Research studies

The rights of the defense as a guarantee before the oppressive authority of independent administrative authorities

Prepared by the researcher –  HADDADI Naima –  Researcher in 6 year of doctorate – Abderrahmane mira, Bejaia –  Algeria

Democratic Arab Center

Journal of Afro-Asian Studies : Eight issue – February 2021

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin. The journal deals with the field of Afro-Asian strategic, political and economic studies

Nationales ISSN-Zentrum für Deutschland
ISSN 2628-6475
Journal of Afro-Asian Studies
:To download the pdf version of the research papers, please visit the following link

Summary in English

    Because the sanction, the sanction, whether administrative or not, always entails deterrence, security or derogation from rights and freedoms and infringes legal positions, those positions cannot be based on suspicion or intuition, but must be based on certainty. The way to do this is to balance the right of independent administrative authorities as protector of economic public order with sanction against the effender To take away from it in the name of society and for its interests, on the one hand, the right of economic aid, accused of administrative violation, to defend itself, is not taken in a sudden.

     But treachery, and the defense is therefore the most important legal and judicial guarantee for balancing the rights of defense and administrative follow-up by the independant administrative authorities, since justice is not achieved without these elements, a right that highlights its role in the trial stage more than in the investigation stage and the investigation stage. One of the most important general legal principles established by the French State Council in this regard is the principle enshrined in its own texts by these bodies.

Introduction
One of the most important guarantees of a fair criminal trial is that the accused can defend himself and be assigned to defend his rights, so most modern procedural systems have sought to enshrine this right by activating the role of the defense establishment in the course of criminal proceedings, and some have even considered the task of defense to be an element of justice[1].

    If criminal penalties, administrative or disciplinary, are to be imposed not on the basis of intuition and conjecture, but on the penalty and certainty to ensure the person to follow-up, then evidence of a conviction and an opportunity to defend himself or herself is required[2], This guarantee, until 1974, was translated into the principle of the rights of the defense[3] and is intended to provide the accused with the opportunity to present the proven support for his claim or defense, or to refute the evidence of his opponent against him through the use of his right to pay, evidence and oral or written pleadings, this is a general guarantee from which other guarantees, including the principles of adversarial.

First: The legal value of the right of defense

    The rights of the defense are constitutionally enshrined in Algerian legislation, under article 151/1 of the 1996 Constitution, which provides for the “right to defense recognized”[4], and in paragraph 2 of the Constitution, it is more specific to ensure this right in criminal cases. Where did this take place in the Code of Criminal Procedure as the constitution of freedoms and the rule between the power of the judiciary and the rights of citizens in application of the principle of legality, where the accused was able to seek a lawyer in the judicial investigation stage? Article 100 of the Code of Criminal Procedure required the examining magistrate, under article 157 of the Code of Criminal Procedure, to alert the accused to his right to choose a lawyer and to appoint a lawyer if the accused so requested.

    In the United States of America, the Federal Supreme Court confirmed the constitutionality of the right to a defender under the sixth amendment of the American Constitution, and the Supreme Court confirmed that the right to defense is a fundamental right necessary for fair trial and allowed the accused to waive this right. However, the court may not accept the accused to defend himself without the use of a defender if it considers that he waives his right to use a defender who has committed untrue behavior[5].

    The constitutional value of the right of defense, in the non-penal provision, was confirmed by the French Constitutional Council in its resolution 86-224 of 23 January 1987 in Higithia N°22,  in which it was considered that the penalties imposed by the Competition Council were invalid unless the principle was respected.

    The Council of State of France stressed that respect for the rights of the defense was a general principle of law and applied even if there was no provision in 1944, either the position of the Algerian State Council is reflected in its 2002 decision, where an administrative decision has been suspended based on a constitutionally guaranteed right of defense[6], emphasizing the need to respect the principle even in non-negative punishments of rights[7].

