Commonalities and differences of evidence to prove a claim in civil law and criminal law of the Islamic Republic of Iran

 

Prepared by the researcher  :  Khurshid Azizi Mizab  – Ph.D. student of criminal law and criminology, Aras campus, University of Tehran, Iran

Democratic Arabic Center

Journal of Iranian orbits : Twenty-two Issue – December 2023

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin

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Abstract

Among the important topics in the field of law is the evidence to prove the claim, which is actually the way to identify and establish the acquired rights; And without familiarity with the concepts of this lesson, it is not possible to file a lawsuit and assert the right. However, the laws related to it are mentioned scattered in the third volume of the civil law approved in 1314 in articles 1257 to 1335 and the civil procedure law in articles 194 to 290. In the Islamic Penal Code approved in 1392, the fifth part of its general book deals with evidence to prove a claim in criminal matters, which consists of 53 articles, and in the criminal procedure law, 17 articles of it (1334-1318) deal with proof evidence. The proofs in both types of lawsuits are the same in terms of their inherent characteristics and have the same definitions; But in terms of application and efficiency and how to provide according to the type of claims, they have differences. For example, in criminal lawsuits, it is not possible to provide evidence at the time of the crime, or it is difficult to provide it, but in civil matters, when legal acts occur, people usually provide the reasons and documents to establish that act, so that they can rely on it. All reasons are not accepted to prove all crimes, for example, the limits and punishments cannot be denied or proven by oath, and such crimes cannot be proven by testimony upon testimony, and… Considering the dispersion of proof evidence in legal texts and the difference of evidence in terms of application and effectiveness according to the type of claim; We decided to discuss in this article the proofs related to both civil and criminal matters. In this research, an attempt has been made to consider the opinions of the experts in this field and to compare them, the similarities and differences of the proofs of the lawsuit in civil and criminal matters.

Introduction

The proof of the claim is used to prove the claim and determine the right in the courts. 78 articles of the civil law (1335-1257) and 96 articles of the civil procedure law are assigned to it. In the Islamic Penal Code approved in 1392, the fifth part of its general book deals with the proof of claims in criminal matters, which consists of 53 articles. There are 17 articles in the criminal procedure law (1334-1318) regarding the handling of evidence. Considering the dispersion of proofs in legal texts (this multiplicity in the place of mention sometimes led to the multiplicity of interpretations), and the difference of the evidence in terms of application and efficiency according to the type of litigation; We decided to collect the differences and similarities of evidence in both civil and criminal cases.

1-1- Definitions

1-1-1-  the reason

1-1-1-1-Lexual definition of the reason

The reason; It consists of a guide, proof, evidence, sign and everything that guides, familiarizes and makes a person believe in a truth, as well as what is used to prove something. Just like every artificial thing is a proof of the existence of the maker, every creature is a proof of the existence of the creator (Moin, Mohammad, Farhang, p. 181/ Dehkhoda, Farhang Dehkhoda, p. 1569 / Amid, Hassan, Farhang Amid, p. 74).

1-1-1-2-Terminological definition of the reason:

Every known thing that leads the thought to the unknown; And also the factor of proving or defending the truth of something that has been claimed, denied or doubted is called reason (Jafari Langroudi, Mohammad Jafar, Legal Knowledge, Volume 4, p. 312 / Madani, Jalaluddin, ADK, p. 293) . Everything that convinces the judge’s conscience in proving the claim is called the reason (Khoeini, Ghafoor, Proofs of Claim, p. 14). A reason is a reference to a means to prove the reality of something (Goldozian, Iraj, Evidence to prove the claim/ p. 14).

1-1-2-proof

1-1-2-1-Lexual definition of proof

Proving in the word means to send forward, Sabat (on the weight of Namak), which itself means evidence and evidence (Tarihi, Majma al-Baharin, vol. 2, p. 195). Therefore, proving means to present proof and evidence, and the meaning of right is the same.

1-1-2-2- Terminological definition of proof

 In the term of proof; it is “providing proof before the court of the quality determined by the law on the existence of a legal event that has consequences” (Al-Sanhouri, Abdul Razzaq, Al-Wasit fi Sharh al-Qanoon al-Madani al-Masri, vol. 2, p. 12).

1-1-3- Lawsuit

1-1-3-1- Lexical definition of lawsuit

Claiming, filing a lawsuit, having a request for something, becoming a rightful claimant, and it also means quarreling, aggressiveness and oppression (Moin, Muhammad, Farhang Moin, p. 1539). (Amid, Hassan, Farhang Amid, p. 481) ). Also, asking for something in another language is called a claim (Jaafari Langroudi, Mohammad Jafar, Legal encyclopedia, volume 3, pp. 497, 498).

1-1-3-2- Terminological definition of lawsuit

From the legal point of view, the lawsuit is sometimes against the defense and sometimes against the confession. According to Article 1259 of the Civil Code: “Acknowledgment is news of a right to another and to one’s own detriment”. A lawsuit is the opposite of that, i.e. “information about a right for one’s own benefit and to the detriment of another” (Bahrami, Bahram, Civil Procedure Code, Volume 1, p. 157).

1-2- The importance of evidence in proceedings

Knowing the right and obligation is accompanied by its proof, and that is also possible by presenting evidence. The other importance of evidence is that it is limited and can only be used to prove it in a certain way and whenever there is a conflict between the evidence, the recognition of the primacy and superiority of the evidence also has evidentiary value and is of great importance. The course of development and many ideas and theorizations regarding evidence and the passing of the era of applicability, judicial testing, judicial proof and the era of persuasion of the judge’s conscience and combined proceedings and theoretical and practical developments in this regard, from other aspects, the importance and attention to proof evidence. (Bahrami, Bahram, the requirements of evidence, p. 22). Regarding the importance of the reason and correctness of the mentioned descriptions, one should pay attention to this basic and important point that the reason becomes so important and is worthy of the mentioned descriptions that a right is violated or denied, and it becomes necessary in the judicial reference, the existence of the right and prove its destruction or denial.

1-3- Ways of proving a claim

1. A) Free or absolute method[1]:

The law has not specified a specific and limited method for proof, and the judge’s hand is free to reach the right and issue a verdict, and the parties to the lawsuit are free to present any evidence to prove their claim. Rules of evidence in English and American law are influenced by this insight.

1. b) Restricted method[2]:

In this view, the legislator has foreseen certain methods for proof and has set a specific value for each method, and for proof, the same method must be followed. In Islamic jurisprudence, the Restricted method is victorious.

1. c) mixed method

This method is a combination of absolute and restricted method. In criminal matters, they are bound by a free method, and in commercial and civil matters, they are bound by a restricted method.

1-4- Different judicial systems in terms of paying attention to the reason

Throughout the history of judicial system in advanced countries, various changes have occurred and in what comes back to the matter of reason, different systems have been experienced from two different perspectives. In terms of the role of the parties and the trial judge, it is divided into three systems and in terms of the value of the reasons that can be cited, it is divided into two systems.

1-4-1- Judicial systems in terms of the role of the parties and the judge in the proceedings

1-4-1-1- Accusative procedure system

In the accusative procedure system, it is the claimant or the parties to the lawsuit or their families who take over the lawsuit and without them, the lawsuit will not proceed at all. In this system, the person who is in charge of qadha is not a professional judge or a competent person to handle this matter, but a person like a litigant. That is, the party to the lawsuit responds to a person as a “representative” and a person like himself. The burden of proof in this system is on the claimant; Therefore, the party that can prove its claim in the appropriate way will naturally win the lawsuit. Here we get to know the key role of the lawyers of the parties in this system. In this way, there is no prosecutor, investigator, or investigating judge to prepare reasons. Basically, the system that prevents the judge from searching for reasons is called the system of legal reasons.

