Principles of Administrative Investigation A Practical Legal Study Simplified by Dr. Ammar Abbas Al-Husseini

Basics of Administrative Investigation A Practical Simplified Legal Study Author: Ammar Abbas Al-Husseini Classification: Administrative Publication Year: 2016 ISBN: 9786144016886 Contents of the Book Introduction Chapter One: Introduction to Administrative Investigation Section One: Concept of Administrative Investigation Requirement One: Definition of Administrative Investigation Subsection One: Linguistic meaning of Investigation Subsection Two: Administrative Investigation as a legal term Requirement Two: Addressing the issue of the term Characteristics of Administrative Investigation Importance of Administrative Investigation Subsection One: Importance to society Subsection Two: Importance to employees Subsection Three: Its significance for administration Requirement Three: Independence of disciplinary responsibility from criminal responsibility Section Two: Subjects of Administrative Investigation Requirement One: Public employee Requirement Two: Some categories of contractors "temporary employees" Requirement Three: Employee under trial Requirement Four: Exceptions from compliance with the discipline law First: Members of the armed forces Second: Members of internal security forces Third: Members of the National Intelligence Agency Fourth: Judges Fifth: Members of the Public Prosecution Section Three: Administrative Investigation and Criminal Investigation Requirement One: Aspects of similarity First: In terms of purpose Second: In terms of the principle of legality of sanctions Third: In terms of the principle of personal sanctions Fourth: In terms of the nature of each Fifth: In terms of documentation Sixth: In terms of the prohibition of ignorance of the law as a defense Seventh: In terms of evidence collection procedures Eighth: In terms of the philosophy of punishment Requirement Two: Aspects of difference First: In terms of cause Second: In terms of the harmed interest Third: In terms of those with whom the investigation is conducted Fourth: In terms of the competent investigating authority Fifth: In terms of the permanence of the investigating authority Sixth: In terms of the principle of legality Seventh: In terms of precautionary procedures related to investigation Eighth: In terms of the separation of powers between accusation and investigation Ninth: In terms of the source of punitive harm Tenth: In terms of interpreting doubt Eleventh: In terms of the nature of decisions issued from investigation Section Four: Extent of the Administrative Investigation’s Compliance with Final Criminal Judgments Requirement One: Cases where the administrative investigation is not bound by the final criminal judgment Subsection One: Criminal judgment of conviction covered by general pardon Subsection Two: Judgment issued with a suspended sentence Subsection Three: Judgment of acquittal due to absence of criminal intent Subsection Four: Judgment of acquittal due to incomplete elements of the crime Subsection Five: Judgment of acquittal due to nullification of procedures Subsection Six: Judgment of acquittal or release due to doubt or insufficient evidence Subsection Seven: Judgment of acquittal due to widespread suspicion Requirement Two: Cases where the administrative investigation is bound by the final criminal judgment Subsection One: Concurrence of criminal and disciplinary descriptions in the committed act Subsection Two: Final criminal judgment of conviction Subsection Three: Final judgment of acquittal due to lack of physical evidence of the criminal facts Subsection Four: When a general pardon decision includes disciplinary effects Chapter Two: Referral to Administrative Investigation Section One: Nature of referral to administrative investigation Requirement One: Definition and importance of referral Requirement Two: Legal nature of referral to administrative investigation Requirement Three: Prerequisites of referral Requirement Four: Means of detecting administrative violations Subsection One: Complaint before the administrative authority Subsection Two: Informing the authority of the violation Subsection Three: Addressing judicial authorities for the administration Subsection Four: Administrative supervisor’s oversight Subsection Five: Oversight by oversight bodies Subsection Six: Media publications Section Two: Justifications for referral to investigation Requirement One: Disciplinary violation attributed to the employee Requirement Two: Extent of possible subjecting disciplinary violations to the principle of legality (whether disciplinary violations can be limited) Requirement Three: Job duties Subsection One: Positive duties Subsection Two: Negative duties Subsection Three: Duties outlined in codes of conduct Requirement Four: Presumption of knowledge of job duties Requirement Five: Elements of disciplinary violation Subsection One: Material element Subsection Two: Moral element Section Three: The authority responsible for referral and form of referral Requirement One: The authority responsible for referral Requirement Two: Form of referral to administrative investigation Section Four: Impact of employee promotion on referral to investigation Chapter Three: Authority of Administrative Investigation Section One: Investigation Committee Requirement One: Meaning of the investigation committee Subsection One: Definition of the investigation committee Subsection Two: Autonomy of the disciplinary investigation committee First: Differentiating the investigation committee from the special “inclusion” committee Second: Differentiating the investigation committee from other committees Subsection Three: Legal nature of the investigation committee Subsection Four: Jurisdiction of the investigation committee Requirement Two: Composition of the investigation committee and its permanence Subsection One: Permanent investigation committee First: Meaning of permanent committees Second: Criteria for the permanence of committees Subsection Two: Temporary investigation committee Subsection Three: Advantages and disadvantages of committee permanence First: Advantages of permanence Second: Disadvantages of permanence Requirement Three: Organic composition of investigation committees Subsection One: Number of members Subsection Two: Legal member requirement Subsection Three: Conditions for members of the investigation committee First: Job experience Second: Neutrality Third: Member’s rank not less than the rank of the employee referred to investigation Subsection Four: Replacing a committee member Requirement Four: Imposing disciplinary punishment without an investigative committee Section Two: Authority in case of employee secondment, transfer, or assignment Requirement One: Employee secondment or assignment First: Single case under disciplinary system Second: When disciplinary system differs Requirement Two: In case of employee transfer Section Three: Characteristics of the investigator and influencing psychological factors Requirement One: Qualities required in the investigator First: Belief in their mission Second: Seriousness and activity in work Third: Sharpness and accuracy of observation Fourth: Strong memory Fifth: Precision in work Sixth: Confidentiality of investigation secrets Seventh: Courage Eighth: Patience Ninth: Calmness Requirement Two: Psychological factors affecting the investigator First: Influence of public opinion Second: Bitter experiences Third: Effect of suggestion Fourth: Feeling of inadequacy Fifth: Premature formation of opinion Sixth: Tendency to favor one side Seventh: Tension Eighth: Arrogance Ninth: Narrow-mindedness Chapter Four: Procedures of Administrative Investigation Section One: Holding the investigation session Requirement One: Preliminary meeting of the investigation committee Requirement Two: Necessity of all members’ presence Requirement Three: Necessity of employee’s attendance at the investigation session First: First opinion: conducting investigation in absentia despite employee notification Second: Second opinion: conducting investigation in absentia when investigation interest requires Third: Third opinion: conducting investigation with employee’s refusal to receive notification Fourth: Fourth opinion: presence of a proxy for the absent employee Requirement Four: Confidentiality of investigation sessions Requirement Five: Procedures of administrative investigation Requirement Six: Necessity of adhering to accusations against the employee Requirement Seven: Speed of investigation and completion Section Two: Disciplinary sanctions and main principles governing their imposition Requirement One: Disciplinary sanctions First: Warning Second: Reprimand Third: Salary deduction Fourth: Reproof Fifth: Salary reduction Sixth: Grade demotion Seventh: Dismissal Eighth: Dismissal from service Requirement Two: Main principles governing sanctions Subsection One: Legality of sanctions Subsection Two: Personal nature of sanctions Subsection Three: Unity of sanctions Subsection Four: Suitability of sanctions to the committed violation First: Objective standards Second: Personal standards Chapter Five: Recommendations of the Investigation Committee and their ratification Requirement One: Recommendation to impose disciplinary punishment Subsection One: Concept and forms of recommendation First: Recommendation not to hold the employee accountable and closing the investigation Second: Recommendation to impose one of the sanctions Third: Recommendation to refer the employee to the competent court Subsection Two: Requiring consensus or majority of committee members in recommendations Requirement Two: Ratification of the investigation committee’s recommendations First: Ratification by the President of the Republic and Prime Minister Second: Ratification by the minister or head of a non-ministerial authority Third: Ratification by the head of the department Fourth: Ratification by the Council of Ministers Section Four: Administrative investigation report and notifying the employee of the decision Requirement One: Administrative investigation report First: Preamble Second: Details of investigation and procedures Third: Attachments to the investigation report Fourth: Recommendations of the investigation committee Fifth: Justification of the recommendation Sixth: Page numbering of the report Seventh: Signatures of investigation committee members Requirement Two: Notifying the employee of the investigation decision Requirement Three: Saving the disciplinary decision in the employee’s personnel file Section Five: Withdrawal of hand (suspension) Requirement One: Concept of withdrawal of hand Subsection One: Definition of withdrawal of hand Subsection Two: Legal nature of withdrawal of hand Subsection Three: Purpose of withdrawal of hand Requirement Two: Forms of withdrawal of hand First: Mandatory withdrawal of hand Second: Permissible withdrawal of hand Requirement Three: Conditions for withdrawal of hand First: Issuance of withdrawal by a competent administrative authority First case: Mandatory withdrawal Second case: Permissible withdrawal Second: Existence of legal reason for withdrawal Requirement Four: Duration of withdrawal of hand Requirement Five: Effects of withdrawal of hand Subsection One: Removing the employee from their duties Subsection Two: Suspending half of the salary First: In case of dismissal or dismissal from service with withdrawal of hand Second: In case of punishment with salary reduction or grade demotion Third: In case of acquittal or release of the employee with withdrawal of hand Fourth: When the employee is punished with warning, reprimand, salary cut, or warning with withdrawal of hand Fifth: In case of employee’s death with withdrawal of hand Subsection Three: Suspension of financial allocations Subsection Four: Not promoting the employee during the withdrawal period Requirement Six: Legality of challenging the withdrawal of hand decision Chapter Five: Evidence Methods in Administrative Investigation Introductory Section: Specificity of evidence in disciplinary field and types of disciplinary evidence Requirement One: Specificity of evidence in disciplinary field Requirement Two: Types of disciplinary evidence Subsection One: Classification of evidence by nature (material and non-material evidence) First: Material evidence