The Rights of the Accused During the Criminal Investigation in Jordan

Introduction

The Jordanian criminal legal system offers the accused person all the necessary guarantees that ensure his dignity and liberty during the criminal investigation made by either judicial police officers or public prosecution. This protection is available under the provisions of the constitution of Jordan and under both the Jordanian criminal procedure Code and punishment Code. The preparatory investigation aims at out all the necessary evidence for the commission of the crime by particular person. Conducting the criminal investigation is considered as one of the mechanism for digging up the criminal evidence and discovering crimes by fair and Just means. It represents a great value for both the accused and society as a whole.

The accused person even under the stage of accusation must be dealt with in the way that does not harm his dignity, he is still considered to be a part of the society whether his crime has been proved or not. Thus, the procedures and restrictions taken against him for the purpose of investigation must be in accordance with the spirit of law and justice. The investigation is described as “Danger Period “, because it represents a very serious stage where the restrictions and criminal procedures restrain the liberties, freedom and the rights of the accused. In addition, these procedures may sometimes contradict with the preview of logic and justice, it is really complicated more than the trial stage itself [1] .

The principle of the presumption of innocence is already guaranteed by the Jordanian criminal procedure law. [2] In necessitates that the accused to be an actual guarantee during the criminal investigation where the accused liberty may be exposed to violation, The criminal investigation procedure may impose some restrictions upon the accused freedom, and cause social and financial harm against him and violate his privacy even without proving his guilt with the end of investigation. The protection of the rights of the accused is in harmony the modern criminal policy [3] and the principle of the social defense which embodies real values that aims at safeguarding the accused against the arbitrary power of the state and the society against the phenomenon of the criminality [4] .The spirit of justice requires a kind of balance between the benefits and rights of individuals and benefits and the security of the society during the criminal investigation .Dr. Ahmed Fathey Suror opined that the social defence cannot be achieved unless by protecting the personal liberties, constitutional and procedural rights of the accused [5] .According to Susan Moller Okin, the Human Rights concept can be defined as liberty, good and benefit. She says that the concept of Human Rights embodies” at least three Kinds of important human needs to basic the Indian Justice K. Ramaswamy [6] . According to the Indian justice K. Ramaswamy [7] , Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for development of human personality. Thus human dignity has become an empty-catch all under which both basic right to liberty or freedom in the sense of a right not to be interfered with and also rights to well-being such as food, Shelter, health, work, education etc., can easily be subsumed. Besides, each accused person is also entitled to presumption of innocence, information as to the alleged offence under known and established law, public trial without undue delay, right to legal assistance and time to prepare defense, to examine witnesses, right not to be compelled to confess guilt are enjoyed by universal declaration of Human Rights 1948, which visualize a social order in which human dignity and honor of criminal defendants cannot be authorities without a rational process of law. Denial of any one of them would seriously weaken the chances of establishing guilt beyond any reasonable doubt which is the essential requirement of “Rule of Law” [8] .

Rights of people became a slogan in struggling against injustice and indignities committed by tyrannical government . in this struggle attempt began to be made to set down the minimum rights that could be demanded by all citizens by the very fact of being human , of the government that ruled them. Exploring the guarantees and safeguards given to the accused person makes it easy to checkup to with limit that such guarantees enable the accused to stand against the charges and the role of these guarantees to ease the task of discovering the truth. The high lighting of the accused safeguards and the mechanism for protection his rights enables us to judge the entire democratic, political and social system of the society . The standard for protection the accused rights is mirror which reflects the status and the mature ness of the states legal system. The study of the protection of the accused rights lead to the discovery of the weak points that the judicial and criminal system of India and Jordan suffer from. The dignity of the human being in the necessity of its protection was and remains the call of sky and not only the demand of the temporal philosophy.

The Jordanian Criminal Legislator has guaranteed the criminal investigation with many safeguards for ensuring its fairness and to avoid the procedures of investigation to be used arbitrarily against the personal liberties. These safeguards can be briefed as follows:

The impartiality of the investigator :

The impartiality of the investigator is considered as of the most guarantees for the criminal investigation by public prosecution; it encourages him to deliberately of the investigator and works against his desires. In fact, it encourages him to deliberately study the case and ascertain the defense and arguments of the accused for achieving justice. According to Dr. Fouzia Sataar the complete impartiality of accused can be done only by the independence of the investigating authority it interference from both the indictment authority and judiciary. The independence of investigating authority necessitate the judicial investigating authority not to be influenced by other authorities and the power of public prosecution to be concerned only making accusation and the judge who investigates the crime not to decide the case in the trial stage [9] .

