International Research Journal of Police Science, Criminal Law and Criminology Vol. 1(1) pp. 1-6, September 2012
Available online http://www.interesjournals.org/IRJPSCLC
Copyright ©2012 International Research Journals
Review
Right of Accuse in Iran under International Law
Venus Gharehbaghi
Faculty of law at Azad University in Iran branch of kuzeron
E-mailVenus_gh645@yahoo.com
Accepted 31 July, 2012
The fundamental principles from the Qur'an regarding the rights of individuals include, but are not
limited to, the following: all free men are equal before the law and are entitled to equal protection; all
decisions must conform to the Sharia; laws cannot be applied retroactively; and the accused is
presumed innocent until proven guilty. The Iranian Islamic criminal justice system so as to be
compatible with progressive international human rights standards will be doomed to frustration and
failure, to the extent that the goals and requirements of Shari‘a law are not met.
Keywords: Accuse Iran international, Islamic law.
INTRODUCTION
Criminal court in Iran has jurisdiction over national and
foreign person. The Islamic Republic’s officials entitle
themselves as the executors of holly verdicts and desires
to punish all people who commit crimes inside Iran’s
borders.( Article 7 of the Islamic Penal Code (1991) ) If
Iranian citizens act in a way outside of the country they
held accountability inside Iran(Article 9 of the Iranian Civil
Code says: “terms and regulation in the covenants that
have been agreed upon between Iran other countries
with accordance of the constitution are considered laws),
they can be criminally prosecuted inside of the country’s
borders
The government of Iran has ratified many international
conventions and treaties, from the United Nations Charter
to the famous 1966 conventions of the General Assembly
and the protocols of the International Labor Organization
and convent on civil and political rights and has signed
statute of Rome. According to Article 9 of the Iranian Civil
Code. The content of the international covenants that it
has been approved by Majlas must be implemented as
domestic law.
Under Article 67, the draft statute of Rome and other
convention on human right guarantees certain rights to
the accused Including accused should be entitled to a
fair hearing by an independent and impartial tribunal and
should be fully informed of the nature, cause and content
of the charge. The accused has the right to communicate
freely and in confidence with counsel of his/her choice
and to have adequate time and facilities to prepare
for his/her defense. Accused has the right to conduct
his/her defense in person or through legal assistance.
Accused also has the right to examine or have
examined the prosecution witnesses and to obtain the
attendance and examination of witnesses for the defense
under the same conditions as witnesses for the
prosecution. Accused cannot be forced to testify or to
confess guilt and has the right to remain silent, and such
silence should not be considered in the determination of
his/her guilt or innocence.
The fundamental principles from the Koran regarding
the rights of individuals include, but are not limited to, the
following: all free men are equal before the law and are
entitled to equal protection; all decisions must conform to
the Sharia; laws cannot be applied retroactively; and the
accused is presumed innocent until proven guilty. Based
upon these principles, the accused is to be free from
pretrial detention, is free from warrantless search and
seizures, is permitted to present evidence in court, has
the right to remain silent during interrogation, and has the
right to retain an attorney.
The “Code of Criminal Procedure of the Public and
Revolutionary Courts” (CCP) was passed by the Iranian
Parliament on September 20, 1999, and came into force
on 26 October 1999.
The Revolutionary Courts of the Islamic Republic are
based on an inquisitorial system, rather than an
adversarial system, as exists in the United States, the
United Kingdom, and elsewhere throughout the West and
the developing world. However, legal system in Iran
is based on share and religious criteria as well as.
2 Int. Res. J. Police Sci. Criminal law Criminol.
According to article 4 constitutional law state;
All civil, penal financial, economic, administrative,
cultural, military, political, and other laws and regulations
must be based on Islamic criteria. This principle applies
absolutely and generally to all articles of the Constitution
as well as to all other laws and regulations, and the
fuqaha' of the Guardian Council are judges in this matter.
For all other crimes, the state initiates the action. If
there is reason to believe the accused committed a
crime, pretrial investigations begin. Pretrial detention is
largely thought of as unnecessary given the collective
obligations of the family and the easy recognition and
distrust of strangers, making flight difficult or impossible
for the accused. Pretrial interrogation is conducted by
the minister of complaints, an arm of the judiciary, and
the prosecutor.
