Criminal Procedure in Saudi Arabia - Dissertation Example

? How to Speed Criminal Trial in Saudi Arabia By: Table of Contents Chapter Introduction ……………………………………………………..…………. 3 Statement of the Problem ………………………………………………..………3 The Topic …………………………………………………………………….….3 The Research Problem …………………………………………………….…….4 Purpose and Importance of the Study ...………………………………………....4 Structure of the Dissertation……………………………………………………..4 Chapter 2: Literature Review ……………………………………………….…………6 Speedy Trial Laws in the US …………………………….……………….……..7 Right to a Fair Trial in UK ………………………………………………………7 Right to be Tried within Reasonable Time in Canada ……………………..........7 The Justice System in Saudi Arabia ……………………………………………..8 Summary …………………………………………………………………...........9 Chapter 3: Methodology ……………………………………………………………….9 Participants ………………………………………………………………………9 Instruments ……………………………………………………………………..10 Validity ................................................................................................................10 Procedures ……………………………………………………………………...10 Limitations ….…………………………………………………………………..11 Timetable …………………………………………………………………….…12 Chapter 4: Analysis of Data ……………………………………………………….. Chapter 5: Discussion of Results ………………………………………………….. Chapter 6: Conclusion……………………………………………………................ References ……………………………………………………………………………… CHAPTER 1: INTRODUCTION Statement of the Problem Criminal procedure has been developed in Saudi Arabia since the new Criminal Procedure Act was enacted on 3 November 2001. It is a major development in the country’s criminal law, as is the establishment of the Saudi Commission for Investigation and Prosecution. These developments, which took place in a short period of time, are a welcome change but pose new problems as well. My research would concentrate on delays in criminal trials and seek new ways to manage this problem in the Saudi legal system by incorporating and adapting methods from other jurisdictions. Some other jurisdictions may also have problems with delays, but it is more evident in Saudi Arabia. This issue not only goes against the public interest and the interest of the accused, it also violates human rights conventions. Thus, this research will concentrate on a practical way to speed this process and to achieve at least a fair level of speediness in trial procedures. Eliminating the case backlog and maintaining it in the future will be helpful in the country's criminal justice administration. Delays cost the country money and time and can add greatly to the expense for lawyers, causing hardship for the accused, which is not a desirable result by any standard. The Topic The research will basically tackle the problem of delays in criminal trials in Saudi Arabia. This will be done via two main methods, comparative analysis of speedy trial laws and policies in other nations as well as through surveys from individuals involved in the delivery of justice in Saudi Arabia. The Research Problem This study is concerned with practical research to find the right tools to speed criminal trial procedure in Saudi Arabia, by comparing with other jurisdictions. The thesis is devoted mainly to addressing the direct and indirect tools that can help the system move faster and avoid delays in the process in Saudi Arabia. Purpose and Importance of the Study It is the purpose of this research to address the delays in criminal trials in Saudi Arabia through the application of both direct and indirect methods of study. It will first try to focus on comparing various laws and policies applicable to the speedy trials applied in other nations and see how it can apply to Saudi Arabia. The paper will also do research through the interview of certain personalities that can help shed light and solve the problem on the speed of criminal trials in Saudi Arabia. This research is vital and very important since the experiences of prisoners and other accused individuals in Saudi Arabia is too great not to be given any heed. Structure of the Dissertation This proposal will only show glimpse of what will be seen in the actual dissertation, particularly in the part of the literature review. The actual dissertation will be divided into chapters and formatted just like any other dissertations with Chapter I containing the Introduction, Chapter II is the Literature Review, Chapter III is the Methodology and Data, Chapter IV would contain the Analysis of Data and Results, Chapter V has the Discussions and Chapter VI would contain the Conclusion and Recommendations. The Introduction chapter would include the statement of the problem, the research questions, the objectives and importance of the paper and an overview of what the research will be all about. It would also contain a roadmap of the paper. The Literature Review chapter will contain a longer version of the literature review of this proposal as well as a more intensive review of peer-reviewed journals, laws and other literature that dwells on the topic. Included here will be the right to speed trial and the public interest in a speedy trial. This interest can be described as the public’s desire to have the criminals punished while not affecting the life of the innocent as much as possible. Thus the research will show how delay affects this desire of the public. It will also discuss the right of the accused to a trial without delay