Legality of Taking pictures during Criminal Investigations in Algerian Legislation
Keywords:
Special procedures, Taking pictures, Serious crimes, Essential procedure, InvalidityAbstract
This article discusses the act of taking pictures as one of the contemporary, unique, and remarkable measures in the realm of inquiry into crimes and severe transgressions against society and the legal system. It aims to uncover the truth about these crimes and their perpetrators. The legislator has regulated its provisions under Law No. 06-22 dated 20/12/2006, amending and supplementing the Code of Criminal Procedure, in accordance with the advancements experienced by the international community in the field of crime prevention and detection. This is achieved through the use of modern and technological means, particularly highlighting the legality of this procedure and the formal and objective conditions required for its validity in Algerian legislation, for its admissibility along with the evidence obtained from it.
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References
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- Law No. 06-01, on the prevention and combating of corruption, Official Gazette, No. 14, 2006, p. 4.
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- Al-Husseini Ammar Abbas, visual photography and its authority in criminal proof, Journal of the College of Law, Volume 14, Issue 1, 2014, pp. 25-89.
- Ibrahim Mustafa Ahmed, Hassan Al-Zayat Hamed, Abdel Qader Muhammad, Ali Al-Najjar, Al-Mu’jam Al-Wasit , Misr Press, Egyptian Joint Stock Company, 1960, p. 530,Quoted by Ali Abdullah Nofal: Awni Khattab Khaled, The role of modern imaging devices in criminal proof, a comparative study, Al-Rafidain Law Journal, Volume 15, Issue 55, 2017, pp. 396-429.
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- Verse 11, Surah Al-A'raf.
- Al-Husseini Ammar Abbas, Op Cit.
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- Decision issued on 22/07/2010, file number 575980, Misdemeanors and Infractions Chamber, Supreme Court Journal, Issue 02, 2010, p.157.
- Law No. 09-04, containing special rules for the prevention of crimes related to information and communication technologies and combating them, Official Gazette No. 16, 2009, p. 5.
- Video surveillance organized by Presidential Decree No. 15-228, setting the general rules related to the organization and operation of the national video surveillance system, Official Gazette No. 45, 2015, p. 3. (According to Article 2 of this decree, the national video surveillance system is considered a technical tool for insight and anticipation, aimed at contributing to the fight against terrorism, prevention of criminal acts, protection of people and property, maintaining public order, controlling non-road traffic, inspecting traffic violations, securing sensitive buildings and sites, managing crisis situations and/or natural disasters or others, and according to Article 3 of the same decree, it supports and assists security and/or rescue human arrangements deployed in the field, in the areas specified in the aforementioned Article 2, improving their work level by providing them in real-time with news and information capable of preventing or effectively combating crimes and/or facilitating the identification and arrest of their perpetrators, and improving measures to maintain order and public security, giving more effectiveness to direct field operations through coordination and harmonization in interventions and minimizing losses and damages to the lowest level and maximizing rescue operations).
- Mustafawi Abdelkader, Special Investigation and Prosecution Methods, Supreme Court Journal, Issue 02, 2009, p. 71.
- Sami Al-Majoun Khulood, Proving the Crime of Adultery between Sharia and Law, the Arab Center for Security Studies and Training, Naif Arab University for Security Sciences, Riyadh, Saudi Arabia, 1st Edition, 1992, p. 149.
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- Ammar Abbas Al-Husseini, Op. Cit.
- Maman Basma, The Legal Value of Sound and Image as Evidence in Criminal Proof, Journal of Rights and Political Sciences, Volume 2, Issue 2, 2015, pp. 170-183.
- Molhq Jamila, Interception of Correspondence, Recording Sounds, and Capturing Images in Algerian Criminal Procedure Law, Journal of Communication, Volume 21, Issue 02, 2015, pp. 174-187.
- Haziit Mohammed, Principles of Criminal Procedures in Algerian Law in Light of Recent Amendments to Criminal Procedure Law and Judicial Precedents, Dar Bilqis, Algeria, 2022, p. 173.