Right of accuse in the investigation
The rights contained in Art. 9 (2) of the ICCPR relate only
to the stage of arrest. At the point at which one is
deprived of personal liberty, every person who is arrested
must be informed of the reasons. Once the person
concerned has been charged with a criminal act, (s) he is
to be informed pursuant to Art. 14(3)(a) “promptly and in
detail in a language which he understands of the nature
and cause of the charge against him .in according to
Article 17 International Covenant on Civil and Political
Rights, Convention on the Rights of the Child, Article 16
asserted this obligation as well as
1. No one shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his honor
and reputation.
2. Everyone has the right to the protection of the law
against such interference or attacks.
Warrantless search and seizures are prohibited in
Islamic law. An investigative official can only search
an individual, his home, and his possessions with a
warrant. Evidence discovered in the course of an
unauthorized search will not support the issuance of a
warrant and is inadmissible at trial. Once the warrant
is obtained, the extent of the search appears to have
no limits.
According to constitutional law of Iran, during the
investigatory stage, the individual, his home, and his
possessions may be searched only by investigative
officials, if required for social order and safety. The
minister of complaints must authorize the warrant if there
is sufficient evidence that the accused committed the
crime. This evidence may be based upon testimony of a
trustworthy witness or pressing circumstantial evidence.
In reality, the pretrial process in Iran was quite
different in the early stages after the revolution. Full
investigations, as just described, were thought of as a
luxury. As a result, trials and executions were done
Swiftly to prevent counter-revolutions.
. . .” “Preliminary investigation” is the collection of
investigative actions taken for the purpose of
Discovery of the crime, preserving the evidence of the
commission of crime, as well as pursuing the accused
from the issuance of the warrant order until his
submission to judicial officials.9 In Iran, these
investigations are done in a framework known as
“inquisitorial” that is confidential and in writing. Article 100
of the same law states: “search of houses will be done in
day time and only done at night when need necessitates
it. The reason for this necessity must be mentioned in the
order by the judge.”
Right of compensation
In according to International Covenant on Civil and
Political Rights, Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms
as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation
has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy
shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by
any other competent authority provided for by the
legal system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce
such remedies when granted.
Article 9(5) guarantees a claim to compensation to all
persons who have been unlawfully deprived of their
liberty of person. This is a claim of the specific type of
domestic remedy referred to in Art. 2(3) relating to
liberty of person, similar to the claim for compensation
for erroneous conviction under Art. 14(6).
The claim set down in Art. 9(5) is available to every
victim of unlawful arrest or detention. An arrest or
detention is unlawful when it contradicts one of the
provisions in Art. 9(1) to (4), and/or a provision of
domestic law. Nowak explains that the principle of
legality in the third sentence of Art. 9(1) has the effect
that a deprivation of liberty in violation of domestic
laws usually represents a violation of Art. 9. If a
person succeeds in establishing, via a domestic
remedy, that arrest was unlawful but did not receive
compensation, that person may then approach the
Committee with a communication solely on the basis
of a violation of Art. 9(5). The Committee thus does
not have to review whether the rights in paragraphs. 1
to 4 was violated.
An arrest may be consistent with domestic laws but
still be unlawful under international law. Even in cases
where deprivation of liberty was in itself lawful but the
Gharehbaghi 3
claim to remand was violated, the person is entitled to
compensation.
Compensation claims are furthermore not limited to
culpable conduct that is malicious or grossly negligent
conduct.
In according article 85 of the statute of Rome
anyone who has been the victim of unlawful arrest
or detention shall have an enforceable right to
compensation
the
person
who
has
suffered
punishment as a result of final decision shall be
compensated according to law, unless that non
disclosure of the fact in time is wholly or partly a
attributable to him or her, in accordance with rule 173
anyone can submit a request, in writing to the
presidency which shall designate a chamber
composed of three judges to consider the request.