Second: Inclusions of guarantee the right of defense

    Respect for the rights of defense before independent administrative authorities is very similar to the rights of defense in criminal cases established by the Algerian legislator, in order to preserve this right and to prevent its violation by the authority imposing sanctions on the law enforcement authority, in particular:

  1. The presumption of innocence

    The presumption of innocence is one of the most important constitutional guarantees for the person in general and is particularly important in the 1996 Constitution, where he considered that every person is innocent until he is convicted before a regular judicial authority with respect to legal guarantees[8], and this presumption still receives attention until it became one of the advocates of what has recently become a fair trial, The presumption of innocence means: The presumption of innocence, whatever the weight of the evidence or the power of doubt it is about.

    The Constitutional Council of France recognized the constitutional value of this principle[9], but does this constitutional and judicial recognition apply to repressive administrative penalties imposed by independent administrative bodies?

    In Algerian law, the provisions that give the independent administrative bodies no reference to this principle, but this is not a defect, as long as the Penal Code and the Code of Criminal Procedure are not included, as the constitutional reference to it is sufficient, and to see how the principle is respected before these independent bodies, it is necessary to refer to the jurisprudence[10], his is not available as far as we know, and therefore we try to read this principle through the practice of these French independent administrative bodies and the French judiciary, which is not available as we know, and thus try to read this principle through the practice of the French independent administrative bodies and the French judiciary[11].

    The Court of Appeal of Paris abolished a financial penalty signed by the Securities and Exchange Commission, as the Commission published a communication on the acts four days after the person concerned was informed of the acts attributed to him, as the Commission went beyond the principle of presumption of innocence[12].

    In another case, the French Court of Cassation overturned the Paris Court of Appeal ruling and annulled the (COB) procedure, as its president violated the presumption of innocence in an interview with Le Figaro about Ciment French, where the company’s managers have been accused of concealing and providing false information, these statements were made between the stage of informing the company of the acts attributed to it and the imposition of the sanction[13], being imposed and before informing and informing the person, he does not know all the acts attributed to him, although his institution or place was inspected, that this measure is respected by the mail and communications control committee, the penalties are imposed only after the concerned has been informed of the place to which they are assigned[14], the same security is provided to the Competition Board. The decision appointed by the Competition Board shall produce a preliminary report containing the presentation of the facts, as well as the registered outlets, and shall inform the parties concerned[15].

  1. Respect for the principle of confrontation:

    The guarantee of defense rights cannot be envisaged without ensuring and respecting the principle of confrontation, according to which the accused party is entitled to know the acts and violations of the competition law and within a reasonable time, as well as giving the party following the competition Council the possibility to present its defense after being informed of the place registered against it. The right to seek an additional investigation, if called by the circumstances of the case, by a legal representative or lawyer, is, as the French Court of Cassation had argued in its resolution 05/03/1990, that this right should be included before the Competition Council: « the principle of adversarial proceedings and respect for the guarantees of the defense imply that the parties or their representatives may ask the Council, which shall assess its usefulness, to hear other witnesses»[16].

    It is not enough that the person concerned should be notified in a short time, but should be given an opportunity to present his or her defense to the penal body. It is a second stage where the acts attributed to him can be discussed in terms of their validity and assignee, and the fact that they are adapted as violations, thus fulfilling his responsibility, is the principle of confrontation.

  1. c) Right to access the file and provide feedback:

    This right cannot actually be realized unless the accused is given access to the file, which is guaranteed by the competition law, when the Competition Board decides to issue a report that contains the facts as well as the registered outlets and the whistle-blower of-laws. In turn, the President of the Council shall inform the Parties concerned and the Minister in charge of Trade to make their observations in writing within two months shall determine the date of the hearing on the issue, and such written observations may be made 15 days before the date of the hearing[17].

    The possibility of accessing the file and providing written observations is also enshrined in the Law on Mail and Communication[18], as well as the Law on Electricity and Transfer of Gas through channels in its article 146, and the Law on the Exchange of values transferred does not refer to the right of access to the file and to make observations. However, no penalty can be imposed unless the qualified representative of the accused is heard before or if no law is enacted to hear him[19].

    If these last two texts enshrine the right of confrontation and access to the file, we note that it is not enough to devote them, because they require that sufficient time be given to the meaning of his remarks, he cannot take it very seriously, if the procedures are fixed for the Competition Board (One month from the date of filing the file from decision 15 days before the session for written observations of the parties), the Mail and Communications Control Committee and the Exchange Operations Control Committee have not set a deadline for the file and the submission of observations.