- According to Article 100 of the draft law containing the Algerian Code of Criminal Procedure presented to the Algerian Parliament for discussion and voting, crimes related to capturing images include: crimes caught in the act, intentional crimes, drug-related crimes, crimes related to psychotropic substances, transnational organized crime, crimes related to information and communication technology, money laundering crimes, terrorism, crimes related to legislation governing currency exchange and movement of funds to and from abroad, corruption crimes, smuggling crimes, human trafficking crimes, trafficking in persons and organs, migrant smuggling crimes, and crimes of kidnapping. This information was obtained from the website of the Algerian Parliament, See:
http://www.majliselouma.dz/images/pdf/nossousse/Textes_juin23/loi_procedure_penale_fr.pdf
(02/04/2024, at 22:00).
- Article 65 bis 5 of the Algerian Code of Criminal Procedure stipulates that "if the necessities of investigation into the crime caught in the act or the preliminary investigation require..." This means that photographing is not permitted by the public prosecutor during the investigation and evidence collection stage, except in cases of catching the crime in the act, or investigating crimes specified by law, and the crime caught in the act according to Articles 41 and 55 of the Algerian Code of Criminal Procedure, either being a felony or a misdemeanor punishable by imprisonment or a more severe penalty. Therefore, misdemeanors punishable by fines and violations in general, for which the legislator did not specify catching them in the act due to their insignificance and triviality, do not have the importance and danger that justify violating the sanctity of private life.
- Order No. 05-06, concerning the amended and supplemented measures to combat smuggling, Official Gazette No. 59, 2005, p. 5.
- Order No. 20-03, concerning the prevention and combating of neighborhood gangs, Official Gazette No. 51, 2020, p. 5
- Law No. 20-15, concerning the prevention and combating of kidnapping crimes, Official Gazette No. 45, 2021, p. 9.
- Order No. 21-09, concerning the prevention of information and document protection, Official Gazette No. 45, 2021, p. 9.
- Law No. 24-01, concerning the fight against forgery and the use of forged documents, Official Gazette No. 15, 2024, p. 4.
- There is no dispute that photographing in a private place is prohibited and impermissible when done during preventive surveillance before the commission of the crime and without permission. This action constitutes a clear violation of the individual's right to the sanctity of their home and privacy, which is legally rejected, especially when it infringes on the constitutionally protected human life. Such photography should not be carried out by a judicial police officer, as it violates human rights in their private life, even if the facts to be revealed fall under the penal law. It is equitable for the cameras to be placed in the private place or remotely in a public place. The Court of Misdemeanors in "Blow," France, came to this conclusion.
- Law No. 24-01, concerning the fight against forgery and the use of forged documents, Official Gazette No. 15, 2024, p. 4.
- There is no dispute that photographing in a private place is prohibited and impermissible when done during preventive surveillance before the commission of the crime and without permission. This action constitutes a clear violation of the individual's right to the sanctity of their home and privacy, which is legally rejected, especially when it infringes on the constitutionally protected human life. Such photography should not be carried out by a judicial police officer, as it violates human rights in their private life, even if the facts to be revealed fall under the penal law. It is equitable for the cameras to be placed in the private place or remotely in a public place. The Court of Misdemeanors in "Blow," France, came to this conclusion. See: Abdelkader, Noufel; Khattab, Khalid, Op. Cit.
- Ibid.
- Bin Madi Al-Huwaigal, Human Rights and Security Procedures, Naif Arab University for Security Sciences, 1st Ed, Riyadh, Saudi Arabia, 2006, p. 145.
- Marwan Mohammed, The System of Evidence in Criminal Provisions in Algerian Positive Law, University Publications Office, Algeria, Vol. 2, 1999, p. 473.
- Al-Husseini, Ammar Abbas, Op. Cit.
- Al-Budur Jamal Mahmoud, Scientific and Technological Methods and Their Role in Criminal Evidence, Scientific Symposium: Legal and Juridical Aspects of Using Modern Scientific Means in Criminal Investigation, Center for Studies and Research, Department of Scientific Symposia and Meetings, Naif Arab University for Security Sciences, Riyadh, Saudi Arabia, 2007, p. 56.
- Al-Husseini, Ammar Abbas, Op. Cit.
- Bin Muhammad Bin Mustafa Al-Mazraa, Abdul Latif, Procedural Criminal Protection of Digital Privacy - Recording Phone Calls and Remote Communications as a Model - Comparative Study, Journal of Al-Zaytoonah University of Jordan for Legal Studies, Vol. 3, Issue 2, 2022, pp. 22-35.
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- Abdelkader Noufel, Khattab Khalid, Op. Cit.
- Ibid.
- Al-Husseini Ammar Abbas, Op. Cit.
- Ibid.