1-4-1-2- Inspection procedure system

The weaknesses of the accusatory procedure led to the emergence of another system called the investigative procedure. In the method of investigative proceedings, unlike the method of accusation, there is an official and an official institution for prosecuting the crime, and at the head of this institution is a person called a judge. This person is not like others or litigants, but he is distinguished from others with legal knowledge, experiences and necessary training, and judging is his only professional work. In this system, there is no verbal conflict between the disputing parties, but this conflict is seen as between the judge and the accused. The power of the judge in the above system as a defender of the interests of society is very high. It is the judge who has all the means and tools to detect the crime and makes the criminal confess with the help of those legitimate means. This type of procedure is often secret. Ordinary people cannot be informed about the course of proceedings, and therefore it is not possible for the public to judge the course of these types of proceedings and the nature of the judgments issued by these courts. In this way, the procedure will be in written form, and everything that happens in the procedure and every document added to the file must be written word for word in the file. The result is that the verdict of the judge, due to the non-publicity of the proceedings, does not remain far from the eyes of the supervisors of the proceedings at higher stages. Another important feature of this method is the tendency of the system of legal reasons. That is, the judge can order the effect only for reasons whose value and validity and the necessary number of them are already determined by the law. The most important feature of this system appears in the role of the judge, that is, the judge is not just a neutral judge and observer of the class, but effectively participates in the proceedings to discover the truth. In this system, the judge is obliged to pay attention to the reasons whose value and validity have already been determined by the law.

1-4-1-3- Mixed procedural system

Due to the shortcomings of each of the two systems of accusatory and investigative procedures, another system of procedures was created, which was called the mixed procedure system. This system was both in the idea of ​​providing the interests of the society and was interested in protecting the interests of the individual and individual freedoms. This system is free from the defects of the previous two systems because in it, the stage of investigation and detection of crime is investigative and non-confrontational and the sentencing stage is accusative and conflicting. Although our criminal procedure system has followed the mixed system, but in the years between 1373 and 1381, with the law on the establishment of public courts and the revolution (before the reforms), the one-stage procedure method was replaced, which can be He considered himself unique. However, by removing these problems in the Law on the Restoration of Courts in 1381, it is possible to evaluate the color of the mixed procedure in Maniz’s law. In criminal matters, the evidence and documentation are neither specified nor limited, and therefore the judge can use any evidence to prove the crime, which means that the principle of freedom of evidence has absolute power in these cases. However, the judge does not have complete freedom of action in this matter, but must observe the principles, including the use of legal methods of reason or reasons that are in accordance with the judgment. In the Islamic criminal procedure, a special system is applied, which cannot completely match the mentioned classical systems. For example, in Islamic law, some crimes are to be discovered privately. In this regard, in the case of murder and robbery, the testimony of two righteous men, the confession and knowledge of the judge are considered as evidence. The most important reason in these matters is testimony, but since the purpose of testimony and confession is ultimately to reach the truth, the judge can rely on all the ways to reach the truth, to the persuasion of conscience.

1-4-2- Judicial systems in terms of how to pay attention to the reason

In terms of the way of paying attention to the reason and from the point of view of valuing the reasons, the procedural systems are divided into two systems of legal reasons and the system of free reasons. This division is rooted in a fundamental question that has occupied the minds of lawyers for a long time. The question is whether the judge can rely on any reason that can be cited to prove the claim, or only some reasons are considered valid and he should only reach the truth through the reasons specified in the law?

For the answer, in the traditional concept derived from jurisprudence, it is said that in civil matters, the judge must cite specific reasons, but in criminal matters, the situation is not the same, that is, in criminal matters, the judge can cite any reason and evidence so that he can ultimately convince the conscience. and issue the appropriate ruling based on his knowledge (of course, traces of the system of free reasons can also be seen in jurisprudence).

1-4-2-1- System of legal reasons

In the system of legal reasons, the value of each reason is determined by the law. The judge does not have discretion in determining the degree of evidence, and his conscience is not the criterion of judgment. In this system, confession is considered the most important reason. The system of legal reasons is closely related to the investigative procedure system, that is, the judge’s role is limited to examining the reasons mentioned in the law, and he cannot base his decision on the basis of his conscience, and therefore, he does not have freedom of action in examining and evaluating the reasons. Reasons are classified in this system and they are first and last in terms of importance, that is, in the mentioned system, not only the law of reasons to arrive at the truth states, but also the value of each reason.

The system of legal reasons had some fundamental flaws. In this system, because the judge’s hand was tied from sticking to the law for reasons that are not explicit; Especially in cases where the accusation against the accused was very strong; He made the judge to torture to find a valid reason in the case, so that he could base his verdict on the confession and thus obeyed the legal evidence. This endangers the rights of the accused and on the other hand, it becomes an obstacle to reveal the truth – which was the main duty of the judge. That is, on the one hand, the truth was clarified for the judge with the help of non-express reasons in the law, but he could not issue an appropriate verdict.

The shortcomings of this system led to the creation of another system, which was first called the system of open reasons, and later it was completed and upgraded to the system of knowledge of the judge.

1-4-2-2- System of open reasons (judge science)

In the free reasons system, priority and delay are not included in the valuation for any of the reasons, but the value of each reason is subject to the judge’s opinion. In this system, the judge is not satisfied with the reasons specified in the law and uses any other evidence that can give him knowledge in order to discover the truth. The merits of the mentioned system are that it does not allow the accused to commit a crime in secret and to erase the proof of it, and the judge cannot issue a sentence due to the lack of legal proof of the crime. However, this system limits the rights and freedoms of individuals and causes them to be taken to court and questioned when the smallest emirates show evidence of criminality. The defects of these two systems led to the emergence of another system, which was called a mixed system.

1-4-2-3-mixed system

In the mixed system of procedure, in some cases, the system of legal reasons is followed, and in other cases, free evidence is followed. This system is sometimes used by citizens of our procedural system, both in criminal and civil matters. For example, the system of knowledge of the judge in Islamic law is, in a way, the same as the system of free reasons, but the same Islamic system has followed the system of legal reasons in the cases of “hudud” and “qisas”. In the Law of Establishing Public Courts and the Revolution of 1373, as well as the Code of Criminal and Civil Procedure, the judge is given a lot of authority to obtain the truth, because the judge is given the authority to use all the positive reasons. Achieving the lofty goal of “real justice and showing it” is one of the most important reasons for justifying the system of free reasons, and the complex nature of criminal cases requires that all scientific reasons be used, and ordinary reasons such as confession and testimony are subject to scrutiny. It is based on this argument that in civil matters, the confession cannot be divided, but in criminal matters, the situation is not like this. In civil matters, the confession has absolute validity and is the most important reason, while in criminal matters, the validity of the confession is subject to the judge’s opinion and depends on the extent to which the judge gains knowledge, and this reason is only one of the reasons (and in Some cases are even lower than that, for example at the level of one amara). Of course, it should be said that the system of free evidence in criminal matters in Iran does not have absolute authority, that is, in the cases of limits and retribution, the crime can be proven only by special methods, mainly through the confession and testimony of witnesses. It’s like the legislator has included the way of proving the crime in the definition of the crime in these cases. Therefore, perhaps it can be said that adultery that cannot be proven with, for example, 4 righteous witnesses, is not adultery subject to Sharia punishment, even if it can be proven by referring to forensic medicine.

1-4-3- The system of our country

In Iran’s civil rights system, the system of legal reasons is followed, and in criminal matters, the system of free reasons is followed. In cases of using criminal reasons, these reasons should be used in a legal framework. In addition, the reasons that are presented, even if they are among legal reasons, should be informative for the judge. This is because Article 161 of the Islamic Penal Code approved in 1392 clearly states: “In cases where a criminal case is proven with relevant Sharia evidence such as confession and testimony, the judge issues a verdict based on them, unless he has knowledge to the contrary”. Of course, in Article 162 of the same law, it is stipulated that “if the evidence that is relevant does not have the necessary Shari’a and legal conditions, it can be used as a judicial emirate, provided that together with other evidences and emirates, it leads to the judge’s knowledge”.

1-4-4- Commonalities of evidence in criminal and civil lawsuits

The evidence in both types of lawsuits has the inherent characteristics of similarity, that is, it has a common type and chapter, and both types are included in a single definition. Therefore, it can be said that evidence in any legal and criminal case is a known matter that is often used by one of the litigants in the judicial authorities to reveal the truth of the alleged unknown matter; Whether it will convince the conscience of the judge; or an unknown discovery; Or just to settle the lawsuit. Therefore, the shared aspects of the evidence in both cases can be considered above the level of similarity, because the evidence, in principle, have an inherent commonality with each other and are actually the same thing, but in some aspects, such as the way of application, the level of efficiency, the limits of its exploitation, the way Providing and… have differences that will be discussed further.

