Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 70
2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 39, Nº 70 (2021), 884-901
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 22/07/2021 Aceptado el 14/09/2021
The Attitude of Iran’s Criminal Policy
Towards the Observance of the Culprit’s
Right to Silence in the Trials
DOI: https://doi.org/10.46398/cuestpol.3970.54
Sayed Alireza Mousavi *
Massoud Ghasemi **
Mohammad Javad Jafari ***
Abstract
The primary concern of justice department law enforcement
as the arms of the criminal justice system is the rapid discovery
of the crime. This article seeks to investigate the attitude of
Iran’s criminal policy or, more specically, Iran’s criminal
policy towards the observance of the right to remain silent in
trials. In line with this, the problem of the study translates into
the question: what are the results of the observance of the right
to silence of the accused in the dierent stages of the criminal process?
Utilizing the documentary investigation method, issues related to the right
of the accused to remain silent in Iran’s criminal proceedings at the stage
of discovery of the crime, the initial investigation stage, and the trial stage
in Iran’s laws on criminal procedures were investigated seminally. Among
the main conclusions is that Iran’s trial system, which was in line with the
inquisitorial trial system, changed its procedures with the passage of the
law on criminal trial procedures in 2013 and was inuenced by the eect of
international human rights regulations.
Keywords: judicial proceedings; criminal policy in Iran; the right to
silence; political attitude towards the accused; human rights.
* Department of Law, Kermanshah Branch, Islamic Azad University, Kermanshah, Iran. ORCID ID:
https://orcid.org/0000-0003-4526-167X. Email: Ater1354@gmail.com
** Department of Law, Kermanshah Branch, Islamic Azad University, Kermanshah, Iran. ORCID ID:
https://orcid.org/0000-0002-7269-8992. Email: md.ghasemi@yahoo.com (Corresponding Author).
*** Department of Law, Kermanshah Branch, Islamic Azad University, Kermanshah, Iran. ORCID ID:
https://orcid.org/0000-0001-7648-2390. Email: Dr.jafari14@gmail.com
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La actitud de la política criminal de Irán hacia la
observancia del derecho de los culpables al silencio en los
juicios
Resumen
La principal preocupación de los agentes del orden del departamento
de justicia como brazos del sistema de justicia penal es el rápido
descubrimiento del delito. El presente artículo busca investigar la actitud de
la política criminal de Irán o, más especícamente, la política penal de Irán
hacia la observancia del derecho a guardar silencio en los juicios. En línea
con esto, el problema del estudio se traduce en la pregunta: ¿cuáles son los
resultados de la observancia del derecho al silencio de los imputados en las
distintas etapas del proceso penal? Utilizando el método de investigación
documental, los temas relacionados con el derecho del imputado a guardar
silencio en el proceso penal de Irán en la etapa de descubrimiento del delito,
la etapa de investigación inicial y la etapa de juicio en las leyes sobre los
procedimientos penales de Irán fueron investigados seminalmente. Entre
las principales conclusiones se destaca que el sistema de juicios de Irán,
que estaba en la misma línea con el sistema de juicios inquisitivos, cambió
sus procedimientos con la aprobación de la ley sobre los procedimientos
de juicio penal en 2013 y fue inuenciado por el efecto de las regulaciones
internacionales en materia de derechos humanos.
Palabras clave: procedimiento judicial; política penal en Irán; derecho
al silencio; actitud política ante los imputados; derechos
humanos.
Introduction
Right to silence is the culprit’s right of defense, i.e., his or her ability of
refraining from providing answers to the questions posited by the formal
authorities in case of their being later usable against him or her in the
course of the penal lawsuits. Considering the meaning, the right to silence
has been described as one of the examples of human rights (Hocking and
Manville, 2001) in such a way that the judges from the European court of
human rights introduced it in Murray case with the England’s government
being a party thereof in 1999 as an international criterion which is in the
heart of such a concept as fair trial which is per se the subject of article 6 of
the European convention on human rights (Gordon and Ward, 2000).
The researchers know the foresaid right which, as said by some, dates
back in England to medieval centuries (Rao, 2002) as being a sort of
privilege against self-incrimination under the presumption of innocence
(Hocking and Manville, 2001) meaning that since the principle is the
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Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
culprit’s innocence and it is the suing authority that should prove his or
her criminality, the culprit is not required to oer answers to the questions
that may attribute accusations to him or her (Haji Deh Abadi and Akrami
Sarab, 2010).
