الإثبات بالقرائن في المواد الجنائية
رحال, محمد الطاهر
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The subject of proof through presumptions in penal matters is considered as one of the most crucial procedural penal subjects on the scientific and effective basis, since it can be classified among what is called penal proof. The presumptions try to find out an unknown fact from known and stable facts by making use of logical and experience rules; in a way that leads necessarily to the unknown facts. And the presumptions are of two kinds: legal presumptions put forth by legislation and judicial presumptions related to penal judges competence who find them out from stable facts. The presumptions have an efficient value in the penal proof field moreover; they have out done the other penal proofs, notably, because of the modern scientific development. This value is illustrated via the efficient role that the presumptions perform through the different stages of the penal action; beginning from the collection of information stage where the presumptions are very weak, and then, they get stronger in the judiciary instruction phase trough the examination and interpretation of the discovered proofs, and they reach the highest point of strength in the judgement phase where it can be considered as an original proof in the penal action, The judge can refer to them exclusively to form has personal conviction and build his judgement or decision without having recourse to other types of proof. And the value of presumptions appears once again through its legal credibility as it is a serious proof in penal matters; no matter they are legal or judiciary presumptions. And the legal presumptions can be split into two types: absolute legal presumptions that cannot be counter- proved and simple legal presumptions that can be counter – proved. It is well- established that the absolute legal presumptions have a proving strength. It is worth noting that the latter type of presumptions has faced opposing attitudes from the part of penal law researchers; according to them absolute legal presumptions restrict the freedom of the judges in building their conviction; in addition to that they constitute an obstacle to apply the presumption of innocence. And because of the absolute legal presumptions, the accused person is bound to prove his innocence. Finally they perform a secret role in the field of legislation as they make objective rules. And as far as judiciary presumptions are concerned, they represent a crucial value in terms of penal proof, it is the vast scope that through which the conviction of the judge is realized; as a means of proof in itself, particularly in the absence or incapacity of direct proofs, or as a proof consolidated by other penal proofs. And also the ability of the judiciary presumptions to reveal the criminal intention in several infractions. And finally the transformation of judiciary presumptions into legal presumptions. It is worth noting that what attributes a special argument to judiciary presumptions is the appearance of some kinds of presumptions that are certain in terms of the results they produce; they are called ''scientific presumptions''. Many judges have recourse to them in their quest for the truth. As examples of these types of presumptions, we can mention finger print, blood, hereditary print presumption, and finally presumptions taken from registration of sound and photography.