LOUNICI ALI University

Faculty of law and political science

Branch of public law

LEGAL
TERMINOLOGY

Second trimester

Section A,B,C,D

2023 - 2024
 CRIMINAL LAW

Today, all branches of law make varying degrees of use of criminal law. It
punishes offences against State security, crimes against the Constitution, offences
against public peace, morality, life, honor and property. Penal sanctions can be
found in constitutional, administrative, civil, commercial, tax and labor law, and
even in public international law (trials of major war criminals).
Today, criminal law is omnipresent in our societies...

CHAPTER I : Concept and characteristics

1. The concept of criminal law.
2. The foundations of criminal law.
3. Characteristics of criminal law.

CHAPTER II : The offence

1. The legal element of the offence.
2. The material element of the offence.
3. The moral element of the offence.

CHAPTER III : Imputability

1. Objective reasons for non-attribution: supporting facts.
2. Subjective causes of justification.
CHAPTER I : concept and characteristics

All laws existing in a given society are supposed to be just and useful. However,
they are not all guaranteed by the criminal sanction, and not every criminal
offence is punished by every sanction. While the defence of society's fundamental
interests alone justifies the application of punishment, a fair balance must always
be struck between the need for repression and the protection of the citizen.
Reconciling these two opposing requirements is the measure of a civilization.

1. The concept of criminal law :

A. Definition:
Criminal law is defined as the body of legal rules designed to punish behavior
considered contrary to social order and public safety.
Thus, of all the branches of law, it is the only one that has the particularity of
punishing, according to its own procedure, the violation of certain legal rules in
force in society. It should be noted that it does not punish the violation of all the
rules in force, but only the most important ones. The extent of its intervention
varies according to moral concepts, the requirements of the fight against crime
and the role assigned to the State in the city.

B. Areas of criminal law :

In its broadest sense, the law is divided into five main branches:
Criminal law, properly so called, or general criminal law, the object of which is
the study of offences, penalties and all the rules applicable to them.
Criminal procedure, which can be defined as all the rules governing the
prosecution and trial of offenders before the courts.
Special criminal law, which is the specific study of each of the offences provided
for by criminal law, each offence being considered in terms of its constituent
elements, its punishment and the methods of repression.
Business criminal law, which is special criminal law applied to business, with the
obvious difficulty of delimiting the multiple forms and specificities of this type of
delinquency.
International criminal law, which can be defined as the branch of criminal law
that deals with all international criminal issues.

C. The place of criminal law in relation to other legal disciplines :

We need to consider the legal nature of criminal law.
Indeed, criminal law could be considered part of public law, since it is public law
that organizes relations between the State and individuals. It is up to the public
authorities to intervene when an individual disturbs the social order; to ensure
order and security, and to dispense justice, all in the general interest. It is no
longer up to the victim or his or her relatives to do this, even if they will be
entitled to compensation for the damage suffered.
However, criminal law is also akin to private law, which regulates relations
between private individuals. Thus, from a formal point of view, judicial tribunals
are involved, made up of the same magistrates who can act in both criminal and
civil cases.
These same individuals play a role not only in the prosecution of offences, but
also in the trial of the most serious offences (crimes), which involve jurors who
are citizens (private individuals).
From another point of view, private law also comes into play, since victims
wishing to obtain compensation for the civil damage they have suffered as a result
of an offence can turn to the criminal courts rather than the civil courts for quicker
redress, through what is known as a civil action. The criminal court will therefore
be called upon to assess the damage suffered by the victim and award damages,
which is traditionally the role of the civil court.
As we can see, criminal law involves an interpenetration of private and public
law.

2. The foundations of criminal law :

The basis of punishment, an essential feature of criminal law, is twofold: a moral

basis. Behind punishment is often the idea of justice, of atonement for the guilty
party (the function of punishment is retributive). But it also has a social basis.
Punishment has a utilitarian basis: its preventive function is to protect society.
A. A moral basis :
The facts, acts or omissions considered to undermine the organizational rules of a
given society are rooted in religious and moral precepts. It is accepted that those
who kill, steal, rape or abuse the trust of others must be punished. But it is also
accepted, with a difference of degree, that those who do not respect parking
regulations or who dump their garbage anywhere should be punished too.
But while the aim of criminal law is to maintain order, the aim of morality is the
inner perfection of man. More precisely, it is possible to put into perspective the
links between criminal law and three types of morality...);
♦ religious morality, which corresponds to the idea of duty towards God, and
which in the past gave rise to extremely serious incriminations (blasphemy,
heresy, sacrilege).

♦ individual morality inducing duties with oneself, with behaviors that are not
incriminated, such as suicide or lying (in the latter case, the latter can be punished
in case of false testimony or false oath) ;

♦ social morality too, generating duties towards others (duty of charity, duty of
relief, duty of justice, etc...). We can, however, cite the criminally sanctioned duty
to come to the aid of a person in danger.

What criminal law and morality have in common is that they are both normative,
laying down rules: criminal law lays down what one must or must not do, in order
to ensure the maintenance of social peace and public order. Morality, on the other
hand, lays down principles that may be similar, but which in this case aim to
perfect the individual. In this case, the individual is dealing with his or her
conscience, since morality does not enact positively sanctioned constraints. In the
other case, the individual has to deal with public authority, with the courts in the
event of overstepping.
In certain respects, criminal law is narrower than morality, which represses lying
or suicide, but also condemns simple thoughts or bad resolutions (such as
committing an anti-social act, an offence).
But criminal law is also, in other respects, broader than morality, since it will
punish unintentional acts, acts which in themselves express no intention to harm,
such as certain minor contraventions (considered to be real offences when there
was no particular intention or fault, like the offence of hunting, for example).

B. A social foundation
The preventive mission of criminal law is to prevent the perpetrator from
committing further antisocial acts in the future, by eliminating or at least
neutralizing the offender.
The preventive function can take the form of intimidation (intimidation of the
individual to prevent recidivism) and deterrence, to prevent other individuals
from committing offences in their turn.

3. The characteristics of criminal law :

In terms of its legal nature, criminal law has three major characteristics:

A. Criminal law is a determining law :

Criminal law punishes acts contrary to obligations that have their origin precisely
in the law itself. Prescriptions relating to the life of others (respect for their
physical integrity, for their property, for their nation, for the public peace) are
enacted only by criminal law, and these prescriptions are to be found precisely in
the penal code.
In other words, the penal code is a determining law, because it determines its own
subject matter.

B. Penal law is also a sanctioning law:

It provides assistance (in the form of penalties) to other legal disciplines, when
the specific sanctions of these rights are or appear to be insufficient. In this way,
criminal law acts as a subsidiary to other laws when the provisions of the latter are
not respected (labor law, health law, company law, etc.). There are hundreds of
criminal law texts outside the scope of the penal code.
C. Criminal law is an autonomous body of law:
Because it obeys its own rules, in that it is sometimes applied without regard to
the rules of private law, or even in defiance of these rules. For example, an
offender may be held criminally liable even though the victim consented, and
even when the victim took part in the offence (as in the case of procuring). This
situation is inconceivable in civil matters.
This autonomy is justified by the specific mission of criminal law, which is to
defend the interests of society.

CHAPTER II : Offences

The study of offences, i.e. facts punishable and sanctioned by the legislator,
known as incriminations, is a major part of the discipline known as criminal law.
Determining the conditions under which the perpetrator of any offence is
punishable, and laying down the rules applicable to the penalties imposed, are
therefore essential elements of criminal law.
An offence is an action or omission prohibited by law under threat of punishment.
It is also known as an "offence".
For society to take repressive action, three elements must be present: 1° a
prohibition on committing the act in question; 2° the material performance of the
act, in contravention of this prohibition; 3° a fault attributable to the perpetrator of
the unlawful act. These elements (also known as the constitutive elements of the
offence) will be examined in the following three paragraphs, the legal (1),
material (2) and moral (3) elements of the offence.

