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VOLUME
Vol.05 Issue07 2025
PAGE NO.
47-59
10.37547/ajsshr/Volume05Issue07-11
24
Legal Presumptions and Their Role in Criminal Evidence
(A Comparative Study)
Dr. Abdul Hadi Rahman Mohammed Mahmoud
The Islamic University, Diwania campus, Department of Law, Iraq
Received:
22 May 2025;
Accepted:
18 June 2025;
Published:
20 July 2025
Abstract:
This study aims to demonstrate the effectiveness of presumptions and their role in criminal evidence by
examining their impact on criminal cases as one of the forms of evidence and the extent to which the criminal
judge has the freedom to accept them as indirect evidence. Given that the rules of evidence are of paramount
importance in all branches of law, and a right without supporting evidence is null and void, evidence is what
supports the right and makes it prevail. Presumptions enjoy this importance as a means of proof stipulated by the
legislature and adopted by the judiciary and jurisprudence.
Presumptions play an important, vital, and effective role in the field of criminal evidence, as original,
complementary, or reinforcing evidence, no less important than other forms of evidence. This is especially true
given that they have become the most widely used method in criminal justice in our current era, given scientific
and technological progress in all fields, especially after criminals resorted to the use of the most accurate modern
scientific methods to commit their crimes without leaving traces of their perpetrators. Judicial presumption also
plays an important and influential role in determining the credibility of other evidence obtained and existing
alongside it in a criminal case. Evidence derived through judicial presumption is similar to a check on other
evidence, such as witness testimony, defendants' confessions, and other evidence. Since deducing the unknown
fact sought to be proven from a concrete fact is consistent with the remaining circumstances and conditions of
the case, deriving a presumption requires the judge to derive the presumption from a fact, then provide evidence
for it. He then demonstrates the logical causal relationship between the known fact and the other fact sought to
be proven. The oversight imposed by the Court of Cassation on the judge's authority to derive or prove judicial
presumption is nothing more than legal oversight of rulings and procedures, about their rationale, whether they
occurred in error, whether the judge deviated from his discretionary authority in issuing the final judgment in the
case before him, or whether his decision was not consistent with reason and sound logic. Therefore, we find it an
essential and unavoidable duty to address the subject of presumption, as it is a very important form of evidence,
given the development of the criminal's mind and his attempts to escape punishment. Therefore, we have
embarked on writing this research to demonstrate the role of presumptions, whether legal or judicial, and their
role in criminal evidence, according to a research plan consisting of two sections. In the first section, we will
address the concept of presumptions according to two requirements. In the first, we will explain the definition of
presumptions, and in the second, the elements of presumptions. The second section is devoted to the types of
presumptions, and in the two requirements, we will discuss legal presumptions in the first section and judicial
presumptions in the second section. We will address this in turn according to the established plan, as follows.
Keywords:
Simple, Conclusive, Likely Occurrence, Inference.
Introduction:
As is well known, the role of
presumptions is of great importance in matters of
criminal evidence, especially presumptions as one of
the methods of proof in the Code of Criminal
Procedure. Although they are indirect evidence, they
are preceded by direct evidence, as they are included
in the Code of Criminal Procedure. Since they are
included in the text of the law, they must be followed
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as a matter of public order, and no agreement may be
made to contradict them. Since direct evidence is the
foundation of criminal evidence, presumptions also
have great importance in criminal evidence and
influence the course of criminal proceedings. Legal
presumptions are evidence, indirect evidence, as they
are the inference of an unproven matter from an
established matter, or the deduction of a ruling on a
particular fact from other facts by the requirements of
reason and logic. In other words, they derive the fact
sought to be proven from a fact that necessarily leads
to it, and by rational necessity. Therefore, they rank last
in the sequence of evidence. Although presumptions
are indirect evidence and rank last among the forms of
evidence, research into the subject of presumptions
and their role in criminal evidence is of great
importance.
In many cases, they can be relied upon to guide the
judge's thinking in determining the facts of the case
before him, particularly when there is no direct
evidence in the case before him that can be relied upon
to characterize the criminal case. This is particularly
true when the presumptions are met and are relevant
to the criminal case, to issue a just ruling imposing a
penalty on the offender commensurate with the
criminal act committed. Since the principle of right and
wrong can affect all direct evidence, such as false
testimony, false confessions, and the forgery of written
evidence,
the
researcher
believes
that
the
conclusiveness of presumptions is no less important
than that of other forms of evidence, as long as the
matter is left to the discretion of the trial court judge,
based on the circumstances of the crime and its
evidence. First: The Importance of the Topic
One of the most important topics that has sparked
controversy in legislation and the judiciary is the means
of criminal evidence. The rules of evidence occupy
paramount importance in branches of law, and
presumptions are particularly important as a means of
criminal evidence. Legal and judicial presumptions are
perhaps one of these forms of evidence that have a
direct impact on the judicial process in uncovering the
crime and identifying the perpetrator.