1-4-5- Evidence distinctions in legal and criminal cases

1-4-5-1- From the direction of the user

From the point of view of the user, it has the difference that collecting and preparing evidence in private rights and legal claims is the responsibility of the litigants. They are obliged to provide sufficient and valid reasons to prove what they claim. Meanwhile, the judge has the role of an impartial observer who evaluates the evidence presented by the parties to the lawsuit and makes a final judgment as to which side is right. Dr. Mohsen Sadrzadeh writes about this in the book “Evidence to Prove Claims”: “A legal judge, unlike a criminal or administrative judge, cannot provide the necessary evidence about the validity or falsity of a claim.” In legal cases, the judge is prohibited from even guiding one of the litigants. In this regard, the Civil Procedure Bill states in Article 80: “… the judge cannot help any of the parties in stating claims or how to argue and provide evidence…”.

The civil procedure law, even providing the reason for the cases where the local investigation and recording of other reasons such as obtaining the opinion of the informants, asking experts or using the evidences and emirates available in the place, etc. should be subject to the request of the litigants; And if it is not requested, the judge has no right to do such an act at all (Civil Procedure Law, Article 315). But in criminal lawsuits, it is the responsibility of the judicial system to gather evidence. Article 95 of the Criminal Procedure Code states: “The investigator is obliged to take immediate measures to prevent the destruction of traces and signs of the crime and not to delay in studying and collecting the evidence of the crime”.

1-4-5-2- In terms of the purpose of citation

The main purpose of using evidence in legal cases is to resolve the enmity between the litigants and secure their private interests (Goldozian, Iraj, Comparative Criminal Law, vol. 1, p. 3). Therefore, the final goal of the judge is only to settle the lawsuit and resolve the enmity, but in criminal proceedings, the final goal is a more important issue. In addition to the victim, the criminal act disturbs public order and security and threatens and violates the public interests of the society (Razavi University of Islamic Sciences Law Research Group, Proofs of Criminal Claims, p. 77).

The importance of proof of claim in criminal matters compared to civil matters is also doubled from another dimension. From the point of view that the criminal must be punished for his action and the innocent must be spared from the blade of punishment, and in this regard, the safety, happiness and well-being of all are guaranteed. Many social anomalies and crimes in the society are the product of lack of punishment and prosecution, not a few punishments. The judicial system, by not prosecuting on time, causes the thief’s egg to become a thief’s camel, in common parlance. For these reasons, with the efforts he makes to discover the truth, the judge seeks to prevent crimes and crimes, impose punishment or reform the criminal. Unlike legal claims, where the judge is only looking for the settlement of the claim and compensation for the losses of the litigants.

1-4-5-3-in terms of quantity

The difference of evidence in two cases in terms of quantity is precisely the result of the difference in the purpose of citing them. Since the ultimate purpose of citing evidence in legal cases is only the chapter of private lawsuits, the judgment is also limited to a certain range. The judge has the duty to verify the validity of the claim of one of the parties to the lawsuit. He is obliged (in legal cases) to pay attention only to the matters claimed by the litigants because his duty is only to pronounce the verdict of the lawsuit and he has no obligation to file it. The judge cannot add anything to that claim or subtract anything from it… (Syed Mohsen Sadrzadeh, Afshar, Claim Proving Evidence, p. 7).

Also, the judge is not allowed to use unlimited evidence, that is why the evidence to prove the claim in legal claims is usually provided in the law and the credit value of each is predetermined (Civil Law, Article 1257 onwards). However, in criminal lawsuits, since the matter is at a higher level than solving private lawsuits and compensating losses, the judicial system is allowed to use all means to discover the culprit and fully identify its details and according to Dr. Goldozian: “In criminal law, in addition to proving legal acts, usually proving material and psychological issues is also considered, all kinds of evidence such as written documents, testimony, confessions, local and expert examinations and investigations, evidences and emirates, etc”. In this way, the methods of education are multiple and free. Unlike the civil law, the value of the reason is not mentioned in advance in the law, and it is actually the judge who evaluates it.

1-4-5-4- In terms of the quality of decomposability and lack of it

Some evidences, such as confessions, cannot be divided in legal cases, but in criminal cases, it is possible to divide them. In criminal matters, the judge can analyze the confession of the accused and make only a part of it a document of the verdict, but this is not the case in legal cases, the judge must accept the confession of the accused in full and decide the case based on it or completely clarify (in legal matters, confession is called the Queen of Reasons). In a criminal case, the proof of civil matters is subject to the rules of evidence in civil law, for example, the court cannot analyze the defendant’s confession regarding the existence of a trust contract and consider a part of the confession as the basis of fraudulent breach and the crime of breach of trust (Goldozian, Iraj, Law Comparative criminal law, p. 95).

This rule also applies to denial after confession, so that denial after confession is not heard in civil matters. The person who confessed cannot deny it unless he proves the corruption of the confession (Article 1277 of the Civil Code). In legal matters, if the defendant admits a lie and the judge admits that it is a lie, he cannot give effect to that confession. Although confession is very important in criminal matters, the reference to confession and denial is debatable. In the Islamic Penal Code, denial after confession or appeal from it is known to be effective, except in mandatory crimes, where denial after confession has no effect. The responsibility of the confessor in civil proceedings is due to the self of his word (self-imposed obligation); And in criminal cases, it is caused by the criminal act to which he has confessed, not from the self of the confession (obligation of others); And considering the confession to be similar in these two types of proceedings is the analogy of difference. In civil matters, its probative value is not due to the validity of the discoverer of its reality, «but it is due to the fact that every reasonable person can admit a right to his own property to the detriment of others». (See Article 1259 of the Civil Code).

1-4-5-5-In terms of preparation time

In legal cases, since the purpose is usually to prove legal actions and legal actions take place before disputes and lawsuits arise, the laws and regulations clearly state that the evidence must be used to prove it before the dispute and A lawsuit must be filed. The set of rules and regulations for registration of documents, commercial offices, preparation of documents, obtaining witnesses, etc., is in charge of this issue. However, in criminal lawsuits, since the purpose is often to prove normal matters such as the commission of criminal acts and the material and psychological elements of the victim, it is not possible to provide evidence from the time of occurrence; Therefore, the legislator cannot provide evidence for this type of claims.

1-4-5-6- Due to the burden of proving the claim

Considering the lack of connection between the lawsuit and the public law and the purely private aspect of the issue in legal affairs, it requires that the burden of proving the lawsuit and presenting the evidence is always on the claimant (plaintiff). Article 1257 of the Civil Code, which contains the content of the jurisprudential rule “Al-Binah Ali Al-Mada’i and Al-Imin Ali Man Ankar”, is about the obligation of the claimant to prove the claim. But in criminal matters, according to the assumption that all crimes disrupt public order, the burden of proof is with the prosecutor, with the explanation that in lawsuits that have a purely public aspect, such as disturbing public order or crimes that have both Whether they are public or private, such as theft and fraud, the prosecutor is obliged to pursue the accused and file a lawsuit (according to Article 11 of the Criminal Code of 1392). Of course, it is obvious that the limits and limitations of the general aspect and its importance in different claims are different. For example, intentional murder and the issuance of a bad check both have a public aspect, but the level of public blame in them is not comparable to each other.

1-5- Confession

1-5-1- Definition of confession

1-5-1-1-Lexual definition of confession

Different meanings of the word confession have been mentioned in the dictionaries, including: to confess (Fakhruddin Tareehi, Majma Al-Baharin, vol. 3, p. 456). Acknowledging a right for its owner (Mohammed bin Yaqub Firouzabadi, Qamoos al-Lagheh, Harf Qaf) and proving something or someone somewhere (Razavi University of Islamic Sciences Law Research Group, evidence to prove criminal claims, p. 92). Confession in the word It means to place and stabilize the news or a certain object in the desired place (Fahimi, Dr. Azizaleh, evidence to prove legal and criminal claims, p. 42).

1-5-1-2- Terminological definition of confession

In Article 1259 of the Civil Code, confession is defined as follows: “Confession is news to one’s right to another’s detriment.” This is the only article that deals with the definition of confession, in other cases, if something is said about confession, it is referred to this article.

1-5-2- Differences between confessions in civil and criminal matters

Criminal policy requires that confessions in criminal matters and civil matters should not be treated the same because:

First: The issue of criminal lawsuits is human life and freedom, and these two things are more important than property, which is the issue of civil lawsuits.

