Comparative Law Review

Comparative Law Review

Comparative Study of the Concept and Necessities of Public Criminal Trial in the Iranian Law and International Standards

Document Type : Research Paper

Authors
Ali Hajipour Kondroud 1
Seyed Mohammad Hashemi 2
Asadollah Yavari 3
1 Ph.D. Student of Public law, Department of Public & International Law, College of Law and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran
2 Full Professor, Department of Public & International Law, College of Law and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran
3 Assistant Professor, College of Law, Shahid Beheshti University, Tehran, Iran
10.22059/jcl.2017.234812.633501
Abstract
The rule of public trial is one of the main manifestations and indexes of fair trial, and is  considered as one of the most important enforcements of the rule of fair trial. The rule of public trial has a combined and referable- to- various -elements concept and each of the conceptual elements has its own necessities. Hence, with lack of every conceptual element and its necessities, public hearing will not refer to the concept. So, in this article after explaining conceptual elements and the necessities of the public criminal trial rule under the shadow of international criteria, Iranian Law position is studied in this relation and it is concluded that in spite of investigation of conceptual elements and some of the necessities of public trial rule in Iranian Law, ignoring other important necessities of the rule such as public inaccessibility of documents and deeds of the cases, difficulty in accessibility to the courts’ votes and also legal restrictions in the field of releasing proceedings and some other practical limitations, have confronted desired achievement of public trial with serious challenges in the Iranian legal system. In addition, to completing the text, the exceptions and limitations governing this principle are also discussed in this paper.
Keywords
Criminal Procedure
public trial
conceptual elements
international criteria
Iranian Law
Subjects
  1. Alam, M. (2005), Standard Justice in International Documents, First Edition, Tehran, Mizan Publications. (in Persian)
  2. Alemanno, Alberto and Stefan, oana, (2014) , openness at the court of Justice of the European Union: Toppling a Taboo, Forth coming in 51 common Market Law Review Issue 1, pp. 97-139.
  3. Ansari, B. (2011), Comparative Study of Media Access to Hearings and Judicial Information, Quarterly Journal of Law, Thirteenth year, No. 35, pp. 269-308. (in Persian)
  4. ---------- (2014), Media Rights, Third Edition, Tehran, Samt Publications. (in Persian)
  5. Bosland, Jason and Gill, Jonathan, (2014), The principle of open Justice and the judicial duty to give public resons, Melbourne University law Rewiew, vol 38:482, pp 471-495.
  6. Conley, Amanda and Datta, Anupam and Nissenbaum, Helen and Sharma, Divya, (2012), sustaining privacy and open Justice in the transition to online cort records: A Multidiseiplinary inquir, Maryland Law Review, vol 71:772, pp 772-847.
  7. European Court of Human Rights, (2014), Guide on Article 6, Right to a fair trial (Criminal limb), available at, www.echr.coe.int.
  8. European court of human rights, (2014), Guide on Article 6, Right to a fair trial (criminal limb), available at: www.echr.coe.int.
  9. Galegi, M. R. (1406), Islamic jurisprudence Ali ibn Abi Talib, Beirut, Dar al-Ma'rafa. (in Persian)
  10. Ghorbani, A. (2011), Fair trial in the European Court of Human Rights, First edition, Qom, Hogooge Emrooz Publications. (in Persian)
  11. Grozev, Yonko and others, (2009), Right to a Fair Trial under the European Convention on Human Rights (Article 6), Interights Manual For lawyers, Pruduced with the generous support of the open society institute.
  12. Hadavand, M. and Aghaei Touq, M. (2010), Special Administrative Courts in the Light of Principles and Courts of Fairness (Iranian Law and Comparative Study), First Edition, Tehran, Khorsandi Publications. (in Persian)
  13. Hormozi, Khairullah (2004), Justifying Civil Cases and Safeguarding Their Failure, Journal of Law and Policy Research, No. 11, pp. 27-54. (in Persian)
  14. International commission of Jurists, (2009), Trial observation Manual for criminal proceedings, practitioners Guide no.5, Geneva, Switzerland.
  15. Kashani, S. M. (2004), International Standards of Justice, First Edition, Tehran, Mizan Publications. (in Persian)
  16. Khaleghi, A. (2004), Openness of proceedings in the light of international documents and domestic law, Journal of Legal Research, Third Year, No. 5, pp 29-49. (in Persian)
  17. Lawsom, Edward, (2005), Encyclopedia of Human Rights, second Edition, United States of America: Taylor and Francis publish.
  18. Mahoney, Paul, (2004), Righ to a fair trial in criminal matters under Article 6 E.C.H.R, judicial Studies Institute Journal, vol 4:2, pp 107-129.
  19. Mclachlin, Beverley, (2014), openness and the Rule of Law, Remark at the Annual International Rule of Law Lecture, London, United Kingdem.