1. The legal element of the offence :

A. The principle of legality :

An omission is only penalized if the law expressly provides for it. It is not up to
individuals, the community, the police or the courts to decide directly what to do
or not to do in the event of an offence. This is the role of the legislative power, i.e.
Parliament and the executive, in the cases provided for, to lay down penalties for
offences, as provided for in our Constitution.
The Algerian Constitution clearly expresses its conception of the legalistic
principle, stating that "no one may be held guilty except by virtue of a law duly
promulgated prior to the incriminating act" (Art 46 of the Constitution). This
principle, concerning the penal sanction itself, is confirmed by article 142 of the
fundamental law, which states that "penal sanctions obey the principles of legality
and personality".
The Algerian legislator has enshrined this constitutional position by ruling that no
one may be punished by a penalty that is not provided for by law. Article 1 of the
Penal Code states that "there is no offence, penalty or security measure without
law", thus translating (at least in spirit) the Latin adage "Nullum crimen nulla
poena sine lege" (no crime, no penalty, without law).
This legalistic principle, enshrined in our Constitution, is fundamental to
safeguarding individual freedoms and defending society against arbitrariness,
imposing itself on both the executive and the judiciary.

♦The legality of incrimination:

Incrimination is the description of a punishable act in a text. It is because a text of
the penal code (or any other legal or regulatory provision) provides for it and
gives its constitutive elements, that theft, rape, hit-and-run (or other offenses) are
punishable.
Judges are therefore prohibited from punishing acts that are not criminalized by
law or regulation. The same applies to behaviour that is contrary to custom or
usage, or even to the law if the criminal law itself does not provide for it or
describe it and the penalty attached to it. In such cases, the individual cannot be
prosecuted and punished.

♦The legality of penalties:

Just as there is no offence without a text, there can be no application of a penalty
that has not been provided for or determined by law. This is the second element of
the Latin adage "Nulla poena sine lege".
The law and regulations, in their respective areas of competence, determine the
penalties incurred by those who commit an offence.
Here too, the penalty must be precisely defined. The legislator himself must
provide for a specific penalty for each of the incriminations he has created. This is
what the Code of Criminal Procedure does.
This principle of the legality of penalties applies not only to the creator of the
incrimination (the legislator or the regulatory authority), but also to the judge.
The latter can only impose penalties appropriate to the offence before it, and
within the limits set by law.
From an individual point of view, the idea that the application of a legal text is pre
-existing, and known in advance, is a precious guarantee against the arbitrariness
of the executive or judicial powers.
From a more collective point of view, the penalty stipulated in the text provides
unambiguous information on the degree of seriousness that society attaches to the
offence. And we can assume that public order will be better respected as a result
of this prior knowledge.
This principle applies not only to criminal penalties, but also to security
measures.

B. Classification of offences according to element :

The legislator has classified offences according to their seriousness: this is known
as the tripartite or tripartition classification.
This classification exists in the Penal Code. Article 27 clearly states: "Depending
on their degree of seriousness, offences are classified as crimes, délits or
contraventions and punishable by criminal, delictual or contraventional
penalties".
The classification into crimes, délits and contraventions, revealed by the nature
and degree of the penalty incurred, has consequences, both from the point of view
of the sources and bodies competent to define these crimes, délits and
contraventions (legislative power or regulatory power as the case may be), and
from the procedural point of view, since the judicial organization and rules of trial
will differ according to whether we are dealing with a crime, délit or
contravention.

2. The material element of the offence :

A. The performance of the act :
The material element of the offence is that by which the offence passes from the
state of project to that of reality. It is the fact by which the act prohibited by
criminal law is carried out (for example, in the case of homicide, it is the fact of
causing the death of another).
An act is therefore required. The material element can be considered as the actual
execution of the offence, the way in which it takes shape.
This external (visible, tangible) element is necessary, since our criminal law (with
a few exceptions) does not incriminate mere intentions or resolutions to commit
an offence.
Not all offences are carried out in the same way, and their materiality does not
always present the same aspect.

