Witness and Testimony Conditions under Iranian Law and Jurisprudence

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1 International Academic Institute for Science and Technology International Academic Journal of Politics and Law Vol. 2, No. 1, 2017, pp International Academic Journal of Politics and Law Witness and Testimony Conditions under Iranian Law and Jurisprudence Sheida Barahooei 1, Golamreza Arefian 2* 1 Department of Law, Bandar Abbas Branch, Islamic Azad University, Bandar Abbas,Iran. 2 Department of Law, Bandar Abbas Branch, Islamic Azad University, Bandar Abbas,Iran. *Author for Correspondence Abstract Testimony in legal terms means to provide information of the event for one side and against the other by a third party other than the parties expressed. According to Article 155 of the Criminal Procedure Code and the provisions of this Article, witnesses must have the following conditions: 1) maturity, 2) wisdom, 3) faith, 4) legitimate birth, 5) justice and so on. it is necessary to mention the conditions mentioned in the testimony of witnesses to be invoked as religious arguments. In these cases, if they do not meet the conditions of testimony, according to Article 156 A.D.K, they shall be heard without the oath for more information. Note that, the court refer to testimony of witnesses is conceivable in two ways and should distinguish between the two in witnesses conditions. In cases where the testimony of witnesses invoked as religious arguments: in these cases, the judge issues the sentence, not based on the knowledge obtained by the testimony of witnesses but the same testimony is used as religious evidence (relevance of testimony); and the latter cases, the testimony of witnesses led to the conviction of the judge conscience and he gains knowledge based on the testimony of witnesses on the innocence or guilt of the accused and the judge refers to his knowledge in the verdict (testimony as a principle). In this case, the judge can, even in cases where the number of witnesses is not reached to the legal quorum, or witness are not qualified to testify, without oath, hear their statements for further information, and if the total of such evidence would be provided to satisfy him, issue verdict. The current paper, witness and testimony conditions are studied in Iranian law and jurisprudence. Keywords: Testimony, Witness, Iranian law, Jurisprudence Introduction In Chapter III, Section V of the Penal Code on Criminal Matters (Basic Materials) Article 174 of IPC, states: The testimony is someone other than the parties providing information on the occurrence or nonoccurrence of a crime by the accused or anything else at presence of judicial authorities. It should be noted that Articles 175 to 200 of IPC have explained the testimony conditions. A proof of claim is to give 1

2 testimony.testimony may mean the presence according to the Quranic verse 185 of Al-Baqarah whoever of you witnesses the month, let him fast. In religious jurisdiction the testimony is the definitive information about the right that is proved for someone, provided that it is not issued by ruling (Najafi, 1990, vol. 41, p. 7). The term Shahad in Arabic means to see suggesting that the observed (Tarihi, 2016, vol. 3, 357). Tarihi in Majma Albayan also provides a meaning neat to the recent interpretation, and provides the meaning based on the verse We testify only to what we know. This theoretical result is that testimony means being present, knowledge, and giving information.the majority of jurists did not try to define the word and perhaps the reason is Muhammad Jawad Mughniyah quotation from Jawaher writer that jurisdiction has no specific definition of testimony and the common meaning is considered. Lawyers provide the following definition: testimony is to provide information of the tangible event discerned by one of the senses thereafter in non-legitimate news to their detriment and in favor of other (because in this case the name of that confession is not evidence) are known to have found in the past or at the present (Sadrzade Afshar, 1997, p. 151). The term refers to the witness as the evidence. The one who gives information of the events in the past and present (from hearsay) is known as witness. Dr. Syed Hasan Imami said in testimony definition: means to provide information of the event for one side and against the other (Imami, 1967, vol. 6, p. 58). Dr. Katuziyan also stated in the introduction to the science of law: Testimony is expression of that a person has direct information from the event (Katuziyan, 2015, p. 108). Testimony in Iranian law (past and present) In our country's current rules of civil law, as one of the most fundamental source of law in the country devoted Articles 1306 to 1320 to the testimony, witness specifications and witness conditions (Civil Code, Article 1306 to 130), also Articles 406 to 426 Code of civil procedure relate to testify as a witness and presence in the courtroom of commitment or injury diagnosis as eyewitness for identification (Civil Procedure Law, Article 406 and 426). But in the past (before the revolution) seems the Iranian Civil Code influence by French law limits the value of the testimony and considered valid only in the following cases: 1- Contracts that value less that 500 Riyal. Civil Code in 1306 on this matter, says: Unless the law has accepted, obligations and contracts and unilateral obligations more than the value of 500 Riyal are cannot be proved by oral or written testimony, but this does not mean that courts cannot refer to the witnesses for further information and uncover the truth. 2- Comply with obligations assumed by contracts not worth more than five hundred Rials. Article 1307 of Civil Code reads: In the case of contracts of these obligations the one who claims meeting obligations cannot prove his claim only by testimony. 3- To complete or reinforce the evidence, although valued more than five hundred Rials, such as the document is set to indicate the debt to another but the type of debt or its value is nonreadable because of the illegible handwriting or torn paper, in this case, the creditor may invoke witnesses to prove the type of debt or its value. Paragraph 1 of Article 1312 Civil Code. 4- In the event that testimony is to boost or complete evidence. 5- In cases when certificates cannot be provided due to accidents such as fire, flood, earthquake, etc. Subparagraph 2 of Article 1312 Civil Code: In the event that, due to accident, the document is not available. 2

