جستجوی مقالات مرتبط با کلیدواژه « right to counsel » در نشریات گروه « فقه و حقوق »

The right to counsel for the accused is recognized in the national criminal justice systems. International obligations also indicate the recognition of this right in various sources of international law including international instruments and international jurisprudence. Among international instruments, the Vienna Convention on Consular Relations (1963) emphasizes the right to counsel for the alien accused in the form of the right to consular assistance. The judgment of the International Court of Justice in the La Grand Case (2001) is one of the most important international judgments on the right to consular assistance for the alien accused. The present article papers answers the principal question of how the right to consular assistance for the alien accused is reflected in the judgment of the International Court of Justice in the La Grand Case (2001). The findings of the present article paper indicate that the right to counsel for the alien accused in La Grand Case is according to the Vienna Convention recognized in the form of the right to consular assistance and the Court considers the right to consular assistance for the accused to be an individual right which its main beneficiary is the accused, not his state.

The right to counsel is one of the main aspects of a fair trial. In the meantime, considering children's lack of full ability to defend, it is more important for them to have legal assistance. This study was conducted with the aim of investigating the level of attention of the Code of Criminal Procedure approved in 2012 and international documents regarding the legal assistance of a lawyer to a child in the process of criminal proceedings.

The present research was written using the descriptive method and the use of library resources consisted of related laws and legal documents.

Legislator in Iran, along with taking some innovative measures such as recognizing the right to visit a lawyer in the stage under supervision and paying attention to the role of a lawyer and his legal assistance for children in the stage of protesting the sentence, regarding the benefit of criminal children from a lawyer in the trial stage, adopted two different approaches. In this way, the existence of a lawyer during the proceedings is not mandatory, but can be applied as a matter of law, regarding crimes of degrees six to eight, as well as other crimes without the legal punishment of imprisonment. However, in crimes that are under the jurisdiction of the First Criminal Court, and in the crimes that require the payment of Diya or Arsh more than one-fifth of the full Diah, as well as in Tazeeri crimes of the sixth degree and above, the presence of a lawyer in the proceedings is assumed to be mandatory. The study of international documents regarding the effects of legal assistance of lawyers for children shows that these documents have paid attention to the role and position of lawyers in the protection of children in the three stages of pre-trial, trial and appeal.

In the Code of Criminal Procedure, in line with international documents, the domestic legislator has paid more attention to the role of lawyers and legal aids in dealing with children's crimes.

The Contradiction Principle is one of the strategic principles stipulated in the introductory article of the French Code of Criminal Procedure and U.S. Judicial Procedure but not specified in the Iranian Code of Criminal Procedure, though implied from Article 6 of the said code of procedure. According to this principle, all the evidence and results of the investigations must be communicated to and freely discussed with the accused in the criminal proceedings. At the police custody stage, suspects are more likely to be deprived of their rights and freedoms due to police intervention. The institutionalization of this stage in the Iranian, French, and U.S. legal systems, the manifestations of the Contradiction Principle, including the defendant's right for awareness of accusation and defense rights, the right to have a translator, the right to silence, the right to counsel, the right to health and the right to be heard  have been considered and examined from the perspective of both Roman-Germanic and Common Law systems. There are important ambiguities and challenges for the fulfillment of the Contradiction Principle in the Iranian criminal proceeding system, which can be resolved through the use of the experiences of French and American legal systems. Although the amendments of the 1392 law led to a move towards the relative observance of the Contradiction Principle and the acceptance of its manifestations, the Iranian criminal proceeding system is still distant from the more favorable in this regard.

The Code of Criminal Procedure has established strategic principles that guarantee justice. Further, concerning the natural value of these principles, the legislator is prohibited from ratifying rules contradicting these principles. One of the principles of Criminal Procedure that is crucially important in ensuring justice and warranting equality of the parties is the contradiction principle. This principle was enshrined in Articles 5 and 6 the Code of criminal Procedure.
The discovery of a crime and the custody by judicial surveillance are crucial steps in the criminal process. Under surveillance is an important stage since the suspect who is under the protection of the principle of acquittal and placed in police custody contrary to the principle of freedom, is subject to infringement of their legal rights and violation of the strategic principles of the Code of Criminal Procedure, particularly the contradiction principle.
An investigation into the Iranian Criminal Procedure, which is influenced by the mixed procedure system and possesses the characteristics of an inquisitorial system during the preliminary research phase, suggests gradual legislative developments toward the adversarial system and the transformation of the preliminary research phase into contradiction priciple. The criminal procedures of France and the United States can serve as appropriate examples for comparison. 

This research is a descriptive-analytical study. As a non-experimental study, it builds on reasoning and analyzing the rules and judicial proceedings in the criminal procedure system of the countries under study.

The contradiction principle is one of the crucial components of a fair trial. The contradiction principle is authorization granted to the parties to inform all documents and reasons for the lawsuit that might affect the final decision of the judicial authority and enable them to challenge them freely. The French Code of Criminal Procedure recognizes the contradiction principle in Preliminary Article. The United States criminal procedure has emphasized the practice of contradiction principle and identified the manifestations of this principle in the proceedings of the criminal procedures.
Custody is a stage in which the police detain the suspect. It is an authorization granted to the officers to keep a suspect in police custody for a specific period under special conditions. In France, custody is accepted under special conditions. The term custody is not used in the United States; rather, it is referred to as police arrest. In case a police officer has justifiable reasons to arrest a suspect, they can act without a judicial warrant.
In order to observe the rights of the suspect in the custody stage, the contradiction principle proposes instances such as the right to be informed of the subject of the charges and the right to defend, the right to have a translator, the right to attorney counsel, the right to silence, and the right to be heard by the judicial authority.
The suspect’s right to be informed comprises two parts: to be informed of the rights to defend and to be informed of the subject and evidence related to the charges. The officers shall inform the suspects of their rights to defend. In addition, they shall inform the suspect of the subject and evidence concerning the charges in a written notice. In French Law, the right to be informed comprises the nature of the crime, location, length of custody, and possible extensions, which are not subject to any exception. In the United States, when an suspect is arrested, the police should read the Miranda Rights to the suspect.
The right to counsel of an attorney is more crucial in the custody than in any other stage. The presence of an attorney can provide the minimum guarantee to practice the adversarial principle since the other party is the prosecutor enjoying every facility. The active role of the attorney and the necessity of having access to the lawsuit should be guaranteed.
One of the manifestations of the contradiction principle is the suspect’s right to silence regarding the questions asked by the officers. In case of assuming that the suspect is not guilty, they shall not be required to provide any reasons to prove it. It is the individual claiming that a crime has been committed that should prove their claims via legal methods, and the suspect can have the right to silence.

The custody in Iran and France, or arrest in United States, is crucially important as one of the significant stages of the criminal procedure. Establishing supervisory institutions and transparent rules hinder the violation of the rights of the suspects at this stage. In France that differentiates the custody stage regarding the length, conditions, and effects on ordinary and violent and security crimes and terrorism has more desirable conditions. In addition, having predicted a differential criminal procedure, it has suggested various regulations. On account of the lack of a differentiated criminal procedure during the custody, it is necessary to make some modifications to Iranian law.
Given the Miranda warnings, it appears that the right to be informed of the subject of the charges and the right to defend as the introduction of the contradiction principle is more adequately recognized in the United States. The influence of the provisions of the European Convention on Human Rights enables the legal system of France to practice the contradiction principle.
The right to counsel of an attorney in custody is recognized in the criminal procedure system of Iran, France, and the United States. With regard to the deferential approach, in France, the meeting with an attorney can be delayed in cases of violent and security crimes and terrorism. In Iranian law, the restriction without reasoning of Note Article 48 affects the right to choose an attorney and violates the contradiction principle.
The right to silence in custody has not been predicted in Iranian law explicitly and can be extended to this stage by virtue of Article 61 of the Code of Criminal Procedure. The law is silent regarding the necessity of informing the right to silence. In light of the strategic principles and Article 6 of the Law, it may be deemed necessary to inform this right. The right to silence and the necessity of informing the suspect of this right by the police in custody is guaranteed emphatically in France and the United States.

Maintaining security and protecting individual rights and liberty are the dual goals of criminal procedure. It is difficult to achieve these goals simultaneously in specific types of crimes such as terrorism and security crimes. Due to inadequate general criminal procedure rules in this area, legislators have been forced to adopt a differential criminal policy in this regard. The stage of being in custody, which- due to its special characteristics- brings to mind the possibility of violating the suspect's rights more than any other stage, has also been subject to differential approaches. Having a differential approach to the suspect's rights in custody for specific crimes, the criminal justice systems of France and the United States designate special officers, extend the custody period, communicate the suspect’s accusations and its evidence as well as his/her defence rights, and restrict the free involvement of the suspect’s attorney. In criminal justice system of Iran, Unforeseen differentiation approach in law but this procedure in jurisprudence and circular is a important challenge. Meanwhile, due to the numerous reforms and the influence of the European Convention on Human Rights, the differential approach of the criminal justice system of France has achieved a more appropriate balance between the suspect's rights and the right to security.

Today, the right to counsel for the accused is recognized in the course of criminal proceedings in most legal systems. International law pursues this right along with other human rights. International law has focused on the right to counsel at two levels: First that, international courts, such as the International Criminal Court, apply these rules in their own rules of procedure and in their own practice; and Second that, states in their national legal systems don’t fail to grant this right to the accused. International law has established bodies to ensure human rights at the level of states. One of these bodies is the Human Rights Committee, which has formed according to the International Covenant on Civil and Political Rights (1966). This article intends to investigate the right to counsel in the Procedure of the Human Rights Committee. The outcome of this writing is that the Committee develops the right to counsel and interprets the right to defense set forth in the Covenant to the right to counsel with many of its requirements.

The accused right of having an attorney in the criminal process is one of the fundamental manifestations of citizenship. Advocacy is of utmost importance as one of the most fundamental guarantees of fairness in criminal trials. This right is now recognized in most international human rights conventions as well as in most legal systems around the world. Since a historical study of how this right is recognized has a significant impact on its present guarantee, a historical study of the right is necessary. The approach of the present study is that the right to counsel is closely related to the concept of "due process" and is based on that. The term is a historical concept that underpins the formation and development of the "right to a fair trial" and consequently the right to counsel. The present study shows the relationship between fairness in criminal proceedings on the one hand and guarantees of access to defense counsel on the other.

Taking the accused into surveillance by police officers in witnessed crimes is one of the most important authorities of them. Certainly giving this authority to police officers, which leads to the denial of freedom of accused for movement in limited time, is based on the efforts in order to achieve principal interests as finding out the truth and reveal the fact in criminal cases as well obtaining evidence that make it possible to achieve this goal. Certainly necessities such as rapidly in collection of evidence and prevent from destruction of them, prevention accused of collusion with witnesses, potential partners or assistants, especially in the early stages of the proceedings, subject to appropriate restrictions on the rights granted to the accused. However, the need to protect the rights of individual freedom and human dignity while maintaining social interest requires defense rights to be recognized for accused. Such matters at the former Rules of Criminal Procedure was pale. According to the Code of Criminal Procedure Act of 1392, accused in order to guarantee individual rights and freedom, and the Protection of human dignity is prospering of rights of the defense including the right to remain silent, the right to counsel, the right to notice of charge. Such subject to the English law is evident and especially the Police and Criminal Evidence act (1984) contain substances that numerous assignments for the police to ensure the rights of the accused is prescribed.

Right to counsel is one of rights that in different countries legal proceedings and in international instruments on human rights accepted. This paper seeks to examine the defendant's right to counsel in criminal trials of international courts. In this regard, the right to counsel viewed in the criminal trails of the Nuremburg, Tokyo, Former Yugoslavia and Rwanda tribunals and the International Criminal Court. Explaining the need to respect the right to counsel as one of the human rights, presumption of innocence and equality of arms is issue of the first part of this research. Given the importance of this right in order to protect the defendant's personal interestsand the interests of the international community (in international trials), and essential scientific and technical competence for lawyers, therefore the terms and conditions for obtaining the representation in international courts are expected that these terms and conditions are the issue of the second part of this article. The right to counsel during the pre-trial, trail and post-trail of international criminal courts proceedings is the subject of the third part of this research. In the fourth section of this article, various instances of the right to counsel are discussed.