Several types of offence can be distinguished:

- offences that are closely or remotely related to the notion of time: we find the
distinction between instantaneous offences (e.g. murder, homicide, theft) and
successive offences that take place over time (e.g. handling stolen goods,
kidnapping).
- other opposition: occasional offences and habitual offences. The latter are
admittedly relatively few in number, and usually include the illegal practice of
medicine.
- There is also the distinction between simple and complex offences, with
complex offences requiring several separate acts to be committed: this is the case
with fraud.
- offences of action and offences of omission, which consist of simple abstention
(non-assistance of a person in danger), whereas an offence of action is obviously
theft or murder: the act here is quite tangible.
In short, for an offence to exist, there must be a fact or an act, or an abstention,
which can be attributed to the perpetrator. But the commission of the offence is
not always complete or carried through to completion, and it is not necessary for
there to be a result. We therefore need to determine the minimum degree of
completion required to prosecute and punish an offender. This will be the problem
of the attempt.
B. Attempt:
Although a material act is necessary, a harmful result is not always required for
the offence to be punishable: this is known as the theory of attempt.
Here again, criminal law differs from civil law, where the notion of attempt does
not exist, since in most cases a harmful result is required before an action for
liability can be brought.
In criminal law, the material element does not lie in the result of the act. The idea
is to punish antisocial behavior, to punish an individual considered harmful to
society, even though the social order has not been disturbed, since the offence has
not been committed. The attitude here is therefore severe.
Article 30 of the Penal Code provides for an attempt to commit an offence: "Any
criminal attempt which has been manifested by a beginning of execution or by
unequivocal acts directly tending to commit it, if it has not been suspended or if it
has only failed to achieve its effect due to circumstances beyond the control of its
perpetrator, even though the desired aim could not be achieved due to a factual
circumstance unknown to the perpetrator, shall be considered as the crime itself".
In simple terms, an attempt is simply the fact that when an individual begins to
commit an offence, he is interrupted in his action by the occurrence of an external
event which prevents him from completing his undertaking.
From a legal point of view, an attempt therefore presupposes two conditions:
- a beginning of execution. This is punishable even if the result is impossible;
- the absence of voluntary withdrawal (if the circumstances are dependent on the
agent's will, i.e. freely willed by him, there will be no attempt, and therefore no
prosecution).
However, the French Penal Code (art. 31) draws a distinction between attempted
felonies (punishable in all cases), attempted misdemeanours (punishable by
virtue of an express provision of the law) and attempted contraventions (never
punishable).

3. The moral element of the offence :

For an offence to be punishable by law, its perpetrator must be at fault. But the
seriousness of this fault varies from one offence to another. Criminal liability
differs according to whether the offence is intentional or unintentional.

A. Intentional offences :
In reality, more than moral character, it is the state of mind of the author of the
reprehensible act that is important at the time he committed it. It is this element
that must be taken into consideration to decide whether or not the offence has
been committed. It is therefore a fundamental element.
The idea of intention is the linchpin of this moral element, and intention consists
in the will to perform an act, with the awareness that it is forbidden by the penal
law, or to refrain from an act with the awareness that it is ordered by this same
law.
It should be noted that this intention must not be confused with the motives or
motive that led the agent to act in this way. The latter may, however, be taken into
account at the time of judgement (for example, if they are deemed honourable,
they may lead to a certain degree of leniency, or even a reduction in the sentence).

B. Unintentional offences :
Contrary to what one might think, the moral element is not absent in this type of
offence. It is expressed differently in misdemeanours and contraventions, with
less severe consequences in terms of punishment than in the case of intentional
offences.
Only misdemeanors - which the law expressly provides for - can be committed
without intent (homicide, involuntary bodily harm, but also involuntary fire and
involuntary pollution), as well as the vast majority of contraventions (acts
committed without the deliberate intention of achieving a harmful result).
These faults are most often found in road safety (manslaughter, involuntary
injury), labor law, the environment, education and medical liability.

CHAPTER III : Attributability

Under Algerian criminal law, there is no concept of criminal liability without a
moral element. A fault, attributable to the accused, is required for him or her to be
punished. In certain offences, under certain conditions, responsibility may not be
attributable to the perpetrator. The causes of non-liability are related both to the
person of the perpetrator, and to the external circumstances in which he or she
found himself or herself.
A crime, misdemeanour or contravention may have been committed: the law has
not been respected or a prohibition has been breached, and yet the perpetrator will
escape punishment. Despite material findings, his or her responsibility is not
recognized. The crime, misdemeanor or contravention, even when committed,
will not be attributable to its perpetrator, due to certain circumstances.
A number of concepts therefore need to be distinguished here:
- culpability, which is the fact of having committed a fault (it is the moral aspect
of the offence that is highlighted here);
- imputability, i.e. linking the fault to the perpetrator's account (presupposes a free
will, a free will);
- criminal liability, which requires the existence of a fault, but also that this fault
be attributable to the perpetrator;
- criminal irresponsibility concerns cases in which a person is not held
responsible, even though an offence has been committed.
This lack of criminal responsibility is based on two main categories of causes:
- objective grounds for excluding a person from liability due to causes external to
the perpetrator. These are also known as justifying facts.
- Subjective grounds for excluding liability, i.e. those which are the result of a
personal cause on the part of the perpetrator.

