Investigating judicial justice in the legal systems of Iran and France, a case study of the right to remain silent

The process of the right to silent in legal systems is one of the important and controversial issues among jurists; because if the accused remains silent, the court judge will inevitably look for other reasons. For this process, principles have been considered and new legal materials have been extracted and compiled from legal texts; including the three principles of innocence, dignity and individual freedom. In this article, in order to understand the accused's right to silent, the two legal systems of Iran and France have been chosen to compare and discuss common and different dimensions. According to Article 197 of the Criminal Procedure Law in Iran, the right of the accused to silent has been recognized. In France, according to Article 63-1 of the Criminal Procedure Law, the accused has the right to silent during the proceedings. However, despite the clarity of the law, in practice, the limits of the defendant's right to silent and how to apply it are faced with issues that will be addressed in this research.

Research questions:

What is the importance of the right to silent in legal systems? What are the points of commonality and difference in the field of the right to silent in Iranian and French law? Why despite the clarity of the law in recognizing the right to silence, this right still faces challenges in practice?

Literature Review:

Fallahnejad et al. (2023) in an article about Iranian and Chinese law, have acknowledged that the right to silent has been explicitly accepted in Iranian law, while in the Chinese judicial system, there is a dispute. On the other hand, there is no specific legal regulation regarding the right to prohibit self-incrimination in Iran, while this principle is specified in China. Mousavi et al. (2019) in discussing the ethical challenges of the defendant's right to silent, have emphasized that despite the provision of this right in Iran's laws, the enforcement aspects and its compliance in the proceedings are still disputed. Shabani (2013) shows that in transnational documents, the right to silence is an issue that the assignment or non-assignment of the judicial authorities and its scope is to inform the accused to remain silent in the face of accusations. Qarqani (2013) believes that the accused's right to silent is one of the definite results of the commitment to the principle of acquittal, and the principle of immunity against self-incrimination should also be considered as one of its foundations.

The research method in this article is descriptive-analytical, and the data and information are also collected by library method.

In France, according to Article 63-1 of the Code of Criminal Procedure, during hearings, a person arrested by the police has the right to answer the questions asked of him or remain silent. The law officer also has two duties: 1) to explain the charges to the accused person; 2) reminding the accused of his right to silent. But in Iran, regarding the accused's right to silent during the preliminary investigation, the Constitution is not clear. The accused should know that he cannot answer the questions and his silence cannot have criminal consequences. In accordance with Article 32 of the Constitution: 1) the questioning of the accused must be within the framework of the accusation; 2) explanation of the accusation and interrogation must be in writing with the reason; 3) it is not enough to merely present the accusation, but it is necessary to write the accusation in the interrogation sheet and the accused must also answer it in writing; 4) merely writing the accusation is not enough, and the law is clear that the accusation must be accompanied by a reason.

In France, according to the recognition of the right to silence based on the text of the law, the background of recognizing such a right in itself indicates the unwillingness to comply with it. In addition, in two cases, the Court of Appeal has requested the notification of the right to silent: 1) in cases where the court inevitably has to rule on the charges, especially in the case of an appeal against the indictment or when the inspection branch has announced the disclaimer of the accused due to mental disorders as part of the procedure; 2) whenever the court necessarily has to ensure the existence of serious or proven reasons in this regard that a person is being prosecuted as a perpetrator or accomplice in the commission of the crimes based on them.In the Constitution of Iran, the right to silent is one of the accused's defense rights, which is recognized. It is considered as one of the clear examples of his defense rights and is important in the preliminary investigation stage of the proceedings. The accused can not only remain silent and avoid answering the questions of the investigating authority, but judicial officers are obliged to announce this right to the accused from the very beginning. Silence is the right of the accused and Article 38 of the Constitution of the Islamic Republic of Iran explicitly mentions the prohibition of obtaining a confession through coercion. In addition, this right cannot be considered as a proof of the truth of the incident or its confirmation. Alson, according to Article 197 of the Criminal Procedure Law of Iran approved in 2013, the right of the accused to silent during interrogation is implicitly accepted by the legislator.

Article 38 of the Constitution of the Islamic Republic of Iran, without explicitly mentioning the right to silent, implicitly considers this right for the accused. This right during interrogation is also mentioned. However, there is no obligation to announce this right to the accused, for the officials who are involved in the criminal proceedings and are in charge of the investigation due to their responsibility, neither in the Constitution nor in the ordinary laws. Declaring the right to silent in all stages of proceedings in order to observe humane behavior towards the accused person who has not yet been proven guilty is one of the fundamental guarantees to legitimize the punishment imposed in accordance with human standards.In French law, the discussion is not only about the existence or non-existence of the right to silence, but also about the exact nature of this right. In addition, the right to silent in the French judicial procedure has also been considered in terms of concept and scope; although the discussion of opposite inferences from the accused's silence is raised in different stages of the investigation. Despite this, in France, the accused's right to silent is accepted and the only difference is in the importance of this right as a balance between the possibility of opposite inferences from the right to silent and the prohibition of forcing him to confess. In Iranian law, the right to silent is accepted both in the Constitution and in ordinary laws; but the judicial procedure has not entered into this discussion to clarify its territory and aspects, and basically it has not entered into the discussion of the possibility or impossibility of inferring the right to silent.