/17/2007 101 - Summary of Facts (Case of “N. A.” Against “A. H. S. Sh. M. Company”) 101 - Legal Issue 101 - Comment 102 e- Inadmissibility to Dismiss a Woman from Work Due to Pregnancy 104 - Decision of the Moroccan Court of Appeal on 01/23/2006 104 - Summary of Facts (Case of “B. S.” Against Company “M. A. A.”) 104 - Legal Issue 104 - Comment 105 2. Judicial Applications Related to the Rights of the Child 106 Jurisprudence - In the Application of Human Rights Standards In Arab Countries 9 a- Child’s Best Interest 106 - Decision of the Court of Constantine, Algeria, on 03/29/2011 107 - Summary of Facts (Case of “A. A.” Against “Sh. M.”) 107 - Legal Issue 107 - Comment 108 - Decision of the Iraqi Court of Personal Status on 05/13/2008 110 - Summary of Facts (Case of “A. Kh.” Against “F. Y.”) 110 - Legal Issue 110 - Comment 110 - Moroccan Judiciary 112 b- Right to Pursue Studies: 112 c- Custody of the Child 114 - Decision of the Moroccan Court of First Instance on 04/14/2010 114 - Summary of Facts (Case of “A. M.” Against “E. A.”) 114 - Legal Issue 114 - Comment 115 - Decision No. 994 of the Iraqi Federal Court of Cassation 116 - Summary of Facts (Case of “Gh. J. M.” Against “F. Gh. A.”) 116 - Legal Issue 116 - Comment 117 - Decision No. 3867 of the Iraqi Federal Court of Cassation 117 - Summary of Facts (Case of “J. A. Z.” Against “Kh. K. M.”) 117 - Legal Issue 117 - Comment 117 3. Judicial Applications Related to the Rights of Persons with Disabilities 118 - Decision of the Palestinian High Court of Justice 118 - Summary of Facts (Case of “M. J. Sh.” and “J. M.” Against “W. Sh. E.”, “W. J. M.” and “M. W. F.”) 118 - Legal Issue 118 - Comment 119 4) Right to Resort to the Judiciary (Courts) 119 - Decision No. 1789/2006 of the Jordanian Court of Cassation 119 - Summary of Facts (Case of “J. S. M.” Against the American Company) 119 - Legal Issue 120 - Comment 120 - Decision No. 1339/2008 of the Jordanian Court of Cassation 120 - Summary of Facts (Case of “A. R.” Against “N. Kh.”) 120 - Legal Issue 121 - Comment 121 10 Jurisprudence - In the Application of Human Rights Standards In Arab Countries - Decision No. 11646/11 of the Court of Constantine, Algeria 121 - Summary of Facts (Case of “B. S.” Against “F. A.” and “S. Y.”) 121 - Legal Issue 121 - Comment 122 5) Judicial Applications of Human Rights in Criminal Matters 123 - Decision of the Algerian Supreme Court Issued on 02/22/2000 124 - Summary of Facts 124 - Legal Issue 124 - Comment 125 6) Right to a Fair Trial 127 a- The Presumption of Innocence 128 - Decision No. 3861/2009 of Amman Court of Appeal (Jordan) 129 - Summary of Facts (Case of Organization “S.” Against “F.”, “N.” and “D.” Newspaper) 129 - Legal Issue 129 - Comment 130 - Decision No. 40096/2009 of the Court of Appeal in Amman, Jordan 131 - Summary of Facts (Case of “S.” Against “R. T., N.” and “S” Newspaper) 131 - Legal Issue 131 - Comment 131 - Decision No. 19735/11 of the Court of Constantine, Algeria 132 - Summary of Facts (Case of the “J.” Directorate Against “L. A.” and “R. M.”) 132 - Legal Issue 132 - Comment 132 - Decision of the Criminal Court in Missan, Iraq, Issued on 04/23/2012 134 - Summary of Facts (Case of Prosecution Against “A. R. A.” and “M. R. A.”) 134 - Legal Issue 134 - Comment 134 b- Non-Conviction Twice for the Same Crime 135 - Decision No. 10870/11 of the Criminal Court of Constantine (Algeria) 135 - Summary of Facts (Case of “S. N.” Against “T. N.”) 135 - Legal Issue 135 - Comment 136 c- Right to Appear Before a Competent Court Duly Constituted According to the Law 137 - Decision No. 2399 of the Jordanian Court of Cassation 137 - Summary of Facts 137 - Legal Issue 137