    Under these considerations, the French State Council has set the duration requirement for not to be too long, to miss the wisdom of penalty, lose the opiate, and not too short, the relevant person cannot prepare his defense, and find the same shortcoming before the Electricity and Gas sector Control Committee. The type of feedback was not shown in writing or verbally.

  1. D) Bringing witnesses:

    The Electricity and Gas sector control committee can hear witnesses[20], as the Competition Board reporter has been given the same possibility during his investigation, as he can request information from any institution or any other person[21], but this does not mean the persons concerned. The above-mentioned case concerns the independent administrative body which is looking for evidence, but can the person in his defense testify to and face witnesses? The texts do not refer to this possibility, contrary to the penal provision, and we note the same in French law.

  1. E) Counsel of defender:

    The face-to-face procedure guarantees the parties fair trial by presenting their evidence during the session, but in the matter of economic control, the idea of the parties as defined by the penal law is absent, as there is no prosecution, no civil party or judge, as the independent administrative body accuses the follower. In the face of this situation, the latter appears as a single defender, who demonstrates the importance of having a lawyer next to the moral person, but this right to choose a defender who is devoted by the Algerian legislator as a party in matters of competition and the stock market[22].

    In the field of competition, the right to seek assistance from a recognized advocate is enshrined in the investigation stage, when the president of the competition board appoints the reporter to investigate the case, and the latter listens to people to collect evidence, then these people can at this stage seek the assistance of an advisor[23], and the concerned persons are entitled to Cases brought before the competition board in the suppressive phase, seek the help of a lawyer or any person they choose[24].

    In the field of the stock exchange, the right to seek the assistance of a recognized advocate for every person summoned by the Committee for Organizing and Monitoring the Operations of the Stock Exchange to provide information on the cases presented to it, in this case any person summoned can seek the assistance of consultants of his choice[25], at the time of the imposition of the sentence, the disciplinary chamber of the Commission shall not impose any punishment unless the competent representative of the accused has been heard in advance or is not legally invited to hear him[26], but other bodies shall not make any reference to this guarantee.

Third: Deficiencies in the guarantee of the right of defense

  If the security of defense is a guarantee that cannot be derogated from, wasted or denied, then, on the other hand, it should be balanced between the guarantee and the administration’s failure to obstruct its functions in the interests of the public.

Therefore, the oral and public nature of the penal procedure is enshrined as a matter of cozse, and administrative sanctions imposed by the independant administrative authorities for their obstruction of the latter’s repressive function must be devoted to ensuring respect for the rights of economic aid that follow, in addition to the public nature of the penal procedure:

  1. The punitive action between the written and oral character

    If the principle in the Criminal Code is the oral nature of the proceedings because of the protection that this method provides to the person following by persuading the competent body, the new Code of Civil and Administrative Procedure is outside this rule known in the Penal Code. Article 9 of the Act stipulates that: “The original of the proceedings is to be written”[27], which has been the subject of most of the constituent texts of the independent administrative bodies, the defense of these bodies is often reflected in the form of the editing of notes sent to the competent circulating body. It is possible that the framing of these bodies of highly technical sectors is the reason for the legislator to devote its written character to the presentation of the defense[28].

  1. The sessions are public.

    The public hearing means allowing everyone the right to attend sessions and allowing the publication of their proceedings, which are the fundamental guarantees created by the legislature to enable both opponents and public opinion to monitor the work of the judge. “I am not sure whether I am a judge or a judge who is biased or a judge or an enemy of me, as long as he does nothing except in front of the public,”[29]

    Public hearings are a principle enshrined in article 114 of the 1996 Constitution, as well as in the Code of Criminal Procedure in article 285, and, except in cases where public publicity poses a danger to public order and morality, discussions and the sentencing are public; While before independent administrative bodies, the hearings are confidential in the face of the judgments (decisions) of these bodies, they can sometimes be published.

