Posted on | December 14, 2009
‘Discovering the evidence’ (kashf al-dalala) is a procedure whereby an accused who has made a confession is taken to the crime scene in order to explain to the investigative judge, or any other person taking the investigative judge’s place in conducting the investigation, the actions that the accused took in committing the crime. Usually, police officers conduct this procedure. Iraqi law – whether in the Criminal Procedure Code No. 23 of 1971 or elsewhere does not mention such a procedure expressly. It is clearly permitted by implication from disparate Articles of the Criminal Procedure Code such as 213(A) (“The court’s verdict in a case is based on the extent to which it is satisfied by the evidence presented during any stage of the inquiry or the hearing. Evidence includes reports, witness statements, written records of an interrogation, other official discoveries, reports of experts and technicians and other legally established evidence.”) and 220(A) (“Reports of investigations and of the collating of evidence, and all the details in them about procedures of disclosure, searching, and other official reports, are regarded as elements of proof to be taken into consideration by the court. The litigation can discuss them or prove the opposite.”). However, many recent law graduates and other legal scholars may not know about the detail of this subject.
Investigative judges and prosecutors with experience of practice report that this procedure is used in order to establish whether the confession is correct and that the accused is not protecting others who actually committed the crime. Therefore, if the trial or the investigative court finds that the report of the kashf al-dalala process and the accused’s confession do not match or support each other, and there is no other evidence and the trial court is not confident in the accuracy of the confession, the court can dismiss the confession and will not depend on it. However, if the report of the kashf al-dalala and the confession support each other and the court is confident in the accuracy of the confession, the court will sentence an accused even if no other evidence is available as permitted by Article 213(c) of the Criminal Procedure Code (“The Court can accept a confession only if it is satisfied with it .”).