Albayan University Journal for Legal Studies and Research

In this research, we address an important right granted to the accused: the right to remain silent. This right is one of the guarantees granted to the accused, enabling them to defend themselves in the manner they deem best serves their interests. The basic principle of human innocence is that every human being is presumed innocent. In order to highlight this right, we have adopted the comparative approach between Iraqi law and international conventions, with a look at some other legislation, with the intention of clarifying the ambiguity surrounding it, with a statement of its various aspects and points of view related to it, and to clarify the right of the accused to remain silent, and to clarify the right of the accused, and to clarify the right of the accused to remain silent. We have decided to divide the research into two sections, in which we addressed the nature of the right of the accused to remain silent and its guarantees. We learned about the meaning of the rights of the accused and its importance, with a statement of its development. Then we clarified the principle of innocence and the position of the right to equality before the judiciary from that principle, and we concluded this section with the relationship of the principle of innocence to the right of the accused to remain silent. In the beginning, we discussed in the section: the legal basis for the accused\'s right to silence, as we explained the nature of the accused\'s right to silence, and explained the development of that right. In this research, we shed light on the position of the law on that right, and preferred the direction that takes and supports that right, relying on judicial rulings. Then we explained the position of the various legislations on the accused\'s right to silence, in particular: the Iraqi and Egyptian legislators. In the second section, we shed light on the provisions of the accused\'s silence in the stages of the criminal case, explaining the accused\'s right to silence through the different penal systems, which are the investigative system, the accusatory system, and the backward system. We also explained the position of Islamic law on that right. Then, through our study of procedural legal texts, we explained the extent to which the accused enjoys that right during the different stages of the criminal case, whether in the stage of collecting evidence, the stage of the preliminary investigation, or the stage of the final investigation (trial), and we explained the effect of the principle of the freedom of the criminal judge in forming his belief on the accused\'s right to silence .

Administrative and financial corruption represents one of the most dangerous phenomena that threaten the security of both developed and developing nations, undermining their stability due to its negative repercussions on various forms of development—economic, social, and political. It is also considered a significant obstacle to public administrative reform, as its prevalence or decline in a country is linked to levels of democracy and civic participation on one hand, and to the social status of public officials and the weaknesses of the legal framework designed to combat it on the other. To counteract and limit the growth of corruption, countries have attempted to construct specialized plans and strategies, as well as laws that deter individuals from gaining undue privileges or violating established regulations. In accordance with the United Nations Convention Against Corruption, which set rigorous and enforceable foundations for countries by implementing preventive and punitive policies, both Algeria and Tunisia ,Given their struggles with this scourge, which has devastated their national economies, eroded trust between citizens and public administration, and created an ambiguous climate deterring investment due to a lack of transparency and clear frameworks, governments have attempted to stem the spread of administrative and financial corruption. Algeria, in this context, implemented the National Strategy for Combating Corruption in accordance with the 2020 constitutional amendment. Article 204 of this amendment established the \"High Authority for Transparency, Prevention, and Combating Corruption,\" as introduced by Law No. 22-08. This authority was classed under the chapter dedicated to oversight organizations or institutions. Tunisia, like Algeria, implemented the National Strategy for Good Governance and Combating Corruption (2016-2020) by establishing the National Authority for Combating Corruption. This authority\'s primary goal is to demonstrate the political will to effect meaningful change in the areas of good governance and anti-corruption activities.

This research examines the legal status of spouse swapping under Iraqi law. The importance of this research lies in its treatment of a dangerous phenomenon that has emerged in society and its contravention of the Islamic religion and accepted norms. Spouse swapping raises significant problems in terms of its overlap with certain crimes under Iraqi law. Therefore, it was necessary to clarify the meaning of this crime and explain the difference between the crime of spouse swapping and other crimes stipulated in Iraqi law.

