The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study

مجلة الدراسات القانونية المقارنة ISSN:2478-0022 المجلد 23 / العـــدد 12 ( 2026 ) ، ص.ص . 824 - 883 . EISSN:2600-6154 [email protected] . : Email . khadija YAHIA BEY The author’s name: 418 The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study خصوصية المتابعة اجلزائية يف جرمية اختطاف القاصرة - دراسة مقارنة - خدجية حيي ابي Khadija YAHIA BEY أستاذ حماضر قسم أ، ختصص قانون خاص، كلية احل االعلو السياسية، جامعة ا قو ران 3 دمحم بن أمحد Lecturer, Category (A) – private law Faculty of Law and Political Sciences, University of Oran 2 Mohamed Ben Ahmed Email:[email protected] تاريخ إرسال المقال : 11 / 03 / 2021 تاريخ القبو ل: 12 / 00 / 2021 تاريخ النشر : 03 / 01 / 2021 Abstract: The abduction of persons, particularly minors, is a serious offense that threatens public safety. Accordingly, the Algerian legislator established specific provisions in the Penal Code to criminalize all forms of abduction, whether committed through deception, violence, or other means. When such means are used, the act constitutes a felony punishable by severe penalties. In contrast, abduction without these means is classified as a misdemeanor punishable by imprisonment. When the abduction of a minor is followed by marriage to the victim, some comparative laws restrict moved to a complaint by a person with an interest in annulling the marriage. Keywords: Minor; Marriage; Abduction; Prosecution; Exemptio; Complaint; Crime; Public Prosecution. ملخص: يعد فعل االختطاف السيما ذلك الذي يقع على القصر ظاهرة خطرية هتدد اجملتمع. علذا، وضع المشر اجلزائري نظاما قانونيا خاصا يف قانون العقوابت يقضي بتجرمي والعقاب على مجيع صور االختطاف، سواء متت بتحايل أو عنف أو استدراج أو بدون ذلك. واعترب الصورة األوىل جناية ترتاوح عقوبتها بني السجن المؤبد أو المؤقت واإلعدام أما صورته الثانية فهي جنحة معاقب عليها بعقوبة احلبس. غري أن خطف القاصرة مث الزواج هبا يف معظم القوانني المقارنة مينع النيابة العامة من حتريك الدعوى العمومية ومباشرهتا، إال بناءا على شكوى من طرف الشخص الذي له مصلحة يف إبطال الزواج، كما أن صفح الضحية أصبح يضع حدا ملتابعة اجلاين جزائي ا يف األحكام الراهنة لقانون العقوابت اجلزائري.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 419 كلمات مفتاحية: قاصر.، الزواج.، االختطاف.، متابعة. ، إعفاء.، شكوى. ، جرمية.، النيابة العامة . Introduction The crime of abducting minors is considered among the most serious offenses, as it has become a phenomenon that threatens the fabric of society and affects its security, and it is currently observed that it has spread rapidly. While previously the abduction of minors was considered an exceptional occurrence, rarely happening, the situation has changed, and it now occurs almost continuously and daily, prompting the sounding of the alarm1. Moreover, the matter does not stop at abduction alone, but extends to the commission of other crimes that may include murder, removal of the victim‘s organs for trafficking, sexual assault, or abduction for the purpose of obtaining money through extortion of the victim‘s family and demanding ransom, among other crimes associated with the crime of abducting minors2. Thus, the Algerian legislator criminalized the act of abduction generally, and even increased the penalty for the perpetrator when committed against a minor under the age of eighteen (18), granting judicial authorities all powers to investigate, examine, and impose the appropriate criminal penalty on the abductor3. However, the abductor‘s marriage to his abducted minor victim without violence or deception restricts the Public Prosecution from initiating public action and prevents the adjudicating authorities from imposing criminal punishment thereon4. The importance of studying this subject appears in that the victim in the crime of abducting a minor is female, considered physically weak and sensitive, and preventing criminal prosecution of the abductor by reason of his marriage to her may harm her more than it provides protection, although the legal provisions issued in this regard were previously aligned with the nature of Algerian society. However, societal development renders such provisions protective of the abductor and erases the shame affecting the victim‘s family rather than the victim herself, which led some comparative laws to abolish such legal provisions and subject the abductor to criminal liability in all cases, whether he married the abducted minor or not. The analytical method was employed through the examination of the provisions of the Penal Code related to the crime of abducting minors, in addition to the descriptive method by defining the concept of this crime and elucidating its forms and elements, as well as the comparative method by comparing the Algerian Penal Code with certain Arab laws, notably the Jordanian law, the Egyptian law, and also the French law. This subject raises a central problematic, which is: What constitutes the particularity of the crime of abducting a minor, and to what extent is it possible to prosecute the abductor after marrying her?

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 420 To address this problematic, the discussion initially focused on defining the nature of the crime of abducting a minor in (Section One), then on the elements of the crime of abducting a minor and clarifying the methods of carrying out the abduction in (Section Two), and finally, the issue of the abductor’s marriage to his abducted minor and the extent of the impossibility of prosecuting him criminally was addressed in (Section Three). Section One: Defining the Nature of the Crime of Abducting a Minor The crime of abducting a minor is considered one of the most serious crimes as it affects society as a whole, and the abductor may perpetrate this crime through the use of violence, deceit, or without them. Therefore, the research will initially examine the concept of abduction or kidnapping and clarify who falls within the category of minors in (1), then subsequently determine the motives and causes of abducting minors in (2). 1- The Concept of the Crime of Abducting a Minor Formulating a concept for the crime of abducting a minor necessitates defining abduction linguistically and technically in (A), and clarifying who falls within the category of minors in (B). A- Definition of Abduction or Kidnapping The Algerian legislator in the Penal Code did not specifically define the crime of abduction or kidnapping but merely criminalized the act. Accordingly, from a linguistic standpoint, it is: ―seizure, and it has been said taking rapidly and forcibly, and ‗he abducted him‘ and ‗kidnapped him‘ in the same sense, and ‗kidnapped‘ as if said ‗he removed them‘; and a man is called a kidnapper, i.e., abductor, and the term ‗baz mukhtaf‘ means: he captures the prey‖5. From a technical standpoint, some have defined this crime as: ―the extraction of a tangible or intangible object from its place and its removal by obtaining control over it,‖6 and abduction has also been considered: ―a sudden and rapid action, or the taking of that which can be a subject, relying upon an apparent or hidden material or moral force‖7. B- Who is Considered a Minor The term ―minor‖ is a participial noun derived from the verb qasara, and: ―al- qasr and al-qasru in everything is the opposite of height, and I shortened from the prayer. I shortened [something] forcibly, and al-qasir is the opposite of tall, and the plural is qusara‘, and the female qusar is short, and the plural is qusar, and al-aqasar is the plural of aqsar, like: smaller and lesser, and al-aqsar from the matter is shortened forcibly‖8. This is regarding the minor from a linguistic perspective. As for the terminological sense, some have defined the minor as: ―a person of small age who has attained the age determined by law for discernment and has not exceeded the age determined by law for reaching the age of majority‖9. However, giving a definition of the minor in this manner is considered subject to criticism, given that it sets the duration of minority between the age of discernment and the