Secondly: the motivations for false confession in criminal cases are much higher than in civil cases.

Thirdly: in criminal matters, in some crimes, repentance after confession can save a person from criminal punishment. For example, if someone repents after admitting to drinking intoxicants, the judge can request pardon from the guardian or impose the limit on him (Article 114 of the Islamic Penal Code approved in 1392). Also, the same rule is prescribed regarding the hadd of sahaq, the hadd of luwat and tafkhiz, which must be proven by confession. According to Article 225 M. 1992: If it is not possible to carry out the sentence of stoning, upon the proposal of the competent court and the approval of the head of the judiciary, this punishment is converted to death where the crime is proven by testimony. And where it is proven by confession, the punishment of stoning is changed to 100 lashes.

Fourthly: Confession in the investigation stage which is effective in discovering the crime is considered as a mitigation in some punishments. While in civil matters, confession at any stage does not reduce the rights of the accused.

In general, although the general rules related to the conditions and effects of the validity of the confession in civil and criminal matters are the same, there are still differences between the two, as follows:

1- Based on the first article of 1277 A.H. M. “Denial is not heard after confession”, but in any case, the said ruling does not prevent the hearing of the claim of invalidity of the confession (reluctance, compulsion, mistake) as well as the claim of corruption.

First: The aforementioned ruling is related to legal matters because in criminal matters, before the counting (number) of confessions is completed, it can be withdrawn and denied. Therefore, the principle of acceptance of denial after confession in criminal matters cannot be doubted.

2- In criminal matters, recourse to confession is foreseen, but in legal matters, recourse to confession is not foreseen.

3- Confession is decisive in legal matters and when the defendant confesses, no other evidence is needed to prove it, but in criminal matters, confession follows other evidence. If in Article 168 A.H. A. D.K. said: The investigator should not summon or arrest someone as an accused without sufficient reason to consider the accusation. In other words, confession is the mother of evidence in legal matters, and according to Article 202 A. d. M. “Whenever someone confesses to something that is the proof of his rightful party, no other proof is necessary to prove it” but in criminal matters, confession does not have such an effect and it is next to and subsequent to other proofs.

4- In legal matters, a positive confession is right and binding, but in criminal matters, a specific confession and the help of other evidence is a kind of Hint.

5- In criminal matters, the number of confessions is predicted, but in legal matters, a single confession is sufficient.

6- Based on Article 1263 of the Civil Code: “A confession of stupidity is not effective in financial matters”. Its opposite meaning is that it is effective in non-financial matters even if the non-financial matter has financial effects and results (cf. Emami, Hassan, Madani Laws, Vol. 6, p. 31 / Jafari Langroudi, Mohammad Jafar, Law Encyclopaedia, Vol. 1, p. 571). However, Some lawyers, separated the duty of the case where the non-financial matter has financial effects from the case where the non-financial matter is connected with the financial matter; And in the second case, they believe that the confession will be accepted only for the non-financial part of the confession. For example, if there is a confession of marriage, only the confession of marriage is accepted, but the Mehra al-Masmai is not acceptable in addition to it (cf. Emami, Hassan, Civil Rights, vol. 6, p. 31 / Shams, Abdullah, Civil Procedure Code, vol. 3, p. 480). As a result, false confession is audible and effective in criminal matters. Also, in the case of bankrupt and insolvent based on the articles of 1264 and 1265 AD. M is correct in non-financial matters and criminal matters.

7- In criminal matters, confession after confession cancels and sometimes changes the effect of the previous confession, but in legal confession, confession after confession has no effect on the previous confession and each confession has an effect independently.

8- In criminal matters, repentance after confessing can be a muscat of “hadd” and even if he is a combatant and confesses his crime before being arrested, the hadd will be removed from him.

9- The validity of a confession in criminal matters depends on the analysis and examination of its truth and falsity and its rational probability, but in legal matters until Article 199 of the A. D.M., the judge was not allowed to analyze the confession. Now, in addition to handling the evidence, he can do any research and action necessary to discover the truth. Article 199 of Q.A. D.M. stipulates: “In all legal matters, the court will conduct any investigation or action necessary to discover the truth, in addition to examining the reasons cited by the parties to the lawsuit.”

10- It is not specified in the Qur’an regarding the validity of confessions in criminal cases as one of the proofs, in other words, it is thought that the validity of confessions in criminal cases is less important than other evidences. By the way, the latest scientific achievements also tend in this direction that confession is not a valid and reliable proof. Contrary to the usual and common practice that it is placed at the top of criminal evidence, but in civil matters, the place of confession is as described in Article 202 of A.H. A. d. It has been said, despite the confession, no other reason is necessary. Article 202 of A.D.M.: “Whenever someone confesses to something that is the proof of his rightful party, no other proof is necessary to prove it.”

11- Confession in criminal matters is made verbally during special ceremonies and by the imam of the judiciary, but this is not the case in legal matters.

12- The effect of confession in criminal matters is criminal acts and criminal liability, but the effect of confession in legal matters is indebtedness and creation of civil liability.

13- In civil matters, if there is a conclusive admission of the lawsuit, it will lead to the dismissal of the appeal and the appeal, while the confession of the accused does not lead to the dismissal of the appeal (Katouzian, Nasser, Proof and Evidence, p. 263).

14- In civil lawsuits, the provisions of confession are imposed on the judge and he cannot pay for other reasons (Pishin, p. 262). In other words, the civil confession is not the proof of the claim, but it is a means of exempting the claimant from proof, and the right to demand proof passes from the claimant (Ahmad al-Sanhouri, Dr. Abd al-Razzaq, al-Wasit fi Sharh of the Civil Code of Egypt, p. 192). However, in a criminal case, it is the responsibility of the judge to evaluate the role and impact of the confession, or at least to examine the conditions of the confession.

1-6- Testimony

1-6-1- Definition of testimony

It is derived from the plural form of shahd, yashahd, intuitively and shahadah, which means presence along with observation combined with sight and insight, and sometimes it is used in the meaning of mere presence (Isfahani, Al-Raghib, Vocabulary of Words in the Qur’an, p. 274 ). In the term, the news is about the occurrence of things perceptible to one of the senses, in other cases, the news is about one’s right, to one’s detriment and to the benefit of another (because in this case, its name is confession, not testimony). Evidence must have existed in the past or existed at the time of testimony.

1-6-2- Gender of witnesses in civil lawsuits and criminal lawsuits

1-6-2-1- In civil lawsuits:

The civil procedure law, inspired by Islamic jurisprudence, has determined both their number and their gender. Article 230 of this law stipulates: In civil (legal) lawsuits, the number and gender of witnesses, as well as the combination of witnesses with oaths, are as follows…

1-6-2-2- In criminal lawsuits:

According to Article 199 of the Islamic Penal Law approved in 1392; The requisite number of witnesses in all crimes is two male witnesses, except for adultery, adultery, adultery, and mashakah, which are proven with four male witnesses. In order to prove adultery, the testimony of two righteous men and four righteous women is sufficient. When the punishment is other than the mentioned cases, at least the testimony of three righteous men and women is required. In this case, if two righteous men and four women testify to it, only the extent of whipping is proven. Crimes that cause ransom can also be proven with the testimony of one male witness and two female witnesses.

1-6-3- quorum Bayineh

1-6-3-1- quorum Bayineh in legal affairs

Article 241 of the Civil Code in the evaluation of testimony is related to the place where the witnesses do not reach a certain quorum, and if they reach a certain level, even if the judge is not convinced by conscience, the judge must vote according to the testimony. But the appropriate limit for the image in Article 230 AD is as follows:

1- The certificate of two men in the principle of divorce and its types, recourse in divorce as well as non-financial claims such as being a Muslim, puberty, injury and adjustment, pardon from retribution, representation and will.

2- Certificate of two men or one man and two women: in financial claims or what is meant by money, such as debt, sale price, transactions, endowment, rent, bequest in favor of the claimant, usurpation, wrongful and pseudo-intentional crimes which is the cause of dowry and also proof of the principle of marriage.

3- The certificate of one man with the oath of the applicant, the certificate of two women with the oath of the applicant, and in cases where it is not possible to provide the certificate of two men or one man and two women.

4- Certificates of four women or two men, and one man or two women: in cases where knowledge is usually available to women, such as childbirth, breastfeeding, virginity and internal defects of women.