  20. Mole, Nuala and Harby, Catharing, (2006), The right to a fair trial, A guide to the implementation of the European convention on human rights, human rights hand books, no.3. Belgium.
  21. Moradi Hassan Abad, Mohsen (2014), Television Coverage Process in Criminal Courts, Law Journal of Justice, seventy-eighth edition, No. 87, pp. 145-163. (in Persian)
  22. Mulch Nickel, M. (2005), The Victims Are Exposed to Judgment; Is The Principle of Public Justice Serving The Victims? In: Crime, Victims and Justice; Articles on Principles and Procedures; Translation by Amir Samavati Pirouz; First Printing, Tehran, Khalilian Publications. (in Persian)
  23. Musavi Bojnourdi, S. S. and Rouhani, S. (2012), Indicators of Judicial Justice from the Viewpoint of Amir Al-Momenin Ali (as) with an Approach to Imam Khomeini's (Saman) Opinions, Matin Research Journal, Fourteenth, No. 54, p. 17-39. (in Persian)
  24. Naji Zavareh, M. (2015), Familiarity with the Criminal Procedure, Volume II, First Edition, Tehran, Shahre Danesh Publications. (in Persian)
  25. Navratil, Szonja, (2009), publicity in the Adminstration of justice and the Disclosurs of court Decisions, EOTVOS KAROLY institute.
  26. Nikouei, Somayeh (2006), The Public Criminal Investigation Requirements in the Light of Fair Justice, Journal of Legal Justice, seventy years, No. 56 & 57, pp. 219-240. (in Persian)
  27. OSCE office for Democratic Institutions and Human Rights (ODIHR), (2012), Legal Digest of Inter national Fair Trial Right printed in Poland by Agencj a KARO.
  28. Qari Seyyed Fatemi, S.M (2014), Human Rights in the Contemporary World, An Analysis of Rights and Freedoms, Volume II, Third Edition, Tehran, Shahre Danesh Publications. (in Persian)
  29. Razavi Fard, B. and Ghorbanzadeh, H. (2016), The right to open trial as one of the defended rights in the proceedings of the International Criminal Tribunals, Journal of Comparative Law Studies, Volume 7, Issue 1, pp. 163. (in Persian)
  30. Rodrick, Sharon, (2007), open Justice and Suppessing evidence of police methods: The positions in Canada and Australia, Melbourne University Law Review, vol 31. pp 171-200.
  31. Saber, M. (2015), International Criminal Procedure Code, Second Edition, Tehran, Dadgostar Publications. (in Persian)
  32. Saferling, Christoph .J. M (2001), Towards an international criminal procedur, First published, oxford university press, New York.
  33. Stepniak, Daniel, (2014), The Theraepuetic value of open Justice, Law school, The University of western Australia.
  34. Symonides, Janusz, (2000), Human Rights: concept and standards, UNESCO  Publishing.
  35. Tomlinson, Hugh, (2012), Towards Legal Trancparency, Justice wide open center for Law, Justice and Journalism )CLJJ( ,  city university: London.
  36. United Nations Office on Drugs and Crime (UNODC) (2014), Reference Guide for Health Promotion and Judicial Capacity, Translator: Hassan Vakilian, First Edition, Tehran, Publishing Center for Press and Publications of the Judiciary. (in Persian)
  37. Vitkauskas, Dovydas and Dikov, Grigoriy, (2012), protecting the right to a fair trial under the European Convntion on Human Rights, Council of Europe, human rights hand books.
  38. Vizheh, M. R. and Taheri, A. S. (2011), An Analysis of the Law of  Publishing and Free Access to Information in the Light of the General Principles Governing Access to Information, Quarterly Journal of Law, Thirteenth, No. 35, pp. 237-268. (in Persian)
  39. White, Robin C.A, (1999), The English Legal system in Action, Third edition, oxford university press: New York.
  40. Yavari, Assadullah (2004), The right to fair trial and the new procedure, Journal of Constitutional Law, Second Year, No. 2, pp. 253-292.
  41. Zeraat, A. (1998), Political Crime, First Printing, Tehran, Gognoos Publications. (in Persian)
  42. Zeraat, A. and Ahmadi, A. (2007), The Basics and Effects of the Principle of Personality of the Criminal Procedure Process, Journal of Criminal Law, Vol. 5, No. 2, pp. 111-137. (in Persian)

 

Cases

  1. Case of  Komanicky v Slovenia, Application no. 32106/96 2002, June 4, 2002.
  2. Case of Dory v. Sweden, Application no. 28394/95, November 12, 2002, para37.
  3. Case of Goc V. Turkey, Application no. 36590/97. July 11, 2002, Para 12.
  4. Case of Pretto and Others v Italy, Application no. 7984/77, December 8, 1983, para 8.
  5. Case of Riepan v. Austria, Application no. 35115/97, November14, 2000, Para 29.
  6. Case of Salamonsson v.Sweden, Application no. 38978/97, November 12, 2002, para36.
  7. Case of Steel and Morris v. the United Kingdom, Application no. 68416/01, February15,   2005, para 59.
  8. Case of Tierce and Others v. San Marino, Applications nos 24954/94, 24971/94 and24972/94- July 25, 2000, Para 93.
  9. Human Rights Committee, Communication no. 848 / 1999, Para.7.3.
  10. Humman Rights Committee General Comment 32. CCPR/C/GC/32, 23 August 2007.
Comparative Law Review
Volume 9, Issue 1
Spring & Summer
April 2018
Pages 87-119