3 Witness condition About the testimony, Shiite scholars, whether contemporary or past, provided five to ten conditions for the witnesses. A majority of scholars have stated six conditions while some have deemed seven conditions necessary. The difference between the two is that the latter have provided Islam and faith conditions separately, but the first have provided both as one condition (Goldozian, 2005, p. 361). We also conform to the majority of scholars and continue this discussion on the basis of the six conditions. The six conditions include maturity, wisdom, faith, justice, legitimate birth, and lack of accusation in witness(jabae Ameli, 1986, vol. 3, p. 125) that will be discussed.: A- maturity: Shia and Sunni scholars have unanimously rejected the testimony of immature: There is disagreement among scholars on the testimony of immature wise child that the controversy rises from different interpretations of some hadiths including: a wise child testimony is only accepted in qisas and wounds on condition that they are ten years and not scattered after the accident to testify, and the gathering is permissible (Imam Khomeini, 1993, vol. 2, p. 444). Wise children testimony is only accepted in qisas and wounds and is subject to two conditions: First, the testimony of non-contradiction and second, all children testify the same. Wise children testimony is only accepted in head and face injuries and in case they testify differently, the first is valid (Jabaee Ameli, 1986, vol. 3, p. 126). Wise children is only accepted in wounds on condition that the children testimony is non-contradiction and are not gathered to do some forbidden act (Mohaqeq Heli, 1408 AH, vol. 4, p. 910). Shahid Aval also shares this view and stated one condition in Al-Durus Al-Shariyah that we heed to the first said by the child (in case of obtaining a plurality of speech), but in Alalmah Aldmshqiah mentioned two conditions that their community is on permissible matter and their not scattering after the testimony (Shahid Aval, 2001, p. 230). B-wisdom: The second character necessary for witness is to have full wisdom (Goldozian, 2005, p. 361). Thus, the testimony of insane is not acceptable on consensus, but it is one of the necessities of religion without any reason to for it in the Koran and traditions (Imam Khomeini, 1993, vol. 2, p. 398). Periodic insane madness testimony is not accepted, but at the time consciousness is accepted, provided that the wisdom is discovered to the judge's mind, as this case is included in testimony evidence given in the Qur'an and traditions: Testimony of a forgetful person (who often forgets) is not accepted; because this makes the provisions of word meaning is changed. C-Faith: Some Islamic jurists mentioned Islam independently with faith (the Twelver Shi'a), as a condition, but most scholars just mentioned faith without as an independent condition because the belief of Islam is synonymous to that devout Muslim (Imam Khomeini, 1993, vol. 2, p. 398). D-Justice: Justice is the fourth condition for witness repeated in Quranic verses and many hadiths. Sheikh Tusi in Almbsot said, just is one who is righteous in religion compassion and rules. And what of the causes of justice in the religion that is lacks debauchery. Justice in compassion is that do not dirt 3