However, in Jordan the investigation system entirely in the hands of the public office and the judicial police officers who can conduct investigations except interrogation. The task of the investigator is reach the truth about the case and that cannot be achieved unless if he keeps himself impartial and away from the influence of both parties of the case [10] . The investigator must be always aware of the constitutional and procedural rights of the accused person and observed the principle of the criminal justice such as the principle of presumption of innocence and the principle that the doubt in criminal case is in favour of the accused and persecution to prove the case beyond the reasonable doubt . While investigating the case he has to search not only for the evidence that bring conviction but also that may prove the innocence of the accused Finally, beside the independent, proficiency of the investigator he must be vigilant, sharp minded and qualified and having the ability to deal with all the parties and witnesses in the truth from the facts and circumstances of the case.

The publicity of the investigation:

The general rule is the publicity of the criminal investigation, thus the parties of the case have the right to know the date and place of conducting such investigation . The issue publicity is a controversial one that differs from one legal system to another and one state to another. There are two vies with regard to the meaning of publicity. The first one argues that is to enable the parties of the case and their lawyers to attend the criminal investigations to give the public in the chance to attend and observe such investigations. The exception is the secrecy of the investigation. Most of the common law countries which adopt the accusatorial system agree with this view. The second view, in the country accept the principle of publicity of the criminal investigation in very narrow sense, it makes it only for the parties of case and their lawyers to attend the criminal investigation procedures and does not allow to the public to attend such investigation. Most of the countries, which adopt continental system, agree with this view. In Jordan, the criminal procedure code under section 64(1) accords with this view [11] .

It can be said that the publicity of the accused has double guarantees for both the accused and the society. It gives the chance and an opportunity for the accused to defend his case and his position or status and rebut the arguments the accused defend his case and his lawyer the real perception through which they can prepare for the investigation and judge the fairness of the investigating authority that will compel the investigating authority to the impartial and to make investigations in accordance to the rules of law. The presence of the public prevents such authorities from using third method in investigations. Conducting the investigation in the presence of the public is considered as one of the investigation guarantees. It keeps trust and confidence inside them and encourages them to have some knowledge about the process of justice.

Finally, the investigator must be concerned always with the truth and prefer his work to be under the supervision of public in regard to avoid him from any doubt [12] .In evaluating the aforementioned views it is agreed that the criminal investigation must be open for the parties of the case and their lawyers and to a certain extent for public and media but at the same time this issue must be in accordance to the discretionary power of the prosecutor who can evaluate the procedures of the investigation, and it should not be harmed by such publicity. The publicity of the investigation can done up to the limit where the public and justice benefits requires that and if such publicity may help in losing evidence or escaping the co-accused from justice it must be banned .However, if the public prosecutor prevents any one of the case parties from attending the investigation where the law has not given him the authority to do so, then the procedure taken by him invalid unless one of the adversaries in the case waived theiright [13] .

The Secrecy of the Investigation:

The principle of the secrecy means that investigation not to be open for public, media. This principle is relative one in the sense that the parties of the case and their lawyers are not to be prevented from attending the investigation procedures and to have access to all the procedures of the investigation and get copies of the investigation documents and all related papers. The justification for applying this principle during the investigation refers to the fair from losing or eliminating or erasing the evidence and their features. The investigation aims at discovering an evidence for proving the commission of the crime and whom it has been committed. Moreover, applying this system under some specific circumstances enhances the principle of the impartiality and independence of the investigator by keeping him away from the influence of public opinion and media. One thing more, it protects the accused and his reputation not to be exposed before proving his guilt , the investigation may prove the innocence of the accused who is having the presumption of innocence in his favor from the beginning, so it is not fair and just to let media freely narrate his history and his reputation [14] .

The secrecy of investigation as mentioned earlier is an exception for general rule which says that investigation must be open to public. The Jordanian Criminal Procedure Law , under Section 64(3)brought the exception for the general rule and provided for the application of the Principle of Secrecy in criminal investigation under some specific circumstances. Subsection 64 states that the public prosecutor is authorized to make the investigation in camera in the case of emergency or for revealing the truth, his decision cannot be reviewed (rebottled), but after completing the investigation he has to inform all the parties about the result of such investigation.

Recording the Investigation:

The fairness and impartiality of the investigation requires that all the procedures taken during this stage to be recorded in order to protect them from being overlooked and disregarded. The procedure of investigation must always be written that can be referred to at any time. Thus, the procedures of investigation such as hearing of witnesses, interrogation of the accused, screening the scene of the crime and the collection of evidence and the criminal materials all must be recorded. In Jordan, the law provides for appointing a clerk in the public prosecutor office for such purpose. Section 87 of the Jordanian Criminal Procedure Court 1961 provides that the public prosecutor shall associate his clerk and instructs for all the necessary things that may reveal the truth, he shall make a record and keep all the seized materials in accordance to the Section 73 of the same Court. If the pubic prosecutor does not follow all these norms his investigation and the information pertaining to the case would be considered to be invalid, but at the same time the accused must raise the question before the first Instance Court because the invalidity in such case is not part of public order, It is in connection with the facts of the case and not to be appealed directly to he Court Of Cassation [15] .Section 63(3)72(1)and 83 make it compulsory for the public prosecutor to record all the procedures with regard to hearing witness, hearing of the accused and the procedures of search and seizure.