Under Article 84 of the draft statute, a person who has
been wrongfully detained or convicted is entitled to
compensation from the Court, in accordance with the
Court's rules. This issue is subject to further
consideration.
Although a number of national systems compensate
the acquitted accused for detention prior to and during
trial, no international criminal court currently provides
such compensation.
Arbitrary arrest and detention
The UN Body of Principles for the Protection of All
Persons under any Form of Detention or Imprisonment,
states clearly that arrest, detention or imprisonment shall
only be carried out strictly in accordance with the
provisions of the law and by competent officials or
persons authorized for that purpose. It does not allow any
restriction upon or derogation from any of the human
rights of persons under any form of detention or
imprisonment. Furthermore, detention or imprisonment
must be subject to the effective control of a judicial or
other authority. International Covenant on Civil and
Political Rights, Article 9(1) confirm it also.
1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such
procedure as are established by law.
Complaints relating to arrest and to pre-trial detention can
be submitted to the Human Rights Committee as well as
Working Groups and Special Reporters of the UN
Commission on Human Rights.
Pre-trial detention should be an exception and as
short as possible. Article 9(3) refers to a ‘reasonable
time’. ‘Reasonable time’ must be deduced from the
particular circumstances of a case.( ,In according the
regulation of ICC ,A person arrested provisionally is
entitled o be released if the formal request for
surrender and supporting document are not produced
within sixty days . (Rules of procedure and evidence rule
1889) Pretrial detention is not used in Islamic law. This
prohibition derives from the idea that the mere accusation
of guilt is not sufficient to justify detention since the
accused is presumed innocent. Some modern-day
commentators in Muslim regions advocate the use of
pretrial detention in some circumstances. However, Iran
today supports these opinions. However, temporary
detention order is supposed to be issued in only specific
and limited cases. Articles 35 and 132 of the Iranian
Criminal Code of Procedure clearly indicate that
temporary detention may be issued for the gravest
crimes such as murder and kidnapping and spilling acid
on someone … or judicial authorities must be certain
(with attention to the criminal and personal background of
the person) that if not arrested, the accused would
attempt to flee. Article 32 of the Constitution of the
Islamic Republic of Iran requires that “charges with the
reasons for accusation must, without delay, be
communicated and explained to the accused in writing,
and a provisional dossier must be forwarded to the
competent judicial authorities within a maximum of 24
hours.” Consistent with the Constitution, Article 24 of the
Code of Criminal Procedure likewise sets 24 hours as the
limit within which authorities must provide a detainee with
a written reason “in cases where the detainee must be
kept in detention in order for authorities to continue their
investigation’ According to article 5 of citizenship of law,
“arbitrary detention of individuals” is forbidden. Another
important issue addressed in this article is the necessity
of providing the family of the detainee with information, a
provision that was absent in the Iranian legal system until
this point. There are many exceptions under Iranian
Islamic law. Article 32 of the Code of Criminal Procedure
provides that a judge may issue temporary detention
orders for cases involving criminal offenses under Iran’s
“Offenses Against the National and International Security
of the Country” (“Security Laws”), allowing authorities to
hold detainees beyond the 24-hour period, without
charge: article 121 of the Criminal Code of Procedure
states: “Arresting the accused, other than in immediate
cases must be done in day time.”
Right of appeal
The right to appeal against a criminal conviction in a
higher tribunal is purposefully formulated quite generally
to allow for implementation by differing legal systems.
However, the appeal must be a genuine review of either
the facts or the questions of law. It is furthermore unclear
whether proceedings reviewing only the questions of law
are sufficient. The proceedings must be heard before a
“higher tribunal”, where the guarantees of a fair and
public trial must also be observed, as stated by the
Human Rights Committee. The right to appeal must be
available to all persons convicted of a crime, and the
4 Int. Res. J. Police Sci. Criminal law Criminol.
General Comment indicates that this provision is not
limited to serious criminal offences. In this case, an
offence for which a one-year prison sentence was
imposed was regarded as being sufficiently serious for
the application of Article 14(5). According to Islamic law
the judge is the fact-finder and decision-maker in the
courtroom. No jury system exists in Islamic law. The
judge has a secretary who commits the judgment into
writing. Decisions are final and, under strict Islamic law,
there is no appeal. However, when a judge is replaced,
his successor takes over the records and the prison.
