جستجوی مقالات مرتبط با کلیدواژه « حق سکوت متهم » در نشریات گروه « فقه و حقوق »

The right to remain silent and the necessity for the police to declare this right to the accused in Iranian criminal law has a function and a guarantee of execution. However, the waiver of the right to remain silent, its function and the guarantee of its implementation are vacuum in the Iran’s criminal law. This situation has the function and guarantee of execution in the United States’ criminal law and jurisprudence of its courts. In this sense, it is important to consider the two legal systems in order to answer the question, what is the function and guarantee of the defendant’s waiver of the right to remain silent? The findings of the study show that the silence of the accused during the police interrogation of him in any case means the exercise of the right to remain silent. However, the United States’ criminal law and jurisprudence make a distinction in this regard. If the accused is silent during the police interrogation, his silence means waiving the right to remain silent. Given that the accused is not in custody, his silence in the face of police interrogation does not mean exercising his right to remain silent. Therefore, in order to avoid this situation, accused must explicitly state that he wants to invoke his right to remain silent, even though police did not warn him to remain silent before start of interrogation. Otherwise, defendant’s silence means his waiver of right to remain silent and result is to his detriment at trial stage.

Accused’s silence in criminal law is not evidence and proof of crime or inference. However, accused’s silence and inference of crime in USA criminal courts’ jurisprudence create conditions that ultimately end to accused detriment. This situation is contrary to requirements of criminal law and Iran criminal courts’ jurisprudence. In this respect, examining dimensions of permissible or prohibitive view of inference from accused’s silence in criminal law and jurisprudence are important to reply research question. What are status of inference from accused’s silence in Iran and USA criminal law and its jurisprudence? Investigation findings show that accused’s silence was identified in Iran criminal law during the judicial official interrogation phase, while it is for protecting accused against police interrogation. This situation is contrary to USA criminal law, which has identified the accused’s silence during police interrogation. Second, accused’s silence in Iran criminal law and its jurisprudence is a manifestation of accused’s defense rights and is not inference of commission of crime. This situation is similar to USA criminal law, but USA jurisprudence does not follow consequences of accused’s silence when he/she is not in police custody. However, accused’s silence application prevents separation two stages of accused detention and before that in order to enjoy or be deprived of right of silence’s privileges. In this respect, inference of crime from accused’s silence before his/her custody in USA criminal courts’ jurisprudence is contrary to fair criminal trial’s standards.

Defendant's right to silence is a guarantee of his defense rights and is in direct connection with the principle of Self-Incrimination. This situation is different by requirements function in criminal law of Iran and United States Jurisprudence. Study of the relationship between the right to silence and the principle of self-incrimination in criminal law of Iran and the United States Jurisprudence, and precondition for the detention of the accused and how it is cited in the conviction of the accused, with regard to possible safeguards, is subject of this article. Main question of this research is what is the relationship between the principle of self-incrimination and the declaration of the right of silence to the accused in criminal law and its safeguard? Findings of this research show that the principle of self-incrimination and the observance of the defendant's right to silence are both parts of fair trial’s coin. Observance of the right to silence and the principle of self-incrimination are separate in Iran's criminal law and non-distorted based on their own, but are not subject to any preconditions. United States Jurisprudence have interpreted the principle of Self-Incrimination as set forth right to silence in the fifth Constitution Amendment, and they are subordinate to same guarantee of insubstantiated statements made by the accused, but believes precondition for them.

The privilege against self-incrimination means that in criminal procedure an accused shall not put himself in position that its result is his conviction; he shall not be compelled to contribute actively in proceedings which will lead to his conviction; whether he was ordered by inspectors to declare facts or produce documents.
Self-incrimination often occurs within accused's speaking; the question is that, are the privilege against self-incrimination & right to silence the same or not? There are different ideas but it is defendable to say that; the privilege against self-incrimination has wider spread & in addition to acoustic communications, it covers other types of self-incrimination such as produce documents.
This right has been pointed in several international documents such as; “The Universal Declaration of Human Right” & “International Covenant on Civil & Political Rights” & “International Convention on the Elimination of All Forms of Racial Discrimination”.
Statutes & other regulations of international courts (i.e ICC, ICTY, ICTR) has the best standard of accused's defense rights. The privilege against self-incrimination & other aspects of this right (such as adverse inference) expressly has been anticipated in case law & all provisions of these courts.

Defensive rights of defendant as one of fair trial components is collections of facilities that defendant use for receiving all rights and benefits. One of clear aspects of defendant’s defensive rights as challengeable issues of modern criminal law, is his/her silence right in all processes of proceedings; prosecution and giving accusation to carry verdict. Observance of silence right risk profits of society in ease detecting crime and prosecuting offender in one side, inobservance decrease vested rights of defendant in fair trial process on other side. Volitional silence right of defendant who know his/her right to be silent is clear principle, but lawful force of prosecuting, inquiring and hearing officials by seeing of human right’s doctrine and new recitations of acquittal principle’s components by declaring this right to defendant, internal legislator don’t observe. Question is what is obligation, if defendant doesn’t know his/her silence right in contact of officials? In this paper, try to by examining criminal procedure laws and international deeds show necessity or unnecessary of officials and limitations in declaring to defendant to be silent about accusation..