The criminal procedure law requires that the record of investigation to be always clean and without manipulating the written information, and if such defects are found the investigator himself must approve the reduction, manipulation of the records otherwise it will not be admissible and cannot be relied on. In this regard Section 73of the Jordan Criminal Procedure Court Provides that “ 1.The Occurrence of scratching, inert between lines of the record is prohibited and if such scratching, deletion or addition are required the public prosecutor and the clerk and the interrogated person must sign and approve the deletion and addition the margin of the record. 2.any inserts, deletion and addition without approval are invalid.” Also the record must carry the date of procedure, ha is important for accounting the date of detention , rebuttal and perceptions.

Speedy Investigation :

The procedures of the investigation must be done expeditiously in order to protect the accused person from an arbitrary detention and keeping him for long time for his trial where he can be exposed to torture and the use of the third degree method by public authorities. The speed of investigation also protect represents a protection against the loosing of criminal evidence.

The Jordanian Criminal Legislature provides for speed of investigation under section 62 of the Jordanian Criminal Procedure Code which says that the investigation to be made speedy even without the presence of the lawyer. Section 76 of the same code also requires the public prosecutor to clear out all the cases do not fall under his jurisdiction and all the cases which do not amount into an offence within the period of seen days. The Court of Felonies Act, 1976, Provides also for the speed of investigation [16] . Thus it is a very important for the protecting the personal liberties of individuals and public favor and make people more confident and trustful about the state justice system and the strength of the government in discovering crimes and pursuing their perpetrators. Inspite of the legal and procedural provisions of the law the prosecutors in Jordan don’t follow these provisions and there are huge number of cases which are delayed and accused are kept in jails waiting for the trial.

II. Right of the Accused Against Arbitrary Arrest and Detention:

Detention procedure has a serious nature that jeopardizes the rights and freedoms of the citizens . it must be justified on the ground mentioned under law .it is right that the security of the society requires such procedures for protection against crime and criminals. But at the same time the accused person who is presumed innocent until proved guilty by the proper and competent court, has some guarantees during this stage for the protection of his rights and freedom against arbitrary actions of the public authorities. the detention may be justified but still remains as a dangerous procedure which touches the individual freedom that requires him to be surrendered with that protect him from any violation to his freedom and makes this procedure to be taken only with the limits justified by the law [17] .

Specific Provisions on Arrest and Detention:

In Jordan, many provisions have been laid down under the constitution and the Code of criminal Procedure, 1961. Such provisions are designed accused rights against arbitrary arrest and detention.

Article 7 of the constitution of Jordan, 1952 states that “personal freedom should be safeguarded” . Also Article 8 of the constitution prohibits an arbitrary and illegal detention. Article 8 of the constitution states that :

“ No person shall be detained or imprisoned except in accordance with the provisions of the law” .

Section 103 of the Jordan Criminal Procedure Code recognizes the right of the accused who is charged with flagrant crime, that not be persecuted except upon a complaint not to be arrested. Section 103 of the Code prohibits any person to arrested or detained except by an authority. Section 99 of the Jordanian Criminal Procedure Code specifies the conditions and situations where the person can be arrested. The new amended section 100 of the same Code defines the formalities to be done by the Judicial Police Officer arresting the accused. Section 104 deals with the legal status of the jails and places of detention. It stipulates that such places are to be operated by legal regulations. Section 105 of the Criminal Procedure Code deals with the legality of detentions, it say that no to be imprisoned unless in the specified places and upon the order of an authorized authority. Section 106 (1) (2) (3) contemplates the checking system over jails, Correctional Houses and Police Custody by both the members of public prosecution and courts, Section 107 of the Code deals with the complaints of the detained person which must be directed to the public prosecutor. Section108 ensures the protection of the accused against an arbitrary detention. This Section imposes upon the civilians the responsibility to inform of the public Prosecution about any illegal imprisonment of any person. Section 111-115 deals with the rights and duties of the Public Prosecutor in making arrests and detentions.

The Requirements of Detention:

The detention can only be justified where it is necessary in the public interest to ensure the appearance of the accused at trial, and to protect the pending the public pending trial of the accused. Such detention may necessary to prevent criminal activity by the accused pending trial. It prevents the accused from commission more or other offences relating to the trial, such as destruction of the evidence, tampering with the witnesses, or otherwise obstructing the course of justice. Detention cannot be used to inflict punishment on a person whose guilt has not yet been determined.

Detention may cause loss of job by the accused and make it impossible for him to fulfill societal obligations such as support of his family. Even if he does not lose his job, the loss of the reputation during the period of detention may have similar effects. In view of such possibilities the accused should not be incarcerated pending trail unless the protection of the public interest requires it.

The detention procedure danger emanates from the fact of the legal systems of the world do not declare specific time limit for detention where the accused rights and freedom will be in real jeopardy. The accused during the period of detention must be enjoying the minimum guarantees and no detention to be done except to the rules of the law. The guarantees against arbitrary detention may be highlighted as following: