Protecting Rights of Accused between Legislation and Practice

Abstract

 The most glorious role of the modern state, concerning the rights of its citizens, is maintaining the balance between the citizen’srightst and public interests. These two roles sometimes might contradict each other’s, even in those caseswheret the public interest demands prevailing a right that has to be protected over the individual interest or right. Forinstance,e in the case of committing crimes, that forces the state to practice its rights to punish the criminalbyh restrictingthe criminal'ss freedom and depriving himofm some of his rights. For that, the state must be committed toprovidinga legal and constitutional protection to prevent the public authority’s abuse in practicing the state’s rights while dealing with those citizenswhosetlivese,individual,l or social conditions dragged them into the crimecircle, when they practice some actions or do not do someothers, that both of them count ascriminalslfromn the legal point of view. Since the accused is the weak side in the criminal case, the Iraqi legislature emphasized inthe permanentt Iraqi constitution of 2005, or criminallegislations (whether substantive orprocedural),) on providingan importantt guarantee to protect this side fromabusing someoneg who acts onthe accused'ss issues throughoutthe criminall 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 proofofn real practicing of those guarantees, for the constitutional or legislated texts (substantives andprocedurall) are not warranties for true practicing. In order to address the research question, this research relies on three types ofmethodology, whichhare descriptive,,analytical,l and comparative.