Journal of Legal Research

Journal of Legal Research

Procedural Safeguards of Defence Rights during the Preliminary Investigation Stage

Document Type : Original Article

Authors
M.A in Criminal Law and Criminology, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran.
Abstract
The preliminary investigation is a significant phase of criminal proceedings within systems of adjudication. The importance of this stage lies in the fact that the most fundamental evidence relating to the commission of an offence is obtained during this phase; consequently, the evidence acquired at this stage may play a decisive role in determining the ultimate outcome of the case. This study, in the first part, seeks to provide a more precise understanding of the current framework governing preliminary investigations within the judicial system of the Islamic Republic of Iran by identifying and examining the various legal systems governing this stage. In the second part, the study examines the various explicit and implicit sanctions provided under the law, including criminal, disciplinary, and civil sanctions, as well as the nullification of investigations in cases involving violations of defence rights. An examination of the procedural rules governing criminal proceedings before the Iranian courts, save for limited instances such as confessions obtained under torture, has revealed that legislators, in situations involving violations of the defence rights of suspects and accused persons by judicial and law enforcement authorities during custodial supervision and preliminary investigations, have generally confined themselves to prescribing and imposing penalties upon the violators of defence rights, while demonstrating limited commitment to, and insufficient recognition of, the important and consequential doctrine of the nullity of investigations. It appears that the underlying reason for the adoption of such an approach may be traced to the predominance of the principles governing the inquisitorial system during the preliminary investigation stage, whereby the objective of discovering the truth is deemed to justify the means employed to attain it.
Keywords

Alami, Shams al-Din. Constitutional Law. 1st ed. Tehran: Shekouh Publishing, 1995. (in Persian).
Ashouri, Mohammad. Criminal Procedure, Vol. 1. 17th ed. Tehran: SAMT Publications, 2013. (in Persian).
Bagherpour, Yousofali. “Legal and Constitutional Safeguards in Criminal Proceedings and Preliminary Investigations (A Comparative Study of Iranian and French Law).” Basirat Quarterly 12, no. 34 (2004): 94–125. (in Persian).
Belanger, Terri. “Symbolic Expression in the Courtroom: The Right to a Fair Trial versus Freedom of Speech.” George Washington Law Review 62 (1993): 318. (In English).
Bernardini, Piero. “The Role of the International Arbitrator.” Arbitration International: The Journal of the London Court of International Arbitration 20, 2 (2004): 113–122. (In English).
Del Carmen, Ronaldo. Criminal Procedure: Law and Practice. 8th ed. Boston, Massachusetts: Wadsworth Cengage Learning Publishing, 2008. (In English).
Ferdico, John N., Henry F. Fradella, and Christopher D. Totten. Criminal Procedure for the Criminal Justice Professional. 10th ed. Belmont, CA: Wadsworth Publishing Co. Inc., 2009. (In English).
Foroughi, Fazlollah, and Iman Yousefi. “The Sufficiency of Evidence Decision-Making Stage in Iranian and American Preliminary Investigation Models.” Shiraz University Legal Studies Journal 1 (2014): 147–178. (in Persian).
Ghasemi Moghaddam, Hassan. “Informing Defendants of Their Rights by Judicial Officers: With Emphasis on the Criminal Procedure Code of 2013.” Criminal Law Review 2 (2015): 129–153. (in Persian).
Goldoust Juybari, Rajab. General Principles of Criminal Procedure. Tehran: Jangal Publishing, 2009. (in Persian).
Hayati, Abbas. Introduction to Legal Science. 4th ed. Tehran: Mizan Publishing, 2010. (in Persian).
Heydari, Elham. “The Defense Rights of the Accused During Custody under the Criminal Procedure Code and a Comparative Study with English Law.” Judicial Legal Perspectives Quarterly 71 (2015): 27–53. (in Persian).
Kalmbach, Mark. Commentary on the Law of the International Criminal Court. Brussels: Torkel Opsahl Academic EPublisher, 2017. (In English).
Katouzian, Nasser. Introduction to Legal Science. 63rd ed. Tehran: Sherkat-e Sahami Enteshar, 1999. (in Persian).
Khajavand, Mazaher, and Mina Jafari. “Sanctions for Violations of Human Rights Standards Relating to the Accused in Criminal Law.” Medical Law Journal 56 (2021): 738–751. (in Persian).
Khaleghi, Ali. Criminal Procedure. 27th ed. Tehran: Shahr-e Danesh Institute for Legal Studies and Research, 2015. (in Persian).
Khaleghi, Ali. Notes on the Criminal Procedure Code. Tehran: Shahr-e Danesh Institute for Legal Studies and Research, 2017. (in Persian).
Khanbabayi, Sepideh. “A Comparative Study of Intangible Criminal Evidence in Iranian and American Law.” Master’s Thesis. Tehran: Allameh Tabataba’i University, 2016. (in Persian).
Mansourabadi, Abbas, and Fazlollah Foroughi. Criminal Procedure I. Tehran: Mizan Publishing, 2017. (in Persian).
Moazenzadegan, Hasanali, and Sahar Soheil Moghaddam. “The Exclusionary Rule in Criminal Proceedings (With Emphasis on American Law).” Criminal Law and Criminology Studies 3, no. 7 (2016): 243–267. (in Persian).
Mokhtari, Rahim. Judicial Evaluation of Evidence. 1st ed. Tehran: Majd Publications, 2013. (in Persian).
Montazeri, Hojjat al-Islam. “Statements of Hojjat al-Islam Montazeri, Deputy Minister of Justice (Statements of Shoushtari, Minister of Justice).” Salam Newspaper, 24 July 1990. Reprinted in Kayhan Newspaper, 1 August 1991. (in Persian).
Oaks, Dallin H. “Studying the Exclusionary Rule in Search and Seizure.” University of Chicago Law Review 37, 4 (1970): 665–757. (In English).
Omidi, Jalil. “The Defense Rights of the Accused.” In Criminal Sciences: Collection of Articles in Honor of Professor Mohammad Ashouri. Tehran: SAMT Publications, 2004. (in Persian).
Rezavandi, Behnam, and Abbas Najafi. “A Comparative Study of the Civil Liability of Judges.” Legal Excellence 21 (2017): 139–162. (in Persian).
Saghian, Mohammadmehdi. “Developments in the Right of the Accused to Counsel During Custody in French and Iranian Law.” Criminal Law and Criminology Studies 1 (2014): 103–118. (in Persian).
Salehi Mazandarani, Mohammad. “A Reflection on the Civil Liability of Judges under Article 171 of the Constitution.” Islamic Law Quarterly 7 (2005): 133–160. (in Persian).
Sanders, Andrew, Richard Young, and Mandy Burton. Criminal Justice. 4th ed. Oxford: Oxford University Press, 2010. (In English).
Tadayyon, Abbas. “The Theory of Exclusion of Evidence in Criminal Proceedings with Emphasis on French Law.” Azad Legal Studies 3 (2008): 76–94. (in Persian).
Thaman, Stephen C. Exclusionary Rules in Comparative Law. Dordrecht: Springer, 2013. (In English).
Willems, Auke. “The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems: A Step toward Global Assurance of Legal Aid?” New Criminal Law Review: An International and Interdisciplinary Journal 17, 2 (2014): 184–219. (In English).
Yousefi, Iman. Preliminary Investigations in Criminal Procedure. 1st ed. Tehran: Jangal Publishing, 2012. (in Persian).
Zappalà, Salvatore. Human Rights in International Criminal Proceedings. Oxford: Oxford University Press, 2003. (In English).
Zarini, Hossein, and Hossein Hezhbrian. Contemporary History of Iran’s Judicial System and Its Developments, Vol. 1. Tehran: Official Gazette Publications, 2009. (in Persian).