Second: The Problem of the Research
The problem of the research lies in the extent of the
legal impact that presumptions have in terms of their
importance in the subject of criminal evidence, which
has a direct impact on the judicial process in uncovering
the crime and identifying its perpetrator through the
conviction achieved by the trial court when imposing
the penalty.
Third: The Scientific Research Method
The scientific, analytical, inductive method was
adopted, as we examine the principles upon which
presumptions are based by extrapolating the opinions
of jurists from various legal schools, as well as
examining how they can be relied upon as evidence in
legislative and judicial applications.
Fourth: Research Plan
The research will be conducted according to the
research plan prepared for it, which consists of two
sections. In the first section, we will address the
concept of presumptions in two sections. In the first
section, we will explain the definition of presumptions
in two branches. In the second section, we will discuss
the elements of presumptions in two sections.
The second section will address the types of
presumptions in two sections. In the first section, we
will explain legal presumptions in two branches. In the
second section, we will devote the discussion to judicial
presumptions in the two branches. We will discuss this
in turn, as follows:
Section One
The Concept of Qarain
The research requires that we divide this section into
three sections. In the first section, we explain the
definition of Qarain, the second section explains the
elements of Qarain, and the third section is devoted to
the types of Qarain, as follows:
Section One
Definition of Qarain
The research requires that we continue to define
Qarain linguistically and then technically.
Section One / Definition of Qarain linguistically
Qara'in linguistically is the plural of Qarina, which is the
feminine of Qareen. Qareen is (your companion who
never leaves you) (1). A man's Qareena is his wife, her
companionship with him (2). Qareena is the singular of
Qarayen, which is derived from Muqarana, meaning
companionship. Qareen is a companion, and (so-and-
so is Qareen so-and-so if he never leaves him, and the
plural is Qareen). The saying is to compare something
to something else and compare it to a qiran, including
the qiran of the planets (Eid). And God Almighty said in
His Noble Book: {And We appointed for them a
companion.} Companions who made what was before
them and what was behind them seem attractive to
them (4). God Almighty also said, "One of them said,
'Indeed, I had a companion'" (Sermon).
Second Section: Definition of Presumptions in
Terminology
First: In Legislation
The Egyptian legislator did not provide a general
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definition of presumption in the codification (6), nor
did he define it in the Law of Evidence in Civil and
Commercial Matters (7), nor the Penal Code (8).
Likewise, the Jordanian legislator did not define
presumptions, whether in the Law of Evidence in Civil
and Commercial Matters (9) or the Code of Criminal
Procedure (10).
The Iraqi legislator also did not take the initiative to
define presumptions in civil law, despite the existence
of the Majalla al-Ahkam al-Adliyya, which was
prevalent before the issuance of the Civil Code, where
it defined "an indication that reaches the level of
certainty" (11).
Second, In the judiciary
The Egyptian Court of Cassation defined presumption
as "the inference of an unknown fact from a known,
established fact" (12), and the Jordanian Court of
Cassation defined presumption as "the inference of a
fact that must be proven from another fact upon which
evidence is based" (14). We did not find a definition of
presumptions in the Iraqi judiciary, which appears from
the judicial definitions to be in agreement on the
existence of a known fact from which the unknown fact
can be deduced and proven. Regarding legal
presumption, Article 98 of the Iraqi Evidence Law (13)
defines legal presumption as "the legislator's inference
of an unproven matter from an established matter,"
which renders the person in whose favor it is
established unnecessary to provide any other
evidence.
Article 213 of the Iraqi Code of Criminal Procedure (15)
also stipulates that "the court shall rule on the case
based on its conviction based on the evidence
presented at any stage of the investigation or trial,
which includes confessions, witness testimony,
investigation reports, other official records and
statements, expert and technical reports, and other
legally established presumptions and evidence."
Third: In Jurisprudence
Presumptions, according to civil law commentators, are
(what the judge or legislator extracts from a known
matter to indicate an unknown matter) (17), and others
have defined them as (the results that the law or judge
extracts from a known fact to know an unknown fact)
(18). Jurists have offered several definitions of
presumption, but there is clear agreement among
them on the same logic or concept, as it carries the
same essence, which is based on the idea of deducing
the unknown from the known. Some have defined it as
"the necessary connection between two events, the
establishment of the first being evidence of the
occurrence of the second, or a connection between an
event and its outcome, the establishment of the event
being evidence of the occurrence of its outcomes" (19).
Others have defined it as "the indication that guides us
to the hidden, unknown matter, without which it would
not be possible to reach it" (20). Still others see it as
"extracting the unknown from the known, through
rational and logical necessity, based on general
experiences and the normal course of events" (21).