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 421 attainment of the age of majority, whereas all persons who possess capacity of obligation without performance fall within the category of minors. Accordingly, the minor may be a discernible or non-discernible boy, and within their scope are included the insane, the imbecile, and the foolish, which is confirmed by civil law in many provisions10. Consequently, the minor is anyone who has not attained the full age of nineteen (19) years, such that any person who has reached this age is considered legally of full capacity according to this law11. However, the age of majority under the Penal Code and the Code of Criminal Procedure is fixed at eighteen (18) full years; therefore, anyone under that age is considered a juvenile12. Referring to the Child Protection Law, the legislator has defined the child as: ―any person who has not attained the full age of eighteen (18) years,‖ and the same meaning applies to the juvenile13. It is observed, however, that there is a lack of consistency in the legal texts regarding the determination of the age of majority, as at times it is fixed at eighteen (18) years and at other times at nineteen (19) years14. Accordingly, the legislator is urged to intervene to amend these legal texts and reconcile them with each other, especially with respect to the determination of the age of civil and criminal discernment. Accordingly, it may be stated that the minor is anyone who has not attained the age of majority as legally determined. Consequently, the crime of abducting a minor female consists of forcibly removing the non-major victim from her place of presence and transporting her to another place pursuant to an order or condition, or it is any act intended to lure the abducted female by all methods of deceit and coercion, or by all forms of violence, threat, or trickery, aimed at depriving the abducted female of her personal freedom and liberty15. 2- Characteristics and Distinctive Features of the Crime of Abducting a Minor Female The crime of abducting a minor female possesses a number of characteristics, among which are the following: The Crime of Abducting a Minor is a Composite Crime Criminal law scholars16 agree that the crime of abducting a minor is not a simple crime, which could be completed by a single independent act; rather, it requires multiple acts, each of which constitutes a crime in itself. Accordingly, the crime of abducting a minor is considered a composite crime17, consisting of taking and removing the minor from her location to another place. The act of taking the minor is an independent act, and removing her constitutes a second independent act; yet, when combined, they fulfill the crime of abduction18. The Crime of Abducting a Minor is a Serious Crime

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 422 The Algerian legislator has prescribed varying penalties for the perpetrator of the crime of abducting persons, depending on the circumstances accompanying the crime, ranging from temporary imprisonment19 to life imprisonment20. Furthermore, the law provides for the death penalty in cases where the abduction results in the death of the abducted person21. Legal scholars have therefore concluded that this crime constitutes a serious offense22, and its severity is particularly evident in cases of minor abduction, for which the penalty is either life imprisonment or death23. The Crime of Abducting a Minor is a Crime of Harm The crime of abduction is classified as a crime of harm because the crime does not occur without causing injury to the abducted minor. This crime produces tangible consequences resulting from the criminal act of the perpetrator, depriving the victim of her freedom for a certain period, whether short or extended. The purpose of the abduction is often to facilitate or execute another crime, particularly rape, murder, extortion, or physical assault24. Section Two: Elements of the Crime of Abducting a Minor Female and Methods of Execution To impose a penalty on the perpetrator of the crime of abducting a minor female, the general elements of the crime must be present: the material element (actus reus) and the mental element (mens rea), in addition to a special element specific to the crime of abducting a minor female, which is that the victim is a girl under eighteen years of age. Abduction may take one of two forms: either with violence, threat, or deceit, or without these factors. This distinction affects the severity or mitigation of the penalty, or even exemption, as well as the legal classification of the crime. Accordingly, we will address the elements of the crime of abducting a minor female in (1) and the methods of executing the abduction, and their importance for determining the legal classification and punishment, in (2). 1- Elements of the Crime of Abducting a Minor Female As previously discussed, the crime of abducting a minor female consists of material and mental elements, and given that the victim is a minor female, this constitutes a special element. Accordingly, we begin with the assumed element: the victim’s status as a minor female(a), then the material element (b), and finally a brief discussion of the mental element (c). a) Assumed Element: Victim’s Status as a Minor Female During childhood, the minor is in need of care due to a state of weakness, which may be mental, in terms of lacking judgment of consequences, or physical. Violating a child‘s freedom constitutes a serious assault on their liberty and removes them from the care of their legal guardians, regardless of the perpetrator‘s motive. The motive could be to extort the minor‘s guardian for personal gain, revenge against the family due to animosity, or sexual assault, particularly as rape of a minor female is common. Accordingly, the crime of abducting a minor female is among the most serious, as it affects the moral and social fabric of society25.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 423 The legislator, in Article 293 of the Penal Code, provides: "Anyone who abducts or attempts to abduct a minor under eighteen (18) years by violence, threat, inducement, or other means shall be punished by life imprisonment. The penalties under paragraph one of Article 263 apply if the abducted minor is subjected to torture or sexual violence, or if the abduction is motivated by ransom demands or results in the death of the victim. The perpetrator does not benefit from mitigation provided by this Code, subject to Article 294." Article 326 of the same law states: "Whoever abducts or removes a minor under eighteen (18) without violence, threat, or deceit, or attempts to do so, shall be punished with imprisonment from one to five years and a fine from 500 to 2,000 Dinars. If the abducted minor marries her abductor, criminal proceedings shall not be taken against him except upon complaint by those entitled to request annulment of the marriage, and he may not be convicted until the marriage is annulled". From the analysis of these provisions, it appears that the Algerian legislator does not differentiate between male and female minors in the crime of abduction26. However, Article 326, paragraph two, implies that it refers specifically to female minors, as only a marriage between the abductor and the abducted minor female can halt criminal proceedings, unless a complaint is filed by those entitled to annul the marriage. A question arises whether this legal provision applies to all minor females or only to a specific category. While the legislator defines a minor female as under eighteen (18), practical and social logic excludes applying this rule universally, as minors of very small size and weak constitution cannot realistically be married. This aligns with contemporary Algerian social norms, where marriage of a minor male or female outside of exceptional cases requires judicial authorization and proof of capacity and interest in marriage27 b) Material Element of the Crime of Abducting a Minor Female The material element of crimes generally consists of three components: the criminal act, the criminal result, and the causal link. The perpetrator may begin the criminal act without achieving the result due to external factors—this is considered an attempt. The crime may be committed alone or in collaboration with others. Components of the Material Element for Abducting a Minor Female: Criminal Act: The Act of Abduction The crime centers on the act of abduction, which involves removing the minor female from her environment—whether from her home, school, public road, recreational area, or any other place under the care of someone responsible—and transferring her to another location, concealing her from those responsible for her28. Algerian Penal Code Articles 293 bis(1) and 326 emphasize the term ―abducts,‖ signifying the taking of the minor female from her place of presence to another location. Abduction entails removing her from her environment and the authority of