Second: Moral evidence Subsection Two: Classification of evidence by relation to the fact to be proved First: Direct evidence Second: Indirect evidence "circumstantial evidence" Subsection Three: Classification of evidence by function First: Evidence of accusation Second: Evidence of proof and judgment Third: Evidence of denial First: Interrogation Requirement One: Definition and importance of interrogation Requirement Two: Basic rules of interrogation Requirement Three: Guarantees of interrogation Requirement Four: Confession Second: Testimony Requirement One: Definition of testimony and its importance First: Automatic method Second: Interrogative method Requirement Two: Types of witnesses First: Witnesses of denial Second: Witnesses of proof Requirement Three: Rules for hearing witnesses Requirement Four: Lying in testimony First: Arbitration of custom and habit Second: Arbitration of reason Third: Testing witness senses Fourth: Examining the witness’s morals Fifth: Examining the witness’s mental and psychological powers Sixth: Identifying contradictions in testimonies Seventh: Using legitimate tricks Eighth: Unacceptable consistency in testimonies Ninth: Repetition of testimony Tenth: Encouraging the witness to tell the truth Eleventh: Questioning about details and specifics Twelfth: Comparing testimony with physical evidence Requirement Five: The evidentiary value of testimony in disciplinary proof Third: Documents Requirement One: Definition of written documents and their development Subsection One: Definition of written documents Subsection Two: Development of reliance on written documents Requirement Two: Types of written documents Subsection One: Official documents Subsection Two: Ordinary "non-official" documents Requirement Three: Evidentiary value of written documents Fourth: Expertise Requirement One: Meaning of expertise and its importance Requirement Two: Definition of expert First: In terms of source of knowledge of the expert Second: In terms of the experts’ workplaces Requirement Three: Main rules of expertise Requirement Four: Evidentiary value of the expert’s report Fifth: Inspection of the scene (examination) Requirement One: Definition of inspection Requirement Two: Importance of inspection in administrative investigation Requirement Three: Basic and technical rules of inspection Sixth: Evidence Requirement One: Meaning of evidence Requirement Two: Types of evidence Subsection One: Legal evidence Subsection Two: Judicial "investigative" evidence Requirement Three: Evidentiary value of evidence in disciplinary proof Seventh: Search Requirement One: Definition of search Requirement Two: Importance of search in administrative investigation Requirement Three: Legal rules of search Requirement Four: Technical rules of search First: Speed in reaching the place to be searched Second: Taking precautionary measures Third: Maintaining complete confidentiality during search Fourth: Observing manners with those being searched Fifth: Diligence in observation Chapter Six: Guarantees of Administrative Investigation Section One: Guarantees prior to conducting the investigation Requirement One: Notifying the employee of the investigation and informing him of the charge Subsection One: Concept of notifying the employee Subsection Two: Form of notification in the presence of investigation Subsection Three: The period granted to the employee to attend the investigation Requirement Two: Reviewing the files of the charge and employment Subsection One: Reviewing the disciplinary charge file Subsection Two: Reviewing the personal file (service file) Section Two: Contemporary guarantees for conducting administrative investigation Requirement One: Right to defense during investigation Subsection One: Confronting the accused employee with the disciplinary charge Subsection Two: Employee’s right to consult a lawyer Subsection Three: Prohibition of swearing the accused in Subsection Four: Presumption of innocence Subsection Five: Using witnesses of denial and cross-examining witnesses of proof Subsection Six: Right of the employee to remain silent Requirement Two: Writing the investigation report Subsection One: Concept and importance of writing the investigation Subsection Two: Exception to the rule of writing the investigation Subsection Three: Loss of investigation papers Requirement Three: Justification of the decision imposing disciplinary punishment Subsection One: Concept of justification Subsection Two: Importance of justification First: Importance for the employee Second: Importance for judicial oversight Third: Importance for administration Subsection Three: Rules of justification First: Presenting the facts Second: Clarity in justification Third: Validity of the justification Fourth: Mentioning the justification within the disciplinary decision Requirement Four: Impartiality of the investigating authority Subsection One: Formal appearance of impartiality Subsection Two: Substantive appearance of impartiality Section Three: Guarantees following the investigation (appealing the disciplinary decision) Requirement One: Complaint against the disciplinary decision Subsection One: Concept and importance of complaint Subsection Two: Forms of complaint First: Complaint regarding obligation Second: Complaint before the authority to which it is submitted Subsection Three: Conditions of complaint Subsection Four: Period allowed for complaint Subsection Five: Form of complaint Subsection Six: Effects of complaint Requirement Two: Judicial appeal against the disciplinary decision First: Origin of the Disciplinary Council Second: Reasons for appealing the disciplinary decision before the council Third: Period allowed for appeal before the council Fourth: Effects of appeal before the council First: Ratification of the decision Second: Reduction of the sanction Third: Cancellation of the sanction Fifth: Possibility of requesting compensation from the employee Sixth: Appeal of the Disciplinary Council’s decision before the General Authority of the State Shura Council First: Ratification of the council’s decision Second: Reduction of the sanction Third: Reversal and return to the Disciplinary Council