Second Section
Elements of Presumption
From the previous definitions of presumption, it
becomes clear that it is based on two elements: the first
is the element of probability, which expresses the idea
of "the most likely occurrence"; the second is "the
decision." We will explain this in two sections,
sequentially, as follows:
Section One: The Element of Probability. What is meant
by the most likely occurrence is the high probability
that indicates certain results, which are a reality based
on existing facts, and which is what is expressed by the
idea of the most likely occurrence in the course of
events (22). The presumption is an assumption based
on the most prevalent or likely occurrence according to
the normal course of events. If, for example, a murder
occurred in a certain house, and the perpetrator was
not discovered, but people saw a man leaving the
house above with a bloody knife in his hand. He was
moving quickly and showed signs of fear, then people
entered the house and found the victim, but did not
find anyone besides him. The presumption would be
most likely that the one who left the house was the
murderer, because the normal course of the incident
leads us to this conclusion that leads us to this result,
even though this result is not conclusive, meaning that
we cannot confirm with certainty that the one who left
the house is the murderer. However, the presumption
obtained in these matters was conclusive in the sense
of being established, so the knowledge obtained from
it is conclusive in this regard (23). Conclusive
knowledge is used in two meanings: the first is that
which cuts off the possibility originally and is called
knowledge of certainty, and the second is that which
cuts off the possibility arising from evidence and is
called reassurance. The presumption indicates
knowledge of reassurance, which is suspicion. The most
likely: As long as arriving at conclusive evidence that
negates every possibility and suspicion is impossible,
then it is necessary to take definitive evidence and
arguments. If that is impossible and we do not arrive at
certain knowledge through it, then in the knowledge of
reassurance or what is close to it of conjecture, there is
what is sufficient to take it as evidence (24). (25)
Therefore, the legislator uses probability to establish an
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objective rule or legal presumption that he arrives at
from the idea of most cases. Likewise, the judge arrives
at it from what is likely to occur. However, the
presumption remains merely a possibility that is likely
to occur, so there is no alternative (from a scientific
standpoint to be satisfied with the preponderant
presumptive arguments as long as the definitive
arguments are unattainable. In addition to that, the
nature of legal facts, as well as the nature of the means
of proving them, and indeed the nature of human
beings in general, necessitates that judicial facts be
relative facts) (26), and not absolute like the factual
truth, since the judge is bound to prove the disputed
fact. (27) This judicial fact may be in agreement with
the factual truth, but at other times it is not in
agreement with it, so the judicial fact is thus merely a
likely possibility and not a definitive truth. In practice,
it is necessary to be satisfied with the hypothetical
arguments as long as they are likely, because the
requirement of definitive arguments makes the door of
proof closed to the judge, as he cannot reach the
absolute truth in most cases, and for this reason a
difference may occur between the judicial fact and the
factual truth, because the proof of the right is Probable
proof, not certain proof. If reaching the level of
certainty is sometimes impossible in a dispute, then the
judge must not stop at the mere probability of
occurrence, but rather must do his utmost to reach the
level of certainty if he can do so as much as possible, to
make the judicial truth match the actual truth (29),
which is the hope that he seeks to achieve. The judicial
truth is not absolute, but rather relative, and is based
on the most likely occurrence. Therefore, the idea of
the most likely occurrence is considered a basic
element in the evidence (30). However, there are
criticisms of the idea of the most likely occurrence of
presumptions. It isn't easy to draw a clear line between
what is possible and likely, and what is certain and
definite. Therefore, the distinction between these
matters remains largely personal.
Furthermore, basing presumptions on the most likely
occurrence leads to the elimination of differences
between presumptions and other methods of proof,
particularly testimony and writing. The idea of the most
likely occurrence also appears in direct proof.
Testimony, when attributed to it, does not lead to
absolute truth. A witness may give false testimony, and
evidence may be forged. Therefore, the idea of the
most likely occurrence alone cannot constitute the
basic element of presumptions. Rather, it must be
accompanied by another element that can fill the gap
above (31). The second section / The decision
The idea of the most likely occurrence must lead to the
emergence of many possibilities that outweigh others
in terms of the likelihood of their occurrence in most
cases. Stopping at them is of no use. Rather, it is
necessary to go beyond the probabilities that have
been favored to the stage of reporting these
probabilities and hesitating between the various
possible hypotheses. The originator of the presumption
must end the dispute and choose to adopt one of the
probabilities and hypotheses. This process of choosing
represents the second element of presumptions, which
is the decision, which means choosing between the
available alternatives, the most likely probabilities, and
the possible hypotheses. Whoever wants to adopt one
of these hypotheses must decide to choose one of
them from the ones he prefers (32). Although the
decision ends the dispute, it is in reality a probable
matter. It is a process of will and does not resemble
probability in any way. Saying that a certain event is
probable is a statement that includes a judgment, and
therefore, it is a process of mental perception (33). For
example, evidence or signs in judicial presumption
estimate its material element, but it does not It has no
effect on proof except when the judge intervenes to
interpret these indications and signs and chooses from
them one possibility that is the most likely and
predominant over the rest of the possibilities, and thus
the element of the decision is highlighted, as it allows
going beyond the idea of what is likely to happen, and
thus the element of the decision leads to confirming
the probable characteristic of what happened, and
from here the importance of the idea of the
presumption appears (34), and thus the idea of what is
likely to happen alone is not sufficient for the
presumption to arise, rather the presence of the
decision is necessary (35), as these two elements are
closely linked to each other, as the idea of “what is
likely to happen” reveals to some extent the decision,
and estimates one of the motives for this on the one
hand, and on the other hand, when the creator of the
presumption goes beyond the idea of what is likely to
happen, he uses it only for incidents (36), and thus the
presumption is based on two elements, which are the
idea of what is likely to happen and the decision, as the
legislator uses it to establish an objective rule or legal
presumption, and the judge uses it to establish a
judicial presumption and Judicial rulings establish
reasoned and justified judicial facts, stating that they
are absolute truths. However, these facts are relative
and subject to change (37).
