جستجوی مقالات مرتبط با کلیدواژه ": اصل برابری سلاح ها" در نشریات گروه "فقه و حقوق"

In order for the proceedings to be fair, the rules derived from the legal principles of civil proceedings must be observed by the litigants and the authority. One of these principles is the principle of equality of arms. This legal principle requires that the procedural rights of the parties be granted to them in a balanced manner, and in case of victory of one of the parties, who unfairly had more effective procedural weapons, the victory won't deserve to be confirmed and implemented; Because the duty of the government is justice, and justice cannot be achieved without granting balanced procedural rights to the litigants. This principle is discussed in legal writings, mostly in criminal proceedings, and in civil proceedings, these questions are also raised: in which documents and judicial procedures of foreign legal systems is this principle reflected and what are its results? What are the effects of the principle of equality of arms in Iran's civil procedure law? And what cases violate this principle? The findings of this research, which was carried out in a descriptive and analytical way, are: This principle originates from the principle of fair trial in the European Convention on Human Rights and is reflected in the judgments of the European Court of Human Rights and is included in the French Criminal Procedure Code. The manifestations of this principle in Iran's Civil Procedure Law can be seen from: balancing the procedural rights of the parties, in having the reasonable opportunity to prepare the defense; The duty of the court to prevent the abuse of procedural rights by the parties; Right of the parties to be informed of the proceedings; Right to have an effective legal representative and Right to be heard. This right is violated by limiting one of the parties' access to documents, abusing one of the parties' financial superiority or legal knowledge, and prohibiting search.

The Principle of Equality of Arms means that each party in an action shall present her claim in an environment so that this does not put him in a worse condition compared to the other party of the trial. This principle has been internationally and locally embraced by authorities. From the perspective of international documents, the acceptance of this principle is partly influenced by the acceptance of global principle of fair trials which has been shaped by a shift toward the criminal justice system, especially in preliminary investigation phase. This requires that at the first encounter of the accused, the victim and etc. with the criminal justice system that is formed on the basis of a criminal case, i.e. police preliminary investigation phase, facilities of the aforementioned persons shall be specified and basic rules are predicted in law in order to comply with them. Fortunately, Iranian Criminal Law which was approved in 2013 has generally considered acceptance of the Principle of Equality of Arms inspired by international documents as one of the strategic principles of Criminal Law and apparently has predicted some of the basic rules of the Principle of Equality of Arms at the Judicial Police Investigation phase and it has established some of the regulations based on the alignment of each party in a claim. However, these innovations are confronted with limitations in some criminal cases and have inevitably tarnished the total equality of the parties including the relative balance of the accused, the prosecuting attorney and the victim at the police investigation phase.