In order N°95-06 on canceled competition, the sessions were public, but in order N°03-03 on competition, the Algerian legislature has turned away from this trend and the hearings are held in secrecy, but with regard to the publication of the decisions, the procedure is known by both the Competition Board and the Electricity and Gas Control Committee[30].

Conclusion

    The right of the defense to enforce its elements, or components, in order to balance the rights of the defense and the administrative follow-up by the independent administrative authorities, as justice is not achieved without these elements. It is inconceivable that the defense will be effective without a reasonable time to prepare the person who follows up the practice of violating the market or violating the legal provisions governing economic activity in order to defend him, inform him of the charges against him, confront the witnesses prepared by the independent administrative authority as proof of his claim, and not deprive him of the compulsory means by which he believes that he will appear for his benefit, to share with him the documents submitted by the independent administrative authority against him and to discuss them, and not to isolate the economic aid that has been accused of having contact with a lawyer in a direct or indirect way; All these rights were decided only by the legislature to protect economic aid as the weak party facing the most serious competence granted to independent administrative bodies, which is the repressive jurisdiction.

    This guarantee, however, and if it is very recent in the texts of the independent administrative authorities, suffers from deficiencies in the lack of a verbal and public nature of the penal procedure. This is mainly due to the fact that these bodies do not know the distinction between repressive tasks, contrary to the penal code, which distinguishes between all stages, starting from the search for violation, follow-up and punishment.

the reference list

First: In Arabic

  • Books

1- Boubechir Muhannad Amkran, Algerian Judicial System, Edition 2, University Press Office, Algeria, 1994.

2- MAHDA Mohamed, guarantees of the accused during the investigation (legal series), Part III, Edition 1, Dar El Huda, Algeria, 1992.

  1. memoirs of magisters et thèses university
  • thèses university

– Debash Suhaila, State Council and Competition Council, thesis for a Ph.D. in Law, Public Law, Faculty of Law, University of Youssef Ben Kheda, Algeria, 2010.

  • memos memoirs of magisters

1- Hamadi Nawal, Basic guarantees in Administrative repression (e.g, independant administrative authorities), magister degree in Law, Public Law Branch, Public Law Department, Faculty of Law and political Science, Abderrahmane Mira University, 2011.

  • EIDEN Rezaika, disciplinary jurisdiction of independant administrative authorities, Magister degree, Law Branch, Specialization of Public authorities and Governance, Faculty of Law and political Science, Abderrahmane Mira University, Bejaia, 2014.

III – Articles

1- BOULEHIA Shahra, The Defendant’s Right to Defend Before the Criminal Court, Journal of the Legal Forum, Faculty of Law, University of Mohamed Khider Biskra, Issue 05, Algeria, DSN, pp. 89-104.

2- KHEN Lamine, “Privacy of Disciplinary sanctions applied to Economic officers in the Financial sector,” National Forum on the impact of Economic transformation on the National Legal System, Faculty of Law and political Science, Mohamed Siddiq Ben Yahia University, jijel, November 30 and December 1, 2011, pp. 284-300.

  1. Legal texts
  2. A) The Constitution of November 28, 1996, promulgated by Presidential Decree No. 98-438, dated December 07, 1996, J.R. J.J. No. 76, issued in 1996, updated by Law No. 02-03, dated 10 April 2002, J. R. J.C.25, published in 2002, as amended by Law No. 08-19. Dated November 15, 2008, J. R. J.J. N° 63, released on November 16, 2008.
  3. B) Legislative Legal

1-Legislative Decree N°93-10, dated 23 May 1993, concerning the Exchange of values transferred, JORADP N°34, issued on 23 May 1993, amended and complementary to order N°96-10, dated 10 January 1996, amended and complementary to Act N° 03-04, dated 17 February 2003, JORADP N°11, Released in 2003 (ed in JORADP N°32, released on May 07, 2003).
2-Law N° 2000-03, dated 03 August 2000, Define the rules the general rules on postal and telecommunications, JORADP N° 48, promulgated on 15 August 2000, as amended by Law N° 06-24 of 26 December 2006, includes the Finance Act of 2007, JORADP N°85, issued on 27 December 2006.