4 roads, do not sit stretch legged in the halls, avoid colorful clothing and justice in rules mean being adult, sane and children and insane are not (Jabaee Ameli, 1986, vol. 13, p. 384). E- Legitimate birth Most jurists believe that legitimate birth is a condition in the testimony pf illegitimate child is not acceptable that this majority is so extensive that it is close to reach consensus that is based on hadiths. Sheikh Tusi in Alnahayah, accepted illegitimate child testimony in minor disputes (Tusi, 2011, vol. 7, p. 242) that his documentary, narrated by Abdullah ibn Isa, but this naaration must be considered on reservation and when illegitimate child was anonymous, and his illegitimate birth is not proven, his testimony is accepted, even though it is known as illegitimate child. Shahid Aval quotes from Seyed Morteza and Ibn Idris that non-acceptance of illegitimate child testimony is due to the fact that he is heathens,however he rejects their reason: "The reason for not accepting the testimony of illegitimate child, its lack of purity of birth, no else". F- Lack of accusation in the witness: Sixth condition of witness is a "lack of accusation," in the sense that he does not testify to gain personal benefit or avoid harm, the Sunni and Shiite have consensus on the condition based on traditions (Mohaqeq-Heli, 1408 AH, vol. 4, 206 ). The origin of witness knowledge There is no disagreement among the Shiia jurists on that the witness testimony must be based on knowledge and certainty. The verses of the Quran also refer to the fact (Holy Quran, Surah Al-Israa, and Verse 36). Also, following the traditions, there is a narration quoted from the Prophet (PBUH) saying that as you see the sun, testify when a case was clear to you the testimony (Nori, 1408 AH, vol. 2, p. 221). The writer of Jawaher quotes from some scholars witness to testify based on knowledge is sufficient, if evidence is based on knowledge (Najafi, 1990, vol. 43, p. 28). The second assumption of testimony Islamic law that is called estefazeh testimony in Shiite, and testimony on tasamoh in Sunni jurisprudence is defined by Sanhori, chosen the same name in Sunni jurisprudence as: And because the writer of Alwasit believes that testimony is on the expression of common viewpoints among the people, not the event itself, therefore, it is impossible to be verified and the witness has no responsibility in what states. He explicitly says, Testimony on tasamoh is not accepted except in the case of intended legal text (Sobhani Tabrizi, 2009, vol. 2, p. 502). In common law, testimony will be accepted if the dominant right is the right of Allah and universal. But, it is not accepted if the dominant right is of people and in case of equality can be accepted testimony in right of Allah but the rights of people are not acceptable. The jurists agree that if in a court the rights of people was testified and rejected, it could be testified in another trial at demand of the ruling. Testimonies Shiite point of view: Majority of Shiite jurists based on Quranic texts and tradition raised two doctrines of the right of Allah and the right of people (Jabaee Ameli.1986, vol 3, p. 160). 4

5 A: The right of Allah - There are some of the crimes that they talk about in the book of Hodod, only to be proven by the testimony of four men, including adultery, sodomy and lesbianism. In fact, in Adultery punishable by stoning adulterer, the crime is proven by the testimony of three men and women. In adultery punishable by whipping the adulterer the testimony of two men and four women is enough to prove the crime. Narrations by Sahiha Abdullah bin Sinan and Hasneh Halbi are good reasons for this decision. - There are some of the crimes to be proven by the testimony of two men, including apostasy, shoot, drinking alcohol, theft Had (it does not mean the theft itself but the criminal act of theft), Zakat, Khums, donation, atonement, Islam, maturity, Velayat, manipulated and injury, pardon from death, divorce, disarmament, powers of attorney, wills (financial aspects of will are not considered that this aspect is in the third type), lineage and moon crescent. The two-part that mentioned are the rights of Allah and the general rule according to what the Shiite jurists is that are not proved by the testimony of women alone or a witness and two women, or a witness and an oath; However, the testimony of two just men is essential. Mohaqeq Heli in this regard states: at other Hodod (except for adultery and sodomy) as shoot, and consumption of alcohol and the like, in which case at least two male witnesses are needed (Mohaqeq Heli, 1408 AH, vol. 4, p. 201). In matters without punishment or the financial aspect, and often men knew about it like marriage and divorce the testimony of less than two men is not accepted (Feizi, 2002, p. 361). In cases where the claim is to beat the head and two eyes of animals or animal sickness, if the testimony of two men was not possible, the single testimony of a doctor or veterinarian is accepted. In claims that men are not generally know about like virginity and menstruation and childbirth a woman's testimony is accepted. In the latter case, narrative points out that a woman's testimony is accepted in breastfeeding, but precaution is that two women testify and it is perfect if a man testifies (Sobhani, 1418 AH, vol. 1, p. 200). Witnesses are not only common among Muslims but in the past but French law did not affect the testimony of a single person. But this is outdated in France's current law. The domain of the credibility of the testimony: A- Witness in matters Shiite jurists refer to verses as general evidences of testimony acceptance such as 94 and 105 verses of Surah Maede and Verse 2 of Surah Talaq state that God finds testimony as a science through the discovering; therefore, the matters are approvable by testimony in a general manner. And, also, a narration by Masadeh ibn Sadaqa as in the following states: and the whole matters are so until something else was proved or evidence was provided. Scholars believe that it is a general rule. The writer of Jawaher narrates: I did not find opposition in the uncleanness be proven by the testimony of two witnesses except the judge Ibn Barraj and appearance of the Sheik (Najafi, 1990, vol 42, p 240). And they believe that testimony of two just witnesses can be used in cases of Zakat, Khums, infidels, donations, and Islam in addition to stealing, drinking alcohol, shooting or apostasy. He went on that with the reasons why the Quran and hadith testimony acceptance. 5

