| المستخلص: |
This paper presents a definition of incarceration and outlines its history from the early period of Islam to the caliphate of <Umar Ibn al-Khattab during whose time, the system of incarceration evolved and governing principles and criteria were laid down. Provisional detention is not a penalty but merely holding the defendant in custody until acquittal or conviction. The paper outlines the types of provisional detention according to the nature of the accused: 1. The innocent suspect. 2. The suspect whose innocence or guilt is unknown. 3. The suspect who is known for his corruption. The period of detention is based on this categorization; as such the detention of a person known for his corruption may be longer than that of other detainees. The paper then discusses the extent of the permissibility of provisional detention in Islamic legal theory, concluding that it is permissible according to the opinion of the majority of scholars. Because provisional detention contravenes the principle of absolution, the paper specifies the criteria to which the judges and members of prosecution must adhere. It also mentions the necessity of differentiating provisional detention from incarceration for crimes. This is because the latter is penal but in the former, the defendant>s guilt has not been conclusively established. The paper then discusses the rights of the detained during his provisional detention. It is not permissible to prevent his wife and children from visiting him, nor to hinder him from practicing his natural rights such as those relating to food and drink and prayers. The paper then examines the effects of provisional detention, the most important of which is the permissibility of bail if the matter under the court>s consideration is of a financial nature. Moreover, since the decision to detain another is made by a human, there is a possibility of error; therefore, the paper mentions the defendant>s right to compensation for psychological and material damages. The compensation is to be paid from the treasury, for it carries the burden of the error.
|
