Evidentiary Law Research Articles

Codicology and the Transformation of Islamic Law

Abstract In Islamic law, preponderance (tarjīḥ)—a practical method for mujtahids to resolve legal contradictions (taʿāruḍ) between proofs—has been known in the uṣūl tradition from at least the 10th-century jurist al-Jaṣṣāṣ (d. 370/981). Yet, it is in several 17th and 18th-century Arabic and Ottoman manuscripts of Princeton’s Garrett Collection that we encounter summary-like lists labelled “tarjīḥāt al-bayyināt” (“TB s”), which succinctly compile the complex rules of preponderance. Organized into three-columned lists, on loose leaves, as annotations in the margin or separate textual units, the TB s follow a grammatical and visual layout that made them predictable and recognizable for manuscript readers. This paper examines the TB s as a codicological phenomenon, arguing that they served as a shorthand for legal practitioners familiar with evidentiary law and that their presence suggests a broader transformative process of readers’/legal practitioners’ relationship with codices of positive law at this critical moment in the history of Islamic law.

The Transformation of Islamic Property and Evidentiary Law in Colonial-era Morocco: The Case of Shufʿa as Préemption

Abstract A cornerstone of French land policy in colonial Protectorate Morocco (1912–56) was to restrict jurisdiction of sharīʿa courts while maintaining sharīʿa-based property laws in French courts. This article examines the Islamic property concept of shufʿa (the right of “preemption” or “first-refusal” for co-owned land) as adjudicated in sharīʿa courts and French courts of colonial-era Morocco. Both jurisdictions claimed to uphold the provisions of shufʿa stipulated by the Mālikī legal school of Islamic law; however, the French courts used a codified version—le droit de préemption—while relying on property facts established by the new colonial institution of land registration (Fr., immatriculation foncière; Ar., taḥfīẓ ʿaqārī). By analyzing paradigmatic shufʿa disputes in each jurisdiction, the article argues that evidence and procedure are critical to understanding Islamic law’s encounter with the colonial state. Most importantly, French courts implemented a hybrid version of Islamic property law in which immatriculation supplanted Islamic legal modes of proof making. The French hybrid approach thus constituted a competing version of state sharīʿa that was mutually exclusive with the sharīʿa courts and persisted into the post-colonial period. This discussion more broadly seeks to center property, evidence, and judicial procedure in scholarly narratives concerning twentieth-century Islamic legal history.

არსებითი დარღვევა და მისი შედეგები მტკიცებით სამართალში

The article concerns to the issue of admissibility of evidence in criminal proceedings. In particular, the concept of substantial violation of the law and its importance in the criminal justice process. The criteria are defined in which case there is a substantial violation of the law. The article analyzes the doctrine of the United States of America and the decisions of the Federal Supreme Court on the issues of admissibility of evidence using the method of comparative law. The article expresses and substantiates the opinion that a substantial violation of the law occurs when the investigative action is carried out by an unauthorized person, when the investigative action is conducted in violation of the deadline set by the law, when the investigative action is conducted without the grounds defined by the law, when the persons specified by the law do not participate in the investigative action. Cases where the law breaking violates a person's rights or creates insurmountable doubts about the veracity of evidence are considered substantial violations. The issue is important from both a theoretical and a practical point of view. Due to the fact that we are limited by the format of the article, it deals only with the comparative analysis of Georgian and American law about the mentioned issue. Key words: evidence, admissibility of evidence, sSubstantial violation, the doctrine of the fruit of the poisonous tree, criteria for substantial violation, exceptions to the doctrine of the fruit of the poisonous tree.