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 424 her legal guardian, regardless of the distance, without her consent, using any means of coercion, whether physical or psychological29. oPhysical Coercion Physical coercion involves the abductor using force such that the minor cannot resist. Examples include forcibly grabbing the minor‘s arm, dragging her from a place to another, carrying her while she is asleep, unconscious, or drugged. The minor‘s young age is a significant factor in considering coercion30. oPsychological Coercion Psychological coercion consists of all pressures exerted on the minor‘s mind and will. Examples include threats to reveal a secret that could cause major scandal, such as blackmail related to sexual conduct, even when the threatened action itself may be legally questionable. Fear induced by such threats negates legal consent. Sleep or unconsciousness of the minor also constitutes psychological coercion, as the act occurs without her awareness or will31. Thus, both forms of coercion result in the commission of the abduction crime32. The kidnapper may also resort to deception against the minor victim, misleading her by claiming that he is capable of hypnosis and can completely deprive her of her will, then abducting her without resistance due to her loss of awareness and volition. It should be noted here that deception is not limited to minors but may also be directed at those responsible for their care. The essential element is that such deception enables the perpetrator to abduct the minor33. Thus, the act of kidnapping constitutes the conduct carried out by the offender to achieve the criminal result. This conduct may take various forms, appearing in two types: positive and negative. In the crime of kidnapping, the conduct is generally limited to the positive type, as it is inconceivable that this crime could occur through mere omission, except in the case of an accomplice whose role is limited to adopting a passive position that facilitates the offender‘s commission of the criminal act 34. Result and Causal Link in the Crime of Kidnapping a Minor This section will first address the criminal result and then the causal relationship. oCriminal Result in the Crime of Kidnapping a Minor The criminal result refers to the effect resulting from criminal conduct and is achieved in positive crimes through any change occurring in the external world, whether material or psychological 35. The result of the acts of taking and removing the minor in kidnapping is the infliction of harm upon her and her removal from her family and living environment. This harm may be physical, affecting her bodily integrity, or moral, affecting her emotions and feelings and instilling fear and terror within her. Accordingly, this constitutes a material fact affecting the essence of children‘s rights, whether male or female, particularly their right to a peaceful and stable life 36.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 425 Accordingly, as some scholars correctly state, the criminal result of kidnapping constitutes an infringement on the individual‘s right to freedom of movement and choice 37. Therefore, the result in the crime of kidnapping a minor is realized once the victim is removed from her location, regardless of whether the offender reaches the intended destination or whether the victim is detained, as long as the offender has violated the minor victim‘s right to freedom and movement38. oCausal Relationship in the Crime of Kidnapping a Minor The causal relationship constitutes the third element of the material element of the crime. In its absence, criminal liability does not arise. It refers to the link connecting the result to the criminal conduct, such that the latter is considered the cause of the result. It is therefore a relationship between two material phenomena: the act and the criminal result39. Since kidnapping is based on two essential elements — taking and removal — these may be carried out by one person, in which case no issue arises regarding causation. However, if one person seizes and controls the minor victim in preparation for removing her from her location, and a second person later removes or transports or controls her, the question arises as to who is criminally responsible and with whom the causal link between conduct and criminal result is established. To answer this question, a distinction must be made between two situations. The first is where there is a criminal agreement between the two persons. In this case, both are considered principal offenders and are responsible for the criminal result. However, if one person takes and restrains the minor and places her in a vehicle in preparation for transporting and removing her, and a second person takes the vehicle without knowledge of what it contains and without intent to transport her elsewhere, this constitutes the second situation, where no criminal agreement exists between the two individuals 40. To determine whether a causal link exists between the act of taking and the result of kidnapping in the latter situation, this link is assessed based on the theory of adequate causation. 41 The intervention of the second person, who has no criminal agreement with the first offender, is considered an abnormal and unforeseen factor, which interrupts the causal link between the act of taking and the result of kidnapping42. Attempt and Participation in the Crime of Kidnapping a Minor This section will first address attempt and then participation in this crime. Attempt in the Crime of Kidnapping a Minor Attempted kidnapping of a minor is punishable under the general rules of criminal law43 .This occurs where the offender‘s will is directed toward committing the crime and he begins executing the material element, but the result does not occur due to reasons beyond his control. Legislators punish the offender at this stage because of his criminal intent; had the external factor not intervened, the crime would

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 426 have been completed. For example, where the kidnapper lures the minor toward his vehicle but is discovered, or the minor screams, preventing completion of the crime. In such cases, the crime is considered complete in its elements despite the absence of the result, because of the offender‘s criminal intent44. Participation in the Crime of Kidnapping a Minor The legislator did not explicitly address accomplices in the crime of child kidnapping under Article 293 bis of the Algerian Penal Code but referred to accomplices under Article 291 relating to kidnapping adults, limiting it to those who provide a place for detention or confinement of the victim. This is stipulated in paragraph two of Article 291, which states: ―The same penalty shall apply to anyone who provides a place for the detention or confinement of the person‖. It is also required that the accomplice possess criminal intent based on knowledge and will, meaning that the accomplice must know that the assistance provided to the principal offender will be used to commit the kidnapping crime45. Participation also includes concealing the minor, removing her, or helping her evade search efforts after kidnapping, as inferred from Article 329 of the Algerian Penal Code46. Concealment must occur after the kidnapping or removal. As for smuggling, it means hiding the victim from persons searching for her, whether they are legally entitled to demand her return, such as parents, or public authorities responsible for searching for missing persons or investigating crimes47. The crime of concealing a kidnapped minor is intentional and requires criminal intent, meaning that the offender commits the act voluntarily while knowing that the minor was kidnapped or removed from her location48. The accomplice‘s penalty in kidnapping a minor, based on general rules of participation under criminal law, ranges from one to five years‘ imprisonment and a fine ranging from 20,000 to 100,000 Algerian dinars49. c) The Mental Element (Mens Rea) in the Crime of Kidnapping a Minor The crime of kidnapping a minor, like other intentional crimes, requires the existence of a mental element consisting of criminal intent. This intent is based on two elements: knowledge and will. The perpetrator must be aware that the victim is a minor who has not reached the legal age of majority and must direct his will toward abducting her and depriving her of her personal freedom50. Criminal intent is established once the offender is aware of the minor status of the victim and proceeds with the act of taking or removing her from her environment without legal justification. It is not required that the offender know the exact age of the victim, but it is sufficient that circumstances indicate her minority status51. The will element is fulfilled when the offender deliberately commits the act of kidnapping, regardless of the motive behind the act. Motives such as revenge, financial gain, or immoral purposes do not negate criminal intent but may affect the severity of the penalty52.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 427 Some jurisprudence holds that the crime exists even if the offender claims good intentions, such as marriage, since the protection granted by criminal law is directed primarily at safeguarding the minor‘s freedom and physical and psychological integrity53. 2 – Methods of Kidnapping a Minor and Their Significance in Determining Legal Classification and Sentencing Identifying the methods and forms of kidnapping a minor is critical in determining the legal characterization of the crime—whether it constitutes a felony or misdemeanor—and, consequently, the applicable penalties. The discussion will address: (a) kidnapping through violence and deception, and (b) kidnapping without the use of violence or deception. A) Kidnapping a Minor through Violence and Deception The Algerian legislator addressed this form in Article 293 bis, paragraph 1, which states: ―Whoever kidnaps or attempts to kidnap a person by means of violence, threat, or enticement…‖. The legal text makes no distinction regarding the victim‘s gender or age (minor or adult). The crime is established when the offender abducts the minor through coercion or deception and removes her to another location 54. Deception is defined as ―any act of fraud or misleading behavior by which the perpetrator manages to deceive the victim.‖55 Coercion, on the other hand, is ―the deprivation of the victim‘s free will,‖56 which may be material or moral. This principle was confirmed by the Supreme Court in its ruling dated March 4, 1986, Case No. 42459, which emphasized that violence or threat is an essential element for proving the crime of kidnapping57. Article 293 bis provides penalties for kidnapping using violence, threat, or deception: imprisonment from 10 to 20 years and fines ranging from 1,000,000 to 2,000,000 DZD, with additional penalties under Articles 9 and 9 bis of the Penal Code. Further aggravation is specified in paragraphs 2 and 3 of Article 293 bis58, applying life imprisonment if torture is inflicted or if the kidnapping is motivated by ransom. Mitigation under Article 52 may apply if the perpetrator immediately ends the detention, custody, or abduction. The duration of detention affects the degree of penalty reduction59. B) Kidnapping a Minor Without Violence or Deception This form is addressed in Article 326, paragraph 1: ―Whoever kidnaps or removes a minor under the age of 18 without violence, threat, or deception, or attempts to do so…‖. For this crime to exist, the general elements of kidnapping must be met, but coercion or deception is absent; the victim moves with her full and voluntary consent. 60This legal characterization often leads to misdemeanor classification rather than felony.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 428 The act of seduction, though a deceptive tactic, is treated differently from fraud. French law considers kidnapping via seduction punishable under Article 35661 of the old Penal Code (now Article 227-862), corresponding to Article 326 of the Algerian Penal Code. Seduction involves words or promises (e.g., marriage) insufficient to constitute fraud or deception but aimed at inducing the victim to accompany the perpetrator. Penalties under Article 32663 for kidnapping without violence or deception range from one to five years‘ imprisonment and fines of 20,000 to 100,000 DZD 64. The law follows a similar approach as French and some Arab legislations. For instance, French Article 227-8 provides imprisonment of up to five years and fines if a minor is removed without violence or fraud, and permits prosecution only if a complaint is filed to annul the marriage contracted with the kidnapper. in accordance with Article 326 of the Algerian Penal Code, instead of Article 83-354 of the French Penal Code, which corresponds to Article 293 bis of the Algerian Penal Code. Enticement consists of simple words that do not reach the level of fraud or deceit, such that they cannot be characterized as fraudulent methods; this is why enticement in the context of kidnapping constitutes a discourse directed directly at the victim65, such as a promise of marriage. Article 326 of the Algerian Penal Code punishes the kidnapping or removal of a minor who has not reached the age of eighteen, without violence, threat, or deceit, with imprisonment from one to five years and a fine ranging from 20,000 to 100,000 DZD. In this regard, the Algerian legislator has adopted the same approach followed by the lawmakers of other states, particularly certain Arab laws66 as well as the French Penal Code, where Article 227-8 provides: ―If a person other than those mentioned in Article 227-7 seizes a minor child from the hands of those exercising parental authority over him, or entrusted with it, or with whom he ordinarily resides, without deceit or violence, they shall be punished by imprisonment for five years and a fine of 75,000 euros,‖ in addition to the optional supplementary penalties provided for misdemeanors67. However, if the kidnapped or removed minor marries her abductor, criminal proceedings against the latter may only be initiated upon a complaint from persons entitled to request the annulment of the marriage, and the offender may only be convicted after annulment of the marriage68. It should be noted here that the second paragraph of Article 326 of the Algerian Penal Code is inspired by the repealed Article 356 of the French Penal Code69, which provides: ―Anyone who, without deceit or coercion, kidnaps or removes, or attempts to kidnap or remove, a minor under the age of eighteen, shall be punished with imprisonment for a period ranging from two to five years and a fine of 500 French francs to 15,000 French francs. When the kidnapped or removed minor marries her abductor, he may only be prosecuted upon a complaint by persons entitled to request annulment of the marriage, and may not be convicted except after annulment is decreed‖.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 429 Moreover, certain comparative Arab legislations have also abolished the possibility of refraining from criminal prosecution of the abductor following his marriage to the kidnapped minor, such as Egyptian law70 and Jordanian law71. Conversely, the Moroccan72 and Tunisian73legislations still maintain this possibility, similar to the Algerian legislator. Section Three – Marriage of the Kidnapper to the Minor and Criminal Immunity. The current Algerian Penal Code provides criminal protection for women in general, and for minors in particular, in cases of sexual assault. However, the exemption of the abductor from punishment following his marriage to the kidnapped minor may harm the latter more than it benefits her. If the crime is serious and affects the psychological well-being of the victim and the fabric of society, the provision in the second paragraph of Article 326 of the Penal Code is even more severe. Accordingly, this study will address: the nature of the abductor’s exemption from criminal prosecution upon marrying his kidnapped minor in (1), and the conditions and consequences arising therefrom in (2). 1. The Nature of the Abductor’s Exemption from Criminal Prosecution upon Marrying His Kidnapped Minor Penal codes of various Arab countries, as well as foreign jurisdictions, have addressed the issue of child abduction and the criminalization of the act. However, their stances differ regarding the prosecution of the abductor in the event of his marriage to the kidnapped minor. Some jurisdictions completely exempt him from punishment, while others impose conditions on this exemption in addition to the marriage itself. Certain laws are particularly stringent in this domain, stipulating that the imposition of a penalty on the abductor is mandatory in all circumstances. These divergent approaches have given rise to a jurisprudential conflict, with some scholars supporting the exemption and others opposing it. a. The Reality of Abduction and the Legal Provisions Concerning the Abductor’s Exemption from Criminal Prosecution upon Marrying His Kidnapped Minor in Algerian and Comparative Laws Prior to its most recent amendment, Article 326 of the Algerian Penal Code provided that: "Whoever abducts or removes a minor who has not reached the age of eighteen, without violence, threat, or deception, or attempts to do so, shall be punished by imprisonment from one to five years and a fine of 500 to 2,000 DZD. If the abducted or removed minor marries her abductor, criminal prosecution against him shall only be initiated upon a complaint by persons entitled to request annulment of the marriage, and no judgment may be issued against him except after annulment is decreed." For purposes of comparison, it should be noted that this legal provision derives from the former French Penal Code, which provided:

