Trail in absentia in Islamic fiqh and some current legal systems

Subject Areas : فلسفه اسلامی

Esmat sadat Tabatabaei Lotfy ¹ (عضو هیئت علمی)
zinat nemati ² (دانشگاه آزاد اسلامی واحد قم)

Received: 2016-02-10 Accepted : 2016-03-02 Published : 2016-04-27

Keywords: trial in absentia, Common Law system, Islamic fiqh, Roman – German System,

Abstract :

Justice execution is the ultimate aim of any trail and fair trial is one of the most important criteria to measure social and judicial development of any society. Hence, it was seen necessary from long time to resent needed mechanisms to guarantee it. Although the principle of conflict and hostility between people has been always accompanied with the principle of parties’ attendance in trial, sometime unconditioned obligation to this principle cause negating people’s rights since one party may hide from another party or justice executors and causes insecurity, distrust and dissatisfaction from judicial system. To this end, in Islamic and even in Roman – German law system, in contrary to Common Law, trial in absentia accepted to establish security and to prevent people’s right denial. The forbidden of trial in absentia in Common Law is due to use adversary trial while it is investigatoryt in Roman – German system. In investigatory system, judicial authority should gather evidences. Therefore, when the procedure starts, the court has relevant evidence in the interest of defendant. Islamic jurisprudents have allowed trial in absentia conditionaly based on narratives when the the issue concerns the people's righse. There is no absent verdict on the right of Allah and punishment.