Alternative punishments have proven their effectiveness as an effective means of preventing the negatives resulting from the prison sentence.Many countries have adopted the method of stopping the pronouncement of punishment, as judges resorted to it in cases where they doubted the value of the evidentiary evidence relied upon in conviction, especially in minor crimes, as this method has become a system.Punishment is used as an alternative to custodial punishments.This method has expanded and been adopted by many developed and developing countries Working in society is considered a manifestation of providing social services, and an alternative to being placed in prison.In addition, it aims to bring about positive transformations in the behavior of offenders or perpetrators through rehabilitation programs and correctional methods far from the prison walls, of a scientific nature that is commensurate with the character and seriousness of the crime and the criminal.In return, avoiding the spread of infectious epidemics, especially if they are deadly, such as pandemics, which constitute a source of public health concern, especially in the prison environment Because of the heavy presence of people in confined spaces, epidemics can spread quickly, and the World Health Organization has stressed that it is likely that efforts to control pandemics could fail even if strict measures are taken inside prisons and detention centers. This study concluded with a call on the Iraqi legislator to apply alternative punishments in light of the increasing desire to address minor crimes and as an alternative to custodial punishments, and the necessity of amending the Code of Criminal Procedure No.(23) of 1971, amended to permit the use of alternative punishments.

The fisheries sector is one of the most vulnerable sectors to risks and violations, prompting international organizations to intervene in order to enhance the protection of its workers، The Food and Agriculture Organization (FAO) plays a key role in developing policies and standards to improve working conditions by issuing codes of conduct and guidelines to ensure food safety and sustainability. The International Maritime Organization (IMO) contributes through international agreements, such as the STCW-F Convention, which promotes maritime safety and professional training for fishers. The two organizations work together to strengthen the legal and humanitarian protection of workers in this sector by coordinating with member states to implement these standards. Despite the progress made, there is still a pressing need to activate these agreements and monitor their enforcement to ensure effective and comprehensive protection. These organizations also aim to combat forced labor and human trafficking within the sector, which remains a growing challenge in some developing countries. FAO and IMO encourage the use of technology to enhance safety, such as vessel tracking and monitoring systems. They also promote the ratification of international conventions and the updating of national legislation in line with global standards. Moreover, they emphasize the importance of involving workers’ and employers’ organizations in social dialogue to improve working conditions. Regional training programs help raise fishers’ awareness of their rights. In light of climate change, the role of these organizations is increasingly crucial in supporting the shift toward sustainable fishing practices.

Digital fraud is a modern crime that emerged as a result of technological advancements and the proliferation of electronic means in various areas of life. It refers to any fraudulent behavior carried out using computers, the internet, or any digital means with the aim of seizing others' money or achieving illicit gains. Perhaps the danger of this crime lies in its difficulty in detecting it, the speed of its execution, and its transnational effects. To combat this type of crime, it has become necessary to rely on digital evidence, which is the data and information stored or transmitted electronically that can prove the occurrence of the crime and identify its perpetrator. Digital evidence includes: emails, login records, data stored on devices, and financial transactions.

The extract is indisputable that the university professor is pre-emphasis, prior to the imposition of disciplined punishment and is then prepared by the basic rules required by the legal principles, including public assets and tendencing the rules of equity and logic without the need for texts decided, It must be emphasized that legal safeguards do not involve the goodwill of the administrative authority or in their ability to achieve the public, but on the contrary to the public interest and the employee. It is legally and jurisprudentially agreed that the decision to impose a disciplinary penalty on a university professor is not considered a final and binding decision. Rather, the law recognizes the right of the professor to appeal to the authority that issued the disciplinary decision, requesting that it be reconsidered, before referring the matter to the competent judiciary. This is a complementary means of grievance to the administrative grievance, with the aim of achieving better protection for the university professor, given the judiciary\'s expertise, impartiality, and integrity.

In light of the increase in environmental crimes resulting from industrial expansion and the misuse of natural resources, there is an urgent need for accurate legal and scientific tools to detect and prosecute these crimes. This research examines the topic of forensic evidence in environmental crime, highlighting its importance as a critical means in proving environmental damage and determining criminal liability. The research also reviews the types of environmental evidence and its technical characteristics, such as physical, chemical, biological and digital evidence, and highlights the challenges facing its use, from weak technical infrastructure, lack of expertise, inadequate legislation, to lack of institutional coordination.

This research provides a comprehensive study of the electoral system in Iraq from 2005 to the present, with a focus on the legal and political implications resulting from the plurality of electoral systems and their repeated amendments. The study demonstrates that the frequent changes to electoral laws have weakened fair representation and reduced opportunities for independent political entities, thereby reinforcing identity-based alignments and sectarian power-sharing. These changes have also negatively impacted the effectiveness of the Iraqi parliament in terms of legislation and government oversight, as the fragmentation of parliamentary blocs and the absence of a clear majority have led to weakened accountability and political deadlock. The research concludes that these challenges pose significant obstacles to the establishment of a stable democratic state and emphasizes the necessity of comprehensive electoral system reforms to enhance political justice and ensure the stability of the democratic process in Iraq.