in all procedural types, with a focus on the ECHR, which gives the accused the right to a fair trial in a reasonable period of time. Then it will discuss the victim's interest in a speedy process and how this protects the victim's rights. Delay causes a victim not to trust the jurisdiction to protect him from the criminals, thus he might be a victim again because of the process. The Methodology Chapter will discuss the direct tools to guarantee speed in criminal proceedings. First will be a general view of the direct tools to speed the process, then the review of criminal proceedings in other countries’ laws. Also, suggestions on tools that can be used to manage delay will be included. For instance, to improve criminal proceedings, there can be an increase in the number of judges, decrease the caseload paperwork, and make criminal procedure simpler. The Results Chapter will present the findings from all the data collected, literature reviewed and methods applied. Under this chapter, discussion about the indirect tools that can be used to speed the criminal process will also be included and will focus on limitations of the arrest in custody in others’ laws and in Saudi law. Then, the paper will concentrate on direct tools to speed the process. The Discussion Chapter will discuss conciliation, settlement, and mediation as solutions to decrease the number of cases that go to court. It will also focus on the conditions of conciliation, settlement and mediation and examine the type of offence that will find conciliation as a suitable solution. Likewise, the effect of this solution in the criminal procedure will be discussed. This would also include the discussion of the sentence discount as one of the tools to speed a trial. We will view where it appears in the criminal law in Saudi Arabia and how it can be put into practice. Also, we will focus on some other jurisdictions and how it has helped them to decrease their caseloads. Finally, the conclusion chapter outlines the most important conclusions based on the findings. It makes some overall concluding remarks on the study as well as some observations and recommendations. CHAPTER 2: LITERATURE REVIEW The literature relating to the laws on speedy trial in various nations abound. These laws, rules and policies are created by different nations to ensure the existence of human rights in their country. Human rights know no boundaries. It should therefore be practiced whether a person is in the U.S., U.K., Canada or Saudi Arabia. This chapter will be presenting brief backgrounds on the policies about speedy trial in the mentioned countries and the lack of it in Saudi Arabia. This literature review will only serve as a glimpse of what will be included in the actual dissertation. Speedy Trial Laws in the US Speedy trial is included on the United States Constitution and is considered to be one of the guaranteed rights of defendants in criminal trials. The Sixth Amendment of the US Constitution is the right to a speedy trial (US Constitution). Its existence ensures that defendants will not be unreasonably subjected to long periods of imprisonment before he goes through trial (Barker v. Wingo, 1972). Violation of the principles of the 6th Amendment, e.g., failure of the court to put an accused to trial for an “unreasonable” period of time, can be a ground for the dismissal of the case. Right to a Fair Trial in UK In the United Kingdom, the European Convention on Human Rights’ Article 6 provides for the protection of the individual to a fair trial. This article protects the right of those criminally accused to a public hearing that will be presided by an impartial and independent tribunal “within a reasonable time”. This therefore is a clear indication that Article 6 provides for a speedy trial in criminal cases just like in the US (European Convention). Right to be Tried within Reasonable Time in Canada In the Canadian Charter of Rights and Freedoms, its Section Eleven serves as the individual’s legal rights in criminal, and even penal, matters. This consists of both regulatory and criminal offenses. There are nine rights included in Section 11 (Mole & Harby, 2006) and one of them refers to speedy trial, i.e., any individual charged with an offense, be it criminal or civil, has the right to be tried within a reasonable time. This is under Section 11(b) which may be as a provision of a right to speedy trial (Otsberg, et al, 2002). As with any other laws on speedy trial in any other country, there will be criteria to be considered to determine what reasonable time would mean. In Canada, the case laws, R. v. Askov (1990) and R. v. Finta (1994), are good representation of how such "unreasonable delay" may be considered (Lucas, 1983). The Justice System in Saudi Arabia Saudi Arabi’s judicial system is founded upon the Hanbali school of Sunni Islam under the sharia in 1926. This jurisprudence gave more prominence to the sayings and traditions of Prophet Muhammad and totally rejected analogy to be the source of laws. The system is considered by Muslim jurists themselves as being quite rigid (Country Data Website, 1992). In Saudi Arabia, violations of the rights of defendants are systematic. This would include many incidences of arrests without warrants, abuses during questioning, prolonged detention without allowance for communication, absence of trial and verdict