Dinbilimleri Akademik Araştırma Dergisi

Abstract

Several means detect the crimes committed by individuals. These means were similar in periods of static social structure. However, today, with the development of technological possibilities, the expansion of the means of proof has come to the agenda. In cases between individuals, proof can only be realized through evidence. Based on this evidence, what the law determines as punishment becomes fixed for the other party. The means of evidence in the classical period are referred to as “turuku al-qadā”, “esbāb al-hukm” or “tarīq.” Hanafi jurists handled the means of proof of crime differently in the classical period. Ibn Nujaym (d. 970/1563) points to the historical process of expanding the means of evidence. Pointing to al-Nasafī (d. 710/1310), Ibn Nujaym states that the author identified “turuku al-qadā” [ways of judgment] as three and lists them as “declaration”, “assertion”, and “nukūl” (renouncing an oath). Ibn Abidîn (d. 1252/1836) also cites the parts above as the means of proof in the Shariʻah and cites Ibn Nujaym as his source.
In a society that is transforming with technological possibilities, many other findings such as camera recordings, are a means of proof and provide great convenience, especially in detecting criminal offenses. In this context, findings and data such as swap tests, DNA tests, criminal results, tissue findings, blood tests, fingerprints, ballistic reports, IP numbers, digital data, autopsy results, security cameras, and Mobese records are modern-day means of proof that are taken into account by today’s law and used to prove a crime or any right.
In the classical period, testimony is dealt with in two parts and analyzed under the main headings of “tahammül al-shahadat” and “eda al-shahadat”. Today, it is similar to the classical witness testimony in terms of its use as a means of proof, its acceptance as evidence, and the ruling based on it. In this study, the similarities and dissimilarities will be discussed and the legal grounds of camera recordings as a means of proof will be discussed. When camera recordings are evaluated in terms of the first of the steps of witnessing in the classical period (tahammül al-shahadat), it is possible to say that two of the three conditions are fulfilled in terms of the absence of a mind in the camera, the realization of “seeing” and the recording of this work by the camera itself at the scene of the incident. There are many technical details under the second step regarding witnessing in the classical period. When these conditions are examined in general and compared with the camera recordings, it will be seen that many points are missing.
It should be stated that the camera recording and the sign of the mute have many similar aspects. It is possible to say that the camera recording and the mute’s testimony are identical in terms of “witnessing an event”. However, the most significant difference is that one is a sentient being and the other is a machine. The two aspects, which are similar in terms of witnessing an event, differ from each other in some points. According to the Hanafi scholars of the classical period, there is a consensus that a mute can testify. It is understood that the general acceptance of the testimony of the mute among the Hanafis is based on the verses in the Qur’an. While camera recordings are similar in terms of witnessing an event, they differ from each other in some aspects. Therefore, although there are similar and different aspects, the possibility of comparing these two phenomena comes to the fore. The jurists have used the method of syllogism in the face of limited evidence and unlimited issues, and the problems that arise have been resolved on legal grounds. In this study, the cases of accepting the testimony of the mute and the camera recordings as the same and different were examined and the ruling was determined accordingly. It is not possible to detect all crimes on camera. It should be noted that these crimes, which camera recordings can see, cannot be sentenced to hadd penalties due to “a small amount of suspicion”. Because these images may have been edited or professionally manipulated and this is almost undetectable even by experts, it is necessary to state that hadd penalties cannot be applied to these crimes. Camera recordings may be strong evidence for ta‘zîr crime other than had and qisas. If these are not taken into consideration, it means that it brings many problems for today’s society. In summary, the possibility of manipulation in the camera recordings requires that the punishments of hadd and qisas should not be fixed by these recordings due to the clear meaning of the existing nas (verse or hadith). Since penalties are set by suspicion, it is necessary to state that as long as the originality of the audio and camera recordings is not distorted and manipulated, as long as the experts say that they are not used, they have the status of evidence and will be accepted absolutely.