Protecting Rights of Accused between Legislation and Practice

1Dr. Hemn Abdullah Muhammad, Dr. Rzgar Abdulkarim Salih and Delshad Hamed Darwesh


The most glorious role of the modern state, concerning the rights of its citizens, is maintaining the balance between the citizen’s right and public interests. These two roles sometimes might contradict each other’s, even in those cases that the public interest demands prevailing a right that has to be protected over the individual interest or right. For instance in the case of committing crimes, that forces the state to practice its rights to punish the criminal through restricting criminal’s freedom and depriving him from some of his rights. For that, the state must be committed to provide a legal and constitutional protection to prevent the public authority’s abuse in practicing the state’s rights while dealing with those citizens that their life, individual or social conditions dragged them into the crime circle, when they practice some actions or do not do some others, that both of them count as criminal in the legal point of view. Since the accused is the weak side in the criminal case, the Iraqi legislature emphasized in permanent Iraqi constitution of 2005, or criminal legislations (whether substantive or Procedural) on providing important guarantee to protect this side from abusing who acts on accused’s issues throughout criminal case, whether in the phase of inquiring and gathering of evidence or in the phases of investigation and trial. But this alone is not enough or a proof on real practicing of those guarantees, for the constitutional or legislated texts (substantives and Procedural) are not warranties for true practicing. In order to address the research question, this research relies on three types of methodology: which are: descriptive, analytical and comparative.


Legislation and Practice, Protecting Rights of Accused, Criminal Cases

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