In the laws of Iran and according to article 197 of the law on the criminal
trial procedures, passed in 2013, it has been stipulated that “the culprit can
keep silent in which case his or her refrainment from providing answers or
signing assertions should be inserted in the minute” so the culprit’s right to
silence during the investigation has been implicitly accepted by the legislator
and the judicial authority and the justice department’s law enforcement
ocers are obliged to observe this right so the culprit should not be forced
to answer the questions raised by the police or the investigators for they are
solely directed at justication of his or her criminality because this helps
the judicial authority fulll his or her duty, to with the very justication of
a crime’s occurrence and its attribution to a person. This right should be
announced to the culprit in the rst place. Many of the rights in the penal
trial procedures such as the temporary arrest, being subjected to passage
of rime, writ of mortgage and the existence of specialized authorities have
proponents and opponents and each of them has a reasoning of a type
behind it (Akhundi, 2002).
In the penal laws of Iran and as a guarantee for the culprit’s defense
right, the constitutional principles, especially the act 38, granted a formal
and legal aspect to the right to silence. After the glorious victory of Islamic
Revolution of Iran, this trend caused part of the human right topics to be
mentioned rstly in the constitution of the Islamic Republic of Iran and
then, in the other regulations in respect to the members of nations and the
necessity of their observance was underlined. Amongst these rights is the
culprits’ defense right as mentioned in acts 30, 37 and 38 of the Islamic
Republic of Iran’s constitution so that the culprits can take measures in line
with the repelling of the accusation directed at them. It is worth mentioning
that many of the experts of the penal law have oered reasonable and
sophisticated notions to justify the right of silence. In the end, although the
right to silence has been neglected in the laws on the penal trial procedures
due to the absence of an explicit legal text, there are numerous works by
experts and scholars of penal sciences and criminology that signicantly
document this claim (Rahmdel, 2006).
The present article seeks investigating the attitude of Iran’s criminal
policy or put dierently, Iran’s penal policy regarding the observance of
right to silence in the trials. In line with this, the study’s problem is that
what are the outcomes of observing culprit’s right to silence in various
stages of the criminal trial?
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1. Research Literature
In research termed: “Comparative study of the culprit’s right to silence
in the laws of Iran and Iraq” (Ardabili, 2006: 13) concluded that the right
to silence is one of the best rights and it means that a culprit can keep silent
and refrain from the questions s/he is asked and that this privilege is of
a lot of benets to the culprits. It has also been stated that this right has
been accepted in all the trial systems, including the accusatory, inquisitive,
and mixed as well as in the two legal systems of Iran and Iraq. The most
important criticism that can be directed at the Iranian legislator in this
regard, as stated in the foresaid article, is that the culprits may be personally
judged by the legal authorities in case of keeping silent; non-necessity of
making the culprit understand this right, absence of legal mandate in this
regard, non-clearness of the judicial system’s duty in regard of the culprit’s
rights are some of the disadvantages. On the contrary, in the laws of Iraq,
the right to silence is a more appropriately adopted mechanism but the
Iraqi legislator can be criticized in this regard that he has excluded the
enforcement of this right in various cases for which there are not proper
justications.
In an article named “culprit’s silence in the penal trials”, (Mo’zzenzadegan,
1998) expresses that the culprits enjoy the right to silence in the legal
systems of England and the US and that this right is especially enforced by
the police in its preliminary investigations and treatments of the culprits;
the police clearly announces this right to the culprit and s/he is given this
right and perfect freedom to provide an answer or not in all the trial stages;
it is generally held that the culprit’s silence should not end with his or her
sustaining of a loss of any type.
In research called “investigating right to silence from the perspective
of the penal laws of Iran and England” (Sandevs and Richard, 2000: 115)
concluded that the right to silence should be considered as one distinct
example of the culprit’s defense right. Resorting to such an instrument, the
culprit can keep silent against the accusation and the judicial authorities, as
well, cannot take the culprits’ silence as a piece of evidence indicating their
criminality. The culprits’ defense rights that are proposed and supported
as integral part of the fair trial in the regional and international documents
of the human right as well as in the domestic regulations include a set of
privileges that “the culprits should enjoy in a fair trial so as to be able to defend
themselves against the claims posited contradictory to the presumption of
their innocence under free and human conditions”. Investigators should
ask questions about the allegations and these questions should be relevant,
clear, useful, and away from any sort of induction and enticement. Resort
to deceit, conspiracy, encouragement, and subornation of the culprits is by
all means prohibited and considered as abuse to the culprits’ rights and
violation of their human veneration.
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Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
In an article titled “silence”, (Ashuri, 2017) has dealt with such a subject
as silence in the laws on the penal trial procedures and civil trial procedures
and concluded that the result of the silence is dierent in the laws on the
penal trial procedures from that in the laws on the civil trial procedures and
that the silence occasionally causes the abortion of an individual’s rights in
the civil trial procedures’ laws and it inter alia ends with the non-objection
to the issued sentence and non-requesting for the appeal hence the loss of
the convict within the specied legal respite; it has also been stated that the
convicts lose these rights due to their keeping of silent.
