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Presumption of Innocence in Tunisian Legal System Essay (Book Review)

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Updated: Feb 25th, 2021

Introduction

An individual has important rights and responsibilities toward other persons. From a societal standpoint, there should be mutual responsibilities that should be exhibited by all persons so that they could live in harmony. The state has the duty of ensuring that all persons enjoy their constitutional rights. The right of punishing people has enjoyed the state, which acts based on the adopted rules that define the powers and the extent to which they may be applied.

With regard to jurisprudence, rules that are based on criminal law cannot be implemented if there is no good legal system. In fact, it is argued that “this application ensures the procedural rules, and if the criminal law was made for offenders then the code of criminal procedure is made for the honorable people with all its guarantees” (p. 3). Domestic, constitutional, administrative, and foreign levels adopt a significant number of legal rules.

For example, “treaties and conventions are adopted to offer guarantees of freedom against state authorities when it requires applying them for punishment” (p. 4). In every legal society, scholars argue that guarantees are adopted for individuals, but the presumption of innocence is the most important right. In this context, the judiciary could be reformed in two ways. First, personnel has to identify crimes and how they are based on the law. Second, the judiciary needs to assume that suspects are innocent until such a time when they are proved otherwise. The scope of the presumption of innocence can be explained using legal presumptions, which “help to get rid of the burden of proof exempting its owner from it” (p. 6).

The nature and history of the presumption of innocence

It is worth noting that legal presumptions can be either simple or conclusive. When attempting to understand the history of the presumption of innocence, it is important to note that the Pharaohs were the first persons to adopt the basic principles for punishing those who committed crimes. Over the years, the principle of the presumption of innocence has occupied a crucial position with regard to international and national conventions. In fact, a significant number of international legal systems quote the principle as the basis for a trial, which is essential in protecting persons from exposure to unlawful punishment.

Although the principle of the presumption of innocence is adopted by both national and international systems, it would be critical to acknowledge that “modern society governs the supremacy of the law, but it does not just mean simply complying with its provisions” (p. 10). With regard to the Tunisian legal system, it is evident that it is not different from legal systems that are implemented in the developed countries or other Arab countries. In fact, this can be viewed in the context of increasing threats of terrorism. Notably, “the fight against terrorism can be described through the enactment of restraining and sharp rules and laws as the fashion of the start of the twenty-first century” (p. 13).

From a theoretical standpoint, the dynamism of the presumption of innocence indicates the pathways that are taken by society to develop important aspects of respecting human rights. Evolution is supported by political, economical, social, and philosophical advancements.

Constitutional legality

There are two levels that can be applied to analyze the evidence of innocence within criminal legal systems. The first level is, “the domestic level of the state, which specifies the standards of legality” (p. 19). The second level is “the constitutional level that makes the presumption of innocence of the standards of constitutional legality” (p. 19).

Constitutional legality is aimed at protecting individuals from the control of authorities by ensuring that their rights and freedoms are respected. This form of legality is “the highest guarantee of the supremacy of the law over the state authorities” (p. 23). It forms an excellent platform on which power is organized. Fundamental human rights should be respected by all persons, including judges who should understand that suspects should be presumed innocent.

However, it is important to note that the assumption of innocence, which is regarded as a constitutional principle, may negatively impact personal freedoms. For example, the judicial police may hinder suspects and other individuals from enjoying their freedoms when they are involved in a confrontation with the authorities. In order to conduct investigations and start criminal proceedings in a court, the police are required to collect evidence through primary research, which is expanded at later stages of proceedings. However, in cases where the lack of guarantees of primary research is dominant, there could be inevitable delays in the realization of justice.

A suspect’s lawyer is supposed to notify the relevant authorities through efforts to defend his or her clients. In fact, “the right to a lawyer contributes to turning the presumption of innocence to a certainty as it is a real way to prevent the persecution and oppression by the authorities. In addition, it is a real way to show the truth for justice” (p. 76). When conducting legal research, it is important for persons to adopt excellent documentation that could be critical in providing evidence.

Thus, legal experts classify legal records based on authenticity that affect the usefulness of such records in court proceedings. Within legal systems, procedural legality is critical in ensuring that the freedoms of persons are protected. This is also important with regard to the Tunisian legislator who focused on “modesty of the retention of the suspect” (p. 89). When being retained, a suspect should access several services that are based on the law, for example, medical examination. Medical care is important in ensuring that persons are treated humanely.

From a general standpoint, the preliminary investigation is conducted on the premise that the rights of suspects are protected. With regard to Tunisia, an appointed governor undertakes the important activities. The necessity of indictment with regard to jurisprudence may be encountered. An indictment is defined as “an act performed by the investigating judge through which he or she notifies the suspect of the acts attributed to him or her” (p. 44).

The confidential investigation is important in the legal system because it ensures a high level of professionalism. However, investigators should adopt a high level of openness to parties in a court case. For example, public prosecutors should inform suspects about crimes that necessitate pre-trial detention, which must be known by their legal representatives. The detention system should be exemplified by certain periods and conditions of provisional release.

Procedural legality

Procedural legality plays an important role in limiting the powers of the penal code with the aim of ensuring that the accused parties are respected and that they enjoy their freedoms. It is stated that “procedural legality is the second part of the principle of criminal legality which includes the legality of the crimes and penalties” (p. 68). However, research has shown that it is quite difficult to prove that an individual is guilty.

In other words, there is the burden of proving that a suspect has committed a crime. It is worth noting that the principle of the presumption of innocence is adopted with the aim of providing suspects with all their rights and freedoms. It is at the trial stage that a competent court balances between evidence of innocence and conviction. A fair trial process is important in giving the accused persons fair hearings. In addition, when a suspect’s lawyer is allowed to confront in a court, then this is important in strengthening the rights of the defense. In the same context, a suspect is entitled to attend all court proceedings.

With regard to the Tunisian legal system, human beings are recognized through the virtue of their dignity. In fact, the concept is based on Islamic law. The adoption of human dignity is essential in respecting matters that are related to the natural conduct of persons that do not involve the use of abusive approaches. Thus, the constitution proposes that all persons should be treated humanely. Such treatment does not involve the use of torture, which could be used to demean people and cause both physical and emotional suffering. “Torture in jurisprudence means material and moral harm, whether resulting from physical acts or from moral coercion” (p. 95).

The legal system also recognizes that persons could be drugged in order to be influenced to adopt some aspects of crime that they have not committed. Thus, the law prohibits such acts of using narcotics to influence suspects.

In the context of legal systems across the world, it is notable that the advancements in technologies can be applied to improve criminal profiling. However, the utilization of technologies can also result in “an assault on the sanctity of private life” (p. 159). Thus, eavesdropping and recording of conversations should not be encouraged because they lead to assault.

Protecting the effective role of the judiciary is important in achieving a fair legal system. Judges can play crucial roles in this context by ensuring that they have adequate knowledge of human rights and ensuring that they are focused on working toward achieving the goals of the judiciary. It should be noted that “in the application of the principle of independence of the judiciary, the Supreme Judicial Council takes charge of the disciplinary authority of the judiciary in cases of violation of the requirements of staff” (p. 201).

Conclusion

It is evident that the presumption of innocence is a key right for suspects. In fact, the principle is common in all procedural rules. It is a constitutional rule that protects the rights and freedoms of individuals. The procedures that are used in collecting evidence should be supported by adequate documentation to ensure that they result in a fair trial. Confrontation is crucial in strengthening a defense that is crucial in every legal proceeding. The judiciary should work toward protecting its rights and improving its performance outcomes. An effective judicial system can be achieved if judges understand important aspects of human rights and other elements of the law that are essential in realizing human freedoms.

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IvyPanda. (2021) 'Presumption of Innocence in Tunisian Legal System'. 25 February.

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