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 430 "Whoever, without deception or coercion, abducts or removes, or attempts to abduct or remove, a minor under the age of eighteen, shall be punished by imprisonment from two to five years and a fine of 500 to 15,000 French francs. When the abducted or removed minor marries her abductor, prosecution may only proceed upon complaint by persons entitled to request annulment of the marriage, and no conviction may be issued except following such annulment"74. Similarly, the Moroccan legislator stipulated: "Whoever abducts or deceives a minor under eighteen years of age without the use of violence, threat, or fraud, or attempts to do so, shall be punished by imprisonment from one to five years and a fine of 120 to 500 Dirhams. Nevertheless, if the abducted or deceived minor has reached the age of majority and marries her abductor or deceiver, prosecution may only proceed upon complaint by a person entitled to request annulment of the marriage, and no judgment may be issued against him except following such annulmen."75. The Tunisian Penal Code also includes provisions stating: "Whoever, without trickery, violence, or threat, abducts or transfers a person from the place where he was placed by his guardians or those entrusted with his care, shall be punished by imprisonment for two years. The penalty increases to three years if the child abducted is between thirteen and eighteen years old, and to five years if the child is under thirteen years of age. Attempt is punishable76. Marriage of the perpetrator to the minor he has abducted suspends the trial or execution of the penalty "77. From an analysis of the aforementioned legal provisions, several aspects may be deduced: The act of abducting or removing a minor, which permits the abductor to be exempted from criminal prosecution upon marrying her, is limited to cases carried out without violence, threat, or enticement. The law grants the abductor the opportunity to halt criminal prosecution and execution of the penalty, conditional upon the existence of a valid marriage with his minor victim, without requiring the continuation of the marriage, unlike the prior provision in the Jordanian Penal Code before the repeal of Article 308, which stated: "1. If a valid marriage is contracted between the perpetrator of one of the crimes in this chapter and the victim, prosecution shall be suspended, and if a judgment has been issued, execution of the imposed penalty shall be stayed. 2. The public prosecutor regains the right to pursue the public case and enforce the penalty within three years for misdemeanors and five years for felonies if the marriage ends in divorce without legitimate cause"78. This provision reveals the law’s intent to support the abducted minor, enabling her to attain a normal marital life free from the psychological and social complications caused by the act of abduction.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 431 The legislator‘s approach in determining the penalty for the act of abduction without violence or deception, and then granting the perpetrator the opportunity to halt criminal prosecution and execution of the penalty upon marrying the abducted minor, appears self-contradictory. The law imposes a punishment and then rewards the abductor for his crime through marriage to the victim, a feature that led the Frenc79 and Egyptian80 legislatures to repeal the statutory provision granting this opportunity. Consequently, this may be considered an injustice initially inflicted on the abducted minor by the abductor himself, and subsequently by society and the law, a situation that defies sound reasoning. b. The Legal Doctrine on the Abductor Marrying His Abducted Minor and Exemption from Criminal Prosecution. The purpose of the legal provisions that suspend criminal prosecution and prevent the imposition of punishment on the abductor who marries his abducted minor, according to the position paper prepared by the Euro-Mediterranean Human Rights Monitor 81. is to prevent scandal and protect the reputation of the girl and her family. These provisions also afford the girl an opportunity for marriage in light of social customs and traditions that stigmatize her with shame, despite her being a victim, thus representing a consensual solution compatible with societal particularities and considered an acceptable resolution. This is particularly the case if sexual intercourse occurs with the consent of both parties and the girl’s family had previously opposed the marriage. It further protects the rights of any child that may result from such intercourse, whether with or without the minor girl’s consent, in terms of lineage and family matters82. Thus, some scholars argue that the legislator linked the suspension of criminal prosecution against the abductor upon marrying his abducted victim as a consideration of the social and moral context, leaving it to the offender to rectify the wrongdoing and mitigate the harm caused by his criminal act. The rationale behind this is intended to achieve multiple objectives 83: Rectifying the harm caused, preserving the victim‘s reputation, and shielding her from public exposure, given that abduction creates evident harm to the abducted minor, including threats and coercion, and generates psychological and social consequences for both her and her community, while depriving her of her right to marry due to the reluctance of many men to wed her84. It also aims to avert social stigma (the stigma of shame) feared by families when one of their members is subjected to abduction, given the harm inflicted on the abducted minor as a result of the threats and coercion imposed upon her, the effects of which extend to her psychological state and her life within the surrounding social environment85. However, the provision of Article 326 in its second paragraph, along with certain similar provisions in comparative legislation, harms the minor victim more than it protects her, as evidenced by the following:

