International human rights law has witnessed considerable developments in the last decades both in normative terms and standard setting as well as in monitoring of state observance and compliance. The ECtHR and the former Commission have taken a leading role in the development of human rights due to the extensive case law the Strasbourg institutions have produced. Human rights of the accused in the criminal proceedings had its share of such a development. The court in its assessment of various national systems in their adherence to the rights enshrined in the convention has interpreted the rights progressively and the result is a vast case law regarding the right of the accused to fair trial, to liberty and the right to private life. The central theme of this work is to examine the Libyan criminal justice system in its attempt to protect the rights of those accused of a criminal offence in the light of the developments pioneered by inter-state organs especially the ECtHR. The thesis focuses on the most pressing issues where the Libyan system does appear to be at odd with the international standards of fair trial. Therefore the scope of this work has been limited to examine the protection of the right to liberty and the right to fair hearing. In doing so, it starts with a chapter introducing the reader to the Libyan system and outlining the main features and principles governing the criminal justice system. The thesis also examines the human rights situation in general and how the political and constitutional arrangements have affected the human rights situation in the country. The protection of the right to liberty and pre-trial detention is examined in chronological order starting from the initial arrest by the police till the accused is referred to the court for trial. To evaluate the extent to which the Libyan system does protect the right to liberty, the study first, examines the procedural guarantees available in the criminal process and second to ascertain whether these domestic procedures as compared to the standards developed by the ECtHR and the Human Rights Committee are of acceptable international standards. The principle of equality of arms and the principle of adversarial proceedings as developed by the European court are an integral part of the right to fair trial and these principles are the focus of this thesis. The special position the public prosecution authority occupies, the wide power it has under the Libyan system, the heavy reliance on the pretrial evidence “the dossier evidence” and the marginal role of the defence lawyer have been diagnosed to be the major problems of the system which pose serious challenges to whether the system can uphold fairness and adhere to the requirement of adversarial proceedings. The study suggests that in the light of the examination of the Libyan system, it is apparent that it suffers from major weaknesses and shortcomings and is in need of reform. In order to ensure a better protection of the rights of accused persons, certain measures need to be introduced. However, the study also acknowledges the Libyan system has a number of strong points and these should be taken into account in any future reform. Instead of arguing for a radical change, the study suggests that any proposed reform should build upon the system’s traditions and experience. Reform should on one hand, lay the ground for a more participatory role for the defence lawyer from the early stages of the proceedings, backed by more judicial supervision of the conduct of police and prosecution in the pre-trial stage. On the other hand, the study argues the system’s belief in the positive role of the trial judge is a valuable guarantee of justice which should be retained. The study’s focus on the implications of the Strasbourg case law for the Libya system has not deterred it from seeking lessons and insights from the development of international justice and Islamic law jurisprudence.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:553747 |
| Date | January 2011 |
| Creators | Algheitta, Nasser Faraj |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=167958 |
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