In a book entitled “the right to silence in the transnational criminal
trials from the perspective of comparative laws” (Dehghani, 2018: 29),
emphasizes on the just eectiveness and use of international cooperation
for obtaining confession or evidence in the case of the suspect or culprit’s
silence. In this book, the police’s supervision, the option of the investigations’
administrative assessment, hidden surveillance and use of silence as a
testimony to the guiltiness have been analyzed and the researcher deals
with the methods existent in the domestic regulations about the culprit’s
silence in the trials therein.
2. Methodology
The study method is descriptive-analytical considering the nature of the
study’s subject, goals and information gathering; use has been made herein
of the library resources.
Right to Silence as One of the Culprits’ Rights in the Penal Process of
Iran.
Right to silence is one of the defense rights of the culprit. This right
has been authenticated in the regulations of the most of the countries. The
culprit’s silence in various stages of indictment, investigation, trial, and
sentence issuance is amongst the distinct examples of his or her defense
rights. The right to silence is amongst the guarantees of the culprits’ defense
rights and it is of a great importance in the early stages of investigation and
trial. In the light of this right, the culprits can keep silent and refrain from
answering the questions asked by the investigatory and trial authorities
and the indicting authority and the judicial police are obliged from the very
beginning to declare this right to the culprits as mentioned in many of the
penal systems. Right to silence is one of the most controversial defense
rights always accompanied by some ambiguities. Due to the same reason,
some questions can be asked in this regard:
1. Does the culprit have the right to avoid answering to the questions
raised by the qualied authorities in the course of investigation,
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prosecution or trial? Can this right be concluded as a sort of culprit’s
denial of the accusation?
2. What method has been adopted by our country’s legislator
regarding the observance of this right? In the judicial system of our
country, silence is the culprit’s right and the resort to methods like
threatening or deceit and conspiracy or coercion and compelling for
forcing him or her to answer has been prohibited (Ardabili, 2006)
(article 197 of the law on the penal trial procedures, passed in 2013).
In line with this, the third paragraph of article 169 of the international
treaty on the civil-political rights, as well, explicitly expresses that: “The
culprit cannot be forced to confess to his or her own criminality or bring
testimony against him or her own self”.
Forcing an individual to confess to his or her own criminality comes
about when the culprit is subjected to enticement, threat and encouraging
promises or torture or annoyance and conrms the attributed accusation
and introduces him or her own self as the doer of the claimed crime. Coercing
an individual to bring testimony against him or her own self also happens
when the culprit is compelled subject to the eect of the aforementioned
factors to present proofs and oer assertions agreeing with the courts or the
private plainti’s claim (Yekrangi, 2018).
Although the right to silence has been indirectly predicted in Iran,
the investigating judges are not obliged to announce the right to silence
to the culprits. However, it is necessary for the culprit’s right to silence to
be respected by the justice department’s law enforcement ocers as the
vanguards of the prosecution. Before initializing the prosecution, the police
should make the culprit, or the suspect understand this right (Hashemi,
2004). As for the culprit’s right to silence in the early investigation stages,
Iran’s constitution is not so much explicit. The culprit should know that
he can refrain from answering to the questions and that his or her silence
cannot be followed by penal consequences for him or her. This right is the
defense tool of the culprit under the conditions of a lawyer’s absence (for
the culprit is not familiar with the regulations and s/he may be enticed or
be inicted with delusion and speaks paradoxically). It is only the presence
of the lawyer that can justify speaking for the culprit.
The third chapter of Islamic Republic of Iran’s constitution includes
acts guaranteeing the rights of the country’s citizens, including the
culprits and others. In this chapter, acts like 32, 35, 36, 37, 38 and 39 have
been predicted and they are related to the culprits’ defense rights. The
signications of these acts have also been stated in articles 26 and 129 of
the law on the trial procedures of the general and Inqilab courts regarding
the penal aairs. Corresponding to the act 32 of the constitution, “nobody
can be arrested unless as specied in the law. In case of the apprehension,
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Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
the accusation subject should be mentioned, and the proofs should be
immediately declared to the culprit in a written format and the initial le
should be referred within twenty four hours to the judicial authorities and
the trial should be held in the fastest possible time. The violator of this act
is punished in accordance with the law. Thus, according to act 32 of the
constitution:
1. The culprit’s investigation and prosecution should be within the
framework of the accusation’s subject.