This successor has the power to instruct two fiduciaries
to review all records to determine whether prisoners were
justly imprisoned. If the judge determines that any
individual was improperly imprisoned, he can release that
individual. According to a known legal principle, appellate
courts may not increase the initial sentence issued by the
court of first instance or change it in a manner that is to
the detriment of the accused. The intention of the
accused in requesting an appeal of his sentence stems
from his relief that the initial sentence is unnecessarily
high. Unfortunately this legal principle is often not
adhered to in the framework of the Iranian criminal
system. With respect to certain punishments in the
Iranian criminal system, the possibility always exists that
by appealing the sentence the initial sentence will be
increased on review (See Legal Commentary: A Look at
Criminal Procedure in Iran, Translated from Persian By
Behnam Daraeizadeh) In Iran, appellate courts generally
do not convene and issue their decisions without
summoning the accused to a hearing. But in political
cases there are only certain branches of the appeal
courts that investigate their appeals. For example in
Tehran, appeal decisions for political/press related crimes
are usually processed in branches 36 and 54 of the
appeal court of Tehran province in an especially secure
atmosphere. (See Legal Commentary: A Look at Criminal
Procedure in Iran ,Translated from Persian By Behnam
Daraeizadeh).
rejected by the preparatory committee article 64(7)
explicitly allows in comer a proceeding for the
protection of victim, and witnesses or to protect
confidential or sensitive information to be given in
evidence. Furthermore, article 68(2) provides. The
already elaborate case law of the ad hoc tribunals
in this matter should guide the court in this difficult
area. Confidential or sensitive information may have
several sources. The major source of problem with
this exception will be information
derived from
sovereign states. The statute has been considered to
this point. According to Article 168 of the Iranian
constitution, political crimes must be tried in “public court”
in the presence of a “jury.”and Article 165 of the Iranian
Constitution prescribes that: “Trials are to be held openly
and members of the public may attend without any
restriction unless the court determines that an open trial
would be detrimental to public morality or discipline, or if
in case of private disputes, both the parties request not to
hold open hearing.”
Right to Trial without Undue Delay
The right to trial without delay has been interpreted by the
Human Rights Committee as encompassing the right to a
final judgment without undue delay. All stages of the
proceedings should take place without undue delay and
adequate procedures must be in place to ensure this.
However, the Human Rights Committee has failed to
develop clear criteria for determining ‘undue delay’ in a
particular case In the Iran although; the law states that
judges must issue their verdicts within a week’s time, it
seldom occurs that a court decision is handed down
within a week of completion of trial. In political/press
related cases, suspending the investigation or keeping
individuals in a state of uncertainty is a matter of security
in the hands of the administration.
Calling and Examining Witnesses (ICCPR 14(3)(e))
Right to a fair and public hearing
The right to a fair and public hearing before a tribunal is
the essence of ‘due process of law’. The provisions in
Article 14(2) to (7) are the necessary components of a
‘fair trial’ in criminal cases. Article 14(1) incorporates a
number of requirements for the state to set up
independent, impartial tribunals where hearings must be
fair and public. Many of the terms used in this provision
are convoluted and require further interpretation. In the
ICC, This Sixth Amendment right is found in Articles
67(1) and 67(1)(c) of the Rome Statute. Article 67(1)
provides that “the accused shall be entitled to a public
hearing . . . .” Article 67(1(c) states that the accused shall
be entitled “To be tried without undue delay.” The public hearing principle had been proposed but was
This provision requires that the accused be entitled to
examine or have examined the witnesses against him
and to obtain the attendance and examination of
witnesses on his behalf under the same legal powers as
are available to the prosecution. The right to call and
examine witnesses under the same conditions as the
prosecution is an important element of the principle of
“equality of arms” and of a fair trial. However, the right of
the accused to obtain examination of witnesses on his
behalf is restricted to “the same conditions as the
witnesses against him.” The defense has the right to
examine witnesses on the same basis as the
prosecutor (Rome Statute , Art,67,(1)(E).
