ضمانات المتهم أثناء المحاكمة في القانون اليمني والشريعة الإسلامية : دراسة مقارنة

Abstract

This comparative study focuses on the issues of guarantees for the accused during trial under Yemeni and Islamic law. This study intends to clarify the legal status of the accused during trial so that misconception against him by the society can be changed and consequently change the way legal practitioners deal with the accused. Therefore, the accused will be accorded all the guarantees affirmed by local and international laws and Islamic law (Sharia) in particular. This study demonstrates that innocence of the accused person is achieved through independent judiciary in terms of finance and administration with the necessity of observing the principles of fair public trial, and to conclude the trial within a reasonable and specified time. According to Yemeni Law, the Procuratorate bears the burden of proof of guilt of the accused. This study confirms that the fair trial guarantees must be ensured to all of the accused on an equal footing, without discrimination between the accused and another person. Equality requires that the government should give the opportunity to all accused to prepare for defense either by himself or represented by a lawyer. The researcher has also conducted field work research along with using comparative and inductive approaches. These approaches were achieved through interviewing different categories of people in legal expertise namely judges, lawyers and law professors in order to understand the real challenges faced by the accused during trial, and the extent to which the judiciary provides the guarantees as stipulated by the law in gauging its effectiveness in protecting the accused during trial. This study has achieved a number of results, among which are that the Yemeni judiciary in practice does not enjoy full independence; the majority of Yemeni courts are rented apartments which impede guarantee of public trial that requires wide places and allows all those who wish to attend the trial sessions; there is a shortage of qualified judges for judicial work that causes a neglect of oral guarantee and instead is replaced with written pleadings that are submitted by the litigants. In conclusion, the researcher has suggested a number of recommendations that he hopes Yemeni legislature will take into account in order to improve and raise judicial system in Yemen to the highest level of justice, integrity and independence.