2. The declaration of accusation and prosecution should be done along
with the providing of written proofs. For example, if an individual is
summoned to the court for an alleged accusation, s/he is not obliged
to provide answer to any questions and s/he has to seminally ask
what am I accused of; then, s/he should deny all the questions
not related to the accusation subject and s/he can do so by saying
that this question is irrelevant to the accusation and I prefer not to
answer it.
3. The mere proposition of the accusation does not suce rather it is
necessary for the accusation to be written in the prosecution paper
and the culprit should also provide written answer thereto. Thus,
the culprit can avoid providing answers to the oral questions.
4. The mere mentioning of the accusation in a piece of paper is not
enough and the law has explicitly mentioned that the accusation
should be done along with the providing of proofs. Despite the results
obtained from the investigation of the constitutional acts, it appears
that there is no evidence signifying the implicit assertion of the right
to silence in the act 32 of the constitution. Thus, the constitution has
not authenticated any right regarding the culprit’s ability of keeping
silent in the stage of the preliminary investigations.
Iran’s constitution realizes the full-scale supply of the individuals, men
and women, with their specied rights and creation of fair judicial security
for everyone as one of the general duties of the government and it has
also stipulated guarantees for the revitalization and continuation of them.
One of the most important branches of these rights is the culprits’ right of
defending themselves in rejecting the claims and incorrect accusations in
the judicial authorities. In other words, the right to defense is the right by
which an individual can reject and deny the criminal behavior, or the legal
claims attributed to him or her based on the complaints by other individuals
or the qualied disciplinary and judicial authorities by all possible means
(Mo’zzenzadegan, 1998).
To actualize fair trial, there is a need for the enforcement of several acts
and regulations in the ve stages of the trial procedures, i.e., crime discovery,
suing, preliminary investigations, trial, and sentence enforcement.
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Culprits’ Right to Silence in the Crime Discovery Stage as
Stated in the Law on Iran’s Penal Trial Procedures
Crime discovery includes interventions made after being informed
about the crime occurrence for the protection of the extant eects and
proofs, culprit’s apprehension, and prevention of his or her escape as well
as collecting the information related to the perpetrated transgression.
This is done under the supervision of the judicial authority by the justice
department’s law enforcement ocers. In this stage, the culprit has the
following rights and privileges safeguarding him or her against the police’s
abuse:
• Summoning or apprehending the culprit by means of a writ of
summoning or subpoena; the summoning or arresting of a culprit
is essentially feasible by sending a writ of apprehension or summon
following its being ordered by the judicial authority. The duties and
options of the police in the crime discovery stage dier considering
the dividing of the crimes into tangibles and intangibles. Based on
the contents and insertions of the penal trial procedures’ law, the
police ocers have the right to engage in tangible crimes and take
measures in line with the protection of the crime’s traces as well
as parallel to the prevention of the culprit’s ee hence his or her
apprehension; they are obliged to bring the culprit to the judicial
authority within 24 hours (Hashemi, 2004).
• Prohibition of arbitrary pursuit and apprehension: corresponding
to act 32 of the constitution, “nobody can be arrested unless as
specied and ruled in the law”. The individuals apprehended in
contradiction to the related regulations that are the legal mandates of
the penal laws by the justice department’s law enforcement ocers
can complain; s/he can also sue the individuals who have prevented
him or her from bringing his or her complaint to a qualied judicial
authority.
• The principle of the crimes-punishments proportionality: individuals
can be sued for the perpetrations for which corrective measures
and punishments and legal mandates have been stipulated in the
laws. In line with safeguarding the individuals’ life and properties
and fame, justice makes it necessary not to consider any action as a
crime unless it has been previously introduced as a crime for which
a punishment is found specied. According to act 169 of Islamic
Republic of Iran’s constitution, no doing or not doing of an action
is considered as a crime based on a law enacted afterwards; the act
38 of the constitution, as well, stipulates that “issuing a sentence
for punishing a convict and its enforcement should be done only
through a qualied court and by the force of law”.
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Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
• Veneration of the individuals’ inherent honor: the culprits have
the right to be treated in respect to their inherent honor. In act
39, the constitution stipulates that defamation and blemishing of
the prestige and honor of the individuals who have been arrested,
detained, imprisoned or banished by the rule of law is prohibited,
disregarding its type, and entails punishment (Hashemi, 2004).
• Declaration of the accusation: every culprit should be informed
about the penal nature of his or her crime before the initiation of the
investigations so that s/he can prepare his or her means of proper
defense. This right is termed brieng about the alleged accusation
and it has to be mentioned in the subpoena and, as soon as attending
a police station, the culprit is informed about his or her accusation.
The act 32 has the following stipulation in this regard: “the subject
of the accusation should be immediately declared along with the
proofs to the culprit in written form”.
