THE SPECIFICITY OF ECONOMIC CRIMINAL LAW IN RELATION TO THE GENERAL ELEMENTS OF CRIME

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FAIZA DJADI

Abstract

The economic criminal law is characterized by many principles that distinguish it from the general rules of the criminal law, which show both specificity and independence. It is noteworthy that this law contains procedural rules related to any economic crime recognised by the legislator within the framework known as the legal protection of economic policy. This research aims to diagnose the specificity of economic criminal law and its distinction from traditional criminal law through the general elements of crime.

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References

- Mohamed Khamikhem, The Special Nature of Economic Crime in Algerian Legislation, Master’s Thesis in Criminal Law and Sciences, Faculty of Law, Ben Aknoun, University of Algiers, 2010-2011, p. 1.

- Ibn Khalifa Samira, The Criminal Judge and Economic Crime, Doctoral thesis in Legal Sciences, specialising in Public Law, Faculty of Law and Political Science, Djilali Liabes University, Sidi Bel Abbes, academic year 2015/2016, p. 29.

- Wahrani Iman, Legal Mechanisms for Protecting the Public Economic Interest*, Doctoral Thesis in Law, Faculty of Law and Political Science, Abou Bakr Belkaid University, Tlemcen, Academic Year 2016/2017, p. 4.

- However, this definition was linked to that adopted by the French legislator in 1945 with regard to the law on the regulation of competition and prices, which was later abolished in 1986. See: Ihab Al-Roussan,

Previous Reference, p. 75.

- Ghassan Rabah, Economic Criminal Law: Economic Crimes and Financial Justice in Arab Legislations, Bahsoun Cultural Publications, Beirut, 1990, p. 38.

- Habash Imran, previous reference, p. 17.

- Ghassan Rabah, cited above, p. 47.

- Sheikh Najia, The Specificities of Currency Crimes in Algerian Law, Doctoral Thesis in Sciences, specialising in Law, Faculty of Law and Political Science, Mouloud Mammeri University, Tizi Ouzou, defence date: 8 July 2012, p. 138.

- Bouchi Youssef, The Development of Economic Criminalisation in Algerian Legislation, Journal of Research and Political Sciences, Faculty of Law and Political Sciences, Ibn Khaldun University, Tiaret, Volume 03, Issue 02, Publication Date: 04/06/2018, p. 16.

- Wahrani Iman, previous reference.footnote p. 4.

- Decree No. 66-180 of 2 Rabi’ al-Awwal 1386 (21 June 1966), establishing special judicial councils for the suppression of economic crimes, Official Gazette No. 54, year 1966.

- Decree No. 75-46 of 17 June 1975, as amended and supplemented by the Code of Criminal Procedure, establishing the economic sections of the criminal courts, applicable from 1 December 1975, and abolishing the special economic councils (Official Journal No. 53, 1975).

- Law No. 04-15 of 27 Ramadan 1425 (10 November 2004) amending and supplementing Decree No. 66-156 on the Penal Code (Official Journal No. 71, year 2004).

- It stipulates that: “When violations related to the monetary system are committed by the managers or directors of a legal entity, or by one of its employees acting on behalf of or for the benefit of that entity, the entity itself shall be prosecuted and subject to the fines specified in this decree, in addition to any ongoing prosecution of those individuals”.

- For more details, see: Rachid Ben Friha, Previous Reference, pp. 269-270.

- Decree No. 75-37 of 29 April 1975 on prices and the repression of offences relating to price regulation, Official Journal No. 38, 1975 (repealed).

- Rachid Ben Friha, The specificity of criminalisation and punishment in economic criminal law: A Case Study of Commercial Crimes, Doctoral Thesis in Sciences, specialising in Private Law, Faculty of Law and Political Science, Abou Bakr Belkaid University, Tlemcen, Academic Year 2016/2017, p. 1.

- Ibn Khalifa Samira, Previous Reference, p. 30

- Wahrani Iman, previous reference, p. 24.

- Wahrani Iman, Previous Reference, p. 4.

- Ihab Al-Roussan, Characteristics of Economic Crime: A Study of the Concept and Elements, Journal of Political and Legal Notebooks, Issue 7, June 2012, p. 76.