Section Two
Types of Presumption
Evidence by presumption generally does not apply to
the fact itself that is the source of the right, but rather
to another fact. If proven, the fact sought to be proven
can be deduced from it. The judge or the legislator may
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undertake this deduction process. Presumptions are of
two
types:
judicial
presumptions
and
legal
presumptions, each with its nature, elements, and
characteristics that distinguish it from the other type.
Therefore, this section consists of two sections. In the
first, we will explain legal presumptions, and in the
second, judicial presumptions. We will explain this as
follows:
Section One
Legal Presumptions
The first type
First: Definition of the legal presumption
Most criminal legislation does not include a definition
of the legal presumption (37), but civil legislation has
stipulated this. The Iraqi legislator stipulated in the
Evidence Law that the legal presumption is "the Iraqi
legislator's deduction of an unproven matter from a
proven matter" (38).
Likewise, the Egyptian legislator stipulated in the
Evidence Law in Civil and Commercial Matters that "the
legal presumption is sufficient for the person in whose
favor it is established, rather than any other method of
proof, provided that this presumption may be rebutted
by counter-evidence unless there is a text that
stipulates otherwise" (39). The Jordanian legislator has
mentioned this same text in the Evidence Law (40). The
definition provided by the Egyptian legislator and
adopted by the Jordanian legislator is a definition of the
legal presumption in terms of its result and purpose. As
for the Iraqi legislator, he defined it in terms of its
nature. However, these definitions, or definitions, if the
expression is correct, are that the legal presumption is
an act undertaken by the legislator and its purpose is to
relieve the plaintiff of proving the fact claimed and to
be satisfied with proving the alternative fact. It
transfers the proof from the original fact to another
fact close to it or connected to it. If it is proven, the
legislator exempts the plaintiff from proving the second
fact that the legislator considers proven by the law.
However, commentators on civil law and criminal law
have differed in their definitions. In short, the legal
presumption is (the legislator's deduction of an
unknown fact from a proven fact due to a relationship
between them that leads to it by necessity and by
rational necessity). Second: The Element of Legal
Presumption
The element of legal presumption is the text of the law,
and the judge has no role in it. The entire task lies with
the legislator, who chooses to describe the fact. He is
the one who draws conclusions and inferences until he
arrives at the unknown fact, based on its connection to
the facts. As long as the fact chosen by the legislator is
established, the other fact is established by its context.
Therefore, the element of legal presumption is the text
of the law and nothing else. A legal presumption cannot
exist without a legal text (41).
This means that the judge cannot exercise discretion
based on similarity or priority and derive legal
presumptions not provided for by the legislator.
Rather, a specific text or set of texts is required for each
presumption. Therefore, it is not possible to compare a
legal presumption with another presumption without a
text, even if it is by analogy due to the unity of cause or
reason, or even more so (42).
Hence, the legal presumption, even if it is based on the
idea of the most likely occurrence, does not entail any
danger. This is because the legislator formulates the
legal presumption in a general, abstract form that
applies to everyone without discrimination between
individuals. It also applies to all similar incidents
without discrimination between one incident and
another, even if in some cases it does not conform to
the truth. The legislator establishes it in advance and
applies it before the specific incident to which it is
applied occurs. He does not consider each case
individually, as is the case with the judicial
presumption. It is very conceivable that cases may
occur to which the presumption applies despite their
discrepancy with the truth of the incident, or that cases
of varying fewness or abundance may occur in which
the legal presumption is not valid when applied.
Therefore, some jurists believe that the legislator
should limit himself to establishing a few presumptions
and not expand upon them, leaving the task of deriving
the presumption to the judge, according to the
circumstances and facts of each case, and not resorting
to legal presumptions except when necessary (43). If
the presumption is the text of the law, then the text
must include both the known and unknown incidents
(44).
Section Two
First: Types of Legal Presumption
The principle of legal presumption must be based on
proof of the contrary. Accordingly, this means freedom
of defense, meaning that evidence can be refuted by
evidence, as it is based on the idea of the most likely
and most likely occurrence, and is established in a
general, abstract form. This allows for proof of the
opposite in each case. On this basis, legal presumption
accepts proof of the opposite (46). However, the
legislator, for reasons he deems necessary and requires
consideration, decides not to refute the presumption
with contrary evidence and stipulates this. In light of
this basis, legal presumptions are divided into simple
presumptions and conclusive presumptions, which we
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will explain as follows:
A - Simple Legal Presumptions
This type of presumption accepts proof of the opposite,
as the principle of legal presumptions is that they can
be refuted with contrary evidence, as the legislator
bases his deduction of legal presumptions on the most
common situations, meaning that there is a possibility
that the presumption does not match each case.
