A Comparative Study of the Right to Silence of the Accused in Islamic Jurisprudence, Iranian Law, and International Instruments

Abstract

The observance of a fair trial in criminal proceedings is today regarded as one of the fundamental and indispensable principles, without which achieving the ultimate objective of the judiciary—namely justice and equality—would be impossible. Fair trial has been emphasized in all international human rights instruments and treaties, and principles such as the presumption of innocence, the publicity of proceedings, the independence and impartiality of the judiciary, and the equality of arms are considered among its most essential criteria (see, e.g., International Covenant on Civil and Political Rights, 1966, art. 14). In the legal system of Iran, by accepting the foundations of Islamic jurisprudence and adhering to international human rights instruments, many of the principles of fair trial have been incorporated into legislation; however, in certain respects, notable shortcomings still remain. With the occurrence of a crime, judicial and law enforcement authorities mobilize their capacities to combat criminal conduct. The prosecutor’s office and the public prosecutor, as the primary judicial institutions, are responsible not only for maintaining social order and security but also for safeguarding the rights of the accused throughout all stages of the criminal process and for collecting evidence in support of the accused’s innocence. Consequently, a fair trial simultaneously requires a careful balance between combating crime and protecting the rights of the accused, so that the truth may be properly discovered and justice fully realized.