6 B- Non-court testimony Second, that it is not necessary that the testimony happens in court and in the presence of the judge. Testimony may be in an office, meeting resolve the dispute in the presence of family and do forth (Jabaee Ameli, 1986, vol. 3, p. 141)... Ayatollah Sayed Hassan Marashi in this regard says: legal texts listed New evidence is admitted to ruling, but does this phrase implied that if one confessed or testified in the presence of non-judicial authorities, his confession is not valid? It seems that such testimony is true legally because, first, this refers to the verse and your stepdaughters who are in your care. That means in the presence of ruling is a constraint. Confession is a convention and convention does not agree with the term in the presence of ruling because the testimony itself is credited, therefore is an individual witnesses a fight between two, both ask him to testify for them appoint such a person is innocent. Conclusion "Shahed" literally means testify, testimony, evidence, witness and see,. Govah means witness, argument and evidence and in the words of Rumi, word and deed came to witness the self / use the two arguments to get to know the truth. Motale means knowledgeable, informed, wise and conscious. Shahdat is one of the ways to prove a claim. Shahed, Govah and Motale are used by legislator. In many cases detecting crime and prove it is not possible without testimony. That's why the witnesses are eyes and ears of Justice! This is when statements of witnesses are based on truth and away from any scene and documentation in order to guide the process due to gains and losses on both sides. Everyone cannot be a witness and he should have certain conditions, including maturity, wisdom, faith, justice and legitimate birth and should be interested in the subject. Lack of hostility to the parties or one of them and lack of engagement in beggary and vagrancy are among the other main conditions for witness. So far the principle of closed door investigation of witnesses, their oath, individually the preliminary investigation and allowed the reinvestigation are in the framework of the law. References Emami, Seyed Hassan, Civil rights Abu Rayhan Publications, Tehran, Faizi, Alireza, Principles of jurisprudence, Tehran University Press, Goldozian, Iraj. Evidence of claim proves, Mizan, Tehran, Imam Khomeini, Ayatollah, Al-Tahrir ul-vassileh Islamic Publications, Qom, Jabaee Ameli, Zine el Abidine ibn Ali (Shahid sani), Alrozah Albahiah Fi Almss Aldameshqiah, Islamic Propagation Office Publishing, Qom, Katoziyan, Nasser, introduction of law, Publications Publishing Company, Mohaqeq Heli, Abu al-qasim Najm al-din, Sharye Al- Islam, Institute of Ismaili Press, Qom, Najafi, Mohammad Hassan, Jawaher al-kalam, Almktbth Islamiyah, Tehran, 1990 Seventh Edition. Nori, Mirza Hussein, Mustadrakat Alvsayl va Mostanbat Almasael, Al-Bayt Institute Lahya Altras Publications, Qom, 1408 AH. Sadr Afshar Zadeh, Seyed Mohsen, Vindicating lawsuits in Iran, University Press, Shahid Awal, Loma Aldameshqiah, translation by Ali Shirvani, Volume II, fifteenth edition, Qom,

7 Sobhani Tabrizi, Jafar., Alvasyt, Prss Institute of Imam Sadiq (AS), Qom, Sobhani, Jafar, Nezam Alqaza va Alshahada, Institute of Imam Sadiq (AS), Qom, 1418 AH. Tarihi, Fakhr al-din, Majma Al-bahrein, Almaktabah Almortszsviah, Tehran, Third Edition, Tusi, Abu Jafar Mohammad ibn Hassan (Sheikh Tusi), Al nahayah, Daralktb Islamiyah, Tehran,

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