The foremost duty of the State is to protect society against perils that threaten its existence and security, or endanger its values, institutions, and interests. The Penal Code undertakes this mission by defining crimes and their prescribed penalties. Concurrently, the Code of Criminal Procedure delineates the mechanism for applying this law—stipulating how crimes are proven, attributed to their perpetrators, and how penalties are enforced. This code bears a monumental responsibility in fulfilling its mandate, namely, the safeguarding of rights and freedoms.
Criminal procedures are not merely instruments for uncovering the truth and bringing the accused to trial for conviction or acquittal; rather, they are safeguards that must guarantee rights and freedoms against any infringement upon the presumption of innocence. Consequently, the criminal procedures of any nation serve as a mirror reflecting its reverence for rights and freedoms. This reverence is realized by striking a delicate balance between the protection of society and the preservation of individual rights and liberties.
Under no circumstances should the rigid application of legal texts or the appeasement of public opinion overshadow the value of conscience; for that is the path of fallacy that culminates in injustice. It is through faith in rights, freedoms, and the values of justice that the human conscience is fortified. Moreover, by adhering to objectivity and transcending caprice and whims, the dictates of conscience reign supreme. This dictates the path that judges and law enforcement officials must pursue.
“And who is more unjust than he who invents a lie about Allah to mislead the people without knowledge? Indeed, Allah does not guide the wrongdoing people.” [Al-An'am: 144]. For if a person loses their conscience, they pursue conjecture and succumb to whim, as the Almighty says: “Indeed, conjecture avails not against the truth at all.” [Yunus: 36]. The Almighty also said: “Grave is the word that comes out of their mouths; they speak not except a lie.” [Al-Kahf: 5].
Errors in the application of the Code of Criminal Procedure occur when the distinction between good and evil grows faint, and the values of liberty and justice are compromised. Allah the Almighty said: “And do not mix the truth with falsehood or conceal the truth while you know [it].” [Al-Baqarah: 42]. Thus, consciences armed with ethical values are those that guide toward sound legal application.
This principle was profoundly recognized by the Court of Cassation, whose settled jurisprudence establishes that justice is far less harmed by the escape of a criminal from punishment than it is by the encroachment upon people’s liberties and their unlawful arrest.
Equally magnificent is the pronouncement of the Supreme Constitutional Court, which held that the presumption of innocence is not a mere legal fiction or a rebuttable presumption; rather, it is founded upon the innate human nature (Fitrah). Man is born free, untainted by sin or transgression, and it is presumed throughout all stages of his life that this inherent innocence remains latent within him, accompanying him in all his actions, until the court of merits refutes this presumption by a definitive, irrevocable judgment.
This general principle stands as a barrier against employing criminal procedures to subvert liberty or to excessively resort to pretrial detention without absolute necessity. This necessitated the enactment of state liability for pretrial detention via Law No. 145 of 2006, which introduced Article 312 bis to the Code of Criminal Procedure. This further mandates the expedited issuance of the special law regulating the rules and procedures for obtaining material compensation whenever its requisites are met.
To ensure the proper application of the Code of Criminal Procedure, those entrusted with its enforcement must realize that respect for rights and freedoms is an integral part of the rule of law. Within the legal system, rights and freedoms occupy a position of paramount preeminence because the ultimate function of the law is to guarantee their fulfillment. Criminal justice cannot exist without respect for rights and freedoms. This respect is essential not only to confer legitimacy upon the procedures being undertaken, but also to achieve justice itself, given that faith in the values emanating from these rights is an inherent component of the judicial conscience.
The judicial conscience can never compromise the values of righteousness—which cannot exist without respecting rights and freedoms—except when injustice becomes entangled with justice, leading some to perceive procedural guarantees as mere obstacles to be bypassed. Conversely, when the conscience illuminates, justice triumphs over tyranny, and good prevails over evil. The dignity of justice is not achieved by the mere formalistic application of texts, akin to worshiping them, but is rather anchored in faith in the values of truth and justice from which the conscience emanates. If the intellect is a guide to knowledge, the conscience is a beacon to righteousness, enabling the judge to weigh evidence and assess not only its legality, but its absolute veracity.
A judge must exercise authority based on both intellect and conscience combined, as neither can dispense with the other. The judicial conscience cannot properly function without sound formation, independence, and impartiality; it strictly refuses to remain silent in the face of manifest injustice. If we desire justice to hold true value, we must defend it against the oppression of wrongdoers: “Unquestionably, the curse of Allah is upon the wrongdoers.” [Hud: 18].
These profound meanings were vivid within the conscience of the Supreme Constitutional Court when it ruled that a judicial dispute cannot be adjudicated in truth and fairness if it is tainted by factors that compromise the objectivity of the decision rendered therein—whether external or simmering within the depths of the human soul. It has become an established maxim that the dual guarantees of judicial independence and impartiality are equivalent in their nexus to adjudicating rights and freedoms; neither supersedes nor eclipses the other, but rather they stand in solidarity, complementing and equaling one another in weight and stature.
“That is the favor of Allah, which He bestows upon whom He wills, and Allah is the possessor of great bounty.” [Al-Jumu'ah: 4]. Allah the Almighty has spoken the truth.