رویکرد نظام های دادرسی کیفری ایران،فرانسه و امریکا به اصل ترافعی در مرحله تحت نظر

Abstract
The Contradiction Principle is one of the strategic principles stipulated in the introductory article of the French Code of Criminal Procedure and U.S. Judicial Procedure but not specified in the Iranian Code of Criminal Procedure, though implied from Article 6 of the said code of procedure. According to this principle, all the evidence and results of the investigations must be communicated to and freely discussed with the accused in the criminal proceedings. At the police custody stage, suspects are more likely to be deprived of their rights and freedoms due to police intervention. The institutionalization of this stage in the Iranian, French, and U.S. legal systems, the manifestations of the Contradiction Principle, including the defendant's right for awareness of accusation and defense rights, the right to have a translator, the right to silence, the right to counsel, the right to health and the right to be heard  have been considered and examined from the perspective of both Roman-Germanic and Common Law systems. There are important ambiguities and challenges for the fulfillment of the Contradiction Principle in the Iranian criminal proceeding system, which can be resolved through the use of the experiences of French and American legal systems. Although the amendments of the 1392 law led to a move towards the relative observance of the Contradiction Principle and the acceptance of its manifestations, the Iranian criminal proceeding system is still distant from the more favorable in this regard.

Introduction

The Code of Criminal Procedure has established strategic principles that guarantee justice. Further, concerning the natural value of these principles, the legislator is prohibited from ratifying rules contradicting these principles. One of the principles of Criminal Procedure that is crucially important in ensuring justice and warranting equality of the parties is the contradiction principle. This principle was enshrined in Articles 5 and 6 the Code of criminal Procedure.
The discovery of a crime and the custody by judicial surveillance are crucial steps in the criminal process. Under surveillance is an important stage since the suspect who is under the protection of the principle of acquittal and placed in police custody contrary to the principle of freedom, is subject to infringement of their legal rights and violation of the strategic principles of the Code of Criminal Procedure, particularly the contradiction principle.
An investigation into the Iranian Criminal Procedure, which is influenced by the mixed procedure system and possesses the characteristics of an inquisitorial system during the preliminary research phase, suggests gradual legislative developments toward the adversarial system and the transformation of the preliminary research phase into contradiction priciple. The criminal procedures of France and the United States can serve as appropriate examples for comparison.
 

Methodology

This research is a descriptive-analytical study. As a non-experimental study, it builds on reasoning and analyzing the rules and judicial proceedings in the criminal procedure system of the countries under study.
 

Results and Discussion

The contradiction principle is one of the crucial components of a fair trial. The contradiction principle is authorization granted to the parties to inform all documents and reasons for the lawsuit that might affect the final decision of the judicial authority and enable them to challenge them freely. The French Code of Criminal Procedure recognizes the contradiction principle in Preliminary Article. The United States criminal procedure has emphasized the practice of contradiction principle and identified the manifestations of this principle in the proceedings of the criminal procedures.
Custody is a stage in which the police detain the suspect. It is an authorization granted to the officers to keep a suspect in police custody for a specific period under special conditions. In France, custody is accepted under special conditions. The term custody is not used in the United States; rather, it is referred to as police arrest. In case a police officer has justifiable reasons to arrest a suspect, they can act without a judicial warrant.
In order to observe the rights of the suspect in the custody stage, the contradiction principle proposes instances such as the right to be informed of the subject of the charges and the right to defend, the right to have a translator, the right to attorney counsel, the right to silence, and the right to be heard by the judicial authority.
The suspect’s right to be informed comprises two parts: to be informed of the rights to defend and to be informed of the subject and evidence related to the charges. The officers shall inform the suspects of their rights to defend. In addition, they shall inform the suspect of the subject and evidence concerning the charges in a written notice. In French Law, the right to be informed comprises the nature of the crime, location, length of custody, and possible extensions, which are not subject to any exception. In the United States, when an suspect is arrested, the police should read the Miranda Rights to the suspect.
The right to counsel of an attorney is more crucial in the custody than in any other stage. The presence of an attorney can provide the minimum guarantee to practice the adversarial principle since the other party is the prosecutor enjoying every facility. The active role of the attorney and the necessity of having access to the lawsuit should be guaranteed.
One of the manifestations of the contradiction principle is the suspect’s right to silence regarding the questions asked by the officers. In case of assuming that the suspect is not guilty, they shall not be required to provide any reasons to prove it. It is the individual claiming that a crime has been committed that should prove their claims via legal methods, and the suspect can have the right to silence.
 

Conclusion
The custody in Iran and France, or arrest in United States, is crucially important as one of the significant stages of the criminal procedure. Establishing supervisory institutions and transparent rules hinder the violation of the rights of the suspects at this stage. In France that differentiates the custody stage regarding the length, conditions, and effects on ordinary and violent and security crimes and terrorism has more desirable conditions. In addition, having predicted a differential criminal procedure, it has suggested various regulations. On account of the lack of a differentiated criminal procedure during the custody, it is necessary to make some modifications to Iranian law.
Given the Miranda warnings, it appears that the right to be informed of the subject of the charges and the right to defend as the introduction of the contradiction principle is more adequately recognized in the United States. The influence of the provisions of the European Convention on Human Rights enables the legal system of France to practice the contradiction principle.
The right to counsel of an attorney in custody is recognized in the criminal procedure system of Iran, France, and the United States. With regard to the deferential approach, in France, the meeting with an attorney can be delayed in cases of violent and security crimes and terrorism. In Iranian law, the restriction without reasoning of Note Article 48 affects the right to choose an attorney and violates the contradiction principle.
The right to silence in custody has not been predicted in Iranian law explicitly and can be extended to this stage by virtue of Article 61 of the Code of Criminal Procedure. The law is silent regarding the necessity of informing the right to silence. In light of the strategic principles and Article 6 of the Law, it may be deemed necessary to inform this right. The right to silence and the necessity of informing the suspect of this right by the police in custody is guaranteed emphatically in France and the United States.

 
5.Selection of References
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