Burden Proof Dilemma of Election Disputes in the Constitutional Court

Objective: This research study examines the legal underpinnings, the institutional framework of the electoral laws, and the jurisprudence developed by the Constitutional Court of Indonesia in resolving electoral disputes. The study aimed to investigate whether the dispute resolution mechanisms in our electoral system are rigid, costly, and inefficient and serve to hinder justice by emphasizing technicalities at the expense of substantive justice. The evidentiary process is essential in excavating facts and searching for truth in trials. The burden of proof is carried by the plaintiff to prove the legality of his or her suit. Theoretical Framework: Evidentiary law in the settlement of electoral cases in the Constitutional Court uses a model of legal processes in civil law. Evidentiary law is applied to facilitate the speedy settlement of cases and consider the evidence of the parties to the dispute. Method: The research approach method used in this research is legal normative research. This method helps examine the juridical standards contained in laws and court decisions. Furthermore, library research was conducted to obtain data from primary, secondary, and tertiary legal materials. Research Implications: According to the conclusions of this study, the improvement of burden-proof procedures will ensure justice and democratic elections in Indonesia. It is hoped that the ideas and issues raised in this paper will help can improve the implementation of burden-proof procedures in the settlement of election disputes at the Constitutional Court of the Republic of Indonesia. Results and conclusions: The settlement of election disputes depend on how the dependent proves his/her complaints, which should be improved by the Constitutional Court. Originality/value: Mobilizing the public to actively monitor elections is part of creating a fair-and-democratic election.

The Legal Force of Deed Statement of Meeting Resolutions Made Before a Notary Based on Private Minutes of the General Meeting of Shareholders (Case Study in Pt. Eco Environmental Energy Indonesia)

This research is a normative legal research that examines the legal force of the deed of statement of meeting resolutions made before a notary based on a private minute of the general meeting of shareholders (a case study at PT Eco Environmental Energy Indonesia), the focus of this research is the legal force of the deed of statement of meeting resolutions made before a notary based on the minutes of the private general meeting of shareholders in the case study of PT. Eco Environmental Energy Indonesia. The focus of research is on the extraordinary general meeting shareholders held at PT. Eco Environmental Energy Indonesia as there were indications of unlawful acts that make the deed of statement of meeting resolutions (PKR) drawn up before a notary null and void. The study employs the evidentiary law theory, which utilizes the statutory, analytical, and case approaches. The analysis concluded that the deed of statement of meeting resolutions number 56 was null and void, due to flaws in the formal requirements specified in the Limited Liability Company Law in the holding of the EGMS on May 21, 2011, which violated laws and regulations, causing the deed of statement of meeting resolutions to lack valid material proof power as an authentic deed.

Kewenangan Notaris dalam Mewujudkan Kebahagiaan

Introduction: Civil relations, especially engagement relations, are a major factor in the growth and development of society.The actual form of the resulting agreement is the choice of the parties, but for the purposes of evidentiary law, the form of the agreement in a notarial deed (written) has a stronger position. 
 Purposes of the Research: The purpose of this study is to examine the authority of a notary in making authentic deeds and to review the existence of a notary's deed in providing happiness based on the agreement of the parties. 
 Methods of the Research: This research was carried out in a normative juridical manner, using bibliographical data as secondary data to examine rules and norms in law. 
 Results Originality of the Research: The authority of a notary in making agreements is a mandate. The freedom to contract the parties accompanied by the principle of good faith is then stated in a notarial deed that should give happiness to the contracting parties. The position of a notary as an intermediary must accommodate the needs of the parties, both from the pre-contract stage, and the contractual stage to the post-contract stage. The notarial deed is also a means of happiness and light for the contracting parties

Concept of Electronic Evidence in Criminal Legal Procedure

Objective : elucidating the potential of digital transformation for elaborating the optimal means and methods of collecting evidences and introducing scientific organization of labor of the officials implementing criminal procedure. The scientific approach within the concept consists in minimizing the costs of collecting evidentiary information in criminal cases in electronic form and by electronic means, as well as storing the criminal case materials in electronic form. Methods : dialectic method occupies the leading position among the research methods, the issues of electronic documentation being considered in the interaction and interdependence with information-technological development of the society. The set of scientific cognition methods within the research creates prerequisites for objective and comprehensive approach to the problems under study. Results : the authors’ concept of electronic evidence is a system of information-technological and legal views on the criminal-procedural form, which is intended for optimizing the process of collecting, registering and preserving them in the criminal case materials. The concept development is aimed at elaborating new approaches to organizing the work of investigation agencies and courts, taking into account the achievements in the sphere of information technologies, providing new techniques of collecting criminal-relevant, criminal-procedural, criminological significant information when investigating and hearing of a criminal case. The proposed concept is also aimed at improving interaction and in-service communication of the officials of the preliminary investigation bodies with the officials of information-technological systems for the purposes of collecting evidentiary information in electronic form. Scientific novelty : the changes were systemically analyzed, which are taking place in the contemporary information society, through the prism of the emerging problems between the sectoral criminal-procedural evidentiary law and more modern technological means of collecting evidentiary information. The article demonstrates a new approach to creating technological interaction using digital technologies, on the scientific base of organization of proving activity, intended to optimize and rationalize the process of proving in criminal procedure. Practical significance : the research materials can be used to prepare proposals on making changes and additions in the current legislation with a view of implementing the practice of already functioning models of criminal-procedural activity of foreign countries, an inexhaustible potential of information-technologies, software, and artificial intelligence to rationalize proving in criminal cases.