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 432 A girl subjected to one of these crimes suffers a further crime through coerced marriage, usually to the abductor, and in some cases, the victim is already a minor. Nothing prevents the offender from subsequently divorcing his victim, who has become his wife after a short period of marriage. This implies that the offender, who would otherwise have been punished, for example, by imprisonment ranging from one to five years, 86may live freely and marry the victim for a period of his choosing, only to divorce her later, thereby evading the penalty. In the case of abduction of a minor under the age of eighteen (a child), followed by the offender marrying the victim, Article 326, paragraph two, validates the marriage and halts criminal prosecution against the perpetrator. Yet the fundamental principle should be the protection of the child and non- recognition of her consent to marriage with the offender, as presuming the validity of her consent is unjustifiable and inconsistent with the stance of the Algerian legislator in other Algerian laws, such as the Civil Code, which considers a minor’s consent as inherently defective and voidable 87. This legal provision offers the offender a legal escape, granting him the opportunity—if the girl refuses the marriage—to abduct her without employing violence, threat, or deceit, thereby potentially compelling her, under social and familial pressure, to accept the marriage. This is often justified by the reasoning that no one else will propose to her afterwards 88. Article 326, paragraph two, along with similar provisions in comparative laws, raises further issues, particularly when abduction is carried out by multiple individuals. The legal benefit of exemption from criminal prosecution for marrying the abducted minor applies solely to the person who marries her, not to all participants in the abduction. The other contributors remain criminally liable, on the one hand. On the other hand, differences in religion between the abductor and his victim prevent the application of the aforementioned provision, as Algerian family law does not permit the marriage of a Muslim girl to a non-Muslim. Consequently, if the victim is a minor and married, 89and has been abducted, the abductor cannot under any circumstances benefit from Article 326, paragraph two, of the Penal Code. 2. Conditions Required for Exempting the Abductor from Criminal Prosecution Upon Marriage to His Abducted Victim, the Victim’s Forgiveness, and the Consequent Effects Referring to Article 326, paragraph one, of the Algerian Penal Code, the legislator penalizes anyone who commits the act of abduction or removal of a minor under the age of eighteen without violence, threat, or deceit, without distinction as to whether the abduction involved sexual intercourse or not. However, paragraph two of the same article, prior to the most recent amendment, provides for the

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 433 possibility of suspending criminal prosecution against the perpetrator if the following conditions are met: a. The occurrence of a valid marriage between the abductor and the abducted minor: The abductor‘s marriage to his abducted victim exempts him from punishment, provided that the marriage is valid and complete in all its essential elements. The Algerian legislator did not address in Article 326, paragraph two, the case in which the abductor divorces the abducted minor after the judgment exempting him from punishment has been issued, implying that the legislator considers the abductor‘s marriage to the minor a permanent bar to punishment. This differs from the Lebanese and Iraqi legislations, which require the continuation of the marriage for more than three years, and in cases where the marital relationship ends before this period, the public prosecutor resumes the right to initiate and conduct the public action, thus preventing the abductor from evading punishment by marrying and then divorcing the abducted minor. b. Non-submission of a complaint: As a general principle, the law does not require the filing of a complaint to trigger public prosecution by the public prosecutor against offenders, except in legally specified exceptional cases. Among these is the abduction or removal of a minor without violence or deceit, followed by marriage to the abductor. In such cases, criminal prosecution of the abductor does not proceed unless a complaint is submitted by persons entitled to request annulment of the marriage. A petition for annulment must be filed before the Family Court by the guardian of the abducted wife. If a judgment annulling the marriage is issued, the interested party may then submit a complaint against the abductor. Subsequently, the public prosecutor may prosecute him criminally for the abduction and removal of the minor without violence or deceit. c. Non-issuance of a judgment annulling the marriage contract: It should be noted that even if a complaint is filed, punishment cannot be imposed until a judgment annuls the marriage contract of the abducted or removed minor. The rationale for imposing this restriction on the authority of the public prosecutor is to ensure that the marital relationship remains intact so long as the marriage is valid and not tainted by nullity, thereby safeguarding the institution of the family and its cohesion 90. In other words, if the public prosecutor is entitled to initiate public prosecution merely upon the filing of a complaint by a person with standing to request the annulment of the marriage, the court before which the case of minor abduction is brought must defer adjudication of the matter until a judgment annulling the marriage contract is rendered. However, if the adjudicating authority disregards this rule and proceeds to rule on the case without establishing the annulment of the contract, its conviction and sentencing are null and void, as confirmed by the Supreme Court in a decision, which stated:

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 434 ―…in the case of the abducted female marrying her abductor, prosecution only proceeds after the annulment of the marriage; consequently, the trial judges who convicted the accused without taking into account the marriage he contracted with the victim, on the basis that it was registered without the presence of the wife‘s guardian, even they themselves misapplied the law…‖91. However, the legislator, in the current provisions of the Penal Code, amended paragraph two of Article 326 of the Algerian Penal Code, which now provides: ―The forgiveness of the victim and her legal representative places a limit on criminal prosecution‖. Accordingly, once the public prosecutor becomes aware of the commission of the crime of abducting a minor, even if it occurred without violence or deceit, they do not await the filing of a complaint; rather, they initiate and pursue the prosecution as if the abduction involved violence, deceit, or fraud. However, if the victim or her legal representative grants forgiveness, this terminates criminal prosecution of the abductor, and the following consequences ensue: If the case file is at the level of the public prosecutor, the procurer of the Republic will order the file to be closed. If the file is before an investigating judge, a ruling of “no grounds for prosecution” will be issued. If the file is before the court, the accused will be acquitted. Conclusion The crime of kidnapping a minor exists in two forms: kidnapping without violence, threat, or deception (misdemeanor), and kidnapping with violence, threat, or deception (felony). Felony kidnapping penalties can extend to life imprisonment or death if accompanied by aggravating circumstances. Kidnapping without coercion or deception followed by marriage to the minor stops prosecution except when a complaint is filed by a legal party. Despite Algeria having a legal framework criminalizing child abduction, some provisions remain flawed or incomplete, necessitating reform: Repeal paragraph 2 of Article 326, which allows immunity if the kidnapper marries the minor. Align the age of criminal and civil majority to avoid ambiguity. Remove legal excuses that benefit kidnappers, as kidnapping is inherently damaging to minors. Establish specialized courts for prosecuting child abduction, especially when sexual crimes accompany the act. This legal framework ensures protection of minors, upholds justice, and closes loopholes that previously allowed offenders to evade punishment. In other words, if the Public Prosecutor is permitted to initiate public prosecution upon the mere filing of a complaint by the person entitled to request the annulment of