Accordingly, the Iraqi legislator has allowed the party
against whom the legal presumption is relied upon to
prove the opposite from While allowing him the
opportunity, he must establish evidence that the
presumption does not match the truth and reality (47).
The legal presumption may be simple and not
conclusive, so it is permissible to prove the opposite, as
in the case of a witness's failure to appear before the
court despite being notified to appear at a specific time,
as evidence of his refusal to testify unless he provides
an acceptable excuse for his failure to appear (48). B./
Conclusive Legal Presumptions:
The principle of legal presumptions is that they are not
conclusive, so proof to the contrary is accepted, based
on the principle of refuting evidence with evidence.
However, the legislator may, for an important reason,
deem it inadmissible to refute the validity of some
presumptions established by it due to their connection
to public order (49). This constitutes an exceptional
exemption from the burden of proof required by
general rules, and the judge is required to accept them
whenever the conditions stipulated by law are met,
whether they conform to the facts or are inconsistent
with them (50). However, this does not mean that they
are never refuted, because legal presumptions,
regardless of the legislator's intention to definitively
and decisively assert them, cannot be refuted by
admission or oath, as long as they are among the rules
of evidence (51).
The Iraqi legislator explicitly stipulated this in Article
101 of the Evidence Law, which states, "Admission and
oath may not be accepted to refute conclusive legal
presumptions that do not accept proof to the contrary
in matters not related to public order." This ruling also
applies in Jordanian law without an explicit text on it.
The reason is that the jurisprudence is unanimous on
the permissibility of refuting a conclusive legal
presumption, by oath and admission, as they are two
methods of proof, and that resorting to proof to the
contrary is permissible, and that the legal presumption
by admission and oath does not apply to cases related
to public order, as it is public property and not the
property of the opponent and was legislated in the
public interest to maintain public order (52). The legal
presumptions established by penal laws are all
considered to be part of public order, and as a result, it
is not permissible to prove the opposite. An example of
this is what is stated in Article 331 of the Jordanian
Code of Criminal Procedure, which relates to the
presumption of the validity of judgments (53). Second:
Characteristics of the legal presumption
Legal presumptions are those provided by the legislator
in explicit texts in the laws, which derive their
evidential force from the law exclusively, not from the
judge. This is because the judge may not assess them in
a way that ranges between strength and weakness,
according to what he sees of the circumstances of the
case. He also does not have the right to refrain from
accepting them even if it becomes clear to him that
they do not agree with the truth, but they are
considered in the eyes of the law to be the title of the
truth (54). The legal presumption does not exempt
from proof, but rather exempts the one who bears the
burden of proof, but he must prove the occurrence of
the fact upon which the presumption is based (55). It
shifts the subject of proof from the fact to be proven to
another fact connected to it, determined by the
legislator. The latter fact is the basis of the legal
presumption, the existence of which the law requires
for the application of the ruling of this presumption
(56). The legal presumption is in special legal texts that
state in a general form the conditions for its
application, that is, it is in the form of an abstract
general rule. Therefore, the availability of these
conditions is a legal matter, and in it the decisions of
the judge of the subject court are subject to the
supervision of the Court of Cassation (57). Therefore,
the legal presumption constitutes a restriction on the
freedom of the criminal judge in the field of his
conviction of the evidence of proof, as the role of the
judge is limited to verifying the occurrence of the fact
to which the legal presumption is linked. He applies it
to the case before him after adhering to the precision
of the meaning specified for it by the legislator, and
without having discretionary authority in it (58). (59)
Since the legal presumption is based on the idea of the
most likely occurrence or possibility, it entails danger,
as the legislator places the legal presumption in a
general, abstract form, taking into account the most
likely, even if some cases do not agree with the truth.
The legislator does not look at each case individually, as
is the case with judicial presumptions. Therefore, the
judiciary must take caution and care in ignoring them.
A trend of jurisprudence may see that the legislator
should reduce the report of these presumptions,
leaving the judge the task of deducing the presumption
according to the circumstances and facts of each case
individually and its facts, and not resorting to legal
presumptions unless there is an urgent need for such
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recourse. (60) The researcher supports this trend, as it
gives a greater opportunity to uncover the truth and
reduces the percentage of error in the factual and
actual correspondence.
First: Definition of judicial presumption
Criminal legislation does not provide a definition for
judicial presumptions. However, in civil legislation,
some have merely referred to them, such as French
legislation, which merely referred to them in Article
(1353) of the French Civil Code. The Egyptian legislator
also referred to them in Article (100) of the Evidence
Law in Civil and Commercial Matters. The Iraqi
legislator defined them in Article (102/First) of the
Evidence Law, and the Jordanian legislator defined
them in Article (23) of the Jordanian Evidence Law. As
for the commentators of criminal law, some of them
defined it as “every inference of an unknown fact from
a known fact, such that the inference is necessary by
virtue of rational necessity, and there is nothing in it
that he considers conclusive, but rather the matter is
left to the judge’s discretion” (62). Others defined it as
one that is left to the judge to choose from it what he
wishes and infer what matches his mind and
conscience (63). Still others said that it is “the judge’s
inference from a fact upon which evidence has been
established to prove another fact with a logical
connection to it” (64). Judicial presumption is “every
inference of an unknown fact from a known fact, such
that the inference is necessary, and by virtue of rational
and logical necessity. The matter of assessing judicial
presumption is left to the judge, so that he infers from
it what matches his mind and eases his conscience, for
he is the one who assesses the circumstances and the
degree of their influence o
n the case” (65). The Iraqi
Court of Cassation also ruled that "a judgment based
on personal conviction devoid of any established
evidence and certainty devoid of doubt may be relied
upon to issue a sentence" (66). This is considered the
conclusion that the judge must draw or infer from a
specific incident (67). The judge draws conclusions
from these evidences, based on the established facts
before him, by way of deduction. The results are
arranged according to the premises, based on the
causal connection established by reason and logic. They
are derived from the rule of rational necessity and
derive their strength from the principle of the judge's
freedom to form his own convictions (68).
Second: The Elements of Judicial Presumptions
The elements of legal presumptions are two: the
material element and the moral element. We will
examine these two elements as follows:
A. The material element
Is a fact or facts that the judge selects from among the
facts presented to him in the case he is considering.
These facts or facts are called evidence or indications
(69).
If a judge has formed an opinion about a fact, he must
assume there may be another opinion, so that he can
arrive at a conclusion that is not open to interpretation
and that is fully consistent with all the premises. This
agreement must be genuine (70). There is no specific or
definite rule or standard for the court's selection of the
fact that serves as the basis for deduction. It is only
bound by the fact that it is established with certainty,
that its deduction is permissible, sufficiently reasoned,
and leads to the conclusion reached. Judicial evidence
derives its strength from the large number of credible
indications upon which it is based. Therefore, these
indications must be carefully examined, their meaning
determined, and their correct interpretation given.
Given this, they must possess certain characteristics,
the most important of which are the following:
1. That these indications be precisely defined:
This means that the evidence must be precisely defined
and clear, to facilitate the process of deduction (71). 2.
That this evidence be established with absolute
certainty.
That is, the evidence must be established with absolute
certainty, without being open to interpretation or
debate (72).
3. The connection between the known evidence and
the unknown fact:
There must be a causal connection between the
evidence and the known, unknown fact to be proven,
in accordance with the rules of logical deduction, so
that the unknown fact can be deduced from the known
evidence (73).
4. That this evidence be consistent and consistent:
That is, the evidence must be consistent and consistent
with each other, not contradictory, and agree on the
same result (74).
B- The Moral Element
The moral element requires us to discuss the terms
upon which this element is based, namely logic and
deduction, and to discuss the concept of the most likely
occurrence and its sufficiency in establishing
presumption in criminal matters, as follows:
1- Logic
Logic is reasoning, and reasoning is usually based on
truth or falsehood. It does not mean the mental
process by which a person arrives at a proposition
called the conclusion based on another proposition, or
more, called premises or evidence, due to the
relationship between them. The mind has a specific
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method of linking meanings together, forming a chain
of connected links from whatever comes to mind,
whether in thought, conscience, or will. The extract of
the presumption begins with an analysis of the actual
circumstances, and makes an assumption inspired by
the natural course of things, and he also believes that
events cannot occur in a manner different from the
assumptions made with regard to a certain type of
events, and then links these assumptions to what logic
requires, and in the correct deduction the premises are
conclusive evidence of the truth of the result, such that
his conviction is based on a logical mental process,
based on induction and deduction and ends at its
conclusion with a certain result, so that The trial judge
is called upon to avoid extremism in in-depth analysis,
which is overloaded with profound elements,
distracting him from matters of no value from a legal
perspective (75).
In this regard, the Jordanian Court of Cassation ruled
that "judicial presumption is considered indirect
evidence drawn by the judge from a known fact to
prove the fact he seeks to prove. This deduction must
be consistent with logic and the facts of the case.
Otherwise, it is considered evidence and indications
that do not rise to the level of evidence intended in the
Code of Criminal Procedure" (76).
2- Deduction
Requires a person to use deduction to indirectly
ascertain the greatest possible amount of surrounding
facts, using mental discourse through the methods of
deduction, induction, and reasoning (77). There are
two types:
First: Direct deduction
This refers to deducing one issue from another without
resorting to any intermediary, through which we reach
a conclusion based on a specific premise or premises.
Second, indirect reasoning. This reasoning takes two
forms:
A. Deduction:
This is the reasoning in which the mind moves from
general, accepted propositions to other particular
propositions. It always represents the source of
rational truth. When we move from the general known
to the specific unknown, we then deduce.
B. Induction:
This is the reasoning in which the mind moves from
particular propositions to general propositions, i.e.,
studying or examining a part of an aspect of a fact or
parts of a known fact, then moving on to all the facts in
a general manner. The method of induction reveals to
us an unknown, general matter from a known,
particular matter. Deduction is a mental and
intellectual process undertaken by a judge in light of
the facts at issue in the dispute before him, and the
resulting judicial results based on the established and
selected facts in the subject of the dispute (78).
Therefore, the judicial presumption must have a
definite, not a hypothetical, significance, as the
unknown must be extracted and arrived at by
deduction from the known, with extreme precision and
vigilant awareness of its significance (79).
Third: The Idea of What Is Most Likely to Occur
Deduction in judicial presumption is based on the idea
of what is most likely to occur or what is most common
among people, which is what gives it the advantage of
being used as evidence in various legal fields. The
judge's choice of established fact should be open to
possibilities. Consequently, the judge's inference of
presumption is based on his choice of the most likely or
most likely probability. Here, a very important issue
arises, revolving around the sufficiency of this most
likely probability to be the basis for a conviction, given
that it is an established and accepted principle that
criminal judgments must be based on certainty and
conviction, given the seriousness of a conviction and
the personal and financial consequences that befall the
accused (80). Civil law commentators are satisfied with
establishing a judicial presumption by inferring the
unknown fact from the known fact, based on the idea
of the most likely probability. This differs from criminal
evidence, where the evidence of the judicial
presumption must elevate this strong probability to the
level of confirmed certainty that leaves no room for
doubt. For example, a specific theft of movable
property occurred, with clearly defined and precise
descriptions beyond any reasonable doubt. The search
procedures resulted in the seizure of these stolen items
in the possession of a specific person. In this case, the
seizure of these stolen items in the possession of this
person is a known fact. Is this specific and known fact
sufficient, based on this preponderant assumption, to
establish a judicial presumption that this possessor is
the thief? The assumption here is that this possessor
denied the theft and was also unable to prove a
legitimate or illegitimate source. In this case, it is most
likely that the possessor of these items is the
perpetrator, but this is not to the degree of absolute
certainty that he committed it. Rather, it is a strong
possibility that is subject to the preponderant ruling.
The reason for this is that what often occurs does not
always occur. The notion of preponderance does not
negate the rare occurrence that constitutes a suspicion
associated with this strong possibility. In this case, the
possessor of these items may be someone other than
the thief, such as the purchaser.
For example, or if the depositor was in good faith or
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bad faith, if the possessor of these items can prove
otherwise, perhaps he purchased them from someone
else and directed the court to that person, he is
presumed innocent. Therefore, the evidence of judicial
presumption must rise to the level of absolute
certainty, supported by other facts, such as traces or
fingerprints belonging to him found at the crime scene.
If this is not possible, we are faced with a presumption
by way of inference
—
or a supplementary or reinforcing
presumption that is not sufficient on its own as proof,
unlike the original presumption, which is sufficient on
its own as proof, just like any other piece of evidence
(81).
The distinction between judicial presumption and legal
presumption
I will explain the similarities and differences between
legal presumption and judicial presumption as follows:
First: Similarities
1- Judicial and legal presumptions are based on the idea
of the most likely occurrence (82).
2- The two presumptions are considered transitive
evidence, as what is proven by them is considered
proven for all, not limited to the parties to the lawsuit
(83).
3- The two presumptions are similar from a fortified
logical standpoint, as each involves concluding a known
fact to determine an unknown fact (84).
4- The two presumptions are similar in terms of
qualification
and
classification.
In
terms
of
qualification, most legal presumptions are originally
judicial presumptions. After repeated efforts to derive
a specific presumption from a specific fact and the
jurists' consistent application of it, the legislator
generalized and regulated them by stipulating them
(85).
In terms of classification, both presumptions are
indirect evidence, as they are based on shifting the
subject of proof from the disputed fact to another fact
close to it, or closely related to it, that is easy to prove.
Such that if proven, its proof is considered evidence of
the disputed fact. This is the concept of the
transformation of proof (86).
Second: The Differences
1- The judicial presumption is at the core of the judge's
work. He is the one who selects the fact that
constitutes the material element of the judicial
presumption, and in turn, carries out the process of
deduction. The legal presumption, however, is the
exclusive creation of the legislator. He is the one who
determines the fact that constitutes the material
element of the legal presumption, and he is the one
who carries out the process of deduction. The judge is
obligated to apply the ruling of this presumption to the
dispute before him when the conditions for its
application are met (87).
2- The judicial presumption is not conclusive; it is
always and in all circumstances subject to proof to the
contrary. No matter how strong it is, it is not without
possibility. However, the legal presumption may be
proven to the contrary in other cases (88).
3- The judicial presumption is considered evidence of
proof, while the legal presumption is considered an
exemption from proof. Modern jurisprudence,
however, believes that the concept of the legal
presumption.
Conclusion
After completing this study, we reached a set of
conclusions and recommendations that we deem
necessary for its completion.
First:
CONCLUSIONS
1. This study concluded that deducing the intended fact
from the known fact is consistent with the remaining
circumstances and conditions of the criminal case.
Deriving a presumption requires the judge to establish
the fact from which the presumption is derived fully,
and then demonstrate the causal and logical
relationship between the known fact and the other fact
to be proven.
2. The means of proof in criminal law are not limited to
a specific number that must be limited and not
exceeded. Rather, they are means of proof to
demonstrate justice, and everything that leads to
demonstrating justice is a means of proof.
3. This study also concluded that there are similarities
and differences between judicial presumption in
criminal matters and other presumptions, such as legal
presumption and civil judicial presumption.
4. The study also demonstrated that judicial
presumptions are of great importance in the field of
criminal evidence, both from a scientific perspective as
a result of scientific progress, and from a practical
perspective to strengthen other evidence in criminal
cases, such as witness testimony, confessions, and
other forms of evidence.
Second:
Recommendations
1. We believe criminal judges must rely solely on
presumptions, as they are considered one of the
primary forms of evidence. At the same time, they
contribute to strengthening other forms of evidence.
Presumptions are the standard by which judges
balance different types of evidence and assess their
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veracity or falsity. Assessing the value of presumptions
is an objective matter that falls within the discretion of
the trial judge, based on the principle of moral
conviction.
2. We recommend that criminal judges exercise
extreme caution in their inference and deduction, and
use a logical and sound approach to arrive at a just and
sound decision in the criminal case before them. We
recommend that the results of the evidence be
consistent with each other. To achieve this consistency,
each piece of evidence must be evaluated individually
to ensure it possesses the quality of certainty. Each
piece of evidence must logically intersect with the
other pieces of evidence within the fabric of the
unknown matter, and there must be no possibility of
the evidence being separated from the matter to be
proven. We recommend that judicial evidence not be
considered the least valuable piece of evidence, but
rather that this be left to the trial judge, who has the
authority to evaluate and assess the evidence obtained
according to the circumstances of each criminal case.
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Al-Jami'a,
Alexandria, 1985, p. 265.
Dr. Muhammad Ali Al-Kik, The Causes of Judicial
Rulings, Dar Al-Nahda Al-Arabiya, Cairo, 1982, p. 292.
Dr. Hassan Sadiq Al-Mardawi, Principles of Criminal
Procedure, Manshaat Al-Maaref, Alexandria, 1972, p.
747.
Dr. Fawzia Abdul Sattar, Explanation of the Criminal
Procedure Code, Cairo University Press, Dar Al Nahda
Al Arabiya, Cairo, 1986, p. 581.
Qais Abdul Sattar Othman, Judicial Presumptions and
Their Role in Proof, Shafiq Press, Baghdad, 1975, p. 195.
Thesis and Dissertations
Hilal Abdul-Ilah Ahmed, The General Theory of
Evidence in Criminal Principles, PhD dissertation,
without mention of university or place of publication,
1987, p. 949.
Muhammad Muhyi al-Din Awad, Publicity in the Penal
Code, PhD dissertation, Al-Nasr Press, Egypt, 1955, p.
416.
Fadhel Zidan Muhammad, The Authority of the
Criminal Judge to Confirm Evidence: A Comparative
Study, PhD dissertation, University of Baghdad, 1987,
pp. 282-289.
Fifth: Periodicals and Research
Article 174 of the Iraqi Judicial Rulings Magazine.
Laws
Iraqi Evidence Law No. 107 of 1979.
Egyptian Evidence Law in Civil and Commercial
Matters.
Jordanian Evidence Law.
Iraqi Criminal Procedure Code No. 73 of 1971
Egyptian Criminal Procedure Code No. 50 of 1950.
Jordanian Law of Clarification in Civil and Commercial
Matters No. 30 of 1952.
Jordanian Criminal Procedure Code No. 9 of 1961.
Cassation Decisions
Jordanian Court of Cassation Decision No. 651 of 2002,
dated June 27, 2002, Adalah Center Publications.
Jordanian Court of Cassation, in its criminal capacity,
Decision No. 1406/2003 (five-member panel), dated
February 9, 2004, Adalah Center Publications.
Jordanian Court of Cassation, in its criminal capacity,
Decision No. 636/2006, dated July 25, 2006, Adalah
Center Publications. Presumption is considered the
inference of an unknown fact from a known fact, and it
is an admissible form of evidence in criminal matters.
Iraqi Court of Cassation Decision No. (81/28), General
Panel/2000, dated July 5, 2000, Al-Qada Magazine,
Issue 1, p. 131.
Decision No. 496, dated April 27, 1961, Collection of
Legal Rules Decided by the Egyptian Court of Cassation,
in Fifty Years of Suspicion, Vol. 1, Year 12, p. 399.
Decision No. 143/92, Jordanian Criminal Cassation,
Jordanian Bar Association Magazine: 1993, p. 384.