Legality of Electronic Information According to Law No. 19 of 2016 as Evidence in Trials at Court

Then in Article 5 paragraph (1), (2) and (3) of Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 it has been explained that Electronic Information and/or Electronic Documents and/or their printouts are tools valid legal evidence and is an extension of legal evidence in accordance with the applicable Law of Procedure in Indonesia, which is declared valid when using an Electronic System in accordance with the provisions stipulated in this law. However, in practice there is a legal void in procedural law in Indonesia related to the strength of electronic evidence. The method in this study uses the juridical-normative method, namely solving a problem by referring to laws and regulations. This normative juridical research starts from analyzing a case and then looking for a solution through legislation. Electronic evidence can be used as valid evidence in criminal law, so by using one of the parameters of criminal evidentiary law known as bewijsvoering, namely the breakdown of how to convey evidence to judges in court. When law enforcement officials use evidence obtained in an illegal way or unlawful legal evidence, the said evidence is set aside by the judge or considered by the court to have no evidentiary value. Keywords: Legitimacy, Electronic Evidence, evidence, Trial, Court.

Evidence and Proof in Criminal Proceedings: Problems of Understanding their Nature

The paper is devoted to the consideration of topical issues related to the essential characteristics of such categories of evidentiary law as «evidence» and «proof», due to the ambiguity of approaches that researchers apply to disclose their nature.The study purports to identify the conformity of the actual proof procedure with its definition reflected in the law, and to formulate scientific recommendations for improving the law in this part. Scientists’ ideas that the legislative definition of evidence does not reflect the requirement of their reliability are critically assessed, and the absence of grounds for such a conclusion is demonstrated.In the course of the research, scientific methods of analysis, synthesis, formal-logical and legal interpretation were used. Based on the terminological analysis, in contrast to the opinion of scientists who believe that such an element of proof as gathering should be replaced by the concept of «formation», the author substantiates the position that all elements of proof, and not just gathering, represent the process of evidence formation. Therefore, the most accurate characteristic of criminal procedural proof is the process of transformation of the information obtained during the proceedings into evidence to substantiate the presence or absence of circumstances to be proved, i.e., the process of forming evidence.In this regard, the author concludes that for a more accurate reflection of this process in a number of norms of Chapter 11 of the Criminal Procedure Code of the Russian Federation, it would be necessary to replace the concept of «evidence» with the concept of «information that can be used as evidence». According to the author, the legislative definition of criminal procedural proof should reflect not only the actual process of evidentiary activity, covering the initial stage of criminal proceedings, but also its target orientation. For this purpose, the author proposes the following wording of Article 85 of the Code of Criminal Procedure of the Russian Federation: «Proof consists in gathering, verifying and evaluating information in order to obtain evidence substantiating the presence or absence of circumstances provided for in Article 73 of this Code for the correct resolution of a criminal case.»