- Bin Muhammad Bin Mustafa Al-Mazraa Abdul Latif, Op. Cit.
- Ali Abdullah Noufel, Aouni Khattab Khalid, Op. Cit.
It should be noted that the signature is the only document witnessing the issuance of permission or authorization by the competent legal authority.
- Decision issued on 06/24/2009, File No. 443709, Misdemeanors and Violations Chamber, Supreme Court Journal, Issue Two, 2010, p. 336.
- Decision issued on 02/27/2000, File No. 228139, Misdemeanors and Violations Chamber, Supreme Court Journal, Issue Two, 2000, p. 224. See also Decision issued on 03/27/2000, File No. 240085, Misdemeanors and Violations Chamber, Court Journal. Supreme Court, Special Issue Part 2, 2002, p. 149, and the decision was issued on 02/27/2000, File No. 222960, Misdemeanors and Violations Chamber, Supreme Court Journal, Special Issue Part 2, 2002, p. 152.
- Molhq Jamila, Op. Cit.
- Al-Husseini Ammar Abbas, Op. Cit.
- Ait Mouloud Samia, Guarantees established for the legality of intercepting correspondence, recording votes, and taking photographs in economic crimes, Journal of the Critical Journal of Law and Political Science, Volume 10, Issue 02, 2015, pp. 330-360.
We point out that the signature is the only document that attests to the issuance of the permission or license by the person from whom it was issued in a manner considered legally.
- Molhq Jamila, Op. Cit.
- Al-Qahouji, Ali Abdelkader, Explanation of the Law of Criminal Procedure Principles (A Comparative Study), Volume Two, Halabi Legal Publications, Lebanon, 2002, p. 283.
- Driyad, Malika, Previous Reference, pp. 154-155.
- Al-Kharsha Mohammed Amin, Legitimacy of Audio and Visual Evidence in Criminal Proof (A Comparative Study), PhD Thesis, Ain Shams University, Egypt, published by Dar Al-Thaqafa for Publishing and Distribution, Jordan, 1st edition, 2011, pp. 86-87.
- The necessity is therefore linked to the interest of the procedures in revealing the truth and uncovering the crime, and that ordinary research methods and traditional investigation channels have failed to reveal the truth.
- Driyad Malika, Op. Cit, p. 160. It should be noted that Article 45, paragraphs 3 and 4, CPC, require consideration of professional secrecy during the inspection of places occupied by a person legally bound to maintain professional secrecy, and it is necessary to take all necessary measures in advance to ensure respect for that secrecy during the inspection and seizure of objects and documents.
- Articel 32 of Order No. 21-09 states, "Anyone who publishes investigation reports and / or judicial investigation documents or reveals their content or enables someone without authority to possess them shall be punished with imprisonment from three (3) to five (5) years and a fine of 300,000 DZD to 500,000 DZD." Article 47 of the same order states that "Attempting to commit the offenses stipulated in this order shall be punished with the penalties prescribed for the completed crime." It should be noted that disclosing the secrecy of investigation and interrogation was subject to imprisonment from one (01) to six (06) months and a fine of 500 to 5,000 DZD as stipulated in Algerian Law No. 301. Article 46 CPC stipulates that "Anyone who discloses a document resulting from an inspection or is informed of it by a person without legal authority to access it and without the permission of the accused or his rights holders or the person in possession of the document or the recipient unless the necessities of the investigation require otherwise shall be punished with imprisonment from two (02) months to two (02) years and a fine ranging from 2,000 to 20,000 DZD," Previous Reference.
- Ash-Shahawi Qadri Abdul Fattah, The Guidelines of Police Authority in Egyptian and Comparative Procedural Legislation, Al-Ma'arif Establishment, Alexandria, Egypt, 1st edition, 1999, p. 108.
- The non-obligatory nature of obtaining permission for taking photographs is considered a legislative oversight that must be rectified. Therefore, we propose explicitly stipulating the requirement for obtaining permission or a license for taking photographs under penalty of invalidity, to avoid any legal complications.
- Ali Jamal, Rights of Suspects When Resorting to Special Investigation and Inquiry Procedures Journal of Legal Studies, Volume 2, Issue 1, 2016, pp. 175-186.
- Ait Moulood, Samia, Op. Cit.
- Molhq Jamila, Op. Cit.
- Molhq Jamila, Op. Cit.
- Ait Mouloud, Samia, Op. Cit.
- Ibid.
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