notices and of course, long delays in trials (Human Rights Watch, 2010). There are also incidences of judges making use of intimidation that drives defendants not to hire lawyers. Some judges even ban the presence of lawyers in some occasions. These examples are just few of what really happens in the justice system of Saudi Arabia. In fairness, there are currently some moves being made to change the system and improve human rights through the development of a better delivery of justice. The enactment of the Criminal Procedure Act in 2001 is one sure more towards change. Another program has recently been put into motion to reduce the number of incidences such as those mentioned. This is the so-called Public Defender Program which was approved only last 11 January 2010. This was place into action by the Shura Council and is designed to strengthen Saudi Arabia’s criminal justice system (Human Rights Watch, 2010). With this new program, the state will pay for lawyers to defend an accused who cannot afford the services of an attorney. Providing such free legal service can be considered a milestone in the judicial system of Saudi. This is a clear indication that the government is well on its way of improving the system that has been subject of ugly scrutiny since its creation. This also is clear indication that there is still hope in gaining fair and speedy trial during criminal hearings in the country. Summary The literature included in this chapter will serve as short samplers of the actual literature to be incorporated in the dissertation paper. This only presents the idea that many countries are cognizant of the rights of their citizens and giving them a speedy trial is definitely one of them. Said rights were ensured by no less than the constitution and laws of their land. These same laws and practices could very well serve as an example to Saudi Arabia in the pursuit of a speedy criminal trial to become a part of their justice system. CHAPTER 3: METHODOLOGY Participants The study is based on a comparative analysis among other speedy trial laws and rulings from various countries. It also made use of qualitative research via interviews of random individuals who are involved in the legal system in Saudi Arabia. The comparison will be analysed and a conclusion will be derived from it as combined with the findings of the survey and interview to be done. The conclusion will serve as the answer to the research question initially presented in this paper’s introduction. The comparison will be done through a mixed method research. The participants will therefore be the individuals, such as officials from the Commission for Investigation and Prosecution, staff from the courts and some prisoners. If not enough material from actual interviews will be obtained, interviews previously made and documented may also be used. Instruments & Procedures This type of study design is basically that of a survey and of comparative analysis based on collected literature of studies made by reputable experts. The survey will be through the interview of various individuals that are one way or another connected to the justice system of Saudi Arabia. The literature to be used as basis for comparative analysis will be based on journals, text books, studies, legislations, policies, rules and laws taken from online and offline sources and databases such as Westlaw and Lexis. Validity Validity is attained in this study through the formation of questions to be included in the survey that are representative of all tested areas. Moreover, to ensure credible and accurate random sampling that is representative of the whole, sufficient samples are to be surveyed. Procedures The information and data are to be selected, collated, organized and coded for a more comprehensive review. Procedures will be based on the replies given in the interview. The qualitative data, on the other hand, will be grouped according to common subjects or themes to get the result. This would include the analysis of data taken from various literature after the comparative analysis. Limitations Given the fact that the data to be collected from the interviews are from random sampling and only a few may give honest, accurate and complete replies, the study can become demographically limited. The opinions, abilities, etc. of those who may be interviewed may not fully represent the opinions, abilities and other capacities of other individuals involved in the matter. Said opinions may also be insufficient. As for the comparative analysis based on the available literature, given that those are made by others and may not be for the very same reasons, some information mayh not be applicable or as accurate. Timetable This GANTT chart represents a rough estimate of the timetable for the research: Activity 2011 2012 2013 2014 Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr Ma y J u n J u l A u g S e p O c t Form Disseratation Group/Buddy Interview Advisors Pick Advisor & Topic Refine Topic with Advisor Write Prospectus Get study permission Compose Study Timetable Design Work Schedule Create Mock-up Dissertation Outline Lit Review Set a Filing System for Dissertation Review literature Select Intrumentation Select Analytical Method Draft Proposal Submit Proposal Polish Proposal Present to Committee polished proposal Defend Proposal Correct Proposal and submit