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 435 the marriage, the court seized with the case of the kidnapping of a minor is required to defer adjudication of the case until a judgment annulling the marriage is rendered. Conversely, if the judicial authority disregards this rule and adjudicates the case without establishing the annulment of the marriage, its ruling of conviction and sentencing is null. This was affirmed by the Supreme Court in a decision, which stated: ―... in the case where the kidnapped minor has married her kidnapper, prosecution is not initiated until after the annulment of the marriage. Therefore, the trial judges who convicted the defendant without taking into account the marriage he contracted with the victim, on the basis that it was registered without the presence of the minor‘s legal guardian, themselves misapplied the law...‖ However, the legislator, in the current provisions of the Penal Code, amended the second paragraph of Article 326, which now provides: ―The pardon of the victim or her legal representative terminates the criminal prosecution‖. Accordingly, as soon as the Public Prosecutor becomes aware of the commission of a crime of kidnapping of a minor, even if it was not committed with violence, deception, or fraud, the prosecution is initiated and pursued as if the kidnapping had been committed with violence, deception, or fraud. However, the pardon of the victim or her legal representative terminates the criminal prosecution of the kidnapper, which entails the following consequences: 1. If the case file is at the level of the Public Prosecutor, the Prosecutor of the Republic shall order the dismissal of the file. 2. If the case is at the level of the investigating judge, it shall be ruled that there is no basis for prosecution. 3. If the file is at the level of the court, the court shall acquit the accused.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 436 List of Sources and References 1- Legal Texts in Algerian Law and Arab Laws Order No. 66-155, dated 8 June 1966, containing the Code of Criminal Procedure, Official Gazette of the Algerian Republic, No. 48, dated 10 June 1966.  Order No. 66-156, dated 8 June 1966, containing the Penal Code, amended and supplemented, Official Gazette of the Algerian Republic, No. 49, dated 11 June 1966. Order No. 75-58, dated 26 September 1975, containing the Civil Code, amended and supplemented, Official Gazette of the Algerian Republic, No. 78, dated 30 September 1975. Law No. 15-12, dated 15 July 2015, relating to Child Protection, Official Gazette of the Algerian Republic, No. 39, dated 19 July 2015. Jordanian Penal Code No. 16/1960 and all its amendments, published in the Official Gazette No. 1487, dated 1 January 1960, and amended by the latest Law No. 8/2011, published in Official Gazette No. 5090, dated 2 May 2011. [Link to text] Egyptian Penal Code, in accordance with the latest amendments under Law 95 of 2003, and Law No. 58 of 1937 promulgating the Penal Code. [Link to text] Dahir No. 413.59.1, issued 28 Jumada II 1382 (26 November 1962), ratifying the Moroccan Penal Code, published in Official Gazette No. 2640 bis, dated 12 Muharram 1383 (5 June 1963), p. 1253. [Link to text]

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 437 Order dated 9 July 1913, regarding the issuance of the Tunisian Penal Code, published in Official Gazette No. 79, dated 1 October 1913. [Link to text] 2- Monographs Ahsan Bouskiga, Al-Wajeez fi al-Qanoun al-Jina’i al-Khas [The Concise on Private Criminal Law], unpublished edition, Dar Houma, Algeria, 2013. Ahmed Al-Barak, Crimes of Abduction Between Theory and Practice: An Analytical and Foundational Study, Palestine Legal Portal, no year, no edition. Ahmadi Bouzina Amna, Crimes of Child Abduction in Algerian Law, article published in the collective book on Protection of Children‘s Rights in Algerian Legislation, Dar Al-Ayyam, Jordan, 2018. Anis Hassib Al-Sayyid Al-Mahlawi, Scope of Criminal Protection for Children: A Comparative Study Between Islamic Jurisprudence and Criminal Law, unpublished edition, Dar Shatat, Egypt, 2011. Ishaq Ibrahim Mansour, Summary in Criminology and Punishment Science, 2nd edition, Diwan of University Publications, Algeria, 2006. Abdullah Ouhaybia, Explanation of the Algerian Code of Criminal Procedure – Investigation and Inquiry, 3rd edition, Dar Houma for Printing and Publishing, Algeria, 2015. Abdelhamid Fouda, Crimes Affecting Public Morals and Honour, 1st edition, Legal Books House for Publishing, Cairo, 2004. Abdullah Hussein Al-Omari, The Crime of Abduction of Persons, Modern University Office, Egypt, 2009. Abdulwahab Abdullah Ahmed Al-Maamari, Crimes of Abduction: A Comparative Legal Study with Islamic Sharia Provisions, unpublished edition, Dar Al-Maktab Al- Jami‘i Al-Hadith, Egypt, 2006. Ali Rashid Abu Hajila, Criminal Protection of Honour, Dar Al-Thaqafa, 1st edition, Jordan, 2011. Antar Akkik, The Crime of Abduction, unpublished edition, Dar Al-Huda, Algeria, 2001. Dardous Maki, Private Criminal Law in Algerian Legislation, Diwan of University Publications, Constantine, Part 2, unpublished edition, 2005. Tarek Sarour, Penal Code – Special Section, Dar Al-Nahda Al-Arabia, 1st edition, Egypt, 2003. Mohamed Ahmed Al-Mashhadani, Explanation of the Penal Code – Special Section in Positive Law and Islamic Law, 1st edition, Al-Dar Al-Ilmiya, Jordan, 2001. Mohamed Sobhi Najm, Introduction to Criminology and Punishment Science, 1st edition, Dar Al-Thaqafa Library for Publishing and Distribution, Jordan, 1998.  Mohamed Sobhi Najm, Explanation of the Penal Code – Special Section, unpublished edition, Diwan of University Publications, Algeria, 2005.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 438 Mohamed Mahmoud Al-Mandlawi, Crimes of Abduction of Women and Their Impact on Contemporary Societies, Dar Al-Ma‘rifa for Printing, Publishing and Distribution, Beirut, Lebanon, 1st edition.  Mahmoud Mahmoud Mustafa, Explanation of the Penal Code – General Section, Dar Al-Nahda Al-Arabia, Cairo, 10th edition, 1983. Mustafa Mahmoud, Explanation of the Penal Code – Special Section, Cairo University Press, 8th edition, 1984.  Mansour Rahmani, Concise on General Criminal Law, Dar Al-Ulum, unpublished edition, Algeria, 2006. Kamal Abdullah Mohamed, The Crime of Abduction in Light of Combating Terrorism and the Penal Code – A Comparative Study, Dar Al-Hamed, Amman, 1st edition, 2012. Nader Abdulaziz Shafi, Perspectives in Law – Part One, 1st edition, Zein Legal Publications, Lebanon, 2007.  Nabil Saqr, Intermediary in Crimes of Persons, Dar Al-Huda, 1st edition, Algeria, 2009. 3- Articles Ben Yahya Um Kulthum, The Minor: Its Concept and Capacity in Islamic Jurisprudence and Law. [Link to article] Thaer Yasser Nassar, Provisions on the Crime of Abduction in Jordanian Law and Jurisprudence: A Comparative Study, Studies in Sharia and Law, Vol. 45, No. 4, 2018, pp. 143–144. Khatir Masoud, The Crime of Child Abduction in Algerian Law, African Journal of Legal and Political Studies, Ahmed Draia University, Adrar, Algeria, Vol. 2, No. 2, December 2018, p. 202. Qadah Mahmoudi, Criminal Procedures for Combating the Crime of Child Abduction, Afaaq Journal of Comparative Legal Studies, No. 1, Saida University, Algeria, November 2016, p. 17. Faiza Berkan, The Crime of Abducting Minors by a Parent in Algerian Law, Journal of Legal and Political Sciences, Vol. 10, No. 2, September 2019, p. 1048. Mohamed Al-Saleh Rawan, The Crime of Abduction and the Death Penalty, Notebooks of Politics and Law, No. 16, January 2017, p. 255. Al-Masri Mohamed Walid, The Excusable Cause Resulting from the Subsequent Marriage of the Perpetrator of Rape to His Victim, Al-Mahalla Al-Arabiya for Security and Training, Saudi Arabia, Vol. 17, No. 33, April 2002, p. 9. Moudi‘ Mohamed Al-Amin, The Death Penalty in the Crime of Child Abduction in Light of the Algerian Penal Code, Journal of Legal and Political Research and Studies, No. 15, no year of publication, p. 283. 4- Theses and Academic Dissertations