- Example of smuggling offences

Smuggling offences can be divided into misdemeanours and felonies on the basis of their penal description, as can be seen by examining the provisions of articles 10 to 29 of Law No. 05-06 on the fight against smuggling. The Algerian legislator has adopted the criterion of the seriousness of smuggling offences in order to distinguish between misdemeanours and felonies, as follows

Regarding misdemeanours:

Misdemeanours can be divided into three degrees as follows:

1 Misdemeanours of the first degree: These relate to simple smuggling as stated in the first paragraph of Article 10 of the Anti-Smuggling Law. Penalties for smuggling hydrocarbons, fuels, grains or soil, or any of the goods defined in Article 2 of this Law, include imprisonment for one to five years, confiscation of the smuggled goods, a fine equal to five times the value of the confiscated goods, and at least one additional penalty from among those specified in Article 19 of the Anti-Smuggling Law.

2 Misdemeanours of the second degree: These offences concern the following cases of smuggling:

- Smuggling committed by three or more persons (Article 10(2)).

- Discovery of goods in hidden places or cavities specially prepared for the purpose of smuggling (Article 10, paragraph 3).

- Possession within the customs zone of a warehouse intended for smuggling (Article 11).

- Possession within the customs zone of a means of transport specially prepared for smuggling (Article 11).

The penalties for these offences include imprisonment for a term ranging from two to ten years, confiscation of the smuggled goods and the means of transport, if any, a fine equal to ten times the value of the confiscated goods or a fine equal to ten times the total value of the confiscated goods and the means of transport, and at least one additional penalty from among those specified in Article 19 of the Law on Combating Smuggling.

3 Misdemeanours of the third degree: These include the following cases of smuggling:

- Smuggling with a means of transport (Article 12).

- Smuggling while carrying a firearm (Article 13).

The penalties for these offences are imprisonment for a term ranging from ten to twenty years, confiscation of the smuggled goods and the means of transport, if any, and a fine equal to ten times the value of the confiscated goods in the second case, or a fine equal to ten times the total value of the confiscated goods and the means of transport in the first case, plus at least one additional penalty from among those specified in Article 19 of the Anti-Smuggling Law.

Felonies: The felony classification has been applied to cases of weapons smuggling and smuggling that poses a serious threat to national security, the national economy or public health, for which life imprisonment is imposed, as specified in Articles 14 and 15 of the Anti-Smuggling Law.

See: Decree No. 05-06 of 23 August 2005 on the fight against smuggling (Official Gazette No. 59, 2005), as amended and supplemented.

- Rachid Ben Friha, previous reference, p. 64.

- Habash Imran, Criminal Liability of Legal Entities for Currency Violations, Doctoral Thesis for the Third Cycle in Law, specialising in Economic Criminal Law, Faculty of Law and Political Science, Department of Law, Mohammed Boudiaf University, M’sila, defence date: 27 May 2018, p. 43.

- Law No. 05-01 of 27 Dhu al-Hijjah 1425 (6 February 2005) on the prevention of money laundering and the financing of terrorism and the fight against them (Official Gazette No. 11, 2005).

- Law No. 05-01, as amended and supplemented by

- Decree No. 12-02 of 20 Rabi’ al-Awwal 1433 (13 February 2012), Official Gazette No. 08, year 2012.

- Law No. 15-06 of 25 Rabi’ al-Thani 1436 (15 February 2015), Official Gazette No. 08, Year 2015.

- Article 532 of the Indirect Tax Law (punishing anyone who uses fraudulent means to evade or attempt to evade...), Article 34 of the Stamp Law (anyone who reduces or attempts to reduce the tax base, in whole or in part...), Article 303/1 of the Direct Taxes and Similar Fees Law (...concealment or attempt to conceal by any person...).

- Article 30 of the Algerian Penal Code provides: “All attempts to commit a crime, beginning with the initiation of its execution or with clear acts leading directly to its commission, shall be considered as the crime itself if they are not stopped or do not cease to have their effects except as a result of circumstances independent of the will of the perpetrator, even if the intended objective cannot be achieved due to a material circumstance unknown to the perpetrator”. Article 31 of the same Act states: “The attempt to commit an offence shall be punishable only on the basis of a clear provision of the law...”.

- Majid Khadr Ahmad Al-Sabawi, The Theory of Causality in Criminal Law: An Analytical and Comparative Study with Egyptian Law and Other Arab and Foreign Laws from a Criminal Philosophical Perspective.

National Centre for Legal Publications, Cairo, first edition, 2014, pp. 81-83.

- Rachid Ben Friha, Previous Reference, pp. 236-237.

- Ibn Khalifa Samira, previous reference, p. 80.