to Dean Expand Literature review Test Methodology Refine Methodology Data Collection scheduling Data collection Score Data Input data in computer Analysis of data Results interpretation Write Up results Update Lit Review Revise Proposal into format for dissertation Write up conclusion Submit draft of dissertation to supervisor Present Draft to Dissertation Committee Schedule Oral exam Prepare and Take Oral Exam Make changes to dissertation based on orals Type/polish manuscript with changes Submit dissertation to Dean/ make changes as necessary Resubmit dissertation for publishing CHAPTER IV: ANALYSIS OF DATA The Islamic legal system, which is what is in practice in Saudi Arabia, has its foundations based on their bible, the Quran. Yet, as literature showed, the violations of its laws on the right to fair trial has become so deeply rooted that it has already become very hard to reconcile its basic principles on international laws on human rights and the criminal justice system of Saudi Arabia. This will be shown in the minute review of literature incorporated in this proposal, more so with the actual dissertation. The final dissertation will show that the Islamic human rights commission has made an in-depth study on the researches made on cases of torture in prison and incommunicado detentions which has relations to delays in criminal trials (IHRC, 2007). The primary and secondary data to be presented in the dissertation will be the basis of a more comprehensive and extensive analysis of data on the final paper. This proposal only presented a glimpse of what is to be expected in the dissertation. CHAPTER V: DISCUSSION OF RESULTS The result immediately shown by the collection of available literature on the topic already shows how bad the speed of criminal trials is in Saudi Arabia. Though the steps taken to remedy the problem are plenty, the positive results are scarce. This is why this study becomes a very important step in possible achieving this paper’s goal. In the dissertation, a more comprehensive and detailed findings based on the collection of data and its analyses will be presented. This proposal serve only to give a short and initial conclusion as to the possible outcome of the study based on available literature. The actual dissertation will be discussing conciliation, settlement, and mediation as solutions to decrease the number of cases that go to court. Likewise, focus on the conditions of conciliation, settlement and mediation will be made as well as examine the type of offence for which conciliation is suitable. The effect of this solution in the criminal procedure will also be discussed. CHAPTER VI: CONCLUSIONS The topic of this research proposal is indeed of great relevance, especially to Saudi Arabia where the speed of criminal trials may prove to be a huge problem for those concerned, more particularly the accused. This paper will be exploring the said problems and will be giving possible solutions or alternatives that can change the current situation. This will be done via the presentation of credible literature and the application of laws and policies from other nations that can be of use in the solution of the problem with speedy trial in Saudi Arabia. The dissertation will also present as part of its recommendation the sentence discount as one of the tools to speed a trial. Its background and where it appears in the criminal law in Saudi Arabia and how it can be put into practice will all be presented. A focus on some other jurisdictions and how it has helped them to decrease their caseloads will also be made. Also as a part of the conclusion and recommendation chapter of the dissertation, the indirect tools that can be used to speed the criminal process will be explored. This will focus on limitations of the arrest in custody in the laws of other nations and in Saudi law. Once all these have been presented, final remarks and conclusion about the whole research will be done. References Askov v. R., [1990] 2 S.C.R. 1199. Barker v. Wingo, 407 U.S. 514 (1972).  Canadian Charter of Rights and Freedoms Canadian Constitution's Charter of Rights. Country Data Website. (1992). Saudi Arabia Criminal Justice System. Accessed on 23 May 2011 from http://www.country-data.com/cgi-bin/query/r-11682.html. European Convention on Human Rights Human Rights Act 1998 Human Rights Watch. (2010). Human Rights Watch Press Release, Saudi Arabia: Criminal Justice Strengthened by Public Defender Program. Accessed on 24 May 2011 from http://www.violenceisnotourculture.org/index.php?q=node/837. Mole, N. and C. Harby, C. (2006). The right to a fair trial. A guide to the implementation of Article 6 of the European Convention on Human RightsStrasbourg: Council of Europe. Ostberg, C.L., Wetstein, M.E. & Ducat, C.R. (2002). "Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991-1995," Political Research Quarterly, Vol. 55, No. 1, p. 237. R. v. Finta, [1994] 1 S.C.R. 701 . Section 11," Canadian Charter of Rights Decisions Digest, URL accessed 29 July 2006. The cases were R. v. Goreham (1984), 12 C.C.C. (3d) 348 (N.S.C.A.) The United States Consitution www.ncvc.org Lucas, R. (1983), 6 C.C.C. (3d) 147 (N.S.C.A.). Canadian Legal Information Institute. Islamic Human Rights Commission (2007), “Sri Lankan Teenager Facing Miscarriage of Justice in Saudi Arabia.” Available at : http://www.ihrc.org/ Read More