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 439  Ahmed Dleiba, The Crime of Abduction of Minors: A Comparative Study Between Islamic Jurisprudence and Criminal Laws of Maghreb Countries, Master‘s Thesis, Faculty of Islamic Sciences, Batna University 1, 2016–2017.  Ibrahim Ayli and Souad Zioui, The Crime of Child Abduction in Algerian Penal Law and Islamic Jurisprudence, Master‘s Thesis, Advanced Public Law, Faculty of Law, Mohamed Bouguara University, Boumerdes, 2015.  Bouras Asma, The Crime of Abduction of a Minor in Algerian Legislation, Master‘s Thesis, Criminal Law Specialization, Faculty of Law and Political Science, Taher Moulay University, Saida, 2014–2016.  Fatima Zahra Jazar, The Crime of Abduction of Persons, Master‘s Thesis, Criminology and Punishment Science, Faculty of Law and Political Science, El-Hadj Lakhdar University, Batna.  M. Veron, Droit pénal spécial, Armand Colin, Paris, 7th ed., 1999, p. 197.  Louiza Oukaci and Layla Oukil, Crimes of Child Abduction, Master‘s Thesis, Criminal Law Specialization, Abdel Rahman Mira University, Bejaia, 2014.  Marzouki Farida, Protection of Minors from Abduction Crimes in Algerian Law, Graduation Thesis for the Higher School of Judiciary, Class 20, 2009/2012. 5- Foreign and French References  Ben Mecheri (H.) & Djagham (M.), The Marriage of the Abducted Person with Her Abductor as a Justification of Impunity in Algerian Law, p. 44. [Website link]  Véron (M.), Droit pénal spécial, 9th ed., Dalloz, Paris, Armand Colin Edition, 2002. 1 Abd Al-Wahab Abd Allah Ahmed Al-Maamari, Crimes of Kidnapping, A Comparative Legal Study with Islamic Sharia Provisions, Unpublished Edition, Modern University Press, Egypt, 2006, p.10. 2 Abd Al-Hamid Fouda, Crimes Affecting Public Morals and Honor, First Edition, Legal Books Publishing House, Cairo, 2004, p.88. 3 See Order No. 66-156 dated June 8, 1966, including the Penal Code, amended and supplemented, Official Gazette, No. 49, dated June 11, 1966, p.530. Also see Qada Mahmoudi, Special Criminal Procedures for Combating the Crime of Child Abduction, Afaaq Journal of Comparative Legal Studies, Issue 1, Saida University, Algeria, November 2016, p.17. 4 Article 326 para. 2 of the Penal Code 5 Abd Allah Hussein Al-Omari, The Crime of Abduction, Modern University Press, Egypt, 2009, p.11. 6 Kamal Abd Allah Muhammad, The Crime of Kidnapping in Light of Counter-Terrorism and Penal Law, Comparative Study, Al-Hamed Publishing, Amman, First Edition, 2012, p.26. 7 Mouda Mohamed Al-Amin, The Death Penalty in the Crime of Child Abduction in Light of the Algerian Penal Code, Journal of Legal and Political Research and Studies, Issue 15, No Publication Year, p.283. 8Ibn Manzur, Lisan Al-Arab Al-Muheet, Second Edition, Dar Al-Sadr, 1991, p.95.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 440 9Ben Yahya Umm Kulthum, The Minor: Its Concept and Capacity in Islamic Jurisprudence and Law, http://fiqh.islammessage.com/NewsDetails.aspx?id=10276 10Article 40 and following of Order No. 75-58 dated September 26, 1975, including the Civil Code, amended and supplemented, Official Gazette No. 78, dated September 30, 1975, and Article 70 and following of the same law. 11Article 40 of the Civil Code 12Articles 49-50-51 of the Penal Code and Article 442 of Order No. 66-155 dated June 8, 1966, including the Code of Criminal Procedure, Official Gazette No. 48, dated June 10, 1966. 13Article 2 of Law No. 15-12 dated July 15, 2015, concerning Child Protection, Official Gazette No. 39, dated July 19, 2015, p.4. 14 Faiza Berkan, Crime of Abduction of Minors by One Parent in Algerian Law, Journal of Legal and Political Sciences, Vol. 10, Issue 2, September 2019, p.1048 15 Thaer Yasser Nassar, Rulings on the Crime of Kidnapping in Jordanian Law and Judiciary, Comparative Study, Studies, Sharia and Law Sciences, Vol. 45, Issue 4, 2018, pp.143-144: Mohammed Al-Saleh Rawan, The Crime of Abduction and the Death Penalty, Politics and Law Notebooks, Issue 16, January 2017, p.255. 16 Abd Al-Wahab Abd Allah Ahmed Al-Maamari, Crimes of Kidnapping, Modern University Press, Alexandria, Unpublished Edition, 2006, p.49. 17 Ahsan Bousqiaa, Concise in Special Criminal Law, Unpublished Edition, Dar Houma, Algeria, 2021, pp.207-208. 18 Ahmed Shawqi Omar Abu Khutwa, Crimes of Endangering Others, Comparative Study, Unpublished Edition, Dar Al-Nahda Al-Arabiya, Cairo, 1999, p.13. 19 Articles 291 paragraphs 1-2 and 293 bis paragraph 1 of the Algerian Penal Code 20 Articles 291 paragraph 3, 292, 293, and 293 bis paragraph 2 of the Algerian Penal Code 21 Article 293 bis paragraph 3 of the Algerian Penal Code 22 Khatir Massoud, The Crime of Child Abduction in Algerian Law, African Journal of Legal and Political Studies, Ahmed Draia University, Adrar, Algeria, Vol.2, Issue 2, December 2018, p.202. 23 Article 293 bis 1 of the Algerian Penal Code: "Life imprisonment shall be imposed on anyone who kidnaps or attempts to kidnap a minor under eighteen (18) years, by violence, threat, enticement, or other means. The penalty provided in paragraph one of Article 263 of this law shall apply if the kidnapped minor is subjected to torture or sexual violence or if the motive for the 24 Ahmed Shawqi Omar Abu Khutwa, Previous Reference, p.13. 25 Bouras Asma, Previous Reference, p.80. 26 Dardous Maki, Special Criminal Law in Algerian Legislation, University Publications Office, Constantine, Part 2, Unpublished Edition, 2005, p.12. 27 Bouras Asma, Previous Reference, p.53. 28 Mohamed Sobhi Najm, Explanation of the Penal Code, Special Section, Unpublished Edition, University Publications Office, Algeria, 2005, p.67. 29 Fakhri Abd Al-Razzaq Al-Hadithi and Khaled Humaidi Al-Zaabi, Criminal Encyclopedia, Explanation of Penal Code, Special Section, Crimes Against Persons, First Edition, Dar Al- Thaqafa, Jordan, 2009, pp.168-169. 30 Tarek Sarour, Penal Code, Special Section, Dar Al-Nahda Al-Arabiya, First Edition, Egypt, 2003, p.317. 31 Ali Rachid Abu Hujaila, Criminal Protection of Honor, Dar Al-Thaqafa, First Edition, Jordan, 2011, pp.304-305. 32 Antar Akik, The Crime of Abduction, Unpublished Edition, Dar Al-Huda, Algeria, 2001, pp.92- 93. 33 Nader Abd Al-Aziz Shafi, Views in Law, Part 1, First Edition, Zain Legal Publications, Lebanon, 2007, p.54.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 441 34 Ibrahim Aili and Souad Zioui, The Crime of Child Abduction in the Algerian Penal Code and Islamic Jurisprudence, Master‘s Thesis, Advanced Public Law Specialization, Faculty of Law, Mohamed Boughara University, Boumerdes, 2015, pp.49-50. 35 Mansour Rahmani, Concise in General Criminal Law, Dar Al-Ulum, Unpublished Edition, Algeria, 2006, p.97. 36 Antar Akik, Previous Reference, p.98. 38 Ahmed Daliba, The Crime of Kidnapping Minor Children, Comparative Study Between Islamic Jurisprudence and Penal Laws of Maghreb Countries: Algeria, Tunisia, Morocco, Master‘s Thesis in Sharia and Law, Faculty of Islamic Sciences, Batna 1 University, 2016-2017, p.69. 39 Mahmoud Mahmoud Mustafa, Explanation of the Penal Code, General Section, Dar Al-Nahda Al-Arabiya, Cairo, 10th Edition, 1983, p.286. 40 Abd Al-Wahab Abd Allah Ahmed Al-Maamari, Previous Reference, pp.129-130. 42Fatima Al-Zahra Jazar, Previous Reference, p.104. 43 Article 30 of the Algerian Penal Code. 44 Antar Akik, Previous Reference, pp.106-108. 45 Amhmedi Bouzina Amna, Child Abduction Crimes in Algerian Law, article published in the collective book on the Protection of Children's Rights in Algerian Legislation, printed and published by Dar Al-Ayyam, Jordan, 2018, p.12. 46 Article 329 of the Algerian Penal Code. 47 Amhmedi Bouzina Amna, Previous Reference, p.13. 48 Ahsan Bousqui‘a, Previous Reference, p.187. 49 Article 44 of the Algerian Penal Code. 50 Ahmed Al-Barak, Abduction Crimes between Theory and Practice, Analytical and Foundational Study, Palestine Legal Portal, Unpublished, p.11. 51 A-H. Ben Mecheri and M. Djagham, Marriage of the Abducted Person with Her Kidnapper as an Excuse of Impunity in Algerian Law, p.44. See https://www.asjp.cerist.dz/ 52 M. Véron, Special Criminal Law, 9th ed., Dalloz, Paris, Armande Colin Edition, 2002, p.191. 53 A-H. Ben Mecheri and M. Djagham, op. cit., p.45. 54 Mohamed Ahmed Al-Mashhadani, Explanation of the Penal Code, Special Section in Positive Law and Islamic Sharia, First Edition, Al-Dar Al-Ilmiya, Jordan, 2001, p.112. 55 is Haseeb Al-Sayed Al-Mahlawi, Scope of Criminal Protection for Children, Comparative Study between Islamic Jurisprudence and Criminal Law, Unpublished Edition, Dar Shatat, Egypt, 2011, p.141. 56 Same Reference, Same Location. 57 Supreme Court Decision dated 04 March 1986, File No. 42459, Supreme Court Judicial Journal, Issue 2, 1992, p.194. 58 Article 293 paragraphs 2-3 of the Algerian Penal Code. 59 Article 294 of the Algerian Penal Code 60 Ahsan Bousqui‘a, Previous Reference, p.193. 61 Art. L. 356 C. pén.fr, (former), See https://ledroitcriminel.fr/la_legislation_criminelle/anciens_textes/code_penal_1994/partie_legislativ e_3.htm. 62 Art. L. 227-8 French Penal Code (current), See https://www.imolin.org/doc/amlid/France_Code_Penal.pdf. 63 Art. L. 454 French Penal Code (former), See https://ledroitcriminel.fr/la_legislation_criminelle/anciens_textes/code_penal_1994/partie_legislativ e_3.htm.