3- Act N° 02-01, dated 05 February 2002, concerns electricity and the distribution of gas by channels, JORADP N°08, issued in 2002.

4- Order N°03-03, dated July 19, 2003, on Competition, JORADP N°43, issued on July 20, 2003, repeals order N°95-06, dated January 25, 1995, on Competition, JORADP N° 09, issued on February 8, 1995, amended and completed by Law N° 08-12 dated June 25, 2008, JORADP N°36, Published on 02 July 2008, by Law N° 10-05 of 05 August 2010, JORADP N°46, issued on 18 August 2010.

5- The Law N°04-15, dated in November 10, 2004, includes the Penal Code, JORADP N°71, issued on June 15, 2004. Modified and complementary.

  1. c) regulatory texts

– Presidential Decree N° 96-44 of 17 January 1996, establishing the rules of procedure of the Competition Board, JORADP N° 05 of 21 January 1996.

V—Judicial jurisprudence

– The judiciary of the Council of State

1- State Council, resolution 10339, dated 30/04/2002, case against the Minister of Justice, Council of State magazine, N° 02, 2002.

2- Council of State, resolution 12101, dated 01/04/2003, Algerian International Bank A. I.B. against the Governor of the Central Bank and those with him, Council of State, N° 03, 2003.

Second: IN French

  1. A) books

–  ZOUAIMIA (R(,  Independent Administrative Authorities and Economic Regulation in Algeria, Edition Huma, Algiers, 2005

  1. B) French legal texts

–  Case law

  • Constitutional Council

–  C. Const, CD No. 88-248 of 17 January 1989: www.conseil-constitutionnel.fr

[1][1]- MAHDA Mohamed, guarantees of the accused during the Investigation (Legal Series), Part III, Edition 1, Dar El Hoda, Algeria, 1992, p 266.

[2]– Hammadi Nawal, Basic guarantees in Administrative repression (e.g., independant administrative authorities), Master’s degree in Law, Public Law Branch, Public Law Department, Faculty of Law and political Science, Abderrahmane Mira University, béjaia,  2011, p 50.

[3]– Eiden Rezaika, Disciplinary competence of the independant administrative authorities, MBA, Law Branch, Public and Governance bodies, Faculty of Law and political Science, Abderrahmane Mira University, Béjaia,

2014,  p 142.

[4]– Article 151/1 of the Constitution of November 28, 1996, promulgated by Presidential Decree No. 98-438, dated December 07, 1996, JORADP N° 76, promulgated in 1996, updated by Act N° 02-03, of 10 April 2002, J. J. JORADP N°25, 2002, as amended by Act N° 08-19, N° Dated November 15, 2008, JORADP N° 63, released on November 16, 2008.

[5]-BOULEHIA Chahra, the right of the accused to defend against criminal justice, Law Forum Journal, Faculty of Law, Mohamed Khidher Pescara University, N° 05, Algeria, DC, p 91.

[6]– Council of State, resolution 10339, dated 30/04/2002, case against the Minister of Justice, State Council Journal, N° 02, 2002, pp 226-227.

[7] – DIBACH Souhila, State Council and Competition Council, Ph.D. in Law, Public Law, Faculty of Law, University of Youssef Ben Khida, Algeria, 2010, p 538.

[8]– The Council of State, resolution 12101, dated 01/04/2003, Algerian International Bank A. I.B. against the Governor and his accompanying Governor, Council of State, N° 03, 2003, pp 135-138.

[9][9]- This is what the French Constitutional Council has insisted on by accepting the oppressive authority of the Supreme Council of Phonetics and Visas.

C, Const, DC N° 88-248 du 17 Janvier 1989, Consid, Conseil Constitutionnelle.

[10]– KHEN Lamine, “Privacy of Disciplinary sanctions applied to Economic officers in the Financial sector”, National Forum on the impact of Economic transformation on the National Legal System, November 30, December 2011, Faculty of Law and political Science, Mohamed Seddik Ben Yahia University, Jijel, 2001, p 284.