Culprits’ Right to Silence in the Stage of the Preliminary
Investigations as Mentioned in Iran’s Law on Penal Trial
Procedures
Interrogation of a culprit in the investigation stage is of a particular
importance but it is not a proof for ignoring the culprit’s right to silence and
the judicial authority and/or the police cannot coerce the culprit to provide
answers to their questions. As stipulated in article 197 of the law on penal
trial procedures, “culprits can keep silent”; as it is seen, use has been made
therein of the term “can” and this article clearly expresses that the culprits
have the right to keep silent when asked questions.
In this stage, which is the most important trial stage, the foundation of
a penal le is laid:
1. Collecting of proofs for and against the culprit
2. Taking necessary measures for preventing the culprits’ escape and
hiding through the issuance of the proportionate writs of freedom
restriction
3. Assertion of ideas about the perpetrated crime with the format of
one of such inductions as suing, temporary arrest, or criminality
and, contrarily, ceasing of suing or cancellation of the criminality
(Madani, 1990).
Of course, the principles related to the summoning or apprehension
of the culprits and so forth that were mentioned before should be also
observed in this stage:
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1. The culprits’ right of being accompanied by a lawyer; the culprits
should have the right to appear before the investigating authority
along with a lawyer. The investigations should be carried out in the
presence of the lawyer, and they should not be assumed condential.
In completely exceptional cases that the investigator nds the
acquisition of a part of explanations as being necessary in the absence
of the lawyer, the permit for doing so should be acquired from a
qualied court after the enactment by the prosecuting attorney. This
is aborted in the rst appropriate opportunity (Shirazi, 2013).
2. Providing enough chance for defense: defense is amongst the most
natural individual rights; thus, during the preliminary investigation
and trial and before the issuance of a sentence, the culprit should be
given enough time for procuring his or her defense means. In case
of the culprit’s apprehension, s/he is provided with the possibility of
preparing documents and proofs and conversation with the witness
and s/he is given enough time in the court for rejecting the alleged
accusations and his or her right of reinvestigation and appeal is
guaranteed and there should be not so long time between the crime
occurrence’s date and performing of trial and issuing of a sentence
rather there should be a reasonable and proper interval.
3. The regulations governing the proof collection: the immunity of the
culprit’s private life is amongst the important issues that should
be carefully taken into consideration by the judicial authorities
and justice department’s law enforcement ocers because the
smallest compromise in collecting proofs and discovering crime
causes the wastage of the culprits’ essential rights and freedoms.
Nowadays, sciences like dactyloscopy, identication of the weapons,
genetic identication and use of computer for the identication
of the culprits have become so evolved and advanced that they
create a high coecient of condence in the area of the fast and
exact discovery of the crime. It has to be noted that the necessity
of observing the culprits’ defense rights in the cross-section of
crime discovery makes it required not to use the unprincipled and
nonhuman technological and scientic advancements. In fact, the
borderline of the application of crime discovery-aiding sciences and
technologies is the observance of the culprits’ rights and freedoms
(Shirazi, 2013).
The Culprits’ Right to Silence in the Trial Stage as Mentioned
in Iran’s Law on the Penal Trial Procedures
The fourth stage is the trial and the process of investigating the crime in
a court. As a source investigating the general public’s petitions, the justice
department should put on the mask of the angel of justice in the position
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Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
of trying the cases and issuing the sentences and use all its power to
actualize the justice. It is evident that the accomplishment of this objective
necessitates the observance of formalities without which it is not possible
to actualize trials based on fair scales (Akhundi, 2002). The conditions of
establishing fair trial are as explicated below:
Reasonable trial: the trial should be immediate and without delay. In this
stage, the disruption stemming from the crime by a culprit and inicting
the society is tried. In the court and after inquiring the culprit’s identity,
a plea is declared against him or her at rst so that s/he understands the
intended accusation. In this stage, the accusations proposed in the early
investigation stage will be only tried.
The trial conditions, as well, are the holding of an independent, legal
and unbiased court, court’s openness to general public, presence of the jury
at least for the political and the press crimes, culprit’s being accompanied
by a lawyer and his or her enjoyment of a translator, if needed, and
establishment of certain trial procedures specic to the children and
adolescents due to their special conditions and keeping the trial in match
with the criminological teachings. The followings are but some of these:
Based on the act 32 of the Islamic Republic of Iran’s constitution, “the
preliminary le should be sent to a qualied judicial authority within 24
hours and the ground should be afterwards set for the trial as soon as
possible”.
Legal court: the trial should be done in a court determined by the force of
the constitution, or the other regulations of the country and it is held with the
presence of public. The private courts are amongst the cases contradictory
to the human rights. The court should be completely impartial, and it has to
be not inuenced by any factor even the governing atmosphere. The judge
should be independent and immune of the administrative, nancial, and
political collusions and s/he should think about nothing but the enforcement
of justice, fairness and law which is also demanded by the society.
In Iran’s legal system and according to act 156 of the Islamic Republic of
Iran’s constitution, “the judicature is an independent faculty supporting the
individual and social rights and responsible for the actualization of justice”.
Therefore, in performing their duty of trial and actualizing the citizens’
rights, the judges should not be put under pressure and inuence of the other
governing faculties because the general organs, especially the executive
branch, may resort to the public expediencies and resist the sentences
issued by the judicial organ. The principle of the faculties’ separation which
has been mentioned in act 57 of the Islamic Republic of Iran’s constitution
safeguards this intention. Furthermore, the principle “job security of the
judges”, as well, is amongst the solutions with the possession of which
the judges can try the cases and issue the documented and well-justied
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sentences without any concern. The act 164 has the following stipulation in
this regard
4
.
Besides, corresponding to act 116 of the Islamic Republic of Iran’s
constitution, “the courts’ sentences should be well-documented and based
on the legal articles and principles”.
Holding of open trial sessions: this is one of the important guarantees in
line with the actualization of the judicial security meaning that the people
should be able to attend the trial sessions so that the performance of the
judicial system can be directly supervised by the general public’s thoughts
and it can stay immune of inclination towards deviation. The historical
experiences have also been expressive of the idea that the serial judgments
in the courts lead to the divestment of the individual’s rights (Naserzadeh,
2013).
The Eects of the Culprit’s Silence in Various Stages of Trial
from the Perspective of Iran’s Criminal Laws
The acceptance of innocence as an independent principle in the criminal
laws of Iran and, also, as one of the basics of the culprits’ right to silence, as
was mentioned above, causes the load of justifying the proofs to be placed
on the shoulder of the plainti or the prosecuting attorney and the culprits
are accordingly exempted from oering proofs indicating their innocence
because any response in this regard can be considered as a sort of confession
hence be followed by the outcomes thereof. This is why the culprit has the
right to keep silent against the questions asked by the judicial authority.
The other eect of the culprit’s silence is the creation of an obligation for
the investigating authority in line with the declaration of this right to the
culprit as it has also been pointed out in article 52 of the law on criminal
trial procedures, approved in 2013; there is also predicted a legal mandate
for it in article 63 of the same law.
1. The Eects of Silence in the Stage of Being Under
Surveillance:
In the period of surveillance as one of the most important legal
provisions, the person accused of a crime’s perpetration is deprived of his
or her freedom and s/he is placed before the society and its representatives.
The necessity of creating balance between the society’s power and the
culprit is the allocation of privileges and rights to the culprit so that s/he
4 Act 164 of Islamic Republic of Iran’s constitution: “a judge cannot be temporarily or permanently
deposed from his or her position without rst being tried and justifying his or her crime or violation
that can cause his or deposition; his or her place of service or his or her rank cannot be changed unless
it is ruled by the society’s expediencies or the decision by the head of judicature following consultation
with the head of the country’s supreme court and the attorney general. The periodical translocation of
the judges is carried out corresponding to the general criteria determined in the law”.
896
Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
can be fairly tried. Although the period of surveillance was not lawful as
mentioned in the 1999’s law on the penal trial procedures, evolutions were
brought about in the 2013’s law on the penal trial procedures as a result
of which the culprits’ rights, especially the right to silence, was taken into
account (Haidari, 2015).
According to articles 47 and 49 of the law on the penal trial procedures,
passed in 2013, the law enforcers are obliged to declare the specications
and the reasons of a person’s being put under surveillance by any possible
means to the local court within one hour after doing so. In the period that
the culprit is under surveillance, the law enforcers should act in match with
the rules and regulations even if s/he prefers to keep silent and silence
cannot bar the police’s performing of its duties. Based on article 47 of the
law on penal trial procedures, the law enforcers are obliged to declare the
whereabouts of a culprit who has been put under surveillance outside the
workhours to the judge on duty at most within one hours. The preservation
of the culprit’s rights in the period of surveillance has been predicted in the
law. For example, a culprit cannot be placed under surveillance for more
than 24 hours. The enforcement of this right and the others is suspended
on the idea that even if the surveillance happens beyond the workhours,
the judicial authority should be informed thereof. The abovementioned
necessities have led in England to the prediction of a detention ocer’s
supervision. The supervision ocer is an impartial supervisor in the
police’s investigations. His or her non-intervention in the gathering of a
le guarantees his or her impartiality. The foresaid ocer supervises on the
proper behaviors of the police ocers and the person under surveillance
and the period of surveillance according to articles 36 and 37 of the law on
police and the penal proofs, passed in 1984.
2. The Eects of the Culprit’s Silence in the Trial Stage:
In the trial stage, the silence should not be considered as a proof or
evidence indicating the culprit’s criminality. The courts’ judges are obliged
to evaluate the proofs oered by the suing authority and, in case of their
suciency and satisfaction of their conscience regarding the culprit’s actual
perpetration of the crimes being investigated, they should ignore their
silence and announce their conviction otherwise they can declare innocence
based on the principle “presumption of innocence”.
In England, defense in trial stage due to the culprit’s prior silence was
a method for reaching an unfavorable reasoning; of course, this reasoning
resulted in concluding that the culprit is neither guilty nor not guilty
something between criminality and non-criminality. However, this silence
guided the judge and the jury towards conrming the culprit’s not being
guilty. This became later on known as Weissentsteiner Act according to
which the supreme court could nd a better functional approach by which
the attorneys could more logically prove the crimes.
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If the culprits prefer to keep silent in the trial stage, the judge can
guide the jury towards a deduction or another. Due to the same reason,
it is better for the culprit to break the silence for defending his or her own
innocence so that his or her silence cannot end in an opposite deduction.
This happens only when the culprits cannot oer evidence and the proofs
gathered by the prosecuting attorney cause the justication of the crime.
Now, an unfavorable conclusion can be reached from the silence of the
culprits in the trial stage. Of course, two legal thinkers have objected to this
performance and asserted that silence cannot be denied and the right to
silence in the trial stage has also been authenticated by them and the jury,
as they say, cannot shut their eyes to the outcomes of the enforcement of
the right to silence.
In the trial stage and according to the culprits’ right to silence, it is not
possible to require them to provide answers about the accusations. This
silence cannot be considered as a proof indicating the culprits’ criminality
and, quite opposite to what some say (Ashuri, 2017), it cannot be even a
piece of evidence along with the other proofs rather the doubts should be
always interpreted in favor of the culprits.
3. Interpretation of the Doubts in Favor of the Culprits:
Corresponding to article 11 of the global human right declaration, every
person accused of criminality would be considered innocent until his or her
criminality is legally veried during a general lawsuit wherein s/he has been
provided with all the necessary guarantees for defending him or herself.
Paragraph 2 of the article 14 in the international civil-political treaty, as
well, has predicted similar phrases. The act 37 of the constitution stipulates
that “the principle is innocence, and nobody is realized as a criminal from
the perspective of law unless his or her crime is proved in a qualied court”.
In the article 4 of the law on the criminal trial procedures, passed in 2013,
as well, the emphasis is on the presumption of innocence.
In all of the abovementioned cases, the doubts are interpreted in favor
of the culprits because the conviction sentence should be issued based on
sure proofs. It is here that the most important eect of the culprit’s silence
comes about.
4. Proof Evaluation:
In the stage of trying the penal aairs, the judicial authority is not solely
relying on the parties’ proofs in the issuance of a sentence rather he acts in
line with acquiring other proofs meaning that, in case of the culprit’s silence,
the court pays attention to other proofs and performs all the investigations
or interventions necessary for the discovery of the truth (Aal-e-Kajbaf and
Akhtari, 2014).
898
Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
The important point latent in the right to silence is that the culprit who
clearly seeks dodging and keeping silent may have a lot of reasons for not
oering documents and evidence to the court. One of these reasons might
be the culprit’s communication problems such as when s/he stammers or is
dumb or s/he might be not dominant in a given language. Of course, such
problems can be existent in both of the stages (after the trial and in the
preliminary stage and during the trial). This can cause prejudgments in the
police’s investigations and interrogations
5
.
5. Eects of Silence After a Decisive Sentence is Reached:
Based on article 474 of the criminal trial procedures’ law, passed in 2013,
the courts’ decisive sentences, including those that have been enforced or
not enforced, can be extraordinarily objected in the country’s supreme
court through sending a retrial request. The convict can at any time
demand the resumption of trial and object to the decisive penal sentence
in cases that the legislator has specied in this same article. Considering
the aforementioned conditions under which the retrial can be demanded,
it is seen that the culprit’s silence is not one of them and it is not to be at
least used as a piece of well-documented evidence by the court. The culprits’
silence should not be considered as being within the inclusion circle of the
abovementioned article.
The culprit’s silence in expressing his or her identity and his or her
avoidance of answering the questions about the quality of the crime that
might be also attributable to a person with another identity and the judicial
authorities’ and the law enforces’ lack of access to his or her real identity can
be amongst the reasons encouraging the head of judicature to recognize the
decisive sentence issued by the judicial authorities in the silence of culprit
in the course of trial as being against the canon and, prescribing the retrial,
send the le for more investigation into one of the special divisions of the
court. However, if the convict withdraws from this right and keeps silent, it
seems to have no legal eect unless his or her silence is considered as being
equal to his or her absence and, according to article 474, his or her spouse
can be his or her legal heiress and executor and the country’s attorney
general may realize that the sentence enforcer should have proposed retrial
(Dehghani, 2018).
Conclusion
The observance of the culprit’s right to silence in all of the various stages
of trial causes the protection of the human veneration and prestige. The
individual who is still a suspect and his or her criminality is yet to be proved
5 Confessions have to be voluntarily made RV Aubrey (1990) 79A Gvim R 100
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should be considered innocent in the light of the principle of innocence
and his insolence, torture and punishment should be avoided. There is no
doubt that if use can be made of the legal and fair methods for justifying the
crimes, there would be no need for threatening, coercion and occasionally
torture. Use can be made also of the scientic methods with advanced
technologies meanwhile performing the legal actions and the culprit can be
allowed to securely and comfortably take the course and the objective can
be accomplished according to the predicted interventions and mechanisms.
The culprit’s right to silence has been more taken into consideration in
the domestic laws of Iran, particularly the law on the penal trial procedures,
passed in 2013. However, it is not considered the way it is taken into account
by the international documents and this is one of the challenging topics
of the penal laws because the observance of the right to silence entails
informing the suspects and culprits of their right which has to be declared
to them before interrogation.
In order to preserve order and society’s rights and protect the culprits’
rights, the legislator should bring about balance and it is here that the
support of culprit has been declared as one of the legislative policies in
the introduction to the penal trial procedures’ law. In this regard, positive
evolutions have been considered in the authentication of the culprits’
rights and a substantial part of this important issue has been placed in the
preliminary investigation stage on the shoulder of the justice department’s
law enforcers. Since the justice department’s law enforcing ocers are
the rst actors in the penal process and they directly engage with the
tangible crimes from the very beginning of the formation of a penal le,
enhancement of their legal knowledge and their passing of specialized
courses are undeniably necessary. One of the other mechanisms for the
operationalization of the culprits’ silence can be realized as the elevation
of the prosecutors and law enforcing ocers’ levels of knowledge. On the
other hand, the granting of unlimited authorities to the justice department’s
law enforcing ocers can pave the way for the threatening of the right to
silence. Thus, it is necessary to predict certain scales for the range of the
law enforcing ocers’ authorities and this is one of the most important and
most eective mechanisms for preventing any sort of contingent misuse
hence guaranteeing the culprits’ right to silence.
In line with this, the enactment of the penal trial procedures’ law on 23
rd
of February, 2013, should be considered as the peak point of the legislator’s
attention to the principles of fair trial. In a denition of the penal trial
procedures, the rst article of the abovementioned law has emphasized on
the observance of the culprits’ defense rights as the primary foundation of
fair trial. In article 5 of the law on the penal trial procedures, attentions
have been paid to the informing of the culprit about the alleged accusation
as well as the proofs thereof and also their right of access to the lawyer.
900
Sayed Alireza Mousavi, Massoud Ghasemi y Mohammad Javad Jafari
The Attitude of Iran’s Criminal Policy Towards the Observance of the Culprit’s Right to Silence
in the Trials
The culprits’ right to silence has been underlined in article 197 as one of
the other principles considered in this law. In fact, the prediction of the
important points of the preservation of the culprits’ rights in the rst
articles of the new law on the penal trial procedures and the emphasis on
their enforcement are indicative of this reality that the legislator has placed
the safeguarding of these principles and remaining adherence to them and
their observance on top of his goals and programs with the hope that the
principles of fair trial are used as models of work by the enforcers of the
penal justice (judicial authorities and the law enforcing ocers).
In other words, having adopted such an approach, the legislator
has taken eective steps in line with the preservation and observance of
the culprits’ right of silence and he has dealt with clearly reducing the
authorities of the justice department’s law enforcers and increasing the
culprits’ rights, including requiring to the acceptance of a lawyer, as well
as bringing about evolutions related to the culprits’ right to silence in the
stages of investigation by the law enforcing ocers. In this way, Iran’s
trial system that was in the same direction with the inquisitive trial system
enacted the law on the penal trial procedures in 2013 to make a shift in its
processes following which it started being inuenced by the international
attitudes and regulations and the paying of attention to the culprits’ rights
and guaranteeing of the culprits’ defense right were steps taken towards
the corroboration of the adversarial aspect in the stage of the preliminary
investigations and this is indicative of the idea that steps have been taken
towards the accusatory system. It is known that the goal of the accusatory
system is mostly observance of the individual freedoms and protection
of citizenship rights and the paying of attention to this important goal is
admirable.
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 70