The purpose of enacting Law No. (2) of 2016 as amended, after it is one of the transitional justice laws, is to provide the necessary treatments by determining material and moral compensation and other privileges, with the aim of compensating for the damages or mitigating their severity, as a result of the murders committed by the defunct regime and the terrorist ISIS gangs, which resulted in causing serious harm to their families the families of the martyrs and to a large segment of Iraqi society. However, in practical reality, the application of the provisions of this law is not without legal problems, whether related to the procedures for inclusion in this law and the affected categories entitled to compensation rights and privileges, on the one hand, and on the other hand there are obstacles in granting some compensation and privileges to this category as a result of the ambiguity and shortcomings of some of the legal texts establishing these rights. Therefore, our study shed light on these problems and provided the necessary legal solutions, whether by amending some legal texts or providing a legal analysis that is consistent with and in line with the objectives of this law in order to grant rights to those who deserve them, in order to achieve the will of the legislator behind enacting this law.

Homosexuality is a controversial issue in different societies, with attitudes toward it varying based on religious, cultural, and social considerations, which are reflected in legal and legislative positions. In Iraq, this issue is particularly sensitive due to the nature of Iraqi society, which is based on a conservative system of values and morals, making the discussion of homosexuality a thorny and controversial issue. The position of Iraqi criminal legislation on homosexuality stems from several legal, social, and cultural considerations. It demonstrates the legal system's ability to adapt to societal changes and recent developments in individuals' tendencies and behavioral patterns. This position also reflects the relationship between law, custom, and religion, and the extent of their influence on the formation and application of legal texts.

There is no doubt that the dual judiciary system offers several advantages; however, it is not without legal complications. One of the most prominent issues is the conflict of judicial decisions, which arises when two different judicial bodies adjudicate the same dispute and issue two final and contradictory rulings. This results in a state of legal uncertainty and undermines the authority of res judicata and the stability of rights. Some countries, such as France and Egypt, have addressed this issue through legislative regulation, establishing preventive mechanisms to avoid such conflicts and appointing competent authorities to resolve them when they occur. In contrast, although the Iraqi legislator has adopted the dual judiciary system, it has not explicitly provided for a mechanism to address this type of jurisdictional conflict. This differs from comparative legal systems (France and Egypt), which have clearly and independently defined the conflict of judgments as a form of jurisdictional dispute, subject to adjudication by the competent judicial body for jurisdictional conflicts. Moreover, Iraq’s Authority for Determining Jurisdiction (body for appointment of jurisdiction) has never previously encountered or adjudicated such a case. This situation creates a legislative vacuum that necessitates attention and remedy by the legislator, especially considering the continuous development and expansion of administrative judiciary in Iraq, alongside the adoption of a federal system, both of which may give rise to instances of conflicting judgments. In such cases, it appears that the Authority for Determining Jurisdiction—despite the lack of an explicit legal provision—remains the most appropriate body to resolve the conflict of judgments, as it is entrusted with jurisdictional disputes between the two sides of the judiciary. However, the legal dilemma persists when the conflict arises between two judicial bodies, one belonging to the federal judiciary and the other to the judiciary of a region. In this context, the Federal Supreme Court emerges as the competent authority to adjudicate jurisdictional conflicts between the federal judiciary and the judicial bodies of the regions

This research addresses the topic of "The Legal Framework for the Crime of Money Laundering and Mechanisms for Combating It," a crucial topic, as banks are typically committed to upholding the law. Money laundering is considered one of the most serious cross-border economic crimes, due to its negative impact on the national economy and financial stability, in addition to its association with other crimes such as corruption and terrorist financing. This research aims to shed light on the legal framework governing the crime of money laundering by examining relevant national and international laws and legislation and analyzing their effectiveness in reducing this crime. The research also addresses anti-money laundering mechanisms, such as regulatory systems and relevant institutions, and the role of international cooperation in combating it. The study concludes that the effectiveness of combating money laundering depends largely on updating legislation, enhancing financial transparency, and coordination between regulatory bodies at the local and international levels. This research examines the legal framework for money laundering and its mechanisms for combating it, citing numerous pieces of evidence to support this.

