İslam Ceza Hukukunda Zina Suçunun Soruşturulması (Hanefi Mezhebi Özelinde)

Abstract

When it comes to hadd crimes, the first thing that comes to mind is the crime of adultery. Because, in some Hanafi fiqh works, only the hadd of adultery was handled under the title of “kitab al-hudud”, other hadds such as theft and slander (qazf) were discussed under separate headings such as “kitab as-sariqa” and “kitab al-qazf”. As it is known, in the classical period, the proof of a crime was done in two ways: confession (iqrar) and proof (bayyinah). While confession is a statement against one's own detriment, it has been considered synonymous with witnessing. In Islamic law, in all civil and criminal cases except for the hadd of fornication, the confession of the person or the testimony of two persons is sufficient for the right or the crime to be confirmed, while the number of witnessing and confession in the case of adultery hadd is determined as four confessions/witnesses. Although there are various conditions in the doctrine regarding the acceptance of confessions and testimonies of witnesses and confessors (muqirs), in order to determine whether the crime has been proven or not, the judge must also use witnesses and the confessor to determine what adultery is, how the act constituting the crime of adultery took place, with whom he/she committed adultery, when and where the adultery was committed. Five questions are asked about where it takes place. These five questions are generally discussed under three main headings. In the investigation phase about the nature of adultery, it is aimed to know what adultery is and how it is defined by the witnesses or the muqir. Because the witnesses or the muqir may not know the adultery that will necessitate adultery, or they may think that a situation that is not adultery is adultery. Adultery must be defined correctly in order to eliminate all these ambiguities and to determine whether the crime has been confirmed or not. In addition, the definitions of adultery by the schools are also important here. Since the definitions of adultery by adherents of different sects are different from each other in the doctrine, this situation will create suspicion and the limit for adultery will decrease. In the investigation phase regarding the nature of adultery, it is required that the witnesses or the muqir describe in detail the realization of the act of adultery. So much so that the act should be explained clearly, leaving no room for doubt. Witnesses or mukirs should give testimony or confession as described in the narration of the Prophet Muhammad. In other words, in the arbitrary investigation, it is checked whether the elements of the crime are present in the concrete incident. The third stage of investigation is the investigation of adultery in terms of person, place and time. The investigation of the person is also expressed as the investigation of mazniyyah in fiqh. Witnesses or muqirs are asked to explain with whom they committed adultery. The hudud penalty cannot be applied if the adulterers is unknown or if the witnesses or the muqirs refrain from naming the adulterers. The most important reason for investigating adultery in terms of a person is the possibility that there may be a closeness between the adulterer and that would lower the level of adultery. The person may have had sexual intercourse with his wife or a person in his possession, and the witnesses may not know this. In this case, the act will cease to be adultery. Investigation of adultery in terms of time is important in terms of statute of limitations. If a certain period of time has passed between the act of adultery and the application of the witnesses to the court, then the adultery limit is reduced. The investigation of adultery in terms of place is important for Hanafis. The crime of adultery occurring outside the borders of the Islamic country cannot be investigated, and even if it does occur, the hudud punishment cannot be executed. Because Hanafis are of the opinion that the head of state does not have any authority in the crimes that occur in the dar al-harp. According to them, the authority of the head of state is limited to the borders of the Islamic country. It is aimed to determine whether the crime has been confirmed by asking these five questions, which we have discussed under three main headings, and also to drop the hadd case by creating suspicion in the occurrence of the event. Because it is recommended that the hadds, which are accepted as the right of Allah, be set by Shari.