There are
limits to the right to examine witness. The
formal provisions governing the testimony of victims of
Gharehbaghi 5
sexual crimes. The statute also allows the court to
recognize witness privileges. witnesses
may also
refuse to make statement that right tend to in
criminate a spouse, child or parent. Noting in the
statute provides for compellability
of witness. For
example by issuance of subpoenaed
or similar
orders to appear before the court, however, then
article 71 gives the court a degree of control over
the recalcitrant witness, and allow for imposition of a
fine. There are some reservations for Examining witness
in Iran .One qualification is that an eyewitness must be
male, although in isolated instances two women may
substitute for one man. Four witnesses are required to
establish the offenses of adultery and sodomy, while two
witnesses are required for other offenses. Another
primary requisite to be a witness is that the witness
should be a Muslim of good character. The opposing
party may present evidence to prove the witness does
not have good character and, therefore, cannot testify.
Once a witness is qualified, he can only testify to events
he directly observed. Hearsay is inadmissible.
Prohibition of self-incrimination/ Right to Silence
Article ICCPR 14(3)(g) provides that the accused may not
be compelled to testify against himself or to confess guilt.
The prohibition of self-incrimination is an essential
element of the right to a fair trial. It relates only to the
accused. The term “to be compelled” refers to a variety of
physical and psychological forms of coercion, ranging
from methods which would be prohibited under Articles 7
and 10, to duress and the threat of imposition of judicial
sanctions for failure of the accused to testify. The Human
Rights Committee has called upon to set down in law the
prohibition of the admissibility as evidence in criminal
trials of forced confessions or statements by the accused.
Judges should have authority to consider any allegations
made of violations of the rights of the accused during any
stage of the prosecution .This right is further developed in
Article 40 of the Convention of the Rights of the Child.
According to basic legal principles, confessions and
statements of an accused given under torture and
physical and psychological pressure cannot be relied
upon. Based on human rights principles, any manner of
torturing the accused or exhibiting insulting behavior
towards him or her is forbidden Confession is the second
source of evidence used in trials in Iran. However, The
Qur'an explicitly prohibits the use of beatings, torture, or
inhumane treatment to extract a confession. Confessions
must be freely, voluntarily, and truthfully given. The
accused is to be treated humanely and is encouraged to
deny his guilt. In theory, the majority of jurists would
exclude from evidence confessions obtained by force or
deceit thus confession must be in open court and must
be repeated as many times as the number of witnessses required to prove guilt Although it is required during
pretrial confessions. The confession must also describe
the criminal act in detail and must be corroborated by
other evidence. But this evidence should be consisted
with constitutional law. Article 38 of the Constitution of the
Islamic Republic of Iran clearly bans. Torture and
considers confessions stemming from torture to hold no
legal value and credit.
Article 9 of the Law of Respecting Legitimate
Freedoms and Citizenship Rights prescribed similar
regulations in this regard.
Subjecting the accused to any form of torture for the
purpose of extracting information or forcing him into other
deeds is forbidden and confessions extracted in such
manner have no legal or Sharia authority.
The right to remain silent during interrogation is a
protection afforded to the accused and This right allows
the individual to refuse to answer questions and such
silence may not be used as evidence of guilt. This
protection appears only to be present during an
interrogation, not at any other pretrial or trial proceedings.
Therefore, if the accused remains silent at any other
proceeding, besides interrogation, the silence may be
used against him.
In accordance with Article 38 of constitutional Islamic
Republic law, all forms of torture for the purpose of
extracting confession or acquiring information are
forbidden. Compulsion of individuals to testify, confess, or
take an oath is not permissible; and any testimony,
confession, or oath obtained under duress is devoid of
value and credence. Violation of this article is liable to
punishment in accordance with the law.
The Right to a Written Statement of Charges
This right is provided in Article 61(3) of the Rome
Statute, which states that within a reasonable time
before the Pre-Trial Chamber holds a hearing to
confirm the charges, the person charged must be
provided with a copy of the document containing the
charges on which the Prosecutor intends to bring the
person to trial . . . .( The ICTY statute shares a similar
due process right and the ICTY has upheld it. See e.g.
