World appl. programming, Vol(4), No (10), October, 2014. pp.

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World Applied Programming

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The Position of the Defendant's Right to Freedom and Awareness in the

Transnational Documents
Zeinab Shiri Choghasabzi*
Student of Department of Penal and Criminology, College of Law, East Azarbaijan Science and Research Branch, Islamic Azad University, Tabriz, Iran.

Abdolkarim Shaheidar
Faculty member, Department of Law, Payame-Noor University, Tehran, Iran.

Rahim Vakilzadeh
Faculty member, Department of Law, Islamic Azad University, Tabriz, Iran.
*Corresponding author: Zeinab.shiri75@yahoo.com

Keywords

Abstract

Freedom
Transnational Documents
Right
Crime

Research on the crime discovery is not instant phenomenon, it`s a time consuming process that its duration
depends on several factors. During this period, individuals suspected of crimes should be protected from any
harm to the rights and freedoms of them and any unfair behavior particularly during interrogation; Among
the most important of these rights, are the right to freedom and the defendant`s awareness that are
complementary. In this study that the descriptive - analytic study was done, we are seeking to identify the
place of rights mentioned in international documents that reflects the international standards.

1. Introduction
The first step in the internationalization of human rights was the drafting of the universal declaration of human rights in 1948. The declaration
doesnt talk about the accused, but some of its provisions are mostly related to the rights of the persons criminal investigation. Although these
regulations are brief and general, they are the cornerstone for the formation of more detailed norms in the form of the next legally binding
documents. The covenant on urban and political rights also contains several rules on the protection of freedom and peoples rights that the
guarantees contained in this document can be considered in two categories: one is the general guarantees that necessarily doesnt have the view
of criminal proceedings, and the other one is the provisions that have more specific rights and are exactly in relation to criminal investigations.
Similar to these rules also can be seen in regional human rights documents. Also article 55 of the Rome statue speaks about the rights that are in
the phase of research; it should be supported properly[6].
These rights are granted to the initial phase-the phase that there is no evidence for conviction of criminal responsibility for the case of the studyand in the subsequent phase-the phase that reasons for the belief that the case of the study has committed a crime and subjected to interrogation,
are available. For the defendant, the right of liberty and the right of the awareness of the issue specially in the phase of pre-trial is the most
important part and in other words it is the basis of other rights; so we will examine the defendants right for liberty and awareness with regard to
international documents.

2. Research Methodology
In this study that has been done by cross- sectional method we will speak about some of rights related to defendant by using the international
documents and discuss and analyze these rights.

3. Freedom Right
It has been predicted the rights to liberty and security that are fundamental rights of all people are the base for most ensures that are for the
preliminary phase of criminal process in many of the international documents on human rights. The need for presumption of innocence that is
the core of the criminal law, overseas the preservation of individual liberty until guilt is proven. so in continue we discuss about the types of
freedom in this stage:
3. 1 Immunity from arbitrary arrest
Protection against unlawful or arbitrary detention is the main outcome of freedom[8]. The subject freedom of the defendant, is more important
than normal situation, because it goes without saying that during the criminals investigation[4], in a situation that a person is spending in
custody or detention, his right is at risk when he has not been freed in time [9] and keeping the defendant in custody makes him more vulnerable.
Thats why Article 9, paragraph 3 of the convention expressly states that defendants waiting for trial should be in custody, this is what the
general rule shouldnt be.
But on the other hand temporary detention and deprivation of liberty of the person especially in research phase and to prevent the person to
destroy the evidence of the crime can be very important and necessary. So arrangement to arrest for primarily investigation is one of the most
important arrangement supplies that may be issued by a judicial authority [2].
Therefore, according to international standards arrest and detention shouldnt be done arbitrarily, it should have evidence in accordance with due
process of law, and according to Article 9, paragraph 1 of the convention, the person is deprived of the freedom only when its complied with the
formalities of legal proceedings[3].

Zeinab Shiri Choghasabzi *, Abdolkarim Shaheidar, Rahim Vakilzadeh

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World Applied Programming Vol(4), No (10), October, 2014.

