The difference between criminal and civil evidence lies in two aspects:
1- The judge’s freedom to form his conviction, known as the principle of judicial conviction:
In criminal cases, the judge is free to form his conviction based on any evidence presented in the case. He is not bound to issue a verdict of guilt or innocence based on specific evidence. All evidence in criminal cases is subject to the judge’s discretion, and he has absolute freedom to draw his conclusions from any evidence presented in the case.
This is different from civil judges who adhere to a systematic hierarchy or sequence of evidence or require specific evidence before they can rule in favor of the right. The Saudi Criminal Procedure Law does not explicitly include this principle, but it is established in judicial practice. In contrast, some comparative laws explicitly state this principle, such as Article 427 of the French Criminal Procedure Code, which states that “crimes shall be proven by all means of evidence unless the law provides otherwise.”
2- The positive role of the criminal judge, known as the principle of free evidence:
The criminal judge is not bound by the evidence presented by the parties in a criminal case. He has a positive role that enables him to take actions to uncover the truth. Unlike the civil judge who is subject to the principle of neutrality and limited to specific methods of evidence, the criminal judge is not bound by the evidence presented by the parties. The criminal judge seeks the objective truth, while the civil judge is concerned with formal truth. The difference between the criminal judge and the civil judge in terms of this principle can be illustrated in the following example: If the defendant in a civil lawsuit admits to the claimed right, the civil judge must rule in favor of the admitted right without questioning its validity. On the other hand, the criminal judge, due to his positive role, has the right to verify the accuracy of the defendant’s confession, its conformity with reality, its consistency with other evidence, and to dissect the confession. It should be noted that there are some limitations to the freedom of the criminal judge in presenting evidence. The evidence relied upon must be present and have a solid basis in the records. It must be capable of forming judicial conviction and be subject to discussion in the trial sessions. The judge cannot issue a verdict based on his personal knowledge, as it would be a surprise to the litigants.
Regarding the second part of the question, which asks about the extent to which the criminal judge is bound by the methods of evidence in civil matters if they are presented to him in a criminal case, the answer is as follows: If a civil law explicitly states specific methods of evidence for the matters it regulates, the criminal judge is bound by these methods when proving those matters.
For example, Article 2 of the Saudi Anti-Fraud and Embezzlement Law states that “Whoever unlawfully appropriates money entrusted to him by virtue of his work, or by virtue of trust, partnership, deposit, loan, lease, mortgage, agency, or misuses it with malicious intent, or intentionally causes harm to it, shall be punished with imprisonment for a term not exceeding (five) years, and a fine not exceeding (three) million riyals, or either of these penalties, provided that it is not public funds.
Here, the article states in the form of a crime of breach of trust, which is when an employee receives money from the employer by virtue of their employment. It is necessary in this crime that the legislator stipulates a presumed condition, which is the status of the perpetrator as an employee of the victim. Referring to the Labor Law, we find that there is a difference in proving the employment relationship between the employee and the employer. It is decided that it is the sole responsibility of the employee to prove the employment relationship through all means of proof, while the employer can only prove the employment relationship in writing, as stated in Article 51 of the Saudi Labor Law.
In the previous example, if the employer files a complaint against the employee for the crime of breach of trust regarding money received by the employee due to their employment, and the employee denies the employment relationship, the criminal judge must adhere to the rule established in the Labor Law. This rule states that the employee alone is responsible for proving the employment relationship through all means of proof. It is not permissible for the Public Prosecution or the criminal judge to establish the employment relationship based on witness testimony, for example. Instead, the indictment papers must include the employment contract between the victim and the accused to prove the employment relationship as a presumed condition for the crime of breach of trust.
The reason for this is evident, which is to avoid creating contradictory judicial facts. The civil court may find that the employment relationship is not proven based on witness testimony and subsequently reject the claim of proving the employment relationship. On the other hand, another court, the criminal court, may accept the proof through witness testimony and establish the employment relationship.
From our perspective, it may be appropriate to explicitly include in the Saudi Criminal Procedure Law the principle of judicial conviction, which restricts the criminal judge to the methods of proof specific to civil matters when they are presented to him in a criminal case. This is to reduce the disparity in judicial decisions, unify interpretations, enhance judicial security, and uphold the right to legitimate anticipation of judicial judgments.
Dr. Fawaz Al Eifan.