DOCTRINAL PROBLEMS FORENSIC EXAMINATION IN THE INTEGRATIVE DOCTRINE OF EVIDENCE-BASED LAW

The article reveals the problems of forensic examination in the integrative doc- trine of evidentiary law, taking into account the provisions of the Constitution of Ukraine, procedural legislation, the case-law of the European Court of Human Rights, and judicial precedents of the Supreme Court of Ukraine. In the context of the formation of its doctrinal principles and individual legal in- stitutions, we propose to consolidate here the provisions of the following content: “The evidence is the factual data obtained in accordance with the procedure pro- vided by law that meet the requirements of belonging to the case, admissibility and reliability”. “Factual data obtained during the conduct of expert studies, investigators or other procedural or regulated by separate laws of research actions can be used in legal evidence, provided that the source and method of their obtaining, the evi- dence obtained, are not “fruits of a poisonous tree” are clarified and can be verified. The peculiarities of the expert's conclusions and written conclusions of special- ists are disclosed, and a simplified procedure for assigning examinations and the formation of the results of expert research is proposed. It is concluded that it is necessary to adopt a universal legislative act – the “Code of Evidence”. It is proposed to include in its conceptual model the norms of the gen- eral and special parts. In the general part, at the integrative level, intersectoral char- acters should be set out, norms common for all forms of legal proceedings, which will determine the concepts and types of evidence and the criteria for their admissi- bility. In a special part, modern norms should be laid down – standards of evidentiary law governing the receipt, research, verification, evaluation, and use of evidence, the production of forensic examinations. It is proposed to differentiate art and humanitarian examination, the need to ex- pand the types of examinations and the formation of the subject and features of such independent examinations as forensic and humanitarian, legal, stock market exam- ination, environmental and land examination are being bypassed. Key words: examinations, expert conclusions, evidence, evidentiary law.

The The comparative analysis of the law of evidence in civil proceedings in France and Russia

The article deals with the problems of the legal nature and legislative consolidation of norms of evidentiary law in France and Russia. The author claims that it is more optimal to consolidate norms of proof and evidence in evidentiary law of Russia. At the same time, Russian theory of evidence needs radical reform. The legal approach to the concept of proof in legislation of Russia and France is differentiated. In French evidentiary law, the ranking of evidence is legally fixed, which cannot be recognized as dignity. However, legal norms regarding some means of proof are sufficiently developed. The means of proof, which are outdated as legislation and judicial practice, are still fixed. At the same time, the legal regulation of electronic evidence has been sufficiently developed, which can be recognized as an advantage of French evidentiary law. Russian evidentiary law does not provide for legal regulation of electronic evidence as an independent means of proof. The following areas of improvement of Russian evidentiary law are highlighted: improvement of the theory of proof, optimization and unification of the legal regulation of the rules of evidence, reception of effective means of regulation from the evidentiary law of foreign countries, and detailed legal regulation of individual means of proof.

Следственные действия и типичные ошибки при обнаружении и изъятии доказательств преступных действий в сфере компьютерной информации

Telecommunication technologies made it possible for the society to use both real (material) and virtual space. Some actions injuring social relations fall under the criminal legislation prohibition: Articles 272, 273, 274, and 274.1 of the RF Criminal Code. The investigated crimes committed in the material world have a large tried and tested investigative and judicial practice, but the investigation of cyber crimes has a weak empirical base and a limited scientific experience. This indicates the existence of a criminalistically significant problem and the necessity of its solution. The paper presents the list and brief criminalistic overview of common mistakes made by investigative authorities when detecting and withdrawing the evidence of cyber crimes. Based on the system-comprehensive approach, the author gives an overview of information computer network elements criminalistically significant for an investigation; carries out the analysis of the implementation of evidentiary law provisions when investigating crimes in the telecommunication space. In conclusion, the author explains the digital footprint universal nature and enumerates typical mistakes when detecting and withdrawing the evidence of cyber criminal acts. The paper states that such order of things sets before the scientists and practitioners the task of improving forensic methods, tools, and tactics for detecting traces of a crime in the information (virtual) space and their procedural legal enshrinement. The author proposes a direction of solving this problem. It does not indicate the necessity to revise the existing evidentiary law theory and to supplement it with new procedural aspects fixing special characteristics of digital information. The author highlights that the mistakes made by investigators are not caused by the gaps in scientific knowledge of a forensic or legislative nature. The problem solution lies in the practical plane of the IT-technologies knowledge improvement by the investigators conducting the examination.

Сравнительный анализ доказательств в уголовном процессе РФ и КНР

Unlike the Criminal Procedure Code of the Russian Federation, the Criminal Procedure Code of the People’s Republic of China has the following features: it establishes eight separate types of evidence, postulates the principle of truth, limits the evidentiary power of one proof, sets the standard of proof in combination with subjective views. Based on these differences, this article provides a comparative study of the legislation of the two countries from four aspects: the concept and types of evidence, the basic principles of evidentiary law, the collection and use of evidence, and the standard of proof.