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Khadija YAHIA BEY The Specificity of Criminal Prosecution in the Crime of Abducting a Minor without Violence or Deception: A Comparative Study 442 64 A-H. Ben Mecheri and M. Djagham, op. cit., p.43.See also J. Pradel and M. Danti-Juan, Special Criminal Law, 6th ed., Cujas Edition, Paris, p.417. 65 A-H. Ben Mecheri and M. Djagham, op. cit., p.43: "Seduction consists of simple words that do not reach fraud or deceit and do not describe fraudulent methods. This is why seduction in case of abduction is speech addressed directly to the victim, such as a promise of marriage." See also J. Pradel and M. Danti-Juan, Special Criminal Law, 6th ed., Cujas Edition, Paris, p.417. 66 Article 291 paragraph 1 letters a and b of Jordanian Penal Code No.16/1960 and all amendments, published in Official Gazette No.1487 dated 1 January 1960, amended by latest law No.8/2011, Official Gazette No.5090 dated 2 May 2011 https://www.wipo.int/edocs/lexdocs/laws/ar/jo/jo064ar.pdf. 67 Article 291 paragraph 2 letter c of Jordanian Penal Code No.16/1960 68 Article 292 of Jordanian Penal Code No.16/1960 69 Ahmed Al-Mashhadani, Previous Reference, p.120. 70 Anis Haseeb Al-Sayed Al-Mahlawi, Previous Reference, p.145. 71 Amhmedi Bouzina Amna, Previous Reference, p.14. 72 Supreme Court of Jordan Decision No.123/1982, dated 5 April 1982, Jordan Official Gazette, Issue 2512, p.12. 73 Article 294 paragraph 1 of Jordanian Penal Code 74 Article 294 paragraph 2 of Jordanian Penal Code 75 A-H. Ben Mecheri and M. Djagham, op. cit., p.46. 76 J. Pradel and M. Danti-Juan, Special Criminal Law, 6th ed., Cujas Edition, Paris, 2010, p.420. 77 Ahmed Al-Barak, Previous Reference, p.14. 78 Article 295 of Jordanian Penal Code 79 Amhmedi Bouzina Amna, Previous Reference, p.16. 80 Article 296 of Jordanian Penal Code 81 A-H. Ben Mecheri and M. Djagham, op. cit., p.47. 82 Article 297 of Jordanian Penal Code 83 Ahmed Al-Mashhadani, Previous Reference, p.125. 84 Anis Haseeb Al-Sayed Al-Mahlawi, Previous Reference, p.150. 85 Amhmedi Bouzina Amna, Previous Reference, p.18. 86 Supreme Court of Jordan Decision No.145/1985, dated 15 May 1985, Jordan Official Gazette, Issue 2687, p.20. 87 Article 298 of Jordanian Penal Code 88 Article 299 of Jordanian Penal Code 89 Ahmed Al-Barak, Previous Reference, p.20. 90A-H. Ben Mecheri and M. Djagham, Previous Reference, p.48. 91 J. Pradel and M. Danti-Juan, Previous Reference, p.422.

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