[11]– See Article 37/1 of Law N° 2000-03, dated 03 August 2000, setting out the General Rules on Mail and Telecommunications, JORADP N°48, issued on 15 April 2000, amended by Law N° 06-24 dated 26 December 2006, containing the Finance Act 2007, JORADP N°85, promulgated on 27 December 2006.

[12]– See article 52 of order N° 03-03, dated 19 July 2003, concerning Competition, JORADP N° 43, issued on 20 July 2003, repeals order N° 95-06, dated 25 January 1995, concerning Competition, JORADP N°09, issued on 8 February 1995, N°08-12 of June 25, 2008, JORADP N° 36, issued on July 02, 2008, and Law N° 10-05 of August 05, 2010, JORADP N° 46, issued on August 18, 2010.

[13]– Cass Com DC du 18 Juin 1996, Conso ciment français C/COB, cited by LAFORTUNE M.A., Gaz. Pal du 24– 25 February, 1999, JP, 10.

[14]– See article 37/1 of Act N° 2000/03 of 05 august 2000, which establishes general rules on mail and telecommunications, as amended and completed, op. cit.

[15]– See article 52 of Ordinance N° 03-03, of 19 July 2003, concerning competition, amended and completed, op.cit.

[16]– KHEN Lamine, “the Privacy of Disciplinary sanctions applied to Economic officers in the Financial sector,” op. cit, p 284.

[17]– See articles 54 and 55 of Ordinance N° 03-03, of 19 July 2003, concerning competition, op. cit. However, article 22 of Presidential Decree N° 96-44 of 17 January 1996, established by the rules of procedure of the Competition Board, JORADP N°05 of 21 January 1996, provided for 60 days in spite of the disagreement between him and the date of the two months.

[18]– see article 37/1 of Act N° 2000/03 of 05 April 2000, setting out the general rules on mail and telecommunications, op. cit.

[19]– AISSAOUI Azeddine, oppressive Authority of the independent administrative bodies in the economic and financial field, Master’s degree in Law, Business Law Branch, Faculty of Law and political Science, Mouloud MAAMERI University, Tizi Ouzou, 2005, P 100.

[20]– See article 135/2 of Act N°02-01, dated 05 February 2002, on electricity and the distribution of gas through the channels, JORADP N° 08, issued in 2002.

[21]– See article 51/3 of order N° 03-03, of 19 July 2003, concerning competition, op.cit.

[22]– ZOUAIMIA Rachid, Independent Administrative Authorities and Economics regulation in Algeria , Houma Edition, Algiers, 2005, p 107.

[23] – See article 52/2 of order N° 03-03, of 19 July 2003, concerning competition, op.cit.

[24]– See article 30 of order N°03-03, ibid.

[25]– See article 38 of Legislative Decree N° 93-10, dated 23 May 1993, concerning the value Exchange transferred, JORADP N°34, issued on 23 May 1993, amended and complementary to order N° 96-10, dated 10 January 1996, amended and completed by Act No. 03-04, dated 17 February 2003, JORADP N°11, released in 2003 (JORADP N° 32, released on May 07, 2003.

[26]– See article 56 of Legislative Decree N° 93-10, ibid.

[27]– Law N° 04-15, dated November 10, 2004, contains the Penal Code, JORADP N° 71, promulgated in June 2004.

[28]– Hammadi Nawal, op. cit, p 61.

[29]– Boubshir Muhannad Amqran, Algerian Judicial System, Edition 2, University Publications Office, Algeria, 1994, p93.

[30]– AISSAOUI AZEDDINE, op. cit, p 103.

المركز الديمقراطى العربى

المركز الديمقراطي العربي مؤسسة مستقلة تعمل فى اطار البحث العلمى والتحليلى فى القضايا الاستراتيجية والسياسية والاقتصادية، ويهدف بشكل اساسى الى دراسة القضايا العربية وانماط التفاعل بين الدول العربية حكومات وشعوبا ومنظمات غير حكومية.

مقالات ذات صلة

اترك تعليقاً

لن يتم نشر عنوان بريدك الإلكتروني. الحقول الإلزامية مشار إليها بـ *

زر الذهاب إلى الأعلى