Abstract
The main purpose in criminal procedure is to reveal the perpetrator of an illegal act. In other words, the purpose of criminal procedure is to reach the truth through evidence. However, searching and uncovering the material truth is not an absolute goal in the Islamic criminal procedure. Disclosure of crimes that violate civil rights is particularly undesirable. In addition, in order for the accused to be punished, the crime must be proven without suspicion. Confession, which is one of the basic means of proof, means that the person informs the crime he has committed or accepts the accusation against him. Confession obtained without any pressure or coercion takes the first place among the means of proof. The legality of applying pressure and violence to the accused in order to have a confession for the alleged crime or to obtain material evidence and the proof value of the confession obtained in this way are a matter of debate among scholars. According to the majority of jurists, it is not permissible to apply pressure and violence to the accused who has not been involved in crime before and who is well known in the society, and the confession obtained in this way cannot be used as evidence in the proceedings. If the accused has a criminal record for crimes such as murder, theft and extortion, and there is a strong presumption that he/she may have committed the alleged crime, some jurists have accepted it permissible to force the accused to confess through pressure and violence. As a matter of fact, it is stated that imprisonment or pressure can be used as a tool to have a confession in cases where a person known for theft does not accept the accusation even though there are strong presumptions that he/she has committed the same crime. The main grounds of those with this opinion are that the defendants do not admit the crime without pressure and violence. Some jurists, including Ghazali, objected to treat those who had not committed a crime before as guilty with prejudice and force them to confess. According to them, there is the possibility that the accused is guilty as well as not committing the alleged crime. In order not to expose an innocent person to oppression and violence, it should be preferred not to subject someone to violence even if he/she has a criminal record. In addition to the verses prohibiting torture, the value that Islam gives to people necessitates this. On the other hand, there are rumours stating that nobody has the authority to punish due to suspicion unless the crime is proven by objective evidence. In the criminal procedure of Islam, besides the means of proof such as witness and confession, material evidence is also used. If the stolen property is found with the accused or in his/her house, it can be used to prove the crime of theft. The murder weapon, on the other hand, can be used as material evidence in retribution cases. The general opinion of the jurists is that it is not permissible to try to obtain material evidence by applying pressure and violence to the accused. However, there are jurists who accepts that pressure can be used to learn the location of the stolen property and, if any, their accomplices in cases of theft. If the accused confesses the crime with pressure and violence, and reveals the stolen property, the actual punishment of the crime will be applied. However, this punishment is not based on a confession obtained by pressure, but on material evidence revealing the theft. It is possible to find a similar understanding in Ottoman law books. This gap, which was opened by some jurists and Ottoman law books, was expanded in the following periods and sometimes people who did not have a criminal record were exposed to unfair oppression and torture. Since the 19th century, it has been decreed in various documents that torture will not be tolerated, confessions obtained as a result of pressure and violence were declared invalid by the court, and an understanding of establishing a system in which detection of the crime and the punishment of the criminals are put on a legal basis has been adopted.