Prosecutor v. Kvocka, Case No. IT-98-30/1-A (Feb. 28,
2005))”,the right to a written statement of charges
incorporated into criminal procedure code of Iran , article
157,158 as well .
Double Jeopardy
According to ICCPR 14(7), the principle of “ne bis in
idem” or res judicata or the prohibition of double
jeopardy, means that a person may not be tried or
punished again for an offence for which he or she has
already been finally convicted or acquitted. This principle explicitly was mentioned under criminal code in Iran
6 Int. Res. J. Police Sci. Criminal law Criminol.
The Right to Retain an Attorney
The right to counsel is protected under Iranian law as well
as under international law. However the right to an
attorney during the pretrial and trial stages varies
depending on the offence. Counsel is not permitted for
Hudud offences, with the exception of theft and
defamation. Counsel is likely permitted in the trial of Qisa
and Ta'zir offences. However, judges encourage direct
litigant input even when lawyers are present. Article 35 of
Iran’s Constitution state:
Both parties to a lawsuit have the right in all courts of
law to select an attorney, and if they are unable to do so,
arrangements must be made to provide them with legal
counsel.
Article 3 of the “Citizenship Rights Law” (2004) clearly
required courts and prosecution offices to respect the
right of the accused to a defense and to provide the
accused with the services of a defense attorney.
Unfortunately, Article 128 of the Code of Criminal
Procedure, however, effectively undermines this right.
Article 128 provides that, during the investigative phase,
counsel may be denied “in cases where the issue has a
secretive aspect or the judge believes that the presence
of anyone other than the accused may lead to
corruption.” Although the investigative phase may last up
to a month, a judge may renew the detention phase
indefinitely. In crimes involving national security, “the
presence of the lawyer during the investigative stage
takes place with the permission of the court.”
extent that the goals and requirements of Shari‘a law are
not met. Their reconciliation is, frankly, impossible.
Should be notice, Islamic law, which deals with duties,
illustrates the depth of the rift between the secular and
religious legal theories. Thus the notion of ‘God’s right’ in
prosecution of offences and punishment is quite peculiar.
This dichotomy is instructive, and the reader should
bear in mind that the entire notion of “justice” under
Islamic law is radically different from the prevailing
notions of justice under Western systems of criminal law
and procedure.
In May of 2004, a law was passed by the Iranian
Parliament that came to be known as the “citizenship
law.” In this fifteen-article law—that was itself considered
one unified article— principles and regulations were set
forth that are clearly at odds with the common practices
employed in the “preliminary investigation” phase in Iran.
These principles and regulations, if implemented, could
secure the standards for a fair trial. This law was passed
on the final days of the sixth Majlis and when the majority
of the Iranian Majlis, under the leadership of Mr. Karroubi,
was reformist. It was approved by the Guardian Council
on May 5 of the same year but there is no guarantee to
enforcement this law, Following the 2009 election,
thousands of people were arrested in groups and
individually in the streets of Tehran and other cities
without issue warrant arrest for them and kept for days
and weeks in temporary detention centers and even
prison hallways without having their charges clearly
explained
(http://www.1millioncampaign.info/spip.php?Article5603)
CONCLUSION
REFERENCE
As a general rule, Islamic jurisprudence does not
recognize the primacy of rights that exist under Western
legal systems, but stresses the paramount importance of
duties under Islamic religious law. Iran is no exception.
Whatever fundamental human rights protected under
international law are ostensibly enshrined in the Iranian
Constitution, such rights are qualified by subjecting them
to ill-defined “Islamic criteria.” Any attempt to modernize
the Iranian Islamic criminal justice system so as to be
compatible with progressive international human rights
standards will be doomed to frustration and failure, to the
Citizenship Rights Law (2004).
Criminal Procedure in Iran
International Covenant on Civil and Political Right
Penalty Islamic Code (2012).
Rules of Procedure and Evidence of International Criminal Court
Statute of Rome (1998).