Private higher education is a vital component of the overall higher education system, witnessing significant growth not only in the number of institutions but also in student enrollment. Universities and colleges serve as intellectual and cultural leaders, fostering knowledge and ethical growth, engaging in objective dialogue and discussion. Administrative decisions must be made by authorized entities, such as university presidents, college deans, or heads of departments, in adherence to legal mandates. Administrative leadership is indispensable in all institutions, including both government and private higher education, as leaders are responsible for planning, coordinating, organizing, and overseeing administrative functions, particularly in decision-making, our discussed topic. Consequently, there is a need to regulate the selection of administrative leaders in private universities and colleges, ensuring opportunities for individuals with the capability and desire to perform with high skill to achieve the goals of private higher education. This can only be accomplished through objective criteria that guarantee proper selection of administrative leaders in private universities and colleges.

Family protection means protecting women, children and men together, so protection here is for the human being regardless of age, health, mental and physical condition, and a title with this comprehensiveness required for research and writing to review several laws such as the Civil Code, Personal Status Law, Penal Code, Juvenile Law and Minor Care Law to identify the provisions that preserve all the rights of the natural person, and certainly the individual is most in need of support and protection due to customs, religious laws and prevailing laws in addition to traditions that violate the rights of the individual, especially women and children, provided that the laws prevailing in Iraq and its surroundings include general provisions that do not take into account the gender and age of the individual, whether in rights or duties. This required that we make the research into two requirements, the first of which we devoted to reviewing the provisions related to family members in Iraqi laws. The second requirement was devoted to the provisions for protecting the family in general as the nucleus of society. We concluded in the results and recommendations that it is important to enact a law to protect the family and reduce domestic violence so that it would be an addition and complete the deficiencies that the legislator should stipulate in laws such as the Penal Code, Personal Status Code, and other laws.

Cyberspace is a digital environment reliant on information technology, dealing with elements of informational networks and data processing at an extraordinary speed. Cyber power can be used to launch cyberattacks against critical infrastructure, whether civilian or military. Cyberwarfare represents a modern means and method of armed conflict, embodied in cyber operations whose effects mirror those of traditional armed conflicts or accompany hostile actions within the context of armed conflicts. A notable example is the recent cyberattack in Lebanon, which involved disabling paging devices ("pagers") in accordance with the objectives of international humanitarian law. Cyberwarfare is intrinsically linked to the nature of cybersecurity, which aims to protect information and electronic systems from various cyber threats. This protection includes implementing a set of measures and techniques to prevent such threats and manage them when they occur, involving international system actors in today’s world—not only states and international organizations but also non-state actors. Thus, examining the extent to which domestic laws and international humanitarian law principles can be applied to cyberwarfare becomes essential. The increasing reliance of states on cyberattacks in their conflicts has subjected the rules of international humanitarian law to a real and complex test. This challenge revolves around whether these long-established international rules, codified decades ago, can apply to cyberattacks, which have emerged within the past decade. The difficulty of applying international rules to cyberattacks and subjecting them to the authority of these principles intersects with another issue: the lack of clarity surrounding the concept of direct participation in hostilities under international humanitarian law. The involvement of a significant number of individuals—both combatants and civilians—in modern hostilities has blurred the boundaries of the concept of direct participation to the extent that it has become difficult to clearly distinguish between direct and indirect participants in such operations. The convergence of cyberattacks with direct participation has exacerbated and complicated the challenges related to the application of international humanitarian rules. This is particularly true when direct participants in cyberattacks belong to the category of civilians. In such cases, international humanitarian rules protecting civilians overlap with those related to combatants who directly engage in hostilities, along with the principles concerning their targeting. Direct participation in this context represents the core challenge to the proper application of international humanitarian law and its principles.

Civil liability resulting from environmental damage faces more than one problem related to the civil liability pillar, such as the lack of the element of error or the lack of a causal relationship between the element of error and the element of damage, the nature of the element of environmental damage, the difficulty of in-kind compensation, the disproportion of monetary compensation with the size of the environmental damage, or the absence of the legal basis on which the right of the victim to obtain compensation is built is a harmful act according to the rules of civil liability under the civil law makes the actor responsible for the damages and risks for that It has become necessary to hold the responsibility of the perpetrator and to compensate the injured person, regardless of the natural or legal person, with appropriate compensation.