1-6-3-2- quorum Bayineh in criminal matters

According to Article 199 of the Islamic Penal Code approved in 2012: “The quorum for testimony in all crimes is 2 male witnesses unless…”. This article, which is based on the well-known saying of Imamiyyah jurists, is in the position of stating “the fixed quorum in sharia martyrdom”. According to this article, in the absolute proof of crimes, the testimony of two righteous men with all the other conditions mentioned is considered Sharia.  Crimes that are outside the scope of the aforementioned general principle, and the condition of their proof is the testimony of more than two righteous men, have been precisely enumerated in the mentioned article. The last part of Article 199, which states: “Crimes involving ransom can be proven with the testimony of one male witness and two female witnesses”, is based on the ruling contained in Clause “B” of Article 230 of the Public Courts Procedure Law and the Revolution in Affairs. Madani 1379, which states as follows: “In civil (legal) lawsuits, the number and gender of witnesses, as well as the order of witnesses with an oath, is as follows: … b) Financial claims or what is meant by “property” such as: debt, sale price, transactions, waqf, rent, bequest in favor of the claimant, usurpation, wrongful and quasi-intentional crimes that cause ransom; The testimony of two men or one man and two women is sufficient. Therefore, the crimes requiring the payment of ransom, as well as the private aspects of the crimes, can be proven with the testimony of two righteous men, but also with the testimony of one male and two female witnesses. The provisions of this article are specific to Sharia testimony, and regarding non-Sharia testimony that has the “method” aspect, there is no discussion of the necessity of a quorum in testimony. Rather, it is the responsibility of the judicial authority to examine the effectiveness and probative value of testimony in terms of quantity and quality.

1-6-4-Similarities of testimony in legal and criminal matters

1- In legal matters, Article 1315 of the Civil Code is comparable to Article 182 of the 1392 Civil Code. This article states: “Testimony must be based on certainty and not doubt.”

2- Criminal litigants should refrain from any actions that cause ambiguity in the content of the testimony or disturb the presence of the mind of the witness during the testimony.

Therefore, “it is forbidden to interrupt the witness during the testimony. Each of the litigants and prosecutors can raise their questions with the permission of the court” (Article 328 of the Civil Code approved in 2012). Article 185 states: “If there is a conflict between two sharia testimonies, none of them is valid.” In legal matters, Article 1317 of the Civil Code is similar to Article 185 of the Islamic Penal Code approved in 1392. This article states: “The testimony of the witnesses must be unanimous…”.

Article 185 of the Islamic Penal Code mentions another condition of sharia testimony which is related to the “principle of testimony” and if the court finds after the necessary investigations that the testimonies of witnesses conflict with each other, it cannot issue a verdict based on the principle of their testimony. Because despite the conflict, their testimony is not considered as objective Shari’a evidence, but only if it leads to conventional knowledge, together with other evidences and emirates, for the purpose of obtaining the judge’s knowledge, it may be included as a document for issuing a verdict.

Question: Is secondary testimony valid in crimes that have two aspects of limit and financial guarantee, such as theft, or limit crimes that are considered in the numbers of human rights, such as Qazf?

Answer: The jurists have placed the place of execution of martyrdom on martyrdom “absolutely” in human rights. Mohagheq Halli says: “Fi al-shahadah is al-shahadah and it is acceptable in the rights of people” (Mahagheq Halli, Sharia’e-e-Islam fi Masal al-Halal wa Haram, vol. 2, p. 384).

And the jurists have excluded the pure rights of God, such as war, and crimes that are common between the rights of God and the rights of people, such as theft and blasphemy, from the scope of martyrdom.

According to the jurists’ point of view, it should be considered that although Qazf is one of the limits, but considering that it is a human right, it is outside the scope of Article 189, and testimony against testimony can be heard.

1-6-5- Differences in testimony in criminal matters and legal matters

The reason for testifying in civil matters has major differences with the reason for testifying in criminal matters, which are:

1- The quorum of testimony in civil and criminal matters is completely different from each other, and this is also due to the different nature of those matters. This law of civil procedure, inspired by Islamic jurisprudence, has determined both the number of witnesses and their gender.

Article 230 of this law stipulates: In civil lawsuits, the number and gender of witnesses, as well as the combination of witnesses with oath, are as follows:

A- The principle of divorce and its types and appeals in divorce as well as non-financial claims such as being a Muslim, puberty, injury and adjustment, amnesty from retribution, power of attorney, will with the certificate of two men.

B- Financial claims or what is meant by that property, such as debt, selling price, transactions, waqf, rent, bequests in favor of the claimant, usurpation, wrongful and pseudo-intentional crimes that lead to diah, with the certificate of two men or one man and two women. If it is not possible for the claimant to provide Islamic evidence, he can prove his claim by presenting a male or two witnesses attached to an oath. In the cases mentioned in this paragraph, first the qualified witness testifies and then the petitioner takes an oath.

C- Claims that women usually have knowledge of, such as childbirth, nursing, virginity, internal defects of women with the certificate of four women or two men or one man and two women.

D – The original marriage with the certificate of two men or one man and two women.

In criminal matters, according to Article 199 of the Islamic Penal Code approved in 2013, the quorum of testimony in all crimes is two male witnesses; Except in adultery, fornication, and adultery, which can be proven with four male witnesses. In order to prove adultery, the testimony of two righteous men and four righteous women is sufficient. When the punishment is other than the mentioned cases, at least the testimony of three righteous men and two righteous women is required. In this case, if two righteous men and four righteous women testify to it, only the limit of whipping is established. Crimes causing ransom can be proven with the testimony of one male witness and two female witnesses.

2- The reason for testifying in civil matters always has a religious aspect. This issue can be inferred from Article 241 of the Law of Public Courts and Revolution in Civil Affairs approved in 1379, which states: “The determination of the value and effectiveness of a certificate is with the court”. However, in the field of criminal matters, the proof of testimony, if it is sharia testimony, has an objective aspect, and if sharia testimony is not recognized, it can be cited as a procedural reason.

3- The Criminal Procedure Law of the General Courts and the Revolution provides for the summoning of witnesses in criminal matters (so that the witness does not appear despite being notified for the first and second time), but the Civil Procedure Law of the General Courts and the Revolution provides for the summoning of witnesses. has not foreseen (although this permission was issued in the previous law).

Therefore, there is no legal reason to call witnesses in legal cases.

4- The title of vagrancy is mentioned in Clause 3, Article 177 of the Islamic Penal Code approved in 2013, which does not appear in the Civil Code.

5- Sometimes it happens that access to the main witness is not possible due to his distance or death or illness or being in prison, etc. According to Shia jurisprudence, martyrdom is accepted in the right of mankind. However, in criminal matters such as revenge, fornication and adultery, which are part of God’s rights, testimony is not accepted.

1-7 Oath

1-7-1- Definition of oath

1-7-1-1-Lexual definition of oath

In the word oath, it means a syrup composed of frankincense, sulfur, and a little gold, and in some cases, it was taken to prove a claim (Sadrzadeh, Afshar, Evidence of Proving Evidence, p. 137).

1-7-1-2- Terminological definition of oath

Definition of oath in the legal terminology of Dr. Mohammad Jafar Jafari Langroudi: Oath

A: Witnessing one of the holy things (according to the oath taker’s belief) on the truth of his statement with certainty and knowledge except in the negation of the act, otherwise he must swear to negate the knowledge. Basically, an oath is considered as evidence in cases where a stronger evidence is not available to prove the claim. Among the reasons in the special sense, there is precedence and backwardness, and oath is the weakest evidence (Diyani, Abdur Rasool, the order of reasons between the documents of the judge’s decision, Judicial Journal No. 30, p. 3 and No. 31, p. 13).

1-7-1-3- Place of oath in criminal matters

One of the issues that can be discussed about oaths as proofs in criminal cases is Article 313 of the Islamic Penal Code approved in 1392, and the next issue is examining the evidentiary power of oaths in the courtroom. In Article 201 of the Islamic Penal Code of 1392, the legislator clearly defined the oath. The existence of this article in the Islamic Penal Code is one of the innovations of the legislator.

