حق المتهم في الدفاع بين القانون الوضعي والشريعة الإسلامية

Abstract

The crime, the accused, the investigation and the penal prosecution are the elements through which criminal action is formed in all its stages and procedures and which are linked together in an indivisible integrated whole, Is the right of the accused to the defense. Despite the predominance of this right throughout all criminal proceedings, in order to ensure the legitimacy of the proceedings and to confirm the basis for a fair trial, the positive law of all its international and national provisions, has not yet reached the formulation of the complete and homogeneous theory which adapts to all conditions and all developments. This integration, which is a human and global requirement, is carried out under Islamic law, both in terms of enshrining this right, its protection and application by judges or in terms of its formulation by jurists in the universal jurisprudential rules as That with its ends, the clearance of origin, the constancy of prejudice, the justice of habit, the basis of the judge's appeal, the obligation to give conciliation between the accused and the Victim and the accused's recourse to his confession "because he came to fight the corruption that spread before his appearance, while inspiring for all those who seek the truth of the right of defense, which translates By appeal to all the legal districts that represent the positive law after the Second World War for the need to respect the rights of the defense, especially those of the accused. Through the dialogue that took place between Islamic law and positive law, defense law support has been put into practice which can not be proved in the case of the collapse of one of them, and Which vary between institutional , regulatory and procedural supports. The harshness and the capacity of these supports do not appear to be overwhelmed by the right to defend the accused, but by the exercise of criminal proceedings at various stages, they are regarded as the chief agent of The legitimacy of the proceedings, which prompted some positive rights to the need to protect them after their pledge to be available to the accused during his trial and the investigation carried out with him. The pursuit of the truth will depend on the protection of the rights of the defense and, consequently, any modification which the lawyers of positive law aim at, will inevitably lead to the strengthening of the rights of the defense because they have become the spirit criminal procedure .