البصمة الوراثية ودورها في تحقيق الاثبات الجنائي وتحديد النسب

Abstract

The research aims to know the role of genetic fingerprinting in achieving criminal evidence and determining lineage. The research also aims to identify the subject of genetic fingerprinting and the extent of its legitimacy in criminal evidence and in proving and denying lineage, and to research its importance and legal, jurisprudential and social status, while defining and focusing on it. Due to the specificity and importance of the topic, and in an attempt to cover the subject, the researcher relied on the descriptive approach, in our awareness of the benefit we reap from the research as it allows us to know the most important legal legislations and social interpretations in various countries on the one hand and the position of Islamic jurisprudence on the other hand, in addition to identifying the most important differences and shortcomings in some of them. The researcher reached the following results and recommendations:

1-      - The genetic fingerprint is the detailed genetic structure that indicates the identity of each individual in a way, DNA, and determines his health nature by genetic analysis of a part of the DNA with almost certainty, and it is a method that is almost infallible from a scientific point of view, and it is based in proof on a scientific fact, which means that each person has a specific geological or genetic imprint that he takes from his parents equally at the moment of fertilization and grants him independence with a genetic system that distinguishes him from others, even if thousands of years have passed.

2-      The genetic fingerprint system is a unique system that distinguishes each individual from others. This system is constant and unchanging throughout life, even after death. It can be extracted from cells that have been in existence for several years. It is also characterized by its diverse sources and lack of variation from one cell to another.

3-      3 - The research concluded that genetic fingerprints, by their inherent nature, are considered by individuals to be genetic material present in their parts and extremities. They are considered to be the same as their owners in terms of sanctity and dignity, and impose penalties on anyone who violates them.

4-      Genetic fingerprinting, from a descriptive perspective in positive law and Islamic jurisprudence, is considered to be actual evidence or what is called scientific material evidence and is given its ruling and status. This is permitted by Sharia and legal scholars.

5-      Sharia and law stipulate that proof of disputed lineage may be established by genetic fingerprinting based on similarity, and they have made it a legal basis for establishing rulings. This is consistent with legal scholars who have concluded that it is permissible to establish lineage by genetic fingerprinting.

6-      The research also concluded that Islamic jurisprudence and positive law do not permit resorting to using genetic fingerprints in relation to lineage except in the case of a dispute over it, in order to preserve the stability of society and avoid causing social upheavals in it. For this reason, we find that Sharia law prohibits the use of genetic fingerprints in relation to lineage established by marriage bed, by evidence, or by acknowledgment, and it is not permissible for it to take precedence over them in this case under any circumstances.

7-      Islamic law does not permit the submission of genetic fingerprints in lien or to replace them except in the absence of evidence. The genetic fingerprint is evidence, and therefore, one does not resort to the curse when it is present. However, it is permissible to take the genetic fingerprints into account in denying lineage, but without dispensing with the curse, because there are matters in the curse that can only be achieved through it.

8-      There is no explicit text in either the Quran or the Sunnah prohibiting the use of scientific evidence or DNA fingerprinting.

    Therefore, they are considered conclusive evidence in criminal cases and in denying paternity when legal means of proving or denying paternity are ineffective.     The researcher recommends the following:

      1 - We recommend that the Libyan legislator rely on Islamic law in formulating family laws because this law truly deserves to be a strong source of legislation for all Arab and Islamic countries, and not to resort to it unless a set of conditions and controls are met, including: not using genetic fingerprinting as an alternative to legitimate means to prove or deny lineage unless legitimate means of proving or denying it are absent, not using genetic fingerprinting to confirm a fixed lineage, not conducting analyses except with the permission or supervision of the competent official authorities, and the availability of all relevant banking and laboratory guarantees so that the results are accurate and certain while observing their complete confidentiality. We note that Sharia aims to prove lineage and affiliate individuals with their families to preserve honor, protect oneself, and maintain lineage, and this is a great goal. Therefore, we recommend not using genetic fingerprinting except in the absence of the bed, evidence, or acknowledgment. If any of these methods are found, then genetic fingerprinting is not strong enough to oppose them. The truth is that Sharia has limited the denial of lineage to one way, which is cursing. It is not permissible for genetic fingerprinting to be equal to it, but it can be used to reduce cases of cursing. The husband who requested cursing can conduct the analysis before cursing. If the result is that the child is his son, this is a strong indication that may push the husband to abandon cursing. The researcher also recommends that the Libyan legislator start working with the genetic fingerprinting system in Libya, and that the Arab and Islamic legislator include in the criminal laws and personal status laws legal articles and texts that allow resorting to genetic fingerprinting to resolve disputes in lineage cases, while preventing its use in the field of established lineage and not presenting it before cursing, and preventing the use of genetic fingerprinting in the field of borders and Retribution, because the results of genetic fingerprinting, no matter how accurate they are, there is room for error in them, such as contamination of samples or the presence of an error in the analysis methods, and calling on Arab countries to give great attention to forensic medicine centers and to introduce modern and advanced technologies to the methods of working with genetic fingerprinting so that these centers can carry out their work in the best possible way.