3.2 freedom until trial

According to right of liberty, the defendant shouldnt be held in custody before trial. However, international standards recognize some conditions
that can make exceptions for freedom of the person. It appears these conditions are for avoiding the defendant from escaping and witnesses or
the possibility of serious and imminent danger for others and also the possibility may not be less for using other restrictive strategies. As the
principles of Article 39 provides: The defendant shouldnt be held in custody until trial, unless under specific conditions that law has predicted
and that itself is because of judicial decision and this authority should verify the necessity of detention.
Also in the statute of the international criminal court in row d of paragraph 1 of Article 55, saying individual rights during research and it
protects them against arbitrary arrest and detention, in result legal arrest or detention is possible. Also it has been mentioned in the same context
the possibility to take freedom from people according to evidence and adoption to the ordinance in the constitution that says two major criteria
for the legality of arrest: 1- existing of reasonable evidence indicating the offenses committed by the person arrested, 2- If his arrest for the
following purposes should be considered:
1-Making sure of his presence at trial
2-Being sure that the person wont compromise or interfere with disrupt the trial of the court
3- Preventing further crimes or a crime related to the same conditions and under the jurisdiction of the court[4].
But the point that is should be considered is the enumerated reasons in the regulations of the international criminal court for arrest and detention
must be capable and the generalization from interpretation should not been allowed. However, there are some ambiguities in provisions about
freedom and the possibility of arrest that scruples the protection of the rights of individuals. Even the Rome statute, despite offering an advanced
model of the protection of individual rights, doesnt give enough support for the right of liberty and freedom and doesnt specify the exact
conditions of temporary detention.

4. Right of awareness
One of the requirements for ensuring the rights of the defendant, in other words the initial step in legal disclaimer of defendants freedom, is his
awareness about the charges against him.
4. 1 Right to know the reasons for the arrest and charges
One of the necessary arrangements to ensure to respect the legal standards in arrest and detention of a person is his awareness of the reasons for
his arrest or detention. In other words the right to know the reasons for his arrest, is one of the recognized rights and complementary for
freedom[3]. As stated in paragraph2 of Article 9 of the covenant Any person who is arrested, must be informed immediately about the reasons
of his arrest and the charges against him.
Two major purposes of the importance of the awareness of the defendant, is to inform the defendant of the criminal charges[8]. First the
defendant must be given an opportunity to raise concerns about the legality of his detention, and second, it provides the opportunity for the
defendant to defense. So the information given to him should be full, detailed, and accurate and have actual and legal basis of his detention.
Therefore, this right is in the most important global and regional international documents on human rights like: paragraph 2 of Article 9 of the
international covenant on urban and political, Paragraph 2 of Article 5 of the European Convention on Human Rights, Article 7 paragraph 4 of
the American Convention, row "b" of Article 2 of the African Commission. All of these documents agree that anyone who is arrested should
know about the reasons of his detention and the charges against him. However, they have two types of interpretation about the time of the
awareness of the defendant: in European convention and the American convention the word urgent is used, while in the covenant on urban and
political rights the term arrest time is applied.
It may take time to complete the researches and the charge may be detailed in criminal process, so the person arrested has the right to know
about the charges he is going to face, although it is not necessarily at the time of arrest. So it can be said that what is necessary to inform the
defendant about, is the reasons for his arrest, even if providing the detailed information about his charge or charges at this time, is not possible, it
must be notified to the person immediately after obtaining it.
It hasnt been mentioned about the rights to know the reasons for the arrest and Preliminary Detention in the provisions of the statute of the
international criminal court, and this hasnt been mentioned clearly in any of the articles, but it can be said with regard to Article 58 in the statute
about the conditions of the arrests arrangement and how to implement it and the necessity of referring to the offenses for which arrest was
issued and the general expression of the events and elements that form the crime, all talk about the possibility of arguing for the right of knowing
the reasons of arrest[5].
However the court rule procedure and evidence of proof would prevent us from such arguments, Because 117 rule clearly speaks about the
defendant's right to receive a copy of the arrest which is issued by the Preliminary Branch
Thus, rules of procedure of the Court in this context are consistent with the statutes, have not added anything but have removed the veil from
provisions of the Statutes. On the other hand, Basically, the right person on the compensation due to an illegal arrest which is in the text of the
statute, Clearly requires right to object to the legality of his arrest and detention and it goes without saying , this in turn stops the awareness of
the reasons.
In other words, the right to know the reasons and allegations are essential for the objection right to the legality of the arrest and detention, and
predicting the right of compensation for illegal arrest or detention means accepting the accessories of it which is the right to know and awareness
and also right to objection[4].
arraignment to the language understandable for the defendant
Lawyers have defined a definition for arraignment which the defendants awareness was their point of notice. In one definition it could be said:
Arraignment is the official announcement of act or acts to the defendant from the investigating judge to a language which is understandable
according to the specific situation of each defendant[1]. So it can be claimed that it is possible to arraignment when the language is understood
by the defendant.
So the first part of paragraph 3 of Article 14 of the ICCPR (urban & political rights) states: Anyone who is under arrest or suspect has the right
to know the details of charges according to his own language in the shortest possible time
The logic of this matter comes to help the 6th part of paragraph 3 article 14 of The ICCPR (urban & political rights) and 5th part of paragraph 3
article 6 of European convention for the right to use a translator for free, Requires that the documents which are prepared to a language unknown
by the defendant, be translated for him by the court. Although it can be said that right only applies to the documents in defense of the defendant
and he cannot request to translate all documents[7].
The Statute of the International Criminal Court in the row c " of paragraph 1 of Article 55 clearly expresses this right. It says if the language in
the interrogation process is not the language which the defendant speaks, he has right to have a good translator or fair translation. Accordingly it
seems that the meaning of the language which he speaks is not necessarily his mother tongue and native language. However, the expression of

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The Position of the Defendant`s Right to Freedom and Awareness in the Transnational Documents
World Applied Programming Vol(4), No (10), October, 2014.

the statute in this area is not very accurate and in the future it will be different interpretations from different judges. The same expression is
repeated in row f paragraph 1 of article 67 of the statute about the defendant in court. This repetition can contain a positive thing which allows
Judges to discuss ways to choose in terms of the best interests of justice and provide the rights of individuals. Hence the necessity of this right is
accepted in the new International Criminal Courts.

5. Conclusion
The first action against the freedom of individuals, is addressing the word "accused" to a person who is respectable which is the beginning of the
attach of a range of various anti-social topics in the environment. The thing which adds to the importance of this matter is the difficulty of
clearing innocent hands from accusations and restoring the confidence of cautious and skeptical society.
In criminal justice the only way to ensure a fair and correct outcome is following the rules of procedure. So it should be clarified that what
actions would help guarantee the rights and freedoms of the defendant during the hearing process. On the other hand the basic objective of
providing a fair trial is supporting individuals against arbitrary deprivation of their basic rights, including the right to freedom and awareness of
the charges against him. Hence, such guarantees should be put to the test with human rights standards, because human rights is not only the main
criterion of trials evaluation but it finds its creation in fair trial
As reviewed, the most important international documents on human rights contain such standards and guarantees which makes governments to
devise and commit to its implementation at national jurisdictional systems So the differences in Judiciary and legal systems did not prevent the
public acceptance of relatively large and growing rules and law in this area, perhaps the adaptation rate of domestic laws with international
standards is a symbol of government`s respect for rights and freedoms of society members that this matter itself is considered a privilege for
government in the international community.

References
[1] Ardebili, M. 2006, arraignment or the notice of the issue and the reasons for the accusation, the Journal of Legal Studies.
[2] Ashoori, M. 2004, the concepts of justice and fairness from the perspective of the European Convention of Human Rights, Institute of Criminal Science and
Criminology.
[3] Ashrafi, T. F. 2007, Fair hearing, Tehran: Mizan Publication, First Edition.
[4] Fazaeli, M. 1998, Fair hearing, Tehran: Shahr danesh Publication, First Edition.
[5] Grote, R., 1998, Protection of Individuals in the Pre 40Trial Procedure, in David Weissbrodt & Rudiger Wolfrum Right to a Fair Trial, Springer.
[6] Hall, C. K., 1998, the first Proposal for a Permanat ICC, International Review, Red-Cross.
[7] Omidi, J. 2000, Rights of the accused in the court, relying on regional and international documents relating to human rights, the journal of the Bar Association.
[8] Sharifi, M. 2007 defendants' rights in international documents, the Journal of the Bar Association.
[9] Zappala, S., 2003, Human Rights in International Criminal Procedure, Oxford