1-7-1-4- Probative power of oath in approx

According to the articles on the limits, these crimes cannot be proven with an oath. It is stated in the Prophetic tradition: “La Yamin fi Al-Had”, which of course refers to the pure right of Allah, and in the case of the right of God mixed with the right of mankind, it is proved by an oath, the aspect of the right of the human being is proved, like theft, the aspect of the right of the human being is proved by an oath. This is due to its belonging to dhimma, which can be proven with an oath, but the aspect of its divine right, which is cut off, cannot be proven with an oath. Article 280 of the A.D.M. also confirms this. In the Islamic Penal Code, in Article 208, it is clearly mentioned that the limits cannot be negated or proved with an oath, but the damages caused by the crime can be proved with an oath.

1-7-1-5- Probative power of oath in punishment

In Masalak al-Afham, the definition of Ta’zeer is as follows: Tazirat is the plural form of Ta’zeer, and in the word it means politeness, and in the terminology of the Sharia, it is a punishment for which in most cases, the principle of the Sharia has not specified a measure for it (Shahid Sani, Masalak Al-Afham fi Sharh Shar’i al-Islam, vol. 14, Institute of Al-Maarif al-Islamiya, 1419 A.H., p. 325). In Iranian criminal law, ta’zir is a punishment beyond the Shari’a limit. What is certain is that punishments cannot be proven with an oath. Article 208 of the Islamic Penal Code clearly mentions that punishments cannot be proven with an oath because if the crime is not proven by confession and testimony or by the knowledge of the judge, the principle of acquittal will prevail. The Legal Department of the Judiciary stated in theory No. 76/7 dated 23/1/1373: “With the exception of the cases stipulated in the law, criminal cases cannot be proven by taking an oath. The exceptions to the oath in criminal cases and the way to do it are the same as It is authorized in the laws, and outside of the legal texts (specific and specific cases), criminal matters cannot be proven by taking an oath.”

Article 178 of the Criminal Procedure Law of General and Revolutionary Courts in 1378, and Article 332 of the Criminal Procedure Law of 1392 The new law has clearly stated the phrase “in accordance with the law” in the article, but it was not mentioned in the previous law. Another point is that the above-mentioned articles are not related to proving the crime by oath and determining the punishment, but in relation to the damages caused by the crime, which is considered a civil lawsuit.

1-7-1-6- Probative power of oath in Diat

Due to the fact that its civil aspect prevails over its criminal aspect, it can be proved by oath. That is, the nature of “Diya” is compensation for damages because its amount is different in each case, while the amount of punishment is fixed. On the other hand, money can be forgiven, while punishment cannot be forgiven, and its general aspect prevails, and it is part of the administrative rules and public order. But because some people believe the opposite and believe that the dowry is a punishment, we are facing two different views regarding the dowry. It seems that the Islamic Penal Code approved in 1392 has accepted the first point of view (“Dieh” has the nature of compensation) and has clearly considered it possible to prove Dieh with an oath.

Therefore, “Diya” can be proven with an oath. Article 208 of the Islamic Penal Code clearly stipulates: “retribution, ransom, arsh, and damages caused by crimes shall be proved by oath in accordance with the provisions of this law.” Another thing that can be mentioned about the enforcement power of oath in the case of ransom is Article 209 of the Islamic Penal Code approved in 1392, which states that only the financial aspect of the crime, i.e. ransom, can be proven with an oath, and proving the ransom with an oath and the testimony of a witness is used somewhere. It is not possible to provide testimony for the private claimant.

1-7-1-7- The power of swearing in self-retribution and organ retribution

One of the developments that can be seen in the field of proving criminal offenses by oath in the Islamic Penal Code approved in 1392 is the proof of retribution by oath, which did not exist in the previous law. One of these articles is Article 208, which was discussed earlier. Another case that considers it possible to prove retribution with an oath is Article 308 of the Islamic Penal Code. The meaning of this legal article is that if a person commits a crime, and the defendant or the defendant claims that the crime was committed in the state of maturity or maturity, but the perpetrator claims otherwise, but the defendant or defendant must prove his claim. However, if the state before the crime happened, the perpetrator is guilty, if the perpetrator cannot prove his claim, it will be proven with an oath, but it will be retribution. Article 311 also considers it possible to prove revenge with an oath according to conditions. This article did not exist in the previous law. According to this article, it is permissible to prove retribution with an oath, and the evidentiary power of an oath in criminal crimes has increased to a certain extent, because in the previous laws, retribution could only be proven through an oath.

1-8 Qasamah

Murder is one of the most important examples of crimes against individuals. The usual methods of proving murder lawsuits are: confession, evidence, and the judge’s knowledge. However, in all cases, it is not possible to prove murder with these three methods, and the Holy Sharia has placed an exceptional method to prevent the loss of Muslim blood, which is called Qassama.

1-8-1- Qasamah tariff

1-8-1-1-Lexual definition of Qasamah:

Qassama for Fath Qaf and reduction of sin (without escalation), they say the oaths of the swearers or the oaths that are divided among the parents of the victim – in the case of accusing someone of murder – and that group is also called Qassama Fard (Ibn Faris, Ma’jam Maqais al-Lagheh, vol. 5, p. 86 / Fayoumi Moqri, al-Masbah al-Munir, p. 192 / Ibn Manzoor, Lasan al-Arab, vol. 12, p. 481).

1-8-1-2- Terminological definition of Qasamah:

In the terminology of religious jurisprudence, oaths are oaths that are taken by the claimant and his relatives to prove the claim of murder and injury, or by the defendant (in case of the claimant’s default) to deny it, under certain conditions. The group that takes the oath is called Qasamah Fard (Sheikh Mofid, Al-Maqna, p. 736 / Shahid Sani, Masalak al-Afham, vol. 15, p. 197). The Islamic Penal Code includes Qassama among the proofs of murder and wounding, but does not provide a definition of it. Qasamah is 50 oaths to prove intentional murder. In the case of intentional and wrongful murder, there are 25 oaths that the claimant (or the counter-claimant in case the claimant refuses to swear and to remove the slander) will take an oath alone or with the participation of 49 people from the deceased’s relatives, or less than 49 people (Jaafari Langroudi, Mohammad Jafar, Legal Terminology, p. 566, no. 4297).

1-9 Science of judge

1-9-1- Definition of the science of judge

It means knowing and knowledge. In jurisprudential terms, it means certainty, which is also called normal science. In judicial affairs and the science of law, the custom is that the normal science is evidence (Jaafari Langroudi, Mohammad Jafar, Terminology of Laws, p. 486). In terms of words, knowledge is the opposite of ignorance and means knowing (Khalil bin Ahmad Farahidi, Al-Ain, p. 574).

1-9-2- The science of judge and civil lawsuits

So far, it has been proven that science is a method and not a subject. It has also been proven that the judge’s knowledge is valid in all civil and criminal cases. So, what was stated in the theory number 8270/7 dated 16/12/1373 of the Legal Department of the Judiciary: “According to Article 105 of the (former) Islamic Penal Code, the judge’s knowledge is effective only in specific cases of criminal matters and not effective in legal matters. It doesn’t exist and the court must give a verdict based on the evidence”, it is against the famous theory. The famous jurists of the Imamiyyah have considered the knowledge of the judge as proof of the rights of God, and there is a slight difference regarding the rights of people, and Article 105 of the former law wanted to specify the duty of the judge in criminal matters, and proving it in criminal matters does not negate its validity in civil matters, because Human rights are not limited to retribution and religion, but also include civil matters (Evidences to prove criminal and civil claims, Law Research Group of Razavi University of Islamic Sciences, p. 260). While accepting the system of legal reasons, more importance should be given to the knowledge of the judge at the present time. The concept of Article 1335 of the Civil Code also confirms this issue; Therefore, the judge’s knowledge is valid if it is based on evidence, and the judge, with the permission given to him in Article 167 of the Constitution, acts on his knowledge and issues a decision by referring to jurisprudence and following the opinion of famous Imami jurists. Azizi, Asghar, jurisprudential and legal review of the study of evidence and the validity of the judge’s knowledge in civil affairs, p. 202).

In civil lawsuits, it is not necessary for the evidence to convince the conscience of the judge in order to be considered valid. Although the proofs of the lawsuit lack the definition of absolute objectivity, their function is not to create knowledge in the judge’s conscience, but it is necessary that they do not contradict the judge’s knowledge. In the sense that these evidences are valid, even if they do not bring knowledge to the judge in the case, but if the judge is aware of the inaccuracy of their content, he cannot issue a decision based on them. In a word, the evidence of legal proof has neither absolute objectivity nor absolute method. Rather, they have both attributes relatively.

1-9-3- The role of the judge in assessing religious reasons (legal)

A religious or legal reason is a reason that is imposed on the judge regardless of its persuasive effect. Among the civil reasons in Iranian law, confession, document, legal emirate and oath are among the mentioned reasons.

1-9-3-1- Science of judgment and confession

After defining confession in Article 1259, the Civil Law stipulates in Article 1275: “Anyone who confesses a right to another will be bound by his confession”. Also, Article 202 of the new Civil Procedure Law states: “If someone confesses to something that is the reason for his party’s right, no other reason is necessary to prove it.” According to this ruling, in case of confession, the civil judge has no right to consider other reasons and the provisions of these legal articles will be the meaning of pure subjectivity for confession. But according to Article 1276 of the Civil Code, this doubt will be removed because it stipulates: “If the false confession is proven before the ruler, that confession will have no effect.” And this may be due to the knowledge of the judiciary (Hamid, al-Masakiyyah, al-Ikhar fi al-Ahkam al-Qada’iyyah, Baghdad, 1970, p. 479). Article 1277 also based on the same basis, after noting the futility of denial after confession, does not consider the claim of the headquarters regarding corruption or mistake or wrongness of the confession.

1-9-3-2- Science of proceedings and written documents:

From the legal point of view, the document can be divided into different types in terms of the type and validity of the declarations contained in it, and in this part, the document is discussed in its special meaning, assuming its authenticity. Article 1284 of the Civil Code defines a written document, and according to Article 1286 of the Civil Code, documents are divided into ordinary and official documents. Some legal articles regarding some documents are useful for their absolute objectivity, for example, Article 22 of the Registration Law regarding property ownership is registered: “As soon as a property is registered in the real estate office according to the law, the government only registers the person in whose name the property is registered. registered, or the person to whom the said property was transferred and this transfer was registered in the real estate office, or the said property was inherited from the official owner, the owner will recognize it”.

However, in Article 1288 of the Civil Code, it is mentioned: “The contents of the document are valid if they are not contrary to the law”. And certainly, the judge is the authority to determine conformity and non-conformity. In general, it should be said that the judge’s knowledge is valid if it is based on legal evidence such as a document, and on the other hand, if the judge finds that the documents are contrary to the law and contrary to the facts, he cannot cite them and recognize them as valid. .

Also, in relation to the conflict between the knowledge of the judge and the document, a distinction should be made because according to Article 1324 of the Civil Code, the knowledge of the judge arising from the judicial decree can be relied upon if the claim can be proven by the testimony of witnesses, and according to Article 1309 of the same law Against the official document and the contents of such documents, legal science cannot be relied on, but in other normal documents, since these useful documents are a kind of knowledge, therefore legal science precedes it and there is no prohibition in this matter.

1-9-3-3- Jurisprudence and Emirates:

Article 1321 of the Civil Code defines emarah: “emarah is a state of affairs that is recognized by the law or in the opinion of a judge as proof of an order”.

Legal and judicial emirates are not the same in terms of validity. If there is a legal requirement to prove the claim, the judge is obliged to consider it valid and discover the existence of the unknown matter, and in this case, issuing a verdict according to it is not valid for the judge. Even if the lawsuit is one of the cases that cannot be proven by the testimony of witnesses (Article 1323 of the Civil Code).

However, the useful judicial decree of judicial knowledge is from the point of view of the discovery of the right and it can be invoked if the lawsuit is one of the cases that can be proven with testimony or if it complements other reasons (Article 1324 of the Civil Code).

But the problem here is that if there is a legal decree but there is also a judicial decree whose provisions are in conflict with the legal decree, which decree takes precedence?

In response, it should be said that the judicial edict is due to the fact that the situation and circumstances are in dispute and the judge has the opportunity to do any research and thinking in order to obtain it, the result of this investigation is inevitably far more valuable than the legal edict and because of the personal suspicion in the case for the judge It creates a legal presumption that is beneficial to a kind of suspicion, and the reason for that is that a personal suspicion takes precedence over a kind of suspicion in proof (Nasser Katouzian, under Article 1324 of the Civil Code, p. 785).

However, in any case, the recognition of the degree of validity of the amara depends exclusively on the conscience of the judge, which means that distinguishing the degree of strength, openness and effectiveness of the amara is related to the judge’s opinion and is considered one of the substantive issues (Metin Daftari, Ahmed, Civil and Commercial Procedures , vol. 2, no. 517, p. 464).

1-9-3-4-The knowledge of judge and oath:

Article 1335 BC (Amended 8/14/1370) stipulates: “Appeal to an oath is possible when a civil lawsuit is not proven before the ruler by confession or testimony or knowledge of the judge based on documents or emirates. In this case, the claimant He can make the judgment of his lawsuit, which is denied by the defendant, subject to his oath.

Article 1335, the duty of the conflict of the judge’s knowledge caused by reason; He has defined it with an oath, and where there is such knowledge, there is no time to swear.

From a jurisprudential point of view, the obligation is completely clear and they are of the opinion that the oath does not have an aspect of discovery and is not an unknown judicial tool (Hosseinaghli Hosseininejad, Evidence of Evidence, p. 26).

As a result, such an oath that contradicts the knowledge of the judge is not valid, and even the verdict issued on the basis of such an oath is void (Imam Khomeini, Tahrir al-Wasila, vol. 2, p. 418).

1-9-4- The science of judge and persuasive reasons

Persuasive reasons are reasons whose purpose is to convince the judge’s conscience, and the value of the reason is what the judge recognizes, and the basic element of these reasons is not to impose it on the judge.

1-9-4-1- The knowledge of the judge and the testimony of witnesses:

 In Iranian law, the legislator believes in the method of having the testimony of witnesses, and according to Article 241 of the Law of Procedure of General Courts and the Revolution in Civil Affairs 21/1/1379, the judgment of the value and effectiveness of the testimony is assigned to the court. These rules have the power to intervene only from the point of negation and have no implication from the affirmative aspect. Therefore, if the judge was aware of the inaccuracy of the testimony, he should pay attention to other evidences and deal with them based on them.

1-9-4-2- Judge science and examination and local investigations:

The on-site examination and investigation is considered a judicial emirate and will provide assurance or knowledge of the judge, and it is clear that there is no possibility of conflicting the information obtained from the local investigation and examination with the knowledge of the judge.

Because this information is considered as evidence, and if it is in conflict with the judge’s knowledge, it has no effect and lacks validity.

1-9-4-3- Knowledge of the judge and referring the matter to an expert:

The content of this argument is valid as long as it does not contradict the knowledge of the judge regarding the issue. In order to prove this, it can be argued that the recognition of the completeness or incompleteness of the expertise (according to Article 263 of the new Civil Procedure Law) or even the necessity or lack of necessity of the principle of expertise (according to Article 257 of the same law ) depending on the opinion of the judge, it is also possible to refer to Article 265 of the new law (which repeats the provisions of Article 460 of the old law). In the mentioned article, it is stipulated that: “If the expert’s opinion does not correspond to the circumstances of the researcher and the knowledge of the expert’s case, the court will not give effect to that order”. In jurisprudence, there are two sayings about the conflict between the judge’s knowledge and the expert’s opinion: the late Mr. Boroujerdi considers the judge’s knowledge to be equal to other evidences and says: “When the judge’s hand is cut short from evidence, he can judge by his own knowledge” (Khaifi, Abdullah , judicial system in Islam, p. 86).

However, the late Mr. Araki considered the judge’s science to be the same as evidence and considers it to be superior to other evidences and says: “It is not permissible to rule according to evidence and the right to the ruling knowledge (Shari’a) contrary to it, but it is not unlikely that the ruling is based on knowledge, whether in The rights of God and what about the rights of people from any reason, if it is normal” (Araki, Muhammad Ali, Esfatataat, p. 222).

1-9-5- Examining the judge’s knowledge in criminal cases

Article 211 of the Islamic Penal Code approved in 1392 has been legislated in the capacity of defining the knowledge of a judge and determining some of its examples. In this legal article, the type of evidences and local emirates do not have Arabs, but it is important that they provide documented and substantiated knowledge for the judge handling the case. What the legislator means by “documents, evidences and emirates between”, are evidences and emirates that are clear and clear and lead to reasonable and conventional knowledge, in such a way that the general judges, when faced with those evidences and emirates, are aware of the subject of the case.

The Legal Department of the Judiciary has expressed its opinion in this regard in the following way during the time of the former government, according to the advisory opinion No. 1636/7 dated 3/8/1385: “The document of the knowledge of the judge should have clear, clear and conventional signs and analogies. May he return to sensory science, so that he can create knowledge for others in court as well.”

Therefore, the report of the officers alone without the observer and eyewitness of drinking alcohol by the accused, even if they have smelled the smell of alcohol from the mouth of the accused, is not a proof of the crime of drinking alcohol, but a special forensic test if the presence of alcohol in the prove the blood of the accused and other evidences and Emirates in the case, as long as it creates knowledge and certainty for the judge that the accused drank alcohol, he can act on the basis of his knowledge according to Article 105 of the Islamic Penal Code” (legal assistant and Judicial Development of the Judiciary, Vol. 1, p. 746).

Therefore, if the knowledge of the judge is not reasonable, logical, clear and clear in a documented and substantiated manner, and the judgment is issued merely by inference, it is higher than the causes of violation of that judgment in the judicial authorities.

Below are some examples of cases of violation of the court order in the Supreme Court of the country due to not recognizing the knowledge of the judge in a reasonable and conventional manner:

1- Insistent vote No. 63 dated 18/7/1368: “The inferential opinion of the criminal courts of one Tabriz (branches 18 and 27) on the execution of Ali on the charge of committing the act of Luwat, which was stated on the basis of science, was rejected by the overwhelming majority of votes.

It can’t be done because despite the doubt in Iqab, there is no proof of acquiring knowledge through conventional methods.

2- Ruling No. 6 dated 1/4/1378: “Regarding the fact that a verdict of stoning has been issued regarding the accusation of pure adultery and the proof of the accusation has been stated to be the knowledge of the judge, if the documents contained in the case of knowledge and It is not effective in the position, therefore the decree is violated” (ibid., p. 747).

In cases where the judge cites his knowledge as the basis of the ruling, the judge is obliged to clearly state the evidence and the documented Emirates of the knowledge in the ruling, otherwise the ruling issued by the higher judicial authority will be violated.

Among the cases of violation of the verdict in the Supreme Court of the country due to the failure to correctly mention the evidences and Emirates Documentary of Science, we can refer to the urgent decision No. 56 dated 7/11/1368, which stated the following opinion: “The opinion of the criminal courts of Isfahan on Rajam Hasan and Mrs. Tahira were accused of committing adultery, which was stated based on the knowledge obtained from the contents of the case, because the conventional methods of knowledge were not mentioned, by the vast majority of votes, it is not enforced” (ibid., pages 746-747).

It is worth mentioning that Imam Khomeini (may Allah be pleased with him) in his book Tahrir al-Wasila also pointed out the need for the knowledge of the judge to be documented: “The ruler has the right to act according to his knowledge in the rights of God and the rights of people, so if he knows the reason (i.e. knowledge) can be cited and reasoned), it is obligatory for him to establish the limits of God” (Mousavi Khomeini, Seyyed Ruhollah, previous, vol. 2, p. 499).

1-9-6- Differences in the knowledge of judges in criminal and civil matters

There are differences between the knowledge of judges in civil and criminal matters. In civil matters, the knowledge of the judge is used in the phase of examining the “reasonableness of the reason”, but after proving the reasonability, there is no more room for not sticking to the reason and the judge must rule according to the legal reason. For example, if the judge considers the confession of the party to be false, he cannot issue a verdict based on it. The way to recognize the falsity of a confession or the falsity of a witness’s testimony is a science that arises for him.

Unlike civil matters, where the knowledge of the judge is used in the evidentiary stage, in criminal matters, the knowledge of the judge is the basis of the verdict and is considered an independent proof to prove the truth. That is, the knowledge of the judge is used both for valuing the reason and at the stage of issuing the verdict as its basis and documentation. The legitimacy of the evidence depends on the level of confidence it creates for the judge. Therefore, no matter how valid the evidence is, such as the confession and testimony of witnesses, if it cannot create knowledge for the judge, it is not valid.

The judge must conscientiously ascertain the issue that even though the documents of the case are of great importance, whether knowledge is useful for him or not, and if he does not create knowledge for him and it is documented, then he will be sanctioned by God and guaranteed in the eyes of the people. (Diyani, Dr. Abdur Rasul, evidence to prove litigation in civil and criminal affairs, second edition, p. 280).

Imam Khomeini also says under problem 8 of the chapter of Qadar Tahrir al-Wasila: “La yajozu lah al-hakam baal bineh if it is contrary to his knowledge, my oaths are even false in opinion” which means that a judge cannot vote based on knowledge that is contrary to his knowledge or on someone’s oath. According to his opinion, he is a liar.

It is obvious that the reason is that the authenticity of vision and confession is fake. That is, it is a scientific function that creates for the judge; But the validity of knowledge is inherent. Falsification of suspicion, such as testimony and confession, is more relevant to someone than the truth

he does not know; But a person who is in a relationship with Haqq is forbidden to rely on this suppositional method. Therefore, if the judge finds out about the error of way, he cannot rely on it.

The non-counting of proof evidence for criminal matters indicates the fact that, from the point of view of Iranian criminal procedure, evidence is anything that proves the existence or validity of something, whether it belongs to it in the form of classical evidence such as confession, testimony, and oath what not.

Conclusion:

Claims presented in the courts of justice are divided into two categories: legal and criminal, each of which has its own performance guarantee. If a person is harmed in any of the legal matters and intends to file a lawsuit and compensate for his loss, it is necessary to provide evidence for his claim. In legal matters, evidence to prove a claim is divided into 6 categories, which are:

• Confession
• Document
• Witness testimony
• Local investigation and inspection
• Refer to an expert
• Oath

Evidences to prove criminal cases are:

• Confession
• Testimony or testimony of witnesses
• Oath
• Qasamah

The explanations that were said about oaths in legal matters are also valid for criminal matters, but with the difference that limits and punishments cannot be proven with an oath, but retribution, ransom, arsh, and damages caused by a crime can be proven with an oath. The number of witnesses in all crimes is equal to two witnesses, but in some criminal cases, the legislator has determined the number of witnesses for some crimes, and if the prescribed quorum is not sufficient, the said crime will not be proven. In all cases, only one confession is enough, but in some criminal cases, the confession must have a certain quorum. In criminal matters, it is foreseen to refer to confession, but in legal matters, it is not foreseen to refer to confession. In legal matters, the confession is decisive in the case, if the defendant confesses, no other evidence is needed to prove it, but in criminal matters, the confession is a consequence of other evidence. In legal matters, positive confession is right and binding, but in criminal matters, definite confession and the help of other evidences is a kind of decree. The validity of a confession in criminal matters depends on the analysis and examination of its truth and falsity and its rational probability, but in legal matters, until Article 199 of the Civil Procedure Law, the judge was not allowed to analyze the confession, but now, in addition to examining the evidence, carry out any investigation or action necessary to discover the truth. Confession in criminal matters is done verbally during special ceremonies and before the Imam of the Judiciary, but not in legal matters. Therefore, the shared aspects of the evidence in both cases can be considered higher than the level of similarity, because the evidence basically has an inherent commonality with each other and is actually the same thing, but in some aspects such as the way of application, the level of efficiency, the extent and limits of exploitation. From that, the way to provide and… have differences. Reasons in criminal matters are more important than in legal matters. In fact, apart from the importance of interests and rights that are considered to be limited in criminal matters, the special nature of the reason issue has also increased the importance of reasons in this case. Basically, in criminal matters, reasons are not prepared in advance, but after the criminal event, they should be collected. In other words, contrary to legal matters, where usually the parties of a legal relationship, when creating the rights and obligations arising from it, also try to create the reason to prove it, in order to oblige the other party to fulfill their obligations when necessary, in matters In criminal cases, basically, the proof of events is involved, the realization of which is not known in advance, and no one has tried to prepare the reason to prove it, and therefore, the role of the judge in criminal matters is a more active role than in legal proceedings.

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[1] liberal system

[2] conditional system