Judicial Evaluation of Data from Artificial Intelligence Systems and Other Innovative Technologies in Transport

The expansion of the scope of innovative technologies and the spread of digital solutions determine one of the directions of modern development of transport engineering. However, technological changes taking place in the context of transport development, with the complication of communication links and vehicles used by humans, basically form the risk of prejudice that needs to be overcome during the judicial evaluation of data generated by innovative technologies. On the one hand, in the conditions of active technological expansion, the national procedure for carrying out procedural activities is subject to evolution in the field of ensuring electronic record keeping, information openness, providing participants with access to justice and information means of proof. On the other hand, the information technologies used in the basis of transport engineering are rarely researched in science from the standpoint of analyzing the evidentiary value of the data generated by them. There are no solutions to such issues as the philosophical grounds for the truth of such data, their compliance with the model of proof, ensuring a balance between the rule of law and respect for individual interests (trade secrets), determining guilt in the case of a traffic accident, etc. This article is devoted to the analysis of problems arising during judicial evaluation of data generated by innovative technologies in transport. Based on such methods of scientific analysis as dialectical, logical, comparative, predictive and interpretation, conclusions are drawn that the data generated by innovative technologies in transport are objective, but do not meet the criterion of truth for the purposes of cognition by the subject of demonstrating conclusively the circumstances of the incident. This circumstance predetermines the need to develop legal structures that expand the key concepts of evidentiary law, as well as an acceptable test for proving the specified information, the elements of which are presented in publication, taking into account the importance of preserving trade secrets.

Implementation of Signature Validity On Electronic Documents in Proof Indonesian Civil Procedure Law

This study aims to identify and analyze the acknowledgment of signatures on an electronic document in the evidence of civil procedural law in Indonesia, and to find out and analyze the implementation of civil dispute resolution submitted by the parties by means of electronic documents signed with digital signatures. The method used in this research is to use an empirical juridical approach. Electronic documents, in this case digital signatures, can be used as evidence in court, which is an extension of the evidentiary law in Indonesia after the ITE Law, but only has the power of proof as an underhand deed not as an authentic deed. In the process of settling a lawsuit for civil proceedings through litigation media, it is carried out amicably first by means of a peace made by the party concerned without the assistance of an authorized official. Efforts to settle through non-litigation media can be carried out in three ways, including arbitration, negotiation, and mediation.

Integrative doctrine of evidence-based law.

The article on the basis of integrative analysis of the problems of evidence in various legal processes substantiates the conclusion about the need to establish an integrative doctrine of evidence law and adopt a universal legislative act - the «Code of Evidence Law». The implementation of the rule of law in the field of justice is possible only if there is a fundamental doctrine of evidence-based law and a perfect evidentiary law created on its basis. In the context of the formation of its doctrinal principles and individual legal institutions, we propose to enshrine here the following provisions: Actual data obtained through the implementation of operational and search actions, anti-corruption measures, activities to prevent the legalization of proceeds from crime, customs and other administrative or civil procedure procedures stipulated by law can be used in criminal procedure and other legal evidence, provided that the source and method of their receipt can be verified. In admissive are the evidence obtained from such sources, such means and in such a manner, in which the proper observance of the protection of human rights and freedoms in accordance with the requirements of the rule of law and the principle of proportionality is not ensured, and the authenticity of the evidence itself is questioned. In legislation of Ukraine proposes to consolidate the following provisions: «Evidence materials obtained as a result of provocation of a crime obtained with significant violation of human rights and freedoms are inadmissible, whether «the fruits of a poisonous tree, materials obtained in violation of other legal norms, the prescriptions of which created certain guarantees of obtaining reliable factual data. Inadmissible are the evidence obtained from such sources, such means and in such a manner, in which the proper observance of the protection of human rights and freedoms is not ensured in accordance with the requirements of the rule of law and the principle of proportionality, as well as question the authenticity of the evidence itself. The standard of proof beyond a reasonable doubt means that the system of admissible and reliable evidence excludes any other reasonable explanation of the event that is the subject of trial, in addition to the one that is formed in the court decision.