1. Objective reasons for non-imputability: justifying facts

The aim is to define the cases in which a reprehensible act is not in itself contrary
to the law, but loses its character as an offence objectively and for all concerned.
With justificatory facts, the criminal act is legitimized, whatever the psychology
of the offender, as long as the conditions of the justificatory fact required by law
are met.
There are three objective causes of non-imputability (justificatory facts): legal
authorization, legitimate self-defence, and necessity.
A. Legal authorization :
The authorization of the law (also called order of the law or command of
legitimate authority) simply means that, in the interest of society, an offence
committed by an individual will not be contrary to the law simply because
legislative or regulatory provisions will make it lawful.
This is what article 39 of the French Penal Code provides when it states that
"there is no offence when the act was ordered or authorized by law".
Thus, a police officer cannot be prosecuted for arbitrary confinement when he
places a suspect in police custody, as long as he obviously complies with the legal
conditions. Similarly, a doctor who discloses certain contagious diseases, or who
reports abuse or ill-treatment of a minor to the relevant authorities, for example,
will not be prosecuted for breach of professional secrecy.

B. Self-defence :
The same article of the Penal Code provides for this second case of criminal
irresponsibility. This provision states that there is no offence "when the act was
ordered by the actual necessity of self-defense or self-defense of others, or of
property belonging to oneself or to others, provided that the defense is
proportionate to the seriousness of the aggression".
In a way, self-defence constitutes express permission from the law to commit an
offence. But this permission is subject to conditions: the response must be
necessary, timely and proportionate.
- the response must be necessary. The act in question must be the only means of
defending oneself against the aggression. This question is left to the discretion of
the trial judge.
- it must be current; in other words, the aggression and the response must take
place at the same time. Too much time must not have elapsed between the two,
and it is up to the judge to assess this delay.
- the response must be proportionate. The act of defense must be measured. There
is self-defence, unless there is a disproportion between the means of defence used
and the seriousness of the response. It is also up to the trial judge to assess the
extent of the response.
It should be noted that the Penal Code does not stop at authorizing self-defense of
one's own person, but also that of another (this may be the case of a close
relative). The law may also authorize the defense of property (belonging to
oneself or to others).

C. State of necessity :
In a state of necessity, the incriminated behavior is legitimized because it was
necessary.
This is the case when a danger cannot be averted, or property or a right cannot be
safeguarded, except by the performance of an act normally incriminated by
criminal law. This act may be performed either in one's own interest (stealing a
loaf of bread to avoid starvation, in order to avoid damage to oneself - this is the
first situation), or in the interest of others (speeding, for example, to get a
seriously injured person to hospital, or damaging the fence to put out a fire).

2. Subjective causes of justification :

A. Insanity :
Article 47 of the French Penal Code states that "a person who was insane at the
time of the offence..." is not punishable, making insanity a cause of criminal
irresponsibility. It is a subjective cause, because it is linked to the legal subject
himself and not to an external cause.
However, the Penal Code sets a condition for this irresponsibility: the disorder
must have existed at the time of the acts. On the other hand, if the disorder is
temporary and it is established that the perpetrator was sane at the time of the
offence, he will be held liable.

B. Duress :
Duress is a situation in which the offender's discernment has not disappeared, but
his or her will has been suppressed.
The idea here is that the offender did not have the freedom to act otherwise.
Article 48 of the Penal Code, which states that "a person who has been compelled
to commit an offence by a force which he has been unable to resist" is not
punishable, exonerating the perpetrator from the penal consequences of his
actions, since he did not intend to act in this way, but was compelled to do so by
the power of the elements.