Implementation of Deep Assets Separation Agreement of Indonesian Citizens Who Marriage with Foreign Citizens

This study aims to analyze legal protection in the making of an agreement on the separation of assets in marriage between Indonesian citizens and foreign nationals and to analyze the authority of a notary on the making of an agreement on the separation of assets in marriage between Indonesian citizens and foreign citizens. This research uses empirical normative research. The approach method used is the statutory approach, conceptual approach and case approach. Based on the research results, it can be concluded that the making of a marriage agreement can provide legal protection for the parties who make it. The agreement deed made in a notary can be used as written evidence in court if problems occur in the future. Based on Article 1868 of the Civil Code and the authority of notaries in Article 15 of the UUJN, it states that notaries have the authority to make authentic deeds related to all agreements. Notaries must be able to provide legal certainty in people's lives because in the deed there is evidence that clearly determines the rights and obligations of a person as a legal subject in society. Notary Deed as a deed that has perfect evidentiary power makes the position of the Notary deed as the first and foremost evidence in civil evidentiary law.

SEPARATION AGREEMENT ASSET FOR INDONESIAN CITIZENS MARRIED ABROAD

Legal protection in agreements on the separation of assets in marriage between Indonesian citizens and foreign citizens as well as analyzing the authority of a notary in making an agreement on the separation of assets in marriage between Indonesian citizens. and foreign nationals. This research uses empirical normative research. The approach method used is a statutory approach, conceptual approach and case approach. Based on the research results, it can be concluded that the making of a marriage contract can provide legal protection for the party who made it. The agreement deed made in the notary can be used as written evidence in court in case of problems at a later date. Based on Article 1868 of the Civil Code and notary authority in Article 15 of the notary office law, it is stated that notaries have the authority to make authentic deeds related to all agreements. Notaries must be able to provide legal certainty in people's lives because in the deed there is evidence that clearly determines a person's rights and obligations as a legal subject in society. Notary Deed as deed which has perfect evidentiary power makes the position of Notary Deed as the first and main evidence in civil evidentiary law.

ІНСТИТУТ ВИКЛЮЧЕННЯ ІЗ ДОКАЗІВ НА СТАДІЇ ДОСУДОВОГО РОЗСЛІДУВАННЯ: АКТУАЛЬНІ ПРОБЛЕМИ ТА ШЛЯХИ ЇХНЬОГО РОЗВ'ЯЗАННЯ

The study focuses on both theoretical and applied aspects of evidentiary law. The subject of this study is the legal institution of admissibility of evidence in criminal proceedings, as well as the legal mechanism for declaring evidence inadmissible. The author relies on the constitutional postulate (Part 3 of Article 62 of the Constitution of Ukraine) according to which the accusation cannot be based on evidence obtained illegally, as well as on assumptions. Based on this constitutional imperative, it is stated that the prosecution has no right to form charges and go to court if the accusation is based on illegal evidence or subjective assumptions, and emphasizes that the subject who forms the prosecution must operate on legal evidence. Thus, a legal contradiction is revealed between the provisions of the Constitution of Ukraine and Part 2 of Article 23 of the CPC of Ukraine regarding the legal nature of evidence in the pre-trial investigation. Given that according to the domestic legal structure, factual data must be recognized as evidence at the stage of pre-trial investigation, there is a legal need to guarantee the right of a person to a fair trial, the introduction of a clear mechanism for verifying factual data for admissibility at the stage of pre-trial investigation. The author argues that such a mechanism should provide effective tools for self-control and neutralization of illegal sources of factual data by both the prosecuting authorities and the court, during the implementation of judicial control over pre-trial investigation in making key decisions to restrict guaranteed rights and freedoms. Keywords: evidence, accusation, suspicion, admissibility of evidence, exclusion from evidence.

Proposal for a new theory of neutrosophic application of the evidence in the Ecuadorian criminal process

In this article, the main objective was to examine the articulation mechanism of the guiding principles of evidentiary law, the backbone of the criminal procedure directed at judges so as not to make inexcusable mistakes. A new theory called reasoned equivalence based on numerical neutrosophics by considering each evidentiary principle along with its opposite or negation and the spectrum of neutralities . The data collection techniques responded to participant observation and the Delphi technique, after having gathered the opinion of 60 collaborating criminal lawyers about the problem through the exercise of the profession. The construction of the instrument fell to an observation guide. The results gave the judicial practice a marked formative value, by establishing relationships between the content of the evidence and the development of oral litigation techniques aimed at the promotion and evacuation of evidence to contribute to a certain criminal process, the evidence necessary to that